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…