R v Johnston
[2016] ACTSC 28
•26 February 2016
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) |
Cases Cited: | R v Gomez (2007) 1 ACTLR 145 R v Goodwin (2009) 233 FCR 473 |
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 quantity of a border controlled drug, namely cocaine, contrary to s 307.2 of the Criminal Code Act 1995 (Cth), an offence that carries a maximum penalty of 5000 penalty units (that is, at the time, a fine of $850,000) and imprisonment for twenty-five years.
Sub-section 307.2(4) of the Criminal Code Act provides a defence to that charge where an accused proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug.
It is alleged in the Crown’s Case Statement (as to which, see R v Goodwin (2009) 233 FLR 473 at 468-9; [26]-[35]) that Mr Johnston stated that he had facilitated the importation of the cocaine. It is, no doubt, that inculpation which encouraged him, on legal advice, to enter the plea of guilty. Indeed, he stated that he was encouraged to do so in the Magistrates Court because of the access he would then have to a significant discount for the plea of guilty under s 16A(2)(g) of the Crimes Act 1914 (Cth).
The application
Mr Johnston has now applied for the proceedings to be continued in the Magistrates Court under s 90A(9) and (10)(b) of the Magistrates Court Act. In the alternative, he seeks leave to withdraw his plea of guilty.
Sub-sections 90A(9)-(10) and (13), of the Magistrates Court Act, are relevant. They provide:
90A Plea of guilty at committal hearing
...
(9) The Supreme Court may order that the proceeding before the Magistrates Court where the accused person pleaded guilty be continued at a time and place stated in the order.
(10) The Supreme Court must make an order under subsection (9) if—
(a) it appears to the Supreme Court from the information or evidence given to or before it that the facts in relation to which the accused person was charged before the Magistrates Court do not support the charge to which the accused person pleaded guilty; or
(b) the accused person or a lawyer representing the accused person or informant asks that the order be made.
...
(13) If an order is made by the Supreme Court under subsection (9) that the proceeding before a court where an accused person pleaded guilty be continued at a time and place stated in the order—
(a) the proceeding must be continued in all respects as if the accused person had not pleaded guilty and as if the proceeding had been adjourned by the court to the time and place so stated; and
(b) the Supreme Court may exercise any power that the Magistrates Court might have exercised under division 3.4.3 (Remand) if the order had been an order made by the Magistrates Court adjourning the proceeding to the stated time and place, and that division applies in relation to the accused person.
Mr Johnston has made an affidavit, as has his lawyer, explaining the circumstances under which he came to plead guilty and how he came to wish to withdraw that plea. In brief, he sought advice from his lawyer who advised him that the Crown case was strong but gave that advice without reference to the defence in s 370.2(4) of the Criminal Code Act. That defence did not become apparent to his lawyer on the instructions then taken until it was raised by counsel shortly before the sentencing proceedings.
Upon taking instructions, it became clear that Mr Johnston may have such a defence and it was as a result of that that Mr Johnston declined to adhere to his plea and the foreshadowed application to withdraw the plea was made.
Consideration
The test for withdrawing a plea of guilty has been set out clearly in this jurisdiction in R v Gomez (2007) 1 ACTLR 145.
It is, however, not necessary to determine whether Mr Johnston would be able to make out that test. In R v Livas [2013] ACTSC 214 at [12], I held that the court had no discretion where the accused or a lawyer representing the accused (or the informant) asks that an order under s 90A(9) of the Magistrates Court Act be made. The court must then make such an order.
As a result, the prosecution, very properly, accepts that the matter must be continued in the Magistrates Court as requested.
The effect of that order, as set out in R v Livas at [13]-[15], is that, as provided for in s 90A(13)(a) of the Magistrates Court Act, “the proceedings must be continued in all respects as if the accused person had not pleaded guilty”.
Accordingly, the application for leave to withdraw the plea of guilty is unnecessary once an order under s 90A(9) of the Magistrates Court Act is made and the proceedings continue as if Mr Johnston had pleaded not guilty.
The request having been made, the prosecutor concedes that there is no discretion. Accordingly, I will order that the matter continue in the Magistrates Court.
There will then be a committal hearing, which could be subject to appropriate dispensation under s 88A of the Magistrates Court Act or proceed as a “paper committal” under s 90AA of that Act so as to enable it to be heard with the trial of his co-accused.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 4 March 2016 |
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