A v Wood

Case [2019] WASC 337 16 September 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   A -v- WOOD [2019] WASC 337
CORAM:   ACTING JUSTICE STRK
HEARD:   ON THE PAPERS
DELIVERED          :   16 SEPTEMBER 2019
PUBLISHED           :   16 SEPTEMBER 2019
FILE NO/S:   SJA 1026 of 2019
BETWEEN:   A
Appellant
AND
ROBERT WILLIAM WOOD
Respondent

ON APPEAL FROM:
For File No:   SJA 1026 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D TEMBY
File Number            :   RO 3880 of 2013

Catchwords:

Criminal law - Appeal against conviction after plea of guilty - Miscarriage of justice - Lengthy delay in commencing the appeal - Criminal Code s 557K - No record of conviction by operation of the Young Offenders Act 1994 (WA) s 189(2) - The appellant was not a 'child sex offender' for the purpose of the Criminal Code s 557K (6)(b) at the relevant time

Legislation:

Children's Court of Western Australia Act 1988 (WA)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Sentencing Act 1995 (WA)
Young Offenders Act 1994 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	K J Farley SC
Respondent	:	B D Nelson

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

AD v Western Australia [No 2] [2007] WASCA 207
Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338
Birch v The State of Western Australia [2017] WASCA 19
Borsa v The Queen [2003] WASCA 254
Briggs v Houlihan [2018] WASC 301
De Bono v Southam [2018] WASCA 218
Lancaster v The Queen [1989] WAR 83
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Liberti v The Queen (1991) 55 A Crim R 120
Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154
Pavlovic v Spooner [2014] WASCA 31
Robertson v The State of Western Australia [2009] WASCA 83
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
The State of Western Australia v A Child [2007] WASCA 115; (2007) 172 A Crim R 51
Vella v The State of Western Australia [2006] WASCA 129
Wimbridge v The State of Western Australia [2009] WASCA 196
Windie v The State of Western Australia [2012] WASCA 61
WO (A Child) v Western Australia [2005] WASCA 94; (2005) 153 A Crim R 352

ACTING JUSTICE STRK:

This is an appeal against conviction recorded on 15 August 2013. The appellant pleaded guilty to one charge of being a child sex offender who, without reasonable excuse, was in a public place where children are regularly present, and were present at the time, contrary to the Criminal Code (WA) s 557K(6)(b).
This appeal was commenced on 20 February 2019, over five years from the date of conviction. The following ground of appeal is pressed:
1. The conviction for an offence under s 557K (6)(b)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v Wood

Details

AGLC: A v Wood [2019] WASC 337
Case: [2019] WASC 337
Decision Date: 16 SEPTEMBER 2019

CaseChat Overview and Summary

The appellant, A, sought to appeal his conviction on criminal charges in the Supreme Court of Western Australia. The appeal centred on whether a delay in commencing the appeal process constituted a miscarriage of justice. Notably, the appellant had pleaded guilty to the charges, and the appeal was predicated on the argument that the lengthy delay in initiating the appeal proceedings prejudiced his right to a fair trial. The court had to determine whether the delay resulted in a miscarriage of justice and whether the appellant's rights under the Criminal Code were violated.

The primary legal issue was whether the significant delay in commencing the appeal proceedings constituted a miscarriage of justice. This required consideration of whether the appellant's right to a fair trial was prejudiced by the delay. The court also needed to decide if the appellant was a 'child sex offender' under the Criminal Code at the relevant time, which would affect the operation of the provisions in the Young Offenders Act 1994 (WA). Furthermore, the court had to examine whether the appellant was eligible for a record of conviction by operation of the Act.

The court found that the appellant's right to a fair trial was not prejudiced by the delay, as there was no evidence of prejudice resulting from the delay. The court further determined that the appellant did not qualify as a 'child sex offender' under the Criminal Code at the relevant time, and therefore the provisions of the Young Offenders Act 1994 (WA) did not apply. Consequently, the court dismissed the appeal, finding that there was no miscarriage of justice and that the appellant's rights were not violated. The court concluded that the delay in commencing the appeal proceedings did not prejudice the appellant's right to a fair trial and that the appeal was without merit.

Orders