R v. Ferrier

[2008] QCA 114

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ferrier [2008] QCA 114

PARTIES:

R
v
FERRIER, Judith Leanne
(appellant)

FILE NO/S:

CA No 75 of 2007
DC No 540 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED EX TEMPORE ON:

12 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2008

JUDGES:

Muir and Fraser JJA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Appellant’s convictions on 12 December 2002 in District Court at Southport be set aside

2.    Appellant have leave to withdraw previous pleas of guilty

3.    There be a retrial on counts of which the appellant was so convicted

4.    Court will order in terms of the draft from Counsel for the appellant that the appellant be admitted to bail on her own undertaking and attend the Supreme Court of Brisbane Registry within 14 days

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where the appellant pleaded guilty to one count of extortion, three counts of stalking and one count of possession of a category H weapon without a licence or permit – where the appellant suffering from a mental illness at the time of the commission of the offences – where the appellant argued her mental illness deprived her of the capacity to know that that the offending acts out not be done and deprived her of the capacity to plead – where a recent psychiatric report supported the appellant’s contentions – whether to allow the pleas of guilty to stand would amount to a miscarriage of justice

COUNSEL:

C L Morgan for the appellant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA:  The appellant was convicted on her own pleas of guilty on 12 December 2002 in the District Court at Southport on one count of extortion, three counts of stalking and one count of possession of a category H weapon whilst not being authorised to possess the same under a licence or permit.

She appeals against her conviction and seeks leave to appeal against sentence on grounds that at the time she pleaded guilty to the offences she was not fit to enter guilty pleas.  It is part of her grounds that at the time of commission of the offences and at the time of the guilty pleas she was suffering from a mental illness which deprived her of the capacity to know that she ought not do the acts which comprised the offences and also that she lacked the capacity to plead.

There is in evidence psychiatric reports and in particular a recently obtained report of a psychiatrist, Dr Kingswell, which bears out the grounds of appeal.  Mr Campbell who appears on behalf of the respondent properly concedes, having regard to the evidence, that to allow the pleas of guilty to stand would amount to a miscarriage of justice.  The respondent accepts that the appeal should be allowed, the conviction should be quashed and a retrial ordered.  Mr Campbell submits also that the appellant should be given leave to withdraw the pleas of guilty.

In my view that is the proper course to take.

FRASER JA:  I agree.
MACKENZIE AJA:  I agree.  The fact that the mental illness of the applicant was, in effect, diagnosed shortly after the initial sentencing is a particular factor in this case that renders it of such exceptional cogency that the course suggested by the Crown should be followed.  It is, I think, a case that depends particularly on its own facts and is not of any broader significance than that.

MUIR JA:  The orders of the Court will be as follows:  The appellant's convictions on 12 December 2002 in the District Court at Southport be set aside; the appellant have leave to withdraw previous pleas of guilty; and that there be a retrial of the counts of which the appellant was so convicted.

MS MORGAN:  Thank you, your Honours.  Your Honour, there is one further matter by leave and that is the question of the applicant's bail.  Your Honour, as a consequence of the orders that your Honour has just made a warrant for her detention could be issued.  In light of the circumstances, particularly that she has in fact served the sentence that was imposed on her in 2002, I seek an order that she be admitted to bail on her own undertaking.  I have a draft order, your Honour, however as it was not to presume the finding of this Court it hasn't been filed.  But your Honour we'd seek an order that she be released on her own undertaking and that she appear at such date to be advised by the Director of Public Prosecutions.

MUIR JA:  You have a draft to hand up?

MS MORGAN:  I do, your Honour.

MUIR JA:  Mr Campbell, what's your attitude?

MR CAMPBELL:  Your Honour, I don't oppose bail.  I have seen the draft but I note that it lists one offence of stalking.  It should be three.
MS MORGAN:  It has been amended by hand.

MUIR JA:  What registry should that be?

MS MORGAN:  Well, your Honour, your Honour would note that that has been left blank.  It would appear that the appropriate registry would be the Supreme Court registry at Brisbane unless your Honours were minded to allow the applicant to attend the registry at Southport - District Court registry at Southport.

MACKENZIE AJA:  There's no Supreme Court registry in Southport.

MS MORGAN:  No, your Honour.  It would therefore seem it would have to be the Supreme Court registry in Brisbane.

MUIR JA:  The Court then will order in the terms of the draft.

MS MORGAN:  I'm sorry, your Honour, is that that she is to attend the registry on a date to be advised or within 14 days?

MUIR JA:  I see.  Well I suppose it would be convenient if it is simply within 14 days.

MS MORGAN:  Thank you, your Honour.

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