Commissioner of Police v Callaghan & anor [2015] QSC 163

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of Police v Callaghan & anor [2015] QSC 163 PARTIES: COMMISSIONER OF THE POLICE SERVICE (applicant) v MAGISTRATE B CALLAGHAN (first respondent) RODNEY DAVID WALKER (second respondent) FILE NO/S: 2064 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 June 2015 DELIVERED AT: Brisbane HEARING DATE: 17 April 2015 JUDGE: Martin J ORDER: 1. The orders of the learned magistrate setting aside the plea of guilty and dismissing the charge be removed into this Court and that such orders be quashed. 2. The matter is remitted to the Magistrates Court to enter all necessary adjournments, record a plea of “not guilty” and to determine the matter according to law. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the second respondent entered a plea of guilty to a charge of stealing before the first respondent – where upon the prosecutor setting out the relevant facts the second respondent stated that he had not taken the camera out of the store – where the first respondent determined that the requisite element of intention did not exist, dismissed the charge, and set aside the guilty plea – whether the first respondent erred in dismissing the charge and setting aside the plea Criminal Code 1899, s 391(1)(a), s 391(6) Judicial Review Act 1991, Part 5 Bick v Morelli; ex parte Morelli [1969] Qd R 94 Craig v State of South Australia (1995) 184 CLR 163 -- 1 of 5 -- 2 Meissner v R (1995) 184 CLR 132 R v GV [2006] QCA 394 R v Jerome and McMahon [1964] Qd R 595 R v Tatnell [1962] Qd R 11 COUNSEL: L Burrow for the applicant The first respondent was given leave to withdraw. No appearance for the second respondent SOLICITORS: Legal Services, Public Safety Business Agency for the applicant [1] On 21 January 2015 Rodney Walker was charged in the Magistrates Court with stealing a digital video camera from a retail shop. He wanted to plead guilty, and he did. But, while the prosecutor was reading out the facts of the offence, Mr Walker said that he hadn’t left the shop and that he had put the camera back on the shelf. The learned Magistrate then said that not all the elements of the offence had been made out. Her Honour then dismissed the charge and set aside the plea. [2] The applicant seeks an order, pursuant to Part 5 of the Judicial Review Act 1991, in the nature of certiorari setting aside the decisions of the magistrate whereby she dismissed the charge and set aside the plea of guilty. [3] A further order in the nature of mandamus is sought remitting the matter and directing that it be determined in accordance with law. Proceedings in the Magistrates Court [4] The record of the proceedings is very brief and may be set out in full: BENCH: Rodney Walker. Rodney David Walker. DEFENDANT: Yes. BENCH: Okay. I have one count here of stealing. What did you want to do about that today? DEFENDANT: Deal with it. Plead guilty, your Honour. BENCH: Okay. You're charged, on the 12th of December 2014 at Morayfield, you stole a digital video camera the property of JB Hi-Fi trading as JB Hi-Fi. Guilty or not guilty? DEFENDANT: Guilty, your Honour. BENCH: Okay. Have a seat, thanks. PROSECUTOR: 12th of December 2014: police were - Morayfield Police Beat - on a foot patrol inside the Morayfield Shopping Centre. They received a phone call from a witness requesting police attend the complainant's store which was JB Hi-Fi Morayfield. Police took up with the defendant. They had a conversation with the defendant. The defendant made admissions to selecting a digital video camera from off a display, opening the packaging, -- 2 of 5 -- 3 removing the camera, discarding the packaging and placing the camera into his pocket. He said he had the intention to steal it. He and his wife started walking towards the entrance of the store and he says that he and his wife looked at each other, decided it was wrong, removed the item from his pocket and placed it on a nearby shelf. Sorry, your Honour. The QP 9's War and Peace for such a small - police heard further versions of the events, were able to determine that defendant had in fact completed the act of stealing at the time. He committed an overtly dishonest act and removed the goods from the package and concealed them in his clothing, discarded the packaging. He placed it in his pocket but it doesn't say he left the store. DEFENDANT: Sorry. BENCH: Yeah. PROSECUTOR: Did you - - - DEFENDANT: I didn't actually leave the store. Because of my past criminal record, I thought it's not worth it and I went to put the camera back on the shelf and that's when they ascertained that I had done the wrong thing. BENCH: You didn't - - - DEFENDANT: I didn't leave the store. No. BENCH: He didn't intend to permanently deprive the owner of it. DEFENDANT: No, I - as soon as they questioned me - - - BENCH: Elements of the offence is not been made out. I'm going to dismiss the charge. PROSECUTOR: Thank you, your Honour. BENCH: And I set aside the plea. PROSECUTOR: Hence my hesitation while reading. BENCH: Elements of offence not made out. You can go. DEFENDANT: Thank you, your Honour. BENCH: Charge dismissed. PROSECUTOR: Thank you, your Honour. And that was two pages worth of QP 9 as well. BENCH: Yeah. Okay. [5] There were no other reasons given and, as far as one could tell from the material which was produced, this constituted the whole of the proceedings. I have proceeded on the basis that this transcript contained the reasons for judgment and that it should be regarded as part of “the record” for purposes of review, because it contains the essential findings which were included in the order of the court.1 1 Craig v State of South Australia (1995) 184 CLR 163 at 181. -- 3 of 5 -- 4 [6] The learned magistrate appears to have relied upon the defendant’s unsworn statement – “I didn't actually leave the store. Because of my past criminal record, I thought it's not worth it and I went to put the camera back on the shelf and that's when they ascertained that I had done the wrong thing.” – to form the conclusion that “elements of the offence [have] not been made out”. Upon the basis, apparently, that Mr Walker had not intended to permanently deprive the owner of the camera, she set aside the plea of guilty and dismissed the charge. This action was taken in the face of: (a) The defendant’s plea of guilty, and (b) The admission by the defendant to the police that “he had the intention to steal it”. [7] The entry of a plea of guilty is an admission of all of the elements of the offence.2 In this case the relevant elements of the charge include: (a) An intention to permanently deprive the owner of the thing of it – s 391(1)(a) Criminal Code 1899 (b) Movement of the camera to complete the act of stealing – s 391(6) Criminal Code 1899 [8] A court is not irrevocably bound by the entry of a plea of guilty. A judge or magistrate has a duty to ensure that the facts on which a sentence is to be imposed are in fact and in law sufficient to prove guilt of the offence to which an offender has pleaded guilty. If they are not, then the judge or magistrate has a power to reject the plea of guilty.3 The manner in which a judge or magistrate should proceed in circumstances where a defendant says something which demonstrates that the plea is doubtful is well established. [9] In R v Tatnell4 Hanger J considered a number of authorities and reached the conclusion that: “… though the prisoner has in fact announced a plea of guilty to a charge, yet where he makes statements, at the time or before sentence, which show that his plea was intended to be an admission only of facts which would not be sufficient to substantiate the offence charged, or that he alleges facts which would amount to a defence to the charge, then in these circumstances, he should be treated as pleading ‘not guilty’”.5 [10] This is consistent with what was said by Gibbs J (as he then was) in R v Jerome and McMahon6 where he instanced the power of the court to direct a plea of not guilty to be entered “notwithstanding that the accused, whether it be through lack of appreciation of the significance of what was going on, through sheer contumaciousness, or through a desire to achieve some technical advantage, adheres to his wish to enter a plea of guilty”7. 2 Meissner v R (1995) 184 CLR 132 at 157. 3 R v GV [2006] QCA 394. 4 [1962] Qd R 11. 5 Ibid at 14. 6 [1964] Qd R 595. 7 Ibid at 603-604. -- 4 of 5 -- 5 [11] In Bick v Morelli ex parte Morelli8 Hart J said: “In Reg. v Phillips and Lawrence [1967] Qd R 237, I said at p.288: ‘I think that probably the best way to regard a conviction on a plea of guilty is as provisional, in the sense that it is subject to be vacated ab initio until sentence, but it is valid unless and until vacated.’ It should be vacated immediately if anything arises during the hearing to cast doubt on the guilt of the accused.”9 [12] The procedure which should be followed is clear. It has been set out in R v GV10 where the Court of Appeal said: “ … a plea of guilty which is not in plain, unambiguous and unmistakeable terms must be treated as a plea of not guilty, and further that where, on a plea of guilty, a defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to be pleading not guilty.”11 [13] It is not open to a judge or magistrate, in circumstances such as these, to simply set aside the plea and dismiss the charge. The learned magistrate misapprehended or disregarded the nature or limits of the court’s functions or powers in doing what she did.12 Did the statement by the defendant constitute facts which would amount to a defence? [14] In this case the defendant appears to have accepted that he removed the video camera from the packaging, concealed it in his clothing and then discarded the packaging. [15] The learned magistrate described the defendant’s statement in court (set out above) as indicating that the defendant did not intend to permanently deprive the owner of the camera. There are issues of intention and asportation to be considered but it is inappropriate for a decision to be made at this stage. Whether the prosecution will be able to demonstrate the necessary intention and that the act of stealing was complete under s 391(6) is a matter for trial. Orders [16] I make the following orders: (a) The orders of the learned magistrate setting aside the plea of guilty and dismissing the charge be removed into this Court and that such orders be quashed. (b) The matter is remitted to the Magistrates Court to enter all necessary adjournments, record a plea of “not guilty” and determine the matter according to law. 8 [1969] Qd R 94. 9 Ibid at 98; the other members of the Court, Lucas and Douglas JJ, agreed with this. 10 [2006] QCA 394. 11 Ibid at [37]. 12 Craig v South Australia (1995) 184 CLR 163 at 177. -- 5 of 5 --