R v Logan

Case [2009] QDC 237

DISTRICT COURT OF QUEENSLAND

CITATION:  R v Logan [2009] QDC 237
PARTIES:  The Queen
(Respondent)
v
Bradley Brett LOGAN
(Applicant)
FILE NO/S:  Townsville D294/06
DIVISION:  Criminal
PROCEEDING:  Application
ORIGINATING  District Court, Townsville
COURT: 
DELIVERED ON:  06 January 2009
DELIVERED AT:  Townsville
HEARING DATE:  25 July 2008, 01 August 2008 and 22 August 2008
JUDGE:  Durward SC DCJ
ORDERS  1. The accused be allowed to withdraw the plea of guilty entered in committal proceedings in the magistrates Court on 08 March, 2006.
CATCHWORDS:  COMMITTAL PROCEEDINGS – PROCEDURE – taking
and recording of plea of guilty by Magistrate – defendant
formally charged – commences to speak but interrupted by
solicitor who informs Magistrate that that defendant will
plead guilty in District Court – plea of guilty recorded –
whether proper plea.
PLEA OF GUILTY – necessity for plea of guilty to be made
by defendant personally unless special circumstance exists –
prospective statement of intention to plead guilty not a proper
plea.
CASES CITED:  R v Stanton (19280 28 SR NSW 516; R v Kirvan (18 QJPR 155; R v Ernst (1939) QWN 45; R v Moxham (2000) QSC 152; R v Tatnell (1962) Qd R 45; R v Ellis (1973) AC 571; R v Wotton (2007) QDC 181.
LEGISLATION:  Justices Act 1886, ss. 104, 105, 111 and 113; Criminal Code
(Qld) s. 600.
COUNSEL:  EG Bassett for the applicant/accused
A Lowrie for the Crown
SOLICITORS:  Anderson Telford Solicitors for the applicant/accused
Office of the Director of Public Prosecutions for the
respondent

  1. Bradley Brett Logan has been charged with two counts of indecent dealing with a child under 16 with circumstances of aggravation and two counts of rape. The offences are alleged to have occurred between 01 January 2005 and 23 December 2005 in respect of Count 1 and on or about 23 December 2005 in respect of Counts 2 to 4, at Palm Island. The complainant child is an infant.

    The Application: Change of Plea.

  2. The application primarily focussed on a submission that the plea of guilty entered on behalf of the accused in the Magistrates Court at the conclusion of a committal proceeding on 08 March, 2006 should not stand and that a not guilty plea be entered in lieu thereof. Submissions were also made in respect of the admissibility of alleged confessions made by the accused to the police.

  3. The matter was heard on 25 July 2008 and at my request further evidence was obtained as to the detail of the proceedings before the Magistrate, particularly in respect of the manner in which the plea of guilty was taken and recorded. On 1 August 2008 I heard further submissions and admitted further evidence as to the practice in the Magistrates Court with respect to the taking of pleas on committals (as distinct from summary offences). On 22 August 2008 I heard further submissions and a tape recording of the proceedings in the Magistrates Court was played in Court. By this time the Crown had conceded that the plea of…

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R v Logan [2009] QDC 237
Case
[2009] QDC 237
Decision Date

CaseChat Overview and Summary

In the case of R v Logan, the defendant sought to withdraw a plea of guilty that had been entered during a committal proceeding in the Magistrates Court. The case was heard in a higher court, which had to determine whether the defendant was entitled to withdraw the plea and what the consequences of doing so might be. The defendant's plea of guilty had been recorded by a magistrate using a pro forma form. However, the defendant had begun to speak in response to the formal charge before the plea was recorded, which raised questions about the validity of the plea. The Crown conceded that the only evidence against the defendant was his confessions in the record of interview and any forensic evidence that might arise from the examination of specimens collected during the police investigation.

The court had to decide whether the defendant was entitled to withdraw his plea of guilty and whether the procedure used by the magistrate to record the plea was valid. The court found that there was a doubt as to how the defendant intended to plead, particularly in light of the significant dispute over the validity of the confessions and the potential forensic evidence. The court also found that the procedure used by the magistrate to record the plea was not in accordance with the statutory requirements and that the defendant should be allowed to withdraw the plea. The court noted that it may be advisable to standardise the practice of magistrates in recording pleas in committal proceedings.

The court ordered that the defendant be allowed to withdraw the plea of guilty entered in the committal proceedings in the Magistrates Court. The court noted that the disposal of the balance of the application was adjourned until the forensic testing of specimens collected in the course of the police investigation had been completed. The court also noted that there may be real issues in relation to the record of interview upon which further submissions would be heard before the court determined that part of the application. The defendant was admitted to bail on 22 August 2008, subject to special conditions.

Orders

Orders of the court

1. The accused be allowed to withdraw the plea of guilty entered in committal proceedings in the magistrates Court on 08 March, 2006.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I determined that the applicant should be allowed to withdraw the plea of guilty entered in the Magistrates Court. I reserved the reasons for judgment because it involved matters of practice within the Magistrates Court upon which I considered some observations might be helpful, subject to the expectation – at that time - that the practice generally in respect of committal proceedings might change as a consequence of the outcome of the pending review of the practice and jurisdiction of the Queensland Courts (known as ‘the Moynihan Inquiry’). However, that outcome is still unknown and consequently I have decided to give these reasons for judgment in any event. The Application: Admissibility of Evidence. As for the disposal of the balance of the application, this stands adjourned until the forensic testing of specimens collected in the course of the police investigation has been completed. The Crown had conceded that the only evidence against the accused is either his confessions in the record of interview (submissions were made in the course of the hearing but have effectively not been completed because of the focus on the issue involving the plea) and, potentially and speculatively at this stage, any forensic evidence that might arise from the examination of specimens. There may be real issues in relation to the record of interview upon which it is proposed that further submissions be heard before I determine that part of the application. The accused was admitted to bail on 22 August 2008, it being appropriate in the circumstances to release him from custody. The grant of bail, which is the subject of special conditions, was not opposed by the Crown. The Proceedings in the Magistrates Court. Evidence was provided on affidavit as to the practice in the magistrates Court in respect of committal proceedings. It appears that it is a matter for each Magistrate as to the practice they adopt or the Forms (if any) that they use on completion of the evidence in committal proceedings. In this case, a pro forma Form was completed by the Magistrate who presided at the committal proceeding. There was no cross-examination of witnesses at the committal and it was one conducted as a ‘hand up’ committal, without the necessity for the Magistrate to consider the evidence. The Form, so far as is relevant, after formal matters have been recorded on it by the insertion of the names of the defendant and the persons representing the prosecution and defence; the file numbers; and the basis upon which the committal has been made (in this case without formal consideration of the material tendered in the proceeding), states the following (with the insertion by the Magistrate of handwritten deletions and words): “THE DEFENDANT IS FORMALLY CHARGED AND IS ADDRESSED BY ME IN TERMS OF S.104 OF THE JUSTICES ACT. ‘You will have the opportunity to give evidence before me and to call witnesses. But first I am going to ask whether you wish to say anything in answer to the charge. You need not say anything unless you wish to do so and you are not obliged to enter any plea. You have nothing to hope from any promise and nothing to fear from any threat that may have been held out to induce you to make any admissions or confession of guilt. Anything you say will be taken down and may be given in evidence at your trial.

Decision

Reasons for decision

More recently in this Court in R v Wotton (2007) QDC 181 the accused was permitted to withdraw a plea of guilty entered upon arraignment, in circumstances where the Court had been closed. His Honour Judge Nase said: “This involved a procedural defect that is fundamental in the sense that the requirement the plea be taken in an open Court is a mandatory requirement (section 597C), the breach of which is a serious departure from the essential requirements of the law. In these circumstances, it is appropriate for me to allow Wotton withdraw the plea entered on 5 March 2007.” Conclusion. In my view there was certainly a doubt as to how the accused intended to plead, particularly in the circumstances where the charges against him relied upon confessions that were to be the subject of significant dispute - partly on psychiatric grounds and partly on the alleged level of the accused’s intoxication at the time that he was interviewed - and potentially, but speculatively at this time, upon results of forensic testing which were currently not available. The applicant had begun to speak in response to the formal charge. It is impossible to say, with confidence, what his completed response might have been, whether guilty or not guilty. Hence the plea entered by C cannot stand. The plea of guilty stated by C was expressed prospectively. The difficulty with this is that an event may occur between the committal proceeding and an arraignment in the superior court, for example, that challenges the efficacy of the evidence against the accused or gives rise to an indictment that is presented containing different charges. Such events might lead to a plea of not guilty being preferred upon trial. If it was thought that a statement expressing an intention to plead guilty when called upon arraignment in a superior court sufficed to amount to a plea of guilty for the purposes of the Act, it seems to me that this is both inherently dangerous and may lead to injustice. In my view it is also contrary to the statutory requirements in the Act. The Practice in the Magistrates Court. The evidence adduced before me so far as the practice in the Magistrates Court in Queensland is concerned seems to indicate that some magistrates used the Pro-forma Form (reference to which has been made above) and others use a different method, whether it be a formal document or a form of words, that the individual magistrate has devised. It also appears to be the case that some magistrates require a defendant to personally answer to the formal charge and enter the plea himself or herself, whilst other magistrates appear to accept a statement made by legal representatives on behalf of a defendant in entering a plea on their client’s behalf. In my view, it may be advisable that the practice of magistrates should be standardised and it should be a requirement that, save for the type of special circumstance to which reference is made in Ellis, a defendant be required to enter a plea, whether it be guilty or not guilty, personally in response to the formal charges read by a magistrate in accordance with the Act.

Ratio Decidendi

Legal Principle Established

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