R v Douglass - [2004] VSC 376

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1431 of 2003

THE QUEEN

TERRENCE MAIN DOUGLASS

---

JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 AND 23 APRIL 2004
DATE OF RULING:	30 APRIL 2004
CASE MAY BE CITED AS:	R v DOUGLASS
MEDIUM NEUTRAL CITATION:	[2004] VSC 376

---

Ruling – Guilty plea before jury – Verdict pronounced by jury – Plea in mitigation part heard – Application to withdraw guilty plea – Jury verdict no impediment to application which may be made at any time before sentence – Burden of persuasion on applicant – Analysis of factual circumstances – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Kay Robertson, Solicitor for Public Prosecutions
For the Accused	Mr R. Gipp	Victoria Legal Aid

HIS HONOUR:

On 20 April 2004 I refused an application by Terrence Douglass (the applicant) to withdraw a plea of guilty to murder. At that time I indicated I would give reasons for my decision at the time of passing sentence. These are those reasons.

On 18 November 2003, the applicant pleaded not guilty before a jury to one count of murder. On the morning of 19 November the request was made through his counsel, Mr Sean Grant, that the applicant should be rearraigned. On rearraignment the applicant changed his plea to one of guilty. Being in the charge of the jury it was necessary that he repeat his guilty plea before them. Thereafter the jury were directed to bring in a guilty verdict and did so.

The jury verdict of guilty was endorsed on the presentment by my Associate. A plea was commenced forthwith by counsel who tendered a neuropsychological assessment and a report of the visual condition of the applicant. The circumstances surrounding the applicant's guilty plea were outlined and the consequent sentencing benefits that should accrue to the applicant were emphasised.

The further plea hearing was then adjourned to 15 December in order that psychological and psychiatric reports could be obtained. On that date the applicant, through his counsel, formally admitted 26 prior convictions for dishonesty between May 1997 and May 1998. These included theft, obtaining property by deception, false pretences, forging and uttering, and using a false document to prejudice others. A number of these offences had attracted gaol sentences.

In the meantime, on 3 and 5 December, the applicant had been seen by a clinical psychologist, Mr Bernard Healey. On 15 December, Mr Healey's report was tendered as were other medical reports and a letter from the Australian Army with which the applicant had served in both part and full time capacities between 1966 and 1970.

The plea proceeded with Mr Grant outlining the applicant's personal history and physical disabilities.

The Crown indicated that it wished to take issue with a number of matters involving physical disabilities raised on behalf of the applicant, and foreshadowed calling a Dr Glen Howlett, a forensic medical officer attached to the Victorian Institute…

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 [2004] VSC 376
Case: [2004] VSC 376
Decision Date: 30 April 2004

CaseChat Overview and Summary

The case of R v Douglass was heard in a court where the defendant, Douglass, was charged with a criminal offence. Douglass entered a guilty plea before a jury was empanelled. The jury proceeded to hear the case and deliver a verdict, but before the sentencing could be determined, Douglass sought to withdraw his guilty plea. The court was required to consider whether the defendant could withdraw his plea despite the jury having already delivered a verdict.

The court had to determine if a guilty plea could be withdrawn after a jury had returned a verdict, and if so, under what circumstances such a withdrawal could be permitted. The court also needed to establish the burden of persuasion on Douglass to successfully withdraw his plea. The analysis involved assessing the factual circumstances and the legal principles relevant to the withdrawal of a guilty plea in light of the jury's verdict.

The court held that a guilty plea could be withdrawn at any time before sentence, even if a jury verdict had been returned. The court emphasised that the withdrawal of a guilty plea was not precluded by the jury's verdict, and the applicant bears the burden of persuasion to demonstrate grounds for withdrawal. Upon reviewing Douglass's application and the circumstances, the court found that Douglass had not provided sufficient grounds to justify the withdrawal of his plea. Consequently, the application was refused.

The court's final orders were to dismiss Douglass's application to withdraw his guilty plea and proceed with the sentencing based on the plea. The jury's verdict remained intact, and Douglass's plea was upheld for sentencing purposes.

Orders