R v Munro

Case [2024] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

R v Munro [2024] QCA 136

PARTIES:

R
v
MUNRO, Roger Gareth
(appellant)

FILE NO/S:

CA No 85 of 2022
DC No 1330 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 19 July 2021 (Smith DCJA)

DELIVERED ON:

30 July 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2023

JUDGES:

Mullins P, Bond JA and Martin SJA

ORDERS:

1.   Application for leave to adduce evidence refused.

2.   Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the appellant pleaded guilty to three counts of fraud on an indictment containing four counts on the day the trial of the four counts was due to commence – where the allocutus was administered and the sentence hearing listed for a later date – where the Commonwealth Director of Public Prosecutions (CDPP) undertook to enter a nolle prosequi in respect of count 1 after the plea of guilty – where the appellant applied to withdraw his guilty pleas – where the primary judge rejected the appellant’s assertions relating to the conduct of the barrister and solicitor who represented him for the entry of his guilty pleas – where the primary judge found there was no incorrect advice to the effect that it was easy to withdraw guilty pleas given by the lawyers as alleged by the appellant before he pleaded guilty – where the primary judge found that the lawyers did not threaten to withdraw if the appellant did not plead guilty – where the appellant’s choice was whether to proceed to trial or plead guilty and obtain the benefit of guilty pleas together with the discontinuance of count 1 – where the primary judge refused the application by the appellant to withdraw his guilty pleas by expressly applying the miscarriage of justice test – where the appellant appealed against his conviction on the ground that the primary judge erred in not allowing his guilty pleas to be vacated – whether the primary judge’s refusal to allow the appellant to withdraw his guilty pleas constituted a miscarriage of justice

Criminal Code (Qld), s 668E
Criminal Practice Rules 1999 (Qld), r 51

Boag v R (1994) 73 A Crim R 35, cited
Garcia-Godos v R; MH v R [2023] NSWCCA 145, considered
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Mundraby[2004] QCA 493, cited
R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, considered
R v Verrall [2013] 1 Qd R 587; [2012] QCA 310, considered
R v Wade [2012] 2 Qd R 31; [2011] QCA 289, cited
The Queen v Munro [2022] QDC 80, cited
White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241, considered

COUNSEL:

The appellant appeared on his own behalf
J R…

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AGLC
R v Munro [2024] QCA 136
Case
[2024] QCA 136
Decision Date

CaseChat Overview and Summary

In the case of R v Munro, the appellant, Dr Munro, appealed against his conviction, challenging the decision of the primary judge to refuse his application to withdraw his guilty pleas. Dr Munro had pleaded guilty to three counts of fraud on an indictment containing four counts on the day his trial was due to commence. The Commonwealth Director of Public Prosecutions (CDPP) agreed to enter a nolle prosequi in respect of count 1 after the guilty plea. Dr Munro sought to withdraw his guilty pleas, but the primary judge rejected his assertions relating to the conduct of his legal representatives and found no incorrect advice was given. The primary judge concluded that Dr Munro's choice was to proceed to trial or plead guilty and obtain the benefit of guilty pleas along with the discontinuance of count 1. The primary judge applied the miscarriage of justice test and refused the application to withdraw the guilty pleas.

The legal issue for the court was whether the primary judge’s refusal to allow Dr Munro to withdraw his guilty pleas constituted a miscarriage of justice. Dr Munro argued that he should have been allowed to withdraw his guilty pleas because he was suffering from a serious, undiagnosed disease of the coronary arteries at the time he pleaded guilty, which affected his capacity to give instructions. The court considered the evidence Dr Munro sought to adduce on appeal, including medical reports from his admission to hospital after sentencing and a community care plan dated August 2023. The court concluded that without expert medical opinion interpreting how Dr Munro's heart condition might have affected him in July 2021, no conclusion could be drawn from the evidence he sought to adduce. The court held that the evidence was too remote from the events in July 2021 to be relevant to the application to withdraw his pleas.

The appeal was dismissed, and the application for leave to adduce evidence was refused. The court found no error in the primary judge's application of the miscarriage of justice test and concluded that the refusal to allow Dr Munro to withdraw his guilty pleas did not constitute a miscarriage of justice. The court's decision stands, and Dr Munro's appeal is unsuccessful.

Orders

Orders of the court

1. Application for leave to adduce evidence refused.

2. Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The primary judge concluded (at [234] of the reasons):“[Dr Munro] pleaded on the basis of legitimate considerations which had the real potential to advance his interests; namely the significant reduction in quantum and the effect on the ultimate sentence. The negotiated outcome will lead to a significant reduction in the sentence [Dr Munro] was facing if convicted after a trial.”Application for leave to adduce evidence Dr Munro seeks to adduce eight pages of evidence which he asserts were unavailable when his application to withdraw his guilty pleas was before the primary judge. Four of the pages relate to his admission to hospital after he was sentenced. On 4 May 2022, he was referred for an urgent procedure for unstable angina and had the procedures of coronary angiography, a left ventriculogram and left heart catheterisation. The echocardiography report dated 6 May 2022 showed that the left ventricle was of normal size and systolic function, the ejection function was 55 to 60 per cent by visual estimation, and his left atrium was severely dilated. One of the pages is the report from the interventional cardiologist dated 4 May 2022 that concluded that Dr Munro had severe left main coronary arteriostenosis but normal ventricular systolic function. Recommendations were made as to medication and that he be referred for a coronary artery bypass graft while an inpatient. The appellant seeks to adduce this fresh evidence of the results of the procedures he underwent after he was sentenced to assert that, when he pleaded guilty he was suffering from “a serious, undiagnosed disease of the coronary arteries”, that he only had 30 per cent cardiac capacity and that should be extrapolated back to July 2021 to assert that his capacity to give instructions to plead guilty must have been affected. The mere receipt into evidence of the reports of procedures performed on Dr Munro in early May 2022 and the results of the tests administered to him during that hospital admission is evidence of his heart condition at that time. It can be inferred that he had a heart condition in July 2021. Without the assistance of expert medical opinion to interpret how Dr Munro may have been affected by his heart condition in July 2021, no conclusion could be drawn by the Court merely from the four pages of reports which Dr Munro seeks to adduce on the appeal. In the absence of such medical opinion, there is no point in leave being given to Dr Munro to adduce that evidence. Two of the pages are dated 16 August 2023 and entitled “Community Care Plan” and list his various medical issues and the assessment of his needs at that time. That is too remote from the events in July 2021 that were the subject of the application to withdraw his pleas to be of any relevance. Similarly, Dr Munro wants to adduce the two page letter dated 10 May 2022 in relation to his legal aid application received on 11 April 2022 which had been unsuccessful on the basis that he did not meet the merits test. This application was for legal aid after his application to withdraw his guilty pleas had been refused. It therefore must have related to his appeal and is irrelevant to the events of July 2021.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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