Failure to Arraign in Summary Proceedings: Formal Irregularity or Fatal Defect?

In recent years, a number of cases have come before Queensland appellate courts where the defendant at a summary trial — whether charged with a simple offence, or charged with an indictable offence tried summarily — has not been required formally to enter a plea. In some instances, this appears to have been a mere procedural oversight; in other instances, it appears that an abbreviated procedure has been adopted in the interests of efficiency.

Such “shortcuts” apparently have a long history in this State. In the 1969 case of Daly v. Barlow,1 Hoare J. referred to — and, indeed, approved — what his Honour called “the time-honoured formula” whereby counsel or a solicitor representing the defendant may state: “I take the complaint as read and plead guilty [or not guilty]”.2 More than 40 years later, in McKinlay v. Commissioner of Police,3 the Court of Appeal was informed that it is “a common practice in Magistrates Courts” for a defendant’s legal representative to use a form of words such as: “My client appears and takes the charge as read, pleads guilty and elects summary jurisdiction.”4 Daly v. Barlow also suggests that a similar course is open to a self-represented defendant, by stating that (for example): “I know precisely what the charge is. There is no necessity to read the complaint over to me. I admit the charge.”5

A different kind of “shortcut” was recognised in Brown v. Queensland Police Service.6 Judge Durward SC DCJ referred to a “customary procedure”, being what his Honour termed “bulk arraignments” in summary proceedings where the defendant is facing several charges of simple offences.7 (At a trial on indictment in a superior court, the practice of “bulk arraignments” has the benefit of both statutory sanction8 and appellate approval.9)

It is, nonetheless, surprising how often such issues have arisen in Queensland’s appellate courts over recent years. If it is reasonable to extrapolate from the frequency of such appeals, which may represent only the “tip of the iceberg”, it could be concluded that actual procedural oversights — as distinct from the deliberate adoption of time-honoured formulæ or customary procedures — is endemic. And even more surprising is the fact that many of these recent appellate decisions have been determined without reference to the others of them.

Statutory Requirements

The formal requirements at the summary trial of a simple offence are prescribed by section 145 of the Justices Act 1886, which stipulates:

145. Defendant to be asked to plead

(1) When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.

(2) If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any manner authorised by law.

However, for the formal requirements on the summary trial of an indictable offence — specifically, where the defendant may elect for either a summary trial or a trial on indictment — one must turn to section 552I of the Criminal Code, which relevantly provides:

552I. Procedure under section 552B

(1) …

(2) If the defendant is not legally represented, the Magistrates Court is required:

(a) to state the substance of the charge to the defendant; and

(b) to explain to the defendant that he or she is entitled to be tried by a jury and is not obliged to make any defence; and

(c) to ask the defendant whether he or she wants the charge to be dealt with summarily.

(3) Whether or not the defendant is legally represented, unless the defendant informs the Magistrates Court that he or she wants to be tried by a jury, the Magistrates Court must ask whether the defendant is guilty or not guilty of the offence.

(4) If the defendant says ‘guilty’ the Magistrates Court must convict.

(5) If the defendant says ‘not guilty’ the Magistrates Court must hear the defence.

(6) After the defendant enters a plea, the Magistrates Court must then deal with the charge summarily.

…

Hyde v. Mason

The consequences of a failure to arraign were addressed, albeit as an incidental issue, by the Court of Appeal in refusing leave to appeal in Hyde v. Mason.10 Justice Fryberg (who gave the leading judgment, with President McMurdo and Justice Mullins concurring) said:11

… It appears from the material placed before this court that through inadvertence, no plea was ever taken by the magistrate. If that is right there was a breach of s 145 of the Justices Act 1886. Differing opinions have been expressed about the consequences of such a breach: See Rowen v. Strophair;12 Murray v. Northcott;13 Sesar v. Haymon;14 cf Daly v. Barlow.15 This case should serve as a timely reminder of the need to comply with the section. In the present case the non-compliance if any could not possibly have brought about any miscarriage of justice. That being so a grant of leave to appeal on this ground would be unwarranted.

Of the recent cases, this and PPG v. Commissioner of Police16 are the only ones which expressly cite the 1969 decision in Daly v. Barlow,17 mentioned above. In that case — where the accused person had indicated his intention to defend the charge although there was no formal plea — Hoare J. concluded that this “was an irregularity only”; that the accused “has suffered no injustice by the failure to call on him to plead”; that “the procedure followed was precisely the procedure laid down if he did not ‘admit the truth of the charge’”; and that, “Accordingly, the procedure which followed was a perfectly proper one … .”18

In so holding, Hoare J. expressly declined to follow an earlier decision in Rowen v. Strophair,19 where Andrews DCJ — as the later Chief Justice, Hon. Sir Dormer Andrews, then was — held that arraignment in accordance with section 145 of the Justices Act 1886 was one of “certain duties imposed upon the courts for the protection of accused persons which even in summary proceedings as distinct from pleas of the Crown may not be waived”.20

Murray v. McKenzie

Murray v. McKenzie21 was a 2006 decision of Judge Richards DCJ. In that case, the defendant was not formally arraigned, but “the Magistrate … acted on the assumption that the appellant was intending to plead not guilty”; the defendant “did nothing to dispel this assumption”; and, on the contrary, the defendant “indicat[ed] that he was wanting a trial to proceed” and “cross-examin[ed] the witnesses”.22 Moreover, as Her Honour noted, the very fact of the appeal against conviction demonstrated that the defendant “[neither] showed any intention nor had any desire to plead guilty”.23

Her Honour’s conclusion, in these circumstances, was that:24

In this case the appellant wanted to enter a plea of not guilty and there is no suggestion that the failure of the magistrate to take a plea formally in the case has in any way affected or influenced the outcome of the case. Accordingly the procedural error in this case does not require that the appellant’s conviction be set aside.

Of some interest, however, is the fact that Her Honour reached a conclusion practically “on all fours” with Daly v. Barlow,25 without the advantage of being taken to that case — or to the Court of Appeal decision in Hyde v. Mason,26 where it had been cited — either by the self-represented appellant, or by counsel for the respondent. Instead, Her Honour based the decision on the general statements of principle in R. v. Mentink,27 where Thomas and White JJ said:

If there is a defect in the constitution of the court, the authorities suggest that the conviction will be set aside whether it might be thought to have affected the result or not. This is to be distinguished from procedural errors in the course of a trial by a duly constituted court. In such cases one examines whether the error might have affected the determinative process or the opportunity of acquittal for the accused, or even more generally if it might have affected the quality of the trial.

McKinlay v. Commissioner of Police

McKinlay28 is a curiosity, in that the validity of the defendant’s guilty plea, at a summary trial of an indictable offence, was raised, not by the defendant, but by the Court of Appeal on an application for leave to appeal. According to the record, the following exchange occurred at the commencement of the hearing in the Magistrates Court:29

BENCH: Yes. I’ll get you to announce your appearance … .

DEFENDANT’S SOLICITOR: [after announcing his name and firm name] Appearing on behalf of Mr McKinlay this morning.

BENCH: Yes. A charge of serious assault.

DEFENDANT’S SOLICITOR: Yes, your Honour. The matter was listed for a contested hearing this morning. I had some discussion with my friend this morning. For some reason, their office only had it listed as a mention. As such, no witnesses are available today. We had had some discussion as to the facts and the matter has resolved. It can now proceed by way of a plea of guilty.

BENCH: All right then.

DEFENDANT’S SOLICITOR: I have those—–

BENCH: Summary election?

DEFENDANT’S SOLICITOR: Yes, your Honour.

BENCH: Thank you.

Perhaps because the point only emerged in the course of argument, the court’s attention was not drawn to decisions such as Daly v. Barlow,30 Hyde v. Mason,31 or even Murray v. McKenzie,32 each of which supported the validity of the procedure which had been adopted. Instead, the Court of Appeal referred to two New South Wales cases in which similar issues had arisen, although the terms of the relevant legislation in that State were marginally different: Ex parte Dunn;33 and Collier v. Director of Public Prosecutions (NSW).34 Hence, the conclusion — or, perhaps more accurately, the absence of a conclusion — was expressed in these terms:35

[32] The Justices Act 1886 (Qld) is relevantly different from the Criminal Procedure Act 1986 (NSW) in that the definition of “defendant” in s 3 of the Justices Act does not include that person’s lawyer. It is arguable that a plea entered against a defendant who is present at the hearing will not be valid unless “the substance of the complaint” is stated to him at the hearing and he personally responds to the question how he pleads.

[33] Because I would dismiss the application that is now before the court, I do not express concluded views on these questions. Nor do I express any view on what counsel informed this court is a common practice in Magistrates Courts — for a lawyer to use a form of words such as — “My client appears and takes the charge as read, pleads guilty and elects summary jurisdiction.”

Commissioner of Police v. Warcon

In Warcon,36  the point arose in a tangential, though ingenious, way. Counsel on behalf of Warcon argued that, for the purposes of sections 221 and 222 of the Justices Act 1886, he could not be taken to have pleaded guilty (so as to limit his right to appeal against conviction) when the strict requirements in section 552I of the Criminal Code had not been complied with on the summary trial of an indictable offence.

Judge Devereaux SC DCJ, without the benefit of reference to the earlier Queensland authorities, found guidance in the English cases of R. v. Williams37 and Ellis.38 On that footing, His Honour observed:39

[16] Referring to Ellis, Shaw L.J. said a plea of guilty was “a plea which is self-incriminatory and self-incrimination cannot be vicariously accomplished.”40 A departure from the rule in a criminal trial that a plea of guilty must come from him who acknowledges guilt would render the whole procedure void and ineffectual.41

[17] Williams and Ellis both concerned proceedings conducted on indictment. The present case was a summary proceeding. In Ellis, the court proclaimed the fundamental importance of the defendant’s claim to direct participation in making the plea of guilty. In Williams, the court did not conclude the same fundamental importance attached to the personal making of the defendant’s plea of not guilty where the trial was obviously conducted in his presence on the premise that he had so pleaded.

[18] Neither case dealt with the summary disposition of an indictable offence. Neither dealt with the effect on the essential validity of summary proceedings of a legal representative, in the presence of and without comment or objection by the defendant, stating that he holds instructions to enter a plea of guilty.

His Honour then concluded:42

[20] What occurred in the present case did not conform to the procedure required by s. 552I. As the respondent did not tell the magistrate he wanted to be tried by a jury, it was for the magistrate to ask him whether he pleaded guilty or not guilty. That did not happen. The defendant, himself, did not say “guilty”. If the proceedings were thereby irregular I am unable to conclude they were a nullity.

[21] It may be that more attention needs to be paid to the procedure prescribed for the summary disposition of indictable offences … . The fundamental question seems to me to be whether the magistrate has power under, say, s. 552B, to deal with a particular case. Then it is for the magistrate to consider whether jurisdiction should be declined, under s. 552D. If the case is to be dealt with summarily, the procedure in s. 552I must be followed. If there is error at any of these steps, the terms of Code s. 552J seem to be wide enough to provide a remedy. Relevantly,

“(2) The grounds on which the person may appeal include that the Magistrates Court erred by deciding the conviction or sentence summarily.

(3) The grounds on which the Attorney-General may appeal against sentence include that the Magistrates Court erred by deciding the sentence summarily.”

[22] In this case, the respondent’s legal representative, in the presence of the respondent, said “I am instructed to enter a plea of guilty to that charge.” Thereafter the proceedings were conducted on that plea. Neither the prosecution nor the respondent objected. The respondent still makes no objection. The respondent was convicted and sentenced and the matter has passed into judgment.

[23] The learned magistrate addressed the respondent directly:

“Mr Warcon, I take into account your plea of guilty …”

[24] The learned magistrate, after telling the respondent the sentence would be 10 months imprisonment with immediate parole, continued:

“BENCH: So accordingly, what I’m going to do is I’m going to sentence you to a term of imprisonment. I – you’ll be sentenced to a term of imprisonment of 10 months. Now, taking into account your engagement with Helem Yumba and your age, I will order that fixed parole date be as at today, the 3rd of September 2010; right. Now, that means that you will be on parole for a period of 10 months from today, right.

Now if you breach parole, you know what can happen – you can come back before this Court and be ordered to – you know, you can serve – end up serving a term of imprisonment, ultimately, do you understand that?

DEFENDANT: Yes.

BENCH: Now, one of the requirements will be that you must report today to the Probation and Parole Office at Rockhampton. If you don’t, you will be in immediate breach of parole; do you understand that?

DEFENDANT: Yes.”

There could have been no doubt about how the respondent intended to plead.43

[25] There is no submission that justice has miscarried. In my view the conviction is valid unless and until the plea is set aside according to well-recognised principles governing an application to withdraw a plea of guilty or an appeal against conviction after a plea of guilty.

PPG v. Commissioner of Police

Another decision of Judge Devereaux, PPG,44 concerned a defendant in summary proceedings on whose behalf a guilty plea was entered by “a solicitor with considerable experience”. The solicitor was acting — in rather singular circumstances — as “friend of the Court”.

After a comprehensive review of the case-law, his Honour was persuaded that “a lawyer may speak for a person, even when the person is present in court, telling the court the charge may be taken as read and even that the defendant pleads guilty”.45

The issue in PPG, however, was whether this principle applied only if the lawyer was retained by the defendant. As his Honour concluded:46

I proceed on the basis that a lawyer acting for a person may tell the court the person pleads guilty, effectively entering the plea on the defendant’s behalf. I am not satisfied that occurred in the present case because it is far from clear that the solicitor was engaged in a solicitor/client relationship with the appellant. He offered assistance as friend of the court and his appearance was so recorded. In the circumstances, I am not prepared to infer, despite the manner in which the solicitor made submissions, that the solicitor was even temporarily retained to act for the appellant.

 

Brown v. Queensland Police Service

The decision in Brown47 — to which reference has already been made — concerned whether the “customary procedure” whereby the defendant’s legal representative may take charges “as read”, enter a plea, and elect for summary jurisdiction, is permissible where the several charges comprise, or include, indictable offences which are to be tried summarily. On this question, the decision of Judge Durward SC, DCJ was directly contrary to that of Judge Devereaux in Warcon.48

This result was doubtless contributed to by the fact that in neither case had the Judge been referred to the relevant Queensland authorities. Nor, in Brown (which was decided in Townsville on 6 December 2011), was Judge Durward told about the decision of Judge Devereaux in Warcon (decided in Rockhampton on 7 March 2011).

Be that as it may, Judge Durward held that:49

Where indictable offences are to be heard and determined summarily, each offence must be read to the defendant and a separate plea taken to each offence, after it is read to the defendant. A failure to follow that procedure is in my view, an incurable irregularity that will result in a conviction on a plea of guilty being quashed on appeal and the sentence imposed being set aside.

Even allowing for the fact that His Honour did not have the benefit of reference to the previous Queensland appellate decisions relating to this question, it seems difficult to justify Judge Durward’s conclusion that what occurred amounts to “an incurable irregularity that will result in a conviction on a plea of guilty being quashed on appeal and the sentence imposed being set aside”. Significantly, this point was conceded by the respondent’s counsel, which possibly explains the fact that His Honour was not taken to the relevant authorities, although His Honour commented that “[t]he concession … was a proper concession to make in the circumstances”.

To a large extent, Judge Durward’s decision turned upon a distinction which his Honour drew between the requirements in section 145 of the Justices Act 1886 (in respect of which his Honour apparently considered that non-compliance was a mere formal irregularity) as compared with the requirements in section 552I of the Criminal Code (in respect of which his Honour concluded that non-compliance constituted a fatal defect). Relevantly, his Honour said:50

Whilst both section 145(1) of the Act and section 552I of the Code contain the word “substance”, the procedure in the Code section is more detailed and specific.

This, with respect, would appear to be a particularly tenuous basis for holding that, in effect, the one is merely directory, whilst the other is mandatory.

Synopsis

Despite some obvious difficulties in reconciling this line of authorities, it seems that some conclusions may be expressed with a degree of confidence.

I. SUMMARY TRIAL OF A SIMPLE OFFENCE

a. represented defendants

(1) If the defendant is legally represented, there is little doubt that his or her lawyer may properly:

• “take the charge as read”; and
• enter a plea of “guilty” or “not guilty” on the defendant’s behalf.

(2) That is especially so where the defendant is a natural person, present in court, who makes no attempt to dissent from the course adopted by his or her lawyer. (If the defendant is a corporate entity, it is obviously prudent to adopt the traditional practice of preparing a written plea, executed under common seal.)

(3) On the other hand, it has been held that a guilty plea cannot be entered on a defendant’s behalf by a lawyer who is not retained by the defendant, such as one acting as amicus curiæ.51 The same reasoning would suggest that a guilty plea should not be accepted from an unqualified person, such as a “McKenzie friend”,52 who is assisting, or purporting to act for, the defendant; though a different conclusion may be open if such a person has applied for, and been formally granted, leave to appear for the defendant.

B. unrepresented defendants

(4) Some authorities suggest that a self-represented defendant may also choose to “take the charge as read” and enter a plea without being formally arraigned.53 However, it is desirable that particular care be taken in such cases, to ensure that there is compliance with the substance — and preferably the letter — of the requirements in section 145 of the Justices Act 1886.

(5) Nonetheless, if the defendant makes it clear that he or she wishes to contest the charge, and if the magistrate proceeds on the basis that a plea of “not guilty” has been entered, it is difficult to imagine any circumstances in which an appellate court would overturn any conviction which is otherwise sustainable on the evidence.

(6) But, absent a formal arraignment, if the magistrate proceeds on the assumption that a self-represented defendant wishes to plead “guilty”, an appeal is likely to succeed if there is any real scope for doubt, either:

• that the defendant understood the substance of the charge; or
• that the defendant manifested a clear intention of admitting guilt.

II. SUMMARY TRIAL OF AN INDICTABLE OFFENCE

a. represented defendants

(1) Again, if the defendant is legally represented, it seems the better view that his or her lawyer may properly:

• “take the charge as read”; and
• enter a plea of “guilty” or “not guilty” on the defendant’s behalf; and
• elect for a summary hearing.

(2) However, in light of the decision of Judge Durward in Brown v. Queensland Police Service54 — and despite the contrary view of Judge Devereaux in Commissioner of Police v. Warcon55 — strict compliance with the requirements in section 552I of the Criminal Code must be regarded as the preferable course, even if non-compliance may not necessarily result in a successful appeal.

(3) Strict compliance with those requirements should be regarded as essential in cases where the person purporting to speak on the defendant’s behalf:

• is not a qualified lawyer (whether or not formal leave to appear has been sought and granted); or
• being a qualified lawyer, is not retained specifically to act for the defendant.

b. unrepresented defendants

(4) Certainly, in all cases where the defendant is self-represented, nothing less than strict compliance with the requirements in section 552I of the Criminal Code should be entertained.

(5) But, that said, there is much force in the view of Judge Devereaux56 that non-compliance with s.552I, though an irregularity, does not necessarily render the proceedings a nullity.

(7) Whether or not an appeal succeeds based solely on a technical non-compliance with s.552I should depend, ultimately, on whether there is any real scope for doubt, either:

• that the defendant understood the substance of the charge; or
• that the defendant manifested a clear intention of admitting or denying guilt (as the case may be); or
• that the defendant understood the right of election to be tried on indictment rather than summarily; or
• that the defendant manifested a clear intention of electing to be tried summarily.

Footnotes

1. [1969] Qd.R. 237
2. [1969] Qd.R. 237 at p.243
3. [2011] QCA 356
4. [2011] QCA 356 at para. [33]
5. [1969] Qd.R. 237 at pp.242-3
6. [2011] QDC 301
7. [2011] QDC 301 at para. [9]
8. Criminal Code, section 597C; Criminal Practice Rules 1999, section 46
9. R. v. Carkeet [2008] QCA 143, and R. v. SBJ [2009] QCA 100
10. [2005] QCA 79
11. [2005] QCA 79 at para. [24]
12. (1966) 61 Q.J.P.R. 33
13. [1990] W.A.R. 219
14. (1987) 50 N.T.R. 1
15. [1969] Qd.R. 237
16. [2011] QDC 277
17. [1969] Qd.R. 237
18. [1969] Qd.R. 237 at p.243
19. (1967) 61 QJPR 33
20. (1967) 61 QJPR 33 at p.35
21. [2006] QDC 84
22. [2006] QDC 84 at para. [4]
23. [2006] QDC 84 at para. [4]
24. [2006] QDC 84 at para. [7]
25. [1969] Qd.R. 237
26. [2005] QCA 79
27. CA 494/1994 15 March 1995, unreported
28. [2011] QCA 356
29. [2011] QCA 356 at para. [22]
30. [1969] Qd.R. 237
31. [2005] QCA 79
32. [2006] QDC 84
33. (1904) 4 S.R.(N.S.W.) 486
34. [2011] NSWCA 202
35.  [2011] QCA 356 at paras. [32] and [33], per Margaret Wilson AJA; Chesterman JA and Mullins J concurring
36. [2011] QDC 28
37. [1977] 1 All E.R. 874
38. (1973) 57 Cr.App.R. 571
39. [2011] QDC 28, paras. [16] to [18]
40. [1977] 1 All E.R. 874 at pp. 876-7
41. [1977] 1 All E.R. 874 at p. 877
42. [2011] QDC 28, paras. [16] to [18]
43. Compare Ellis (1973) 57 Cr.App.R. 571 at 575.
44. [2011] QDC 277
45. [2011] QDC 277 at para. [51]
46. [2011] QDC 277 at para. [53]
47. [2011] QDC 301
48. [2011] QDC 28
49. [2011] QDC 301 at para. [33]
50. [2011] QDC 301 at para. [18]
51. PPG v. Commissioner of Police [2011] QDC 277
52. McKenzie v. McKenzie [1971] P. 33; [1970] 3 All E.R. 1034
53. Daly v. Barlow [1969] Qd.R. 237
54. [2011] QDC 301
55. [2011] QDC 28
56. Commissioner of Police v. Warcon [2011] QDC 28