R v Hobbins

[2005] QCA 399

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hobbins [2005] QCA 399

PARTIES:

R
v
HOBBINS, Brett Anthony
(appellant)

FILE NO/S:

CA No 212 of 2005
DC No 69 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED EX TEMPORE ON:

1 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2005

JUDGES:

Williams JA, Muir and Atkinson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES - the appellant was charged with one count of entering a dwelling with intent, one count of robbery whilst armed, one count of deprivation of personal liberty and one count of rape – at the outset of the hearing, counsel for the appellant withdrew – immediately after, the appellant was arraigned and pleaded guilty to each count – the appellant contends that his guilty plea was not a free and voluntary one - the primary judge gave the appellant a number of opportunities to indicate if there was any pressure which resulted in his making a plea which was not a free and voluntary one – whether there was a miscarriage of justice

Meissner v The Queen (1995) 184 CLR 132, cited

COUNSEL:

The appellant appeared on his own behalf
R G Martin SC, for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  On 29 June 2005 the appellant appeared in the District Court at Toowoomba.  He was charged with one count of entering a dwelling with intent to commit an indictable offence in the night time, with one count of robbery whilst armed with a dangerous instrument and using personal violence, with one count of deprivation of personal liberty and with one count of rape.

Initially, when the matter was called on before Judge White, there was counsel appearing for the appellant.  At the outset counsel for the appellant indicated to his Honour that there was a problem and he would have to withdraw.  In the circumstances the Judge acceded to that request but indicated that he was going to have the appellant arraigned.

Immediately thereafter, the appellant was arraigned on each of the four counts and with respect to each count he pleaded guilty.

Thereafter, undoubtedly because of what had occurred with counsel, Judge White, quite properly, asked the appellant a series of questions.  The questions and answers appear in the record and they are worth quoting:

"HIS HONOUR:  Mr Hobbins, before the arraignment you understood the charges that you were facing?

ACCUSED:  Yes, your Honour.

HIS HONOUR:  Okay.  You've had the chance to get some legal advice about those charges?

ACCUSED:  Yes, your Honour.

HIS HONOUR:  You understood that if you wanted to postpone the matter you simply had to plead not guilty to those charges and you would then be able to find new legal representation.

ACCUSED:  Yes, your Honour.

HIS HONOUR:  Yes.  And you pleaded guilty to those four offences of your own free will.

ACCUSED:  Yes, your Honour.

HIS HONOUR:  I realise it's not a comfortable position to be in but you've made a free choice to plead guilty to those offences.

ACCUSED:  Yes, your Honour."

Thereafter, counsel had a word with the appellant and indicated that in the circumstances he was in a position to continue acting for the appellant.

The Court then adjourned until the following day 30 June 2005.  There is no transcript of what occurred on that day but the matter was adjourned primarily to enable the defence to get a psychologist's report.  The matter then continued on 26 July 2005 before Judge Brabazon.

On that occasion counsel appeared for the appellant and there was no request at that stage for any further adjournment and no further issue was raised with respect to the pleas of guilty.  Thereafter, the prosecutor outlined the evidence supporting the offences.  Counsel for the appellant indicated that that resume of events was not challenged and in the psychologist's report which was put in on the issue of sentence the statement appears that the appellant "accepted the facts as they appear in the above documents".  The documents referred to were the various statements which had been submitted at the committal proceeding.

It is in those circumstances that the appellant, who appears on his own behalf on the hearing today before this Court, seeks to have his pleas of guilty set aside.  He has submitted a document in his own handwriting recounting a number of matters which, in his submission, support the contention that he was denied natural justice in being called upon to plead when he was arraigned on 29 June.

Particularly given the observations of the High Court in Meissner v. The Queen (1995) 184 CLR 132, it is clear in my view that the District Court was entitled to act on the pleas of guilty obtained on arraignment.

As already noted the appellant was given every opportunity by Judge White to indicate if there was any pressure or problem which resulted in his making a plea which was not a free and voluntary one. 

Today the appellant contends that it was as a result of his medical condition and his feeling of panic at the time that he gave the answers which he did.  In my view there is no sufficient basis put forward before this Court for setting aside the pleas of guilty.

It must be said that the case against the appellant on identification was a particularly strong one.  The woman in question worked as a prostitute and she received by telephone a booking which resulted in the offender arriving at her place of business. 

The police were able to trace that phone call to a phone for which the appellant was responsible and then on searching his home they located a knife, a watch and a stocking mask which in broad terms matched the description given by the complainant.

The complainant had also referred to a tattoo on the offender and the police noted a similar tattoo on the appellant.  There was also some DNA evidence linking the appellant to the commission of the offence.

In all the circumstances, I have come to the conclusion that there has been no miscarriage of justice and there is no basis on which this Court could set aside the pleas of guilty.  In consequence the appeal against conviction must be dismissed.

MUIR J:  I agree.  The Judge before whom the applicant was arraigned on 29 June 2005 took care to ensure that the pleas were freely made.  The appellant, I should say, then had almost a month to reconsider his position and change his pleas if he had wished to do so.  He now asserts, in substance, that his pleas resulted from erroneous advice whilst he was mentally or intellectually incapacitated.  No evidence has been led to support these contentions.

ATKINSON J:  I agree with the reasons given by the presiding Judge and with the order which he proposes.

WILLIAMS JA:  The appeal is dismissed.  Adjourn the Court.

THE COURT ADJOURNED AT 11.11 A.M.

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