R v Vodopic & Regan

[2001] VSC 31

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1511 of 2000

THE QUEEN

v.

JOSEPH VODOPIC, IVAN VODOPIC AND JESSICA REGAN

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	30 JANUARY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 31

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CATCHWORDS:     Criminal Procedure – Application for change of plea to not guilty – Meissmer v. The Queen (1995) 184 CLR;  R. v. Moxham (2000) 112 A.Crim.R. 142 and R. v. Broadbent [1964] V.R. 733 considered – Relevant that Application made prior to arraignment – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Rapke	Office of Public Prosecutions
For Joseph Vodopic	Mr. R. Punshon with Ms. N. Gobbo	Lewenberg & Lewenberg
For Ivan and Marica Vodopic	Mr. A. Lewenberg	Lewenberg & Lewenberg
For Jessica Regan	Mr. M. Turner	Stephen Andrianakis & Assoc.

HIS HONOUR:

1. Application is made on behalf of Mrs Marica Vodopic that a plea of guilty to common assault entered at the committal proceeding be changed to one of not guilty before this court.

1. It was put by Mr Lewenberg, on behalf of the accused, that the accused was advised against such a plea at the committal proceedings but, in effect, desired the matter to be finalized.  She was further advised to the same effect, according to Mr Lewenberg, prior to arraignment in this court, and accepted that advice.

1. There is some scant evidence of Mrs Vodopic's involvement in an assault but this could no doubt be challenged in cross-examination of the victim.

1. In opposing the application, Mr Rapke submitted that there would be no miscarriage of justice in refusing the application and he referred me to principles enunciated in such authorities as Meissner v The Queen (1995) 184 C.L.R. 132, 157, and R v Moxham (2000)112 A.Crim.R. 142 at pp 143-4.  In the former case Dawson, J. spoke of an endeavour to change the plea after conviction; in the latter Mullins, J. was it was considering an application for a change of plea subsequent to a plea of guilty having been entered on the arraignment in the Supreme Court of Queensland.  It may well be that the stage of proceedings at which such an application is made will be a real factor in the exercise of the court's discretion, particularly as the question of the finality of legal proceedings is a relevant consideration.

1. I note, however, in the Victorian case of R v Broadbent [1964] V.R. 733, the Full Court expressed a view that a plea of guilty may even be withdrawn in the course of the trial itself.

1. In any event, in the circumstances of the present case in which no arraignment had occurred prior to the application to change the plea, I prefer to adopt a cautious approach which avoids any possibility of a miscarriage of justice and permit the accused to change her plea.

1. Of course, the fact of an earlier plea of guilty may well be admissible on any further trial of this matter.

1. It may also be that, given the relatively minor nature of the charge, and its limited factual ambit, any further proceedings may be brought in the Magistrates' Court thus avoiding additional expenses to the community.

1. Be that as it may, the application of Marica Vodopic is granted.

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