R v Douglass [2004] VSC 376

Supreme Court of Victoria|2004-04-30|Before: COLDREY J

The applicant also deposed that he gave Mr Harvey instructions in December, prior to the continuation of the plea, that he needed to change his plea to not guilty. He asserted that Mr Harvey had replied: "Look, you can't do it, Mr Justice Coldrey won't accept it ..." This purported conversation was never put to Mr Harvey in cross-examination and the applicant, who was not shy at raising issues directly in Court, made no mention of it at the 15 December hearing. Indeed, the letter of the applicant dated 15 March 2004, alleges a conversation with Mr Harvey not in December 2003, but in January 2004. I do not accept that any such conversation ever occurred and I am satisfied it was not until March 2004, at a time when the applicant knew the adjourned plea hearing was listed for the 25th of that month, that any issue of a change of plea was raised.

In summary, I find that the applicant freely chose to plead guilty to murder, conscious of his own guilt and having been fully appraised by counsel on the legal and factual issues involved and having been in receipt of expert legal advice, properly tendered, as to the overwhelming nature of the prosecution case.

[1] [2003] VSCA 173; (2003) 6 VR 538 at 545-6. Other examples include R v Vella (1984) 14 A Crim R 90; R v Kardogeros [1991] VicRp 18; [1991] 1 VR 258; R v Seyfarth [1998] VSCA 27; R v Young [2002] VSCA 2; and R v Reed [2003] VSCA 95.

[18] See discussion of what constitutes a conviction in Maxwell v R (1995) 184 CLR 501; Dawson and McHugh JJ 509-511; Toohey J 519-521; Gaudron and Gummow JJ 529-532.

[21] See R v Webb and Hay (ibid) and cases cited therein and also R v Boag (ibid, p.37).

[24] The application was refused; see also R v Vella (ibid, p.95).

"The ground of appeal against conviction reflects a line of cases beginning with R. v. Forde [[1923] 2 K.B. 400], in which the judgment of the English Court of Criminal Appeal was delivered by Avory, J. His Lordship said [at 403]: 'A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1.) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2.) that upon the admitted facts he could not in law have been convicted of the offence charged.' Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice [Crimes Act 1958, s.568(1)]. The same view has been expressed in New South Wales [R. v. KCH [2001] NSWCCA 273; (2001) 124 A.Crim.R. 233 at [32]]. The authorities are discussed in R. v. Tait [[1996] 1 V.R. 662 at 665-6], R. v. Parsons [[1998] 2 V.R. 478 at 482-3] and R. v. El-Kotob [(2002) 4 V.R. 546 at [78]-[89]]. There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty [R. v. Liberti (1991) 55 A.Crim.R. 120 at 122]."

"There was a preliminary question as to whether the learned judge had the power to determine the application after the return of a verdict of guilty. His Honour held that he did have jurisdiction, applying the decision of Debelle J. in R v Webb and Hay (1992) 64 A Crim R. 38, which in turn applied English authorities, the most notable being S (an Infant) v Recorder of Manchester [1971] AC 481. See also De Kruiff v Smith [1971] VicRp 94; [1971] VR 761 at pp.765-6."

"It is clear that a plea of guilty is a formal confession of the existence of every ingredient necessary to constitute the offence: [case cited] ... The trend of more recent authorities is that until sentence has been pronounced, the court has the power to permit a plea of guilty to be withdrawn. The existence of such discretion is recognised in the decision of the Full Court in R v Tonks and Goss [1963] VicRp 19; [1963] VR 121, by the Full Court of New South Wales in the case of R v Foley [1963] NSWR 1270, and very recently in the speech of Lord Upjohn in the House of Lords in the case of S (an infant) v Manchester City Recorder [1963] 2 All ER 1230 ..."

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