Shaw v Yule [1995] QCA 611

It is in respect of those offences that we are now obliged to consider whether the applicant was properly convicted. In order to explain what happened it is necessary for me to refer briefly to the proceedings that took place. According to the record the Magistrate asked the applicant what he intended doing with respect to these charges.

The defendant said, "I intend on pleading guilty to all matters to save the Court the trouble and time of a trial." The Magistrate then said, "All right, well, on the drug related matters ..." - that was a question that was put to the applicant by the Magistrate.

I should explain that, in addition to the traffic offences to which I have referred, the applicant was also being charged with possession of 30 grams of cannabis, and with being in possession of a quantity of methyl amphetamine. It was to those two charges that the Magistrate was referring when he asked about the drug related matters.

It is not entirely clear what the applicant's attitude was with respect to those two matters at the time those two statements, which I have mentioned, were made. Instead of the applicant's answering the question put to him, the prosecuting sergeant said something. The matter then went on, with a statement being made by the prosecuting sergeant, at the end of which the Magistrate said, "Now, regarding the drug related matters, what do you wish?" At that point the applicant broke in with the following statement, "To the best of my recollection the drugs were both found in one pocket of a black jacket that I was wearing - which is what Kelly states in the statutory declaration that she was wearing the jacket. Then he said:

"She put the drugs in the pocket of the jacket earlier on in the morning and I got the jacket back off her in the afternoon and was wearing the jacket and without putting my hands back in the pocket did not realise that the drugs were in the jacket until such time as I was told to empty my pockets. If that be possession, then so be it."

That is the end of the statement that he made at that time to which I have referred. The defendant went on to say that his companion had already been dealt with for possession of the same drugs and had been convicted and charged. He added: "If I am guilty of possession, then I'm guilty of possession."

The Magistrate proceeded to sentence him in respect of the possession charges, imposing sentences of three months imprisonment cumulative on a sentence of nine months which had been imposed earlier on 29 August 1995 for an offence of unlawfully using a motor vehicle.

The application before us is in terms an application for leave to appeal against sentence; but in fact as Mrs Clare as counsel for the respondent has candidly pointed out that it appears clear that the statement that the applicant made to the Magistrate amounted to a plea of not guilty to the two drug charges; or, at any rate, was not such an unequivocal plea of guilty that it could be entered as such.

The course the Magistrate should have taken was to have treated what was said by the applicant on that occasion as a plea of not guilty and proceeded to deal with the matter from that point, presumably by taking evidence on the complaint.

That being the state of affairs that now confronts us, the proper course, as it seems to me, is to treat the pleas of guilty as having been entered per incuriam; to direct that the notice of appeal be amended so that it becomes an appeal against conviction and not merely an application for leave to appeal against sentence; to allow the appeals against conviction in respect of the two drug charges to which I have referred; and to order that the applicant be retried.

It seems appropriate in the circumstances to direct that the retrial take place before another Magistrate rather than the Magistrate who has already expressed an opinion about the appropriate sentence which should be imposed, against which the applicant has already sought leave to appeal.

In my view, therefore, the order that we should make on this application is one in the form I have outlined, namely that the notice of appeal be amended to direct that it be an appeal against conviction in respect of the two drug charges; that that appeal be allowed; the conviction set aside; and an order made that the trial of those two drug charges take place before a Magistrate other than the Magistrate who heard the matter in Murgon on 5 September 1995.

THE PRESIDENT: The order of the Court is as indicated by Mr Justice McPherson.