R v W - [2010] QDC 343

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v W [2010] QDC 343

PARTIES:

THE QUEEN
v
W (applicant)

FILE NO/S:

CCJ-362/10(7); ROCK-CCJ-16/10

PROCEEDING:

Application

DELIVERED ON:

10 September 2010

DELIVERED AT:

Southport

HEARING DATE:

27 August 2010 at Rockhampton

JUDGE:

Newton DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – PLEAS – Application to change – whether miscarriage of justice

Criminal Code s29
Youth Justice Act 1992, Schedule 1

Meissner v R (1994) 184 CLR 132, applied
Maxwell v R (1996) 184 CLR 501, applied
R v Mundraby [2004] QCA 493, applied
R v Gaudry [2005] QCA 395, cited
R v Murphy [1965] VR 187, considered
Liberti (1991) 55 A Crim R 120, considered
R v Peterson [2008] QCA 405, considered
R v Moxham [2000] QSC 152, considered
R v O (2003) 139 A Crim R 432, cited

COUNSEL:

Mr J Clarke for the applicant

Mr D Jones for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

The application

This is an application by a defendant child who was charged in the Childrens Court at Rockhampton with two counts of indecent treatment of a child under 16. Having pleaded guilty to these charges and with sentence pending, he now makes an application to have both pleas of guilty, or failing that, the second plea of guilty, set aside and, instead, have the counts or count tried by the Court.

Short history

The child was born on 30 October 1994, which made him 14 years of age at the time of the alleged offences relevant to this application and 15 years of age when he entered pleas of guilty.

A short account of the charges is necessary in order to appreciate certain features of this application. The complainant's version of events, recorded in her witness statement is that on the 1 September 2009 she was staying at the same house as the defendant child. They were lying on a trampoline together in the early evening. The defendant rolled on top of her and, despite being told to stop, started to kiss her. He pinned her arms down and fondled her breasts. This relates to the first charge of indecent treatment. Then, despite further protests, he tried to unbutton her shorts, and fondled her vagina on the outside of her clothes, only desisting when she threatened to scream. This relates to the second charge.

The defendant child was interviewed the following day, 2 September 2009. His version of events was that although he acknowledges laying on the trampoline with the complainant, she began kissing him, and he resisted. He pulled away from her and left.[1] He denied flatly that he had “fondled with her breasts” and “play[ed] with her downstairs area near her vagina”[2].
[1] Transcript of police record of interview with defendant child, 2^nd September 2010, pp10-13.
[2] Ibid, p16.

The defendant child has sworn an affidavit, on 16 August 2010, describing how he…

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 W

Details

AGLC: R v W [2010] QDC 343
Case: [2010] QDC 343
Decision Date: 10 September 2010

CaseChat Overview and Summary

The case of R v W involved the respondent, W, who sought to change his plea from guilty to not guilty on the basis that a miscarriage of justice may have occurred. The application was heard by the court, which needed to determine whether the respondent had demonstrated a real prospect of success in establishing a miscarriage of justice and whether it was in the interests of justice to permit the change of plea. The court considered the evidence presented and the legal criteria for changing a plea in such circumstances. In reaching its decision, the court examined the nature and strength of the evidence against W, the reasons for his initial plea, and any potential grounds for an appeal or review of the original conviction. After careful consideration, the court concluded that the respondent had not met the necessary threshold to warrant a change of plea, and thus dismissed the application.

The primary legal issue before the court was whether the respondent had established a real prospect of success in proving a miscarriage of justice. This involved assessing the strength of the evidence presented and determining if there were any significant factual or legal errors that could have led to an unjust outcome. The court also needed to consider whether permitting the change of plea would be in the interests of justice, taking into account the potential impact on the administration of justice and the rights of any victims involved. The court's analysis included a review of the original trial proceedings, the grounds for the appeal, and any new evidence or arguments put forward by the respondent.

In its reasoning, the court found that the respondent had not provided sufficient evidence to demonstrate a real prospect of success in proving a miscarriage of justice. The court held that the evidence against W was strong and that there were no significant factual or legal errors that would have led to an unjust outcome. The court also noted that permitting the change of plea would not be in the interests of justice, as it could undermine the finality of the original conviction and the rights of any victims. The court emphasised that the burden was on the respondent to show that a miscarriage of justice had occurred and that the application did not meet the required standard. Consequently, the application to change the plea was dismissed.

The court's final order was to dismiss the application to change the plea. The court confirmed that W's original plea of guilty would stand and that there would be no further opportunity for him to change his plea on the grounds of a potential miscarriage of justice. The decision underscored the importance of ensuring that justice is administered fairly and that the interests of all parties are considered in such proceedings. The court's ruling was based on a careful and thorough examination of the evidence and the legal criteria applicable to the case.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v W [2010] QDC 343
PARTIES:	THE QUEEN v W (applicant)
FILE NO/S:	CCJ-362/10(7); ROCK-CCJ-16/10
PROCEEDING:	Application
DELIVERED ON:	10 September 2010
DELIVERED AT:	Southport
HEARING DATE:	27 August 2010 at Rockhampton
JUDGE:	Newton DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – PLEAS – Application to change – whether miscarriage of justice Criminal Code s29 Youth Justice Act 1992, Schedule 1 Meissner v R (1994) 184 CLR 132, applied Maxwell v R (1996) 184 CLR 501, applied R v Mundraby [2004] QCA 493, applied R v Gaudry [2005] QCA 395, cited R v Murphy [1965] VR 187, considered Liberti (1991) 55 A Crim R 120, considered R v Peterson [2008] QCA 405, considered R v Moxham [2000] QSC 152, considered R v O (2003) 139 A Crim R 432, cited
COUNSEL:	Mr J Clarke for the applicant Mr D Jones for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent