R v Gomez

Case [2007] ACTCA 21


THE QUEEN v FRANCISCO JAVIER GOMEZ
[2007] ACTCA 21 (21 SEPTEMBER 2007)

APPEAL – appeal from a grant allowing the withdrawal of guilty plea – underlying circumstances surrounding the plea – the integrity of the plea – experienced counsel and experienced criminal litigant – would a miscarriage of justice result – ample time given to consider the entry of guilt plea – no reasonable arguable version of facts that might justify acquittal.
DRUGS – criminally punishable conduct – trafficable quantity – motivation for possession.

Drugs of Dependence Act 1989 (ACT), s 3
Drugs of Dependence Regulation 2005 (ACT), reg 5
Criminal Code Regulation 2005, Sch 1 Pt 1.2

R v Pugh (2005) 158 A Crim R 302
Meissner v The Queen (1995) 184 CLR 132
Marchando (2000) 110 A Crim R 337
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 35-2006
No. SCC 12 of 2005

Judges:        Gray, Madgwick and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date:           21 September 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 35-2006
  )          No. SCC 12 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:FRANCISCO JAVIER GOMEZ

Respondent

ORDER

Judges:  Gray, Madgwick and Cowdroy JJ
Date:  21 September 2007
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be upheld.

  1. The order granting leave to withdraw the plea of guilty entered on 29 August 2005 be set aside.

  1. The case be remitted to Higgins CJ to sentence the respondent.

IN THE SUPREME COURT OF THE       )          No. ACTCA 35-2006
  )          No. SCC 12 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:FRANCISCO JAVIER GOMEZ

Respondent

Judges:  Gray, Madgwick and Cowdroy JJ
Date:  21 September 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:
Introduction

  1. This is an appeal by the Director of Public Prosecutions against a decision by Higgins CJ to allow the respondent to withdraw a plea of guilty to a charge of possessing a trafficable quantity of heroin for the purpose of supply to another person.

Circumstances of the alleged offence

  1. On 12 October 2004 police observed the respondent participate in two short meetings outside his residence.  The first was with a couple, the Bells, in a car, at about 12.15 pm.  The second was with an unidentified man.  Within minutes of the meeting with the couple in the car, police found the car in a nearby car park.  Inside it was a syringe full of heroin.  There was strong circumstantial evidence to connect the respondent with that heroin.

  1. At about 1.30 pm police executed a search warrant at the respondent’s residence.  They found water balloons, small plastic bags, scales and over $12,000…

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Details
AGLC
R v Gomez [2007] ACTCA 21
Case
[2007] ACTCA 21
Decision Date

CaseChat Overview and Summary

The appeal concerned the integrity of a guilty plea entered by the respondent, Mr Gomez, in the Supreme Court of New South Wales. The Crown appealed against an order by Higgins CJ that granted Mr Gomez leave to withdraw his plea of guilty to charges relating to the possession of a trafficable quantity of a prohibited drug. The underlying circumstances surrounding the entry of the plea and whether a miscarriage of justice would result from its acceptance were central to the dispute.

The primary legal issue before the Court of Appeal was whether Higgins CJ erred in allowing Mr Gomez to withdraw his guilty plea. This required the court to consider whether the plea was entered voluntarily and with full understanding of its consequences, particularly given that Mr Gomez was represented by experienced counsel and was an experienced criminal litigant. The court also had to assess whether there was any reasonable arguable version of the facts that might have justified an acquittal, and whether ample time had been afforded to Mr Gomez to consider his plea.

The Court of Appeal found that Mr Gomez had been given ample time to consider his plea and was represented by experienced counsel. It was also noted that there was no reasonable arguable version of the facts that might have justified an acquittal. Consequently, the court concluded that allowing the withdrawal of the guilty plea would result in a miscarriage of justice. The court therefore upheld the appeal, set aside the order granting leave to withdraw the plea, and remitted the case to Higgins CJ for sentencing.

Orders

Orders of the court

1. The appeal be upheld.

2. The order granting leave to withdraw the plea of guilty entered on 29 August 2005 be set aside.

3. The case be remitted to Higgins CJ to sentence the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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