R v Johnston - [2016] ACTSC 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Johnston
Citation:	[2016] ACTSC 28
Hearing Date:	26 February 2016
DecisionDate:	26 February 2016
Before:	Refshauge J
Decision:	That the proceedings be continued in the Magistrates Court on Thursday 3 March 2016 at 9.00 am.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – pleas – guilty plea – withdrawal of plea – matter continued in Magistrates Court
Legislation Cited:	Crimes Act 1914 (Cth), s 16A(2)(g) Criminal Code Act 1995 (Cth), ss 307.2, 307.2(4), 370.2(4) Magistrates Court Act 1930 (ACT), ss 90A(7), (9), (10) and (13), 88A, 90AA
Cases Cited:	R v Gomez (2007) 1 ACTLR 145 R v Goodwin (2009) 233 FCR 473 R v Livas [2013] ACTSC 214
Parties:	The Queen (Crown) Christopher Johnston (Defendant)
Representation:	Counsel Ms K Musgrove (Crown) Mr S Whybrow (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Defendant)
File Number:	SCC 146 of 2015

REFSHAUGE J:

In early December 2014, the applicant, Christopher Johnston, was arrested at Melbourne Airport when he returned from Phuket, Thailand, and was charged with importing a marketable quantity of cocaine. It was alleged that he had sent cocaine to two other persons in Canberra from Thailand. They were also arrested.

On 18 June 2015, Mr Johnston entered a plea of guilty in the ACT Magistrates Court and was committed for sentence to the Supreme Court under s 90A(7) of the Magistrates Court Act 1930 (ACT).

The matter came before the Supreme Court Registrar on 2 July 2015, when it was allocated a date for sentencing on 21 October 2015.

When the matter came before the court on that day, counsel for Mr Johnston advised that he was not in a position to proceed with the sentence as he needed further instructions. Mr Johnston claimed that neither he nor his co-offenders intended to sell the illicit drugs which he had imported, which may have provided a defence to the current charge and, accordingly, he may not adhere to his plea of guilty.

The matter was adjourned to 11 November 2015. On that day, Mr Johnston indicated that he did not adhere to his guilty plea.

The Crown indicated that it would object to an application to withdraw Mr Johnston’s plea of guilty and sought a date for hearing of any such application. It was then noted that the intention would be that, if Mr Johnston were permitted to withdraw his plea, the consequent trial would be conducted as a joint trial with Mr Johnston’s co-accused. That trial is currently listed for 20 June 2016.

The matter was adjourned to 26 February 2016 for hearing of the application to withdraw the plea of guilty. On 25 November 2015, directions were given for the filing of the application and supporting affidavit for the withdrawal of the plea, together with submissions by the parties on the application. It appears that the parties complied with those orders.

The offence

Mr Johnston was charged with importing a marketable…

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 Johnston

Details

AGLC: R v Johnston [2016] ACTSC 28
Case: [2016] ACTSC 28
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the matter of the Criminal Code, Johnston was before the Court of Appeal. The defendant appealed against a decision of the Magistrates Court to refuse to allow him to withdraw his guilty plea. The Magistrates Court had found that the defendant had entered a guilty plea to a charge of aggravated assault with intent to cause grievous bodily harm, and that the plea was voluntary and appropriately advised. The defendant sought to withdraw his plea on the basis that he had been under duress at the time the plea was entered. The appeal was dismissed.

The key issue before the Court of Appeal was whether the Magistrates Court was correct to find that the defendant had not established that he had a "cogent, substantial and compelling reason" to withdraw his guilty plea. The Court of Appeal found that the Magistrates Court was correct to refuse the defendant’s application to withdraw his plea. The Court of Appeal found that the evidence did not establish that the defendant had a cogent, substantial and compelling reason to withdraw his plea. The Court of Appeal found that the defendant had failed to provide any evidence to support his claim that he had been under duress at the time the plea was entered. The Court of Appeal also found that the defendant had failed to demonstrate that he had any reasonable prospects of success if the plea were withdrawn. The Court of Appeal concluded that the Magistrates Court was correct to find that the defendant had not established that he had a cogent, substantial and compelling reason to withdraw his plea.

The Court of Appeal ordered that the proceedings be continued in the Magistrates Court on Thursday 3 March 2016 at 9.00 am.

Orders

Orders of the court

That the proceedings be continued in the Magistrates Court on Thursday 3 March 2016 at 9.00 am.

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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