R v Douglass - [2006] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 235 of 2004

THE QUEEN
	v.
TERRENCE MAIN DOUGLASS

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JUDGES:	CALLAWAY, EAMES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 February 2006
DATE OF JUDGMENT:	2 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 37

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Criminal law – Application to withdraw plea of guilty to murder – Application refused by trial judge – No suggested error of principle – Whether exercise of discretion to permit withdrawal of plea miscarried.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr G.J.C. Silbert	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr R.I. Gipp	Kelly & Chapman

CALLAWAY, J.A.:

I agree with Ashley, J.A.

EAMES, J.A.:

For the reasons given by Ashley, J.A., I agree that this application should be refused.

ASHLEY, J.A.:

Statement of the case

Before the court is an application by Terrence Douglass for leave to appeal against conviction. The sole ground of the application is that the learned trial judge erred in refusing an application by Douglass to withdraw his plea of guilty to the crime of murder.

The chronology, shortly stated, was as follows. The applicant was arraigned before a jury on 18 November 2003. He pleaded not guilty. The following day, in the absence of the jury, he was re-arraigned and pleaded guilty. Then the jury was brought in and he repeated his plea of guilty. The jury was directed to bring in a guilty verdict, and it did so. Then a sentencing hearing began. That hearing resumed on 15 December 2003. It remained incomplete. On 15 March 2004, the matter was called on again. The judge was told that the applicant wished to change his plea to not guilty. New counsel was instructed. The application was made on 21 and 23 April. The applicant gave evidence in support of the application. The Crown called a number of witnesses in opposition. Documents were tendered. I will refer to some of the evidence, oral and documentary, hereafter. On 30 April the learned judge refused the application, saying that he would publish reasons later. He did so on 9 September 2004[1]. On that day, the plea having earlier concluded, his Honour also sentenced the applicant[2] to be imprisoned for 20 years with a non-parole period of 15 years.
[1]See (2004) 146 A.Crim.R. 575.
[2]See [2004] VSC 372.

No question of principle arises upon the present application. I should enlarge upon that observation. First, there was debate before the learned judge whether he had power to grant leave to withdraw a plea of guilty after that plea had resulted in a jury verdict. There was also debate whether the learned judge was able to entertain an application after a conviction. In carefully considered reasons,[3] his Honour decided that he did have power to consider and decide the application. The correctness of his Honour’s conclusions was not put in issue on this application.
[3]146 A.Crim.R. at [9]–[27].

Second, his Honour described…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Douglass

Details

AGLC: R v Douglass [2006] VSCA 37
Case: [2006] VSCA 37
Decision Date: 2 March 2006

CaseChat Overview and Summary

In the recent case of R v Douglass, the respondent sought to withdraw his guilty plea to a charge of murder. The case was heard by the court of appeal in Australia. The primary issue before the court was whether the trial judge's refusal to allow the respondent to withdraw his plea constituted a misapplication of the court's discretion under relevant legislation. The case raises important considerations about the circumstances in which a defendant may be permitted to change a plea of guilty.

The court examined the respondent's application to withdraw his plea, which was made after the trial had commenced but before any evidence was given. The respondent argued that he had not been properly advised about the implications of his plea and that he wished to plead not guilty. The court of appeal considered the relevant statutory provisions and case law concerning the withdrawal of guilty pleas. It was necessary to determine whether the trial judge had exercised his discretion in accordance with the applicable legal principles. The court also considered whether the respondent had demonstrated any grounds for relief that would justify altering the outcome of the trial.

The court of appeal found that the trial judge had not erred in his exercise of discretion. It held that there was no suggestion of any error of principle in the trial judge's decision. The court noted that the respondent had not provided any new evidence or arguments that would warrant a change in the plea. The court concluded that the trial judge had appropriately exercised his discretion in accordance with the applicable legal principles, and there was no misapplication of the law. The appeal was therefore dismissed.

The court did not make any further orders beyond dismissing the appeal. The decision confirms the importance of careful consideration and proper advice when a defendant enters a plea of guilty, and the limited circumstances in which a plea may be withdrawn.

Orders