R v Irvine

[2001] QCA 460

[2001] QCA 460

COURT OF APPEAL

McPHERSON JA
AMBROSE J
CULLINANE J

CA No 138 of 2001

THE QUEEN

v.

TERENCE THOMAS STEWART IRVINE  Appellant

BRISBANE

..DATE 23/10/2001

JUDGMENT

AMBROSE J:  This is an appeal against a conviction entered when the appellant pleaded guilty to a count of being knowingly concerned in the importation of cannabis in the District Court at Mackay on 14 May 2001.

That plea was entered shortly after the appellant had unsuccessfully sought a change of venue of the trial.  The change of venue sought was based upon some publicity that had been given concerning the appellant's involvement with other drug offences, and also publicity that had been given concerning his brother who had on the material argued before the learned trial Judge a reputation for anti-social activities in the Mackay area.

After a long discussion and argument, after the appellant gave evidence, that application for a change of venue was rejected.  The appellant was then called upon to plead to the indictment and he entered a plea in these terms:

"I have to plead guilty in this Court in this township."

That plea, of course, one might think, was worded to take into account the fact that his application for a change of venue had been unsuccessful.

Well, it was treated as a plea of guilty, an unequivocal plea of guilty, and then there was some discussion concerning whether it might arguably be treated as equivocal. 

In any event there was an adjournment for 10 to 12 minutes and counsel for the appellant then advised the Court that he was concerned as to what his client may have intended to convey by the rider he had added to his plea of guilty.

He asked that the Court rearraign the appellant to allow him again to enter a plea.  There was a discussion concerning that course and then counsel for the appellant advised that he had given advice to the appellant, advice he was compelled to give him; he added however that he could not discount the possibility that the appellant had misunderstood what had been said to him, that he may have misinterpreted the advice that he gave to him.

There followed a discussion and submissions, at the close of which the appellant's counsel advised the learned trial Judge that he had just been instructed by his client that he had misunderstood counsel's advice concerning procedure, et cetera, presumably in connection with his trial.

His Honour decided then that it would be appropriate if the appellant were rearraigned.  Well, he was rearraigned on the indictment for a second time and he then said:

"I believe I'm unable to get a fair trial in, at this venue.  I therefore find that I have no option other than to plead guilty."

And he added:

"I apologise to the Court for this confusion."

The case for the appellant is that certainly on his rearraignment what the appellant said did not amount to a clear plea of guilty.  A plea of guilty, of course, involves  a formal admission in Court of all the elements of the offence charged.

In my view this appeal has been limited, quite properly, by counsel for the appellant to the single issue whether what was said amounted to an unequivocal plea of guilty.  It is contended that it did not, because of the words he added to the plea of guilty that he did not expect that he would get a fair trial in Mackay.

The addition of those words does not prevent the plea from being an unequivocal plea.  In my view it was an unequivocal plea and it is unnecessary to consider the question as to whether there may have been a miscarriage of justice having regard to advice that was given or not given or to misunderstandings and so on that may have motivated the appellant to enter that plea, and indeed no effort has been made to call any evidence to show or to suggest any miscarriage of justice.

The appeal has been limited to the very narrow issue, as to whether what the appellant said when arraigned amounted to a plea which was unequivocal. 

In my view it did, and I would dismiss the appeal.

McPHERSON JA:  Yes, I agree.  Although it is necessary before acting on it to be careful to ensure that the accused's plea is one of guilty, I consider that this was such a plea.  Verbally it was a plea of guilty, although accompanied by an explanation of why it was being made.

The appellant was expressly not putting himself "on the country" to use the old description of a plea of not guilty followed by a trial by jury.  Far from qualifying his guilty plea, the added explanation gave further force to it.  In no sense was it, in my opinion, an assertion of the appellant's innocence that ought to have been treated, in substance as a plea of not guilty.

That being so, I would dismiss the appeal against conviction.

CULLINANE J:  I agree with what each of the other members of the Court have said, and I also agree that the appeal should be dismissed.

McPHERSON JA:  The order is that the appeal against conviction is dismissed.

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