R v Small (No.1) - [2009] QDC 319

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Small (No.1) [2009] QDC 319

PARTIES:

R

V

JUSTIN GARY SMALL

FILE NO/S:

Indictment No. 1918 of 2009

DIVISION:

Trial

PROCEEDING:

Application to direct the entry of a plea of not guilty

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 September 2009 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

31 August 2009

JUDGE:

Irwin DCJ

ORDER:

I direct a plea of not guilty be entered.

CATCHWORDS:

CRIMINAL LAW – Pleas – application to change – whether miscarriage of justice

Boag (1994) 73 A Crim R 35, cited

Borsa v R [2003] WASCA 254, cited

Harman v Ayling, unreported, S Ct of WA; Library No. 960 486; 26 August 1996, cited

Liberti (1991) 55 A Crim R 128, cited

Meissner v The Queen (1995) 184 CLR 132, cited

R v Carkett [2008] QCA 143, applied

R v GV [2006] QCA 394, distinguished

R v Hardy [2009] QDC 142, applied

R v Hura (2001) 121 A Crim R 472, cited

R v McGuire & Porter (No. 2) [2000] QCA 40, cited

R v Moxam [2000] QSC 152, applied

R v Mundraby [2004] QCA 493, applied

R v Popovic [1964] Qd R 561, cited

R v Toro-Martinez (2000) 114 A Crim R 533, cited

COUNSEL:

M.R. Byrne for the Crown

A.C. Smith for the defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown

Richard Gray and Associates for the defendant

Justin Gary Small is charged with three offences that are alleged to have occurred on 26 January 2009 at Brisbane.

Count 1 alleges that he unlawfully assaulted Ms H and did her bodily harm and that he was armed with an offensive weapon. Count 2 alleges that he unlawfully and indecently assaulted Ms Y, and Count 3 alleges that he wilfully and unlawfully damaged a motor vehicle.

He was arraigned on this indictment for the first time at the commencement of the trial before me yesterday. At this time, he pleaded not guilty to Counts 1 and 2, that is to say, the charges of assault occasioning bodily harm whilst armed and sexual assault, but he entered a plea of guilty to the charge of wilful damage. A jury was then empanelled.

Mr Smith of counsel, who appears for the accused, made an application following the empanelment and before the opening of the Crown case for this Court to exercise its discretionary power to direct the entry of a plea of not guilty notwithstanding that the accused had pleaded guilty when arraigned before me.

As Mullins J observed in R v Moxam [2000] QSC 12 the existence of this power was recognised in R v Popovic [1964] 1 Qd R 561, and the test to be applied is whether letting the plea stand would produce a miscarriage of justice: Boag (1994) 73 A Crim R 35; Meissner v The Queen (1995) 184 CLR 132, 157; R v McGuire & Porter (No. 2) [2000]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Small (No.1)

Details

AGLC: R v Small (No.1) [2009] QDC 319
Case: [2009] QDC 319
Decision Date: 1 September 2009 (ex tempore)

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Small, the case was heard in the relevant court where the defendant was charged with a criminal offence. The defendant had previously pleaded guilty to the charge, but now sought to change that plea on the basis that it resulted in a miscarriage of justice. The legal issue before the court was whether the defendant's application to change his plea was valid and should be allowed.

The court considered the relevant legal principles and found that a change of plea could be allowed if it was in the interests of justice to do so. In this case, the court found that the defendant's application was valid and that allowing the change of plea would not prejudice the prosecution's case. The court also found that there was a real possibility that the defendant would have been acquitted if the case had gone to trial, and that allowing the change of plea would prevent a potential miscarriage of justice.

Accordingly, the court allowed the defendant's application to change his plea to not guilty. The court directed that a plea of not guilty be entered on behalf of the defendant. No further orders were made.

Orders

Orders of the court

I direct a plea of not guilty be entered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Small (No.1) [2009] QDC 319
PARTIES:	R V JUSTIN GARY SMALL
FILE NO/S:	Indictment No. 1918 of 2009
DIVISION:	Trial
PROCEEDING:	Application to direct the entry of a plea of not guilty
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	1 September 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2009
JUDGE:	Irwin DCJ
ORDER:	I direct a plea of not guilty be entered.
CATCHWORDS:	CRIMINAL LAW – Pleas – application to change – whether miscarriage of justice Boag (1994) 73 A Crim R 35, cited Borsa v R [2003] WASCA 254, cited Harman v Ayling, unreported, S Ct of WA; Library No. 960 486; 26 August 1996, cited Liberti (1991) 55 A Crim R 128, cited Meissner v The Queen (1995) 184 CLR 132, cited R v Carkett [2008] QCA 143, applied R v GV [2006] QCA 394, distinguished R v Hardy [2009] QDC 142, applied R v Hura (2001) 121 A Crim R 472, cited R v McGuire & Porter (No. 2) [2000] QCA 40, cited R v Moxam [2000] QSC 152, applied R v Mundraby [2004] QCA 493, applied R v Popovic [1964] Qd R 561, cited R v Toro-Martinez (2000) 114 A Crim R 533, cited
COUNSEL:	M.R. Byrne for the Crown A.C. Smith for the defendant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Crown Richard Gray and Associates for the defendant