R v Moxham

[2000] QSC 152

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moxham [2000] QSC 152

PARTIES:

THE QUEEN
v
MARK CYRIL MOXHAM

FILE NO:

308 of 1999

DIVISION:

Trial Division

DELIVERED ON:

29 May 2000

DELIVERED AT:

Brisbane

HEARING DATES:

4, 11, 12, 15 May 2000

JUDGE:

Mullins J

ORDER:

I direct that a plea of not guilty be entered.

CATCHWORDS:

CRIMINAL LAW – PLEAS – Application to change – whether miscarriage of justice.

Criminal Code s600
Justices Act 1886, s104
Recording of Evidence Act 1962, s11(1)

Boag (1994) 73 A Crim R 35
R v Gadaloff (McPherson & Thomas JJA & Cullinane J, unreported, 24/9/99)
Liberti (1991) 55 A Crim R 128
Meissner v R (1995) 184 CLR 132
R v McQuire & Porter (No 2) [2000] QCA 40
R v Popovic [1964] QdR 561

COUNSEL:

Mr J Wilkin for the accused
Ms E S Wilson for the Crown

SOLICITORS:

Terry Fisher & Company for the accused

Queensland Director of Public Prosecutions for the Crown

1. MULLINS J:  Mark Cyril Moxham ("the accused") is charged with possession on 25 May 1998 of a dangerous drug, namely methylamphetamine, with a circumstance of aggravation, that the quantity of methylamphetamine exceeded 2 grams. 

1. At the committal on 16 April 1999 the accused entered a plea of guilty.  When arraigned in this Court on 24 September 1999 before his Honour Mr Justice Derrington, the accused entered a plea of guilty and the matter was adjourned to a date to be fixed for sentence.  The matter was then listed on 4 May 2000, as the accused wished to change his plea to not guilty. 

1. Mr Wilkin of Counsel who appeared for the accused initially argued that the court could not be satisfied that the accused had duly admitted before the Magistrate that he was guilty of the offence charged in the indictment within the meaning of s600(2) of the Criminal Code.  That argument became irrelevant, when it emerged that the accused had pleaded guilty when arraigned in the Supreme Court.

1. In any case, the argument was unsustainable. It relied on alleged lack of compliance with s104(3) of the Justices Act 1886. Although the Magistrate had addressed the accused in words to the effect of those set out in s104(2)(b) of the Justices Act 1886, it was argued that s104(3) required that what the accused had said in answer to the words addressed to him by the Magistrate be reduced in writing and read to him and then signed by the Magistrate and the accused. That was not done. The committal was recorded under the Recording ofEvidence Act 1962. Section 11(1) of that Act makes it clear that compliance with s104(3) of the Justices Act 1886 is not required, when the committal is recorded under the Recording ofEvidence Act 1962.

1. Ultimately the accused's application sought the exercise of the discretionary power in the court to direct the entry of a plea of not guilty, notwithstanding that the accused had pleaded guilty before the Magistrate and when arraigned in the Supreme Court. There is no express conferral of such a power in s600 of the Criminal Code.  The existence of such a power was recognised by the Court of Criminal Appeal in R v Popovic [1964] QdR 561. In that case, Lucas J (with whom the other members of the court agreed) stated at 568:

"An accused person who has been committed for sentence and who had pleaded guilty before the court to which he had been committed, must, I should think, be able to point to exceptional circumstances in order successfully to invoke the exercise of the discretion in his favour ... ." 

1. In more recent decisions, the test applied to whether a plea should be allowed to be changed is whether letting the plea stand would produce a miscarriage of justice:  Boag (1994) 73 A Crim R 35, 37; Meissner v R (1995) 184 CLR 132, 157; and R v McQuire & Porter (No 2) [2000] QCA 40 at paras 32 and 74. Expressing the test in this way is not in substance different from requiring an accused to point to exceptional circumstances, in order to invoke the favourable exercise of the discretion.

1. It was not in issue on this application that the accused has the onus of proving on the balance of probabilities that he should be permitted to change his plea.

1. There are statements in some of the authorities as to what may amount to a miscarriage of justice, if an accused were not permitted to change his or her plea.  It was stated in Boag (1994) 73 A Crim R 35, 37:

"A miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty. Such a miscarriage will be established not only where the applicant did not appreciate the nature of the plea which he had entered but also, for example, if there was no evidence upon which he could have been convicted, or if he had not intended to admit that he was guilty or if his plea had been induced by fraud or threats or other impropriety, when he would not otherwise have pleaded guilty.  The authorities are collected and discussed in Chiron (at 235), in Sagiv (1986) 22 A Crim R 73 at 80-81; Bell (1987) 8 NSWLR 311 at 314-315; 28 A Crim R 417 at 420-421, in Liberti (1991) 55 A Crim R 120 at 121-122 and in Davies (unreported, Court of Criminal Appeal, NSW, 16 December 1993) at pp 2-5, 7-9, See also Jupp (unreported, Court of Criminal Appeal, 23 November 1993) at pp 2-3.  As Badgery-Parker J said in Davies (at p 8), there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt. In so far as this Court's decision in Foley [1963] NSWR 1270 (upon which the applicant relies) may be taken as suggesting that there is some right to the grant of leave to withdraw a plea wherever the applicant bona fide wishes to be tried by a jury, I would not, with respect, follow it. The requirement that a miscarriage of justice be demonstrated before leave is granted to withdraw a plea is well settled in the authorities to which I have referred."

1. The approach the court should take in considering whether to allow a change to a plea of guilty is reflected in the following statement from the judgment of Kirby P (as he then was) in Liberti (1991) 55 A Crim R 120, 122:

"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection.  This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence:  see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81."

1. There is a passage from the judgment of Dawson J in Meissner v R (1995) 184 CLR 132, 157 which is frequently quoted:

"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt.  He may do so for all manner of reasons:  for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.  The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.  Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence ... .  But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside.  For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud ... ."

1. That passage was quoted by de Jersey CJ in R v McQuire & Porter (No 2) [2000] QCA 40 at par 32. See also the joint judgment of the Court of Appeal in R v Gadaloff (McPherson & Thomas JJA & Cullinane J, unreported, 24/9/99) at par 5 in which reference is also made to the following passage in Meissner v R (1995) 184 CLR 132, 141 (per Brennan, Toohey and McHugh JJ):

"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

1. Relying on these authorities, Ms Wilson of Counsel who appeared for the Crown submitted that a miscarriage of justice which would warrant permitting a change of plea would occur in four main categories:

(a)       where the accused did not understand the plea;
 (b)       where the accused did not intend to plead guilty;

(c)the facts admitted by the plea did not substantiate the charge; and

(d)       the plea was induced by duress/intimidation.      

Ms Wilson conceded that these authorities did not close the categories, but that the facts surrounding the accused's guilty pleas needed to fall within one of the discrete categories, such as those set out above, before the court could find that a miscarriage of justice existed. 

1. Although the authorities exemplify the circumstances in which the requisite miscarriage of justice is likely to be found to enable a change of plea, they are not intended to confine the factual matters relevant to determining whether a miscarriage of justice would occur, if the plea were not allowed to be changed. 

1. It is convenient when the facts fall within one of the recognised categories for establishing a miscarriage of justice.  The existence of those recognised categories does not preclude an accused from establishing the miscarriage of justice by reference to all the facts which have a bearing on the circumstances of the plea and the subject charge.  As quoted in Boag "there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt."        

1. This application took an unusual course. There was no affidavit of the accused in support of the application. At the outset it was not proposed that the accused give oral evidence in support of the application. The transcript of the committal proceedings and the six statements tendered at the committal pursuant to s110A of the Justices Act 1886 were tendered. For the purpose of the application, the record of interview between the accused and Detective Constable Daniel Meehan was also tendered.

1. This material showed that on 25 May 1998 at 2.30 pm, one Mrs Rigg saw two men in the front yard of a house at 25 Vista Street, Surfers Paradise.  She saw them walk out of the yard and begin to cross the road, when one of the men fell to the ground.  She saw the second man drag the one who had fallen back to the side of the street.  Mrs Rigg ran over and asked the second man what was happening.  He told her that the man was having a fit.  She then ran back to her unit and rang an ambulance, before returning to the two men.

1. When she returned, Mrs Rigg could see that the second man was searching through the pockets of the man who had collapsed.  She saw him reach down the front of the collapsed man's pants.  She states that she could clearly see that the hand reaching into the pants was empty.  She saw the second man start to pull something plastic out of the pants.  She then had a short conversation with the second man.  At about this time she heard an ambulance coming and the second man ran off.

1. Mr Roberts, the paramedic with the Queensland Ambulance Service, states that he noticed a plastic bag sticking out the front of the jeans of the man he now knows as the accused.  Mr Roberts states that he pulled the plastic bag out and saw that it contained some white powdery substance.  He put the bag in the back of the ambulance.  The accused was transported to the Gold Coast Hospital.  Mr Roberts handed the accused to the medical team and handed the bag of white powder to Dr Spain. 

1. There is also a statement from Dr Spain.  He states that he handed the plastic bag to Senior Constable Crank. 

1. There is also a statement from Senior Constable Jaramazovic.  He states that at 4.25 pm he and another officer made a search of the abandoned house located at 25 Vista Street.  At the side of the house they located a syringe and a Glad brand clipseal bag containing white powder. 

1. At the committal an analyst's certificate in respect of the plastic bag of white power found on the accused was tendered.  Although that certificate was not put in evidence on this application, it was not in issue that the total weight of the white powder in the bag was approximately 270 grams of which approximately 20 grams was methylamphetamine. 

1. The interview between Detective Constable Meehan and the accused took place on 18 December 1998.  Detective Constable Meehan asked the accused whether there was anything that he could tell Detective Constable Meehan about the plastic bag of white powder found down the front of his pants.  The accused responded "I know nothing about it".  When asked whether he knew how it came to be there, the accused responded "No, I don't". 

1. When the accused was asked about what had happened to lead to his being attended by the ambulance, the accused stated:

"... I went down to score because I was depressed and I hadn't done it for a long, long time and, um, I met this bloke and he scored for me and I had a shot and that's all I remember.  I woke up in the hospital, told that I was lucky to be alive and was interviewed by some detective's (sic), who I didn't remember 'till the next time they saw me, and they said there was a bag of powder down my trousers and, um, I knew nothing about it and I told them, 'I don't know how it got there – I don't deal drugs, that was the first shot of heroin I had in years' ... ."

1. Mr Wilkin submitted that there was an opportunity for the plastic bag to have been put down the accused's pants, when Mrs Rigg went to call the ambulance.  He also submitted that there was no evidence of fingerprints having been taken in respect of the plastic bag taken from the accused's pants.

1. Mr Wilkin conceded that as the accused was found in physical possession of the drugs, there was a prima facie case against him and that in the absence of an explanation it was likely a jury would draw the inference beyond reasonable doubt from the fact of possession that the accused had knowledge of the drugs.  Mr Wilkin submitted, however, that there was the possibility for the jury to be unable to find beyond reasonable doubt that he had that knowledge.  That possibility arose, if a jury were to accept that the accused had purchased drugs from the second man and overdosed and, in the circumstances when Mrs Rigg came to see what was happening, the second man panicked and planted the plastic bag in the pants of the accused while Mrs Rigg was calling the ambulance.  That version of facts is aided by the lack of fingerprinting of the plastic bag.  There is the possibility of a triable issue.      

1. When it became apparent to Mr Wilkin that the application was unlikely to be successful based on the ground of lack of compliance with s104 of the Justices Act 1886, he called the accused to give evidence.

1. The evidence-in-chief and cross-examination of the accused took place on the first day the application was heard.  On that day none of the legal representatives were aware that the accused had, in fact, been arraigned in the Supreme Court on 24 September 1999, when he entered a plea of guilty.  The evidence of the accused was therefore primarily directed to the events leading up to the committal and the plea entered at the committal.

1. As a result of the evidence given by the accused, Ms Wilson sought an adjournment in order to make inquiries of the Legal Aid Office which had represented the accused at the committal.  As it was not possible to pursue that evidence on the same day that the application was first being heard, the application was adjourned until 11 May 2000.  On that day and 12 May 2000 a legal officer at Legal Aid Queensland, one Gregory Malcolm Milles, gave evidence.  On 12 May 2000 a law clerk employed by Legal Aid Queensland, Lorraine Victoria Dias, also gave evidence. 

1. As the employees of the Legal Aid Office had the benefit of refreshing their memories from either notes or the Legal Aid Office file, I accept their evidence as to the timing and purpose of interviews and consultations conducted with the accused.

1. Ms Dias saw the accused on about six occasions.  The first occasion was 3 March 1999.  She recalls that the accused came to the Legal Aid Office to be represented in a matter of possession of a dangerous drug.  She did not take any instructions from the accused on this occasion.  The second conference with the accused was on 5 March 1999.  Ms Dias made no notes of the conference, but recalls that she discussed with the accused his rights to trial and went through the facts in relation to the charge.  She did not get instructions from the accused on this second occasion. 

1. It appears that Ms Dias organised that the Crown witnesses were to be available at the committal hearing for cross-examination.  Mr Milles was the Legal Aid officer whom Ms Dias organised to appear for the accused at the committal.  Mr Milles saw the accused at the Legal Aid Office on the day of the committal between 9.10 am and 9.25 am.  They walked to the Magistrates Court together after that.  Mr Milles spoke to the prosecution representatives and then had a further conference with the accused.  Mr Milles estimates that he spent a total of 40 to 45 minutes on that day conferring with the accused.

1. Mr Milles' notes of his attendance on the accused which were tendered (Exhibit 5) are very brief.  It is clear that Mr Milles went through the options open to the accused at the committal of entering no plea, pleading guilty or pleading not guilty.  Mr Milles spoke to the accused about the consequences of each of those pleas.  According to his notes, Mr Milles went through Mrs Rigg's statement with the accused, although he could not remember now what was in Mrs Rigg's statement.  

1. Before the committal commenced, Mr Milles sought to obtain written instructions from the accused as to the plea he wished to enter.  He was writing out those instructions with a view to inserting "no plea", when the accused interrupted and said something to the effect "Look, I'm going to plead guilty".  Mr Milles cannot recall now what, if any, reasons were offered by the accused to him for giving the instructions to plead guilty.  Mr Milles recalls that he had spoken to the accused about getting a more lenient sentence, if he did plead guilty.  The accused signed the written instruction that he wished to plead guilty.  It was apparent from Mr Milles' evidence that he was surprised that the accused gave instructions when he did to enter a plea of guilty.

1. It is clear from Mr Milles's evidence that he recalls very little about the facts relating to the accused's charge.  He stated, when asked about what picture emerged of the Crown case against the accused, as follows:

"When I was – we left the Legal Aid Office and we had spoken of this Rigg statement.  Now, I don't know exactly what Rigg was, but I understand from memory that it was something to do with one of the people that had seen him and so as I walked to Court with him he was telling me about the incident that he had been with some fellow and something to the effect of this fellow was unconscious or something.
...
Well, that is what I am telling you, that as I walked to Court with him he was telling me of this incident of a fellow who was unconscious.  I think he was with the fellow and something about him taking a package out of this fellow's pants, or something to that effect, that was powder."

Mr Milles has therefore mixed up the accused with the second man who was with him. 

1. At the time of appearing on the accused's behalf at the committal, Mr Milles did not inquire of the accused about the accused's psychiatric history or criminal history.  Mr Milles did not have any idea about the street value of the drugs the subject of the charge.  Mr Milles recalls warning the accused that he might go to gaol for possession of 20 grams of methylamphetamine.  Mr Milles does not state that he informed the accused of the likely term of imprisonment he would face or specifically, by reference to periods of time rather than generally, how the term imposed would be affected by an early guilty plea. 

1. The third occasion on which Ms Dias saw the accused was on 18 April 1999, after the committal.  She cannot recall what was discussed on that occasion.

1. The fourth occasion of which Ms Dias saw the accused was in June 1999.  She recalls that instructions were taken for his plea of guilty.  In some respects that was superfluous, when the accused had already entered a plea of guilty at the committal.

1. The fifth occasion on which Ms Dias saw the accused was on 10 September 1999.  Ms Dias cannot recall the content of the discussions she had with the accused on that occasion.  

1. The sixth occasion on which Ms Dias saw the accused was 17 September 1999, when she obtained written instructions from the accused to plead guilty.  Ms Dias read out parts of the document which were signed by the accused on 17 September 1999.  Again that document does not appear to be particularly apt to a person who had already entered a plea of guilty.  The document includes the statement "I understand that I have the right to plead not guilty to the above charges and go to trial before a judge.  I understand that I have the right to put the prosecution to the proof if I so instruct.  On this occasion I choose to plead guilty to the charge". 

1. Ms Dias cannot recall whether she obtained the accused's criminal history before the committal.  According to her file, it appears that she obtained it after the committal.  Ms Dias had not asked the accused about his criminal history or psychiatric history before the committal.  When she saw him before the committal, he seemed to be disputing the charge. 

1. When the accused gave evidence, he stated that he told Ms Dias that he wanted to plead not guilty and Ms Dias was happy for the first two or three visits about his desire to plead not guilty.  That is consistent with Ms Dias' seeing the accused prior to the committal.

1. The accused stated in evidence that he pleaded guilty at the committal because Ms Dias had changed her attitude to his pleading not guilty.  He stated:

"I don't know what changed in her mind, but she must have – I don't know.  I really don't know, but she said, 'I don't think we can get you off this one.  I think we better plead guilty for a lesser sentence.'  I said, 'Well, I'm not prepared to plead guilty because I know nothing of it.'  She said, 'You won't get any legal representation.  You'll get torn to pieces in the Supreme Court representing yourself and we'll refuse to grant you legal representation."

1. I do not accept that Ms Dias made the statements attributable to her by the accused, prior to the committal.  Mr Dias had minimal involvement with the accused prior to the committal and, in fact, organised for the witnesses to be available for cross-examination at the committal.  Mr Milles did not expect the accused to plead guilty at the committal.  I therefore do not accept the accused's evidence, as to being intimidated by Ms Dias to plead guilty at the committal. 

1. As the accused gave evidence on this application before it was known either by his own legal representatives or by the Crown what the evidence from the Legal Aid Officers would be relevant to the matter, there was no opportunity to test the accused's evidence by reference to the events recorded in the Legal Aid file.  It may even have assisted the accused's own recollection to have been shown the written instructions that he gave in relation to pleading guilty at the committal and in the Supreme Court and to be reminded of the various visits to the Legal Aid Office. 

1. The accused gave evidence that at the time around the committal he was on the methadone program and was suffering severe depression.  He was on diazepam and cipramyl and was undergoing treatment at Biala Alcohol and Drug Service.

1. The accused gave evidence that he spoke to other lawyers last year, after he pleaded guilty.  It is likely that that occurred after he pleaded guilty in the Supreme Court.  He obtained advice that he should not have pleaded guilty.  As a result, he complained to the Legal Aid Office and was referred to his current solicitors. 

1. When Ms Wilson put to Ms Dias the content of the statements which the accused alleged Ms Dias made to him which intimidated him, Ms Dias denied making those statements.  Ms Dias could not otherwise recall, however, the content of her discussions with the accused, except when she obtained written instructions from him to plead guilty on 17 September 1999. 

1. It is not necessary for me to find whether or not Ms Dias made the statements which the accused alleged against her.  What is relevant is the accused's perception of the advice he was being given by the Legal Aid officer.  It is only natural that after the committal, when the accused had clearly entered a guilty plea, that there may have been some resistance by the officers handling his file to his seeking to change his plea thereafter. 

1. Having regard to:

(a)the accused's expressed intention prior to the committal to defend the charge which was not indefensible;  

(b)the accused's being on the methadone program, suffering depression and undergoing treatment, as described, at the time of committal;

(c)the lack of an explanation for the guilty plea at the committal given to Mr Milles;

(d)the accused was not in a position to make an informed decision to plead guilty at the committal, as he had been given no advice relevant to likely range of sentences applicable to his circumstances and the specific effect on that range on sentences from an early plea of guilty;

I am satisfied that his plea of guilty at the committal was not attributable to a genuine consciousness of guilt.

1. The course followed by the accused after the committal was affected by his guilty plea.  I accept that the instruction to plead guilty when arraigned was as a result of the accused's perception that he was not in a position to change his plea.  I am satisfied that there was no consciousness of guilt which dictated the accused's actions after the committal.

1. This was not a straight forward application as it did not fit easily into one of the usual categories.  On balance, however, there would be a miscarriage of justice, if the accused were not allowed to change his plea.  I therefore direct that a plea of not guilty be entered.