Crime
Carter’s Criminal Law News Queensland: Judicial Review
Where a magistrate set aside a guilty plea and dismissed the charge on the basis that a requisite element did not exist — whether the matter should have been determined according to law
Commissioner of Police v Callaghan [2015] QSC 163; 17 June 2015
Mr Walker was charged with stealing a digital video camera from a shop. He pleaded guilty to the charge in the Magistrates Court. However when the prosecutor was reading out the facts of the offence, Mr Walker said that he had not left the shop with the camera, rather he had put it back on the shelf.
The presiding Magistrate then reasoned that not all the elements of the offence had been made out, dismissed the charge and set aside the plea.
The Commissioner of Police sought orders under the Judicial Review Act 1991, in the nature of certiorari, setting aside the decisions of the magistrate to dismiss the charge and set aside the guilty plea, and in the nature of mandamus, remitting the matter and directing it be determined according to law.
Held, per Martin J (quashing the orders settings aside the plea of guilty and dismissing the charge, remitting the matter to the Magistrates Court to record a plea of “not guilty” and determine the matter according to law): it is not open to a judge or magistrate, in circumstances such as these, to simply set aside the plea and dismiss the charge.
Martin J paraphrased the effect of what had transpired in the Magistrates Court as follows:
[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”.
Having set out the principle from Meissner v R (1995) 184 CLR 132; BC9506447, that “The entry of a plea of guilty is an admission of all of the elements of the offence”, Martin J proceeded to elucidate the authorities with respect the duties of a judge or magistrate when faced with a doubtful plea: [8]—[12].
In identifying the correct course of events:
[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.
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