R v Mundraby

[2004] QCA 493

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mundraby [2004] QCA 493

PARTIES:

R
v
MUNDRABY, Dewayne Clinton
(applicant/appellant)

FILE NO/S:

CA No 312 of 2004
DC No 137 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

23 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 November 2004

JUDGES:

McPherson and Jerrard JJA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application to extend time allowed

2.   Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – PARTICULAR CASES – where appellant sought to withdraw his plea of guilty to one count of grievous bodily harm – whether plea of guilty was free and voluntary – whether failure to set aside plea would result in a miscarriage of justice

Boag v R (1994) 73 A Crim R 35, cited
Liberti (1991) 55 A Crim R 120, considered
Maxwell v The Queen (1995) 184 CLR 501, cited
Meissner v The Queen (1995) 184 CLR 132, applied
R v Hura (2001) 121 A Crim R 472, considered
R v Murphy [1965] VR 187, cited

COUNSEL:

P E Smith, with P Gersten, for the applicant/appellant
R G Martin for the respondent

SOLICITORS:

Terry Fisher & Company for the applicant/appellant
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  The appellant needs an extension of time to pursue this appeal against a decision of Boulton DCJ refusing him leave to withdraw a plea of guilty which he entered in the District Court at Cairns on 8 June 2004. On that date he was arraigned before White DCJ and pleaded guilty to a single count in an indictment that on 11 October 2003 he had done grievous bodily harm to Jennifer Mundraby. The allocutus was administered, but the appellant said his Sydney lawyer, whom he named, was arranging for a barrister who would be available in late July or August 2004 and, by inference, not until then. His Honour adjourned the matter to a callover on 18 June 2004 to enable a suitable hearing date to be provided for the sentencing hearing to take place. On 29 July, Mr Gertsen of counsel, who then appeared for the appellant, applied for leave to withdraw the plea of guilty, and, subject to directions about written submissions from either side, the application was adjourned for hearing before Boulton DCJ on 6 August 2004.

1. Before considering the law regulating the withdrawal of pleas of guilty, it is desirable to refer to the events which brought the appellant before the court. Some days before the incident giving rise to the charge, there had been a funeral for a member of the Mundraby family. The complainant Mrs Jennifer Mundraby travelled from Brisbane to Cairns to attend the funeral; but, after arriving too late for it,…