JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ANDERSON -v- PANKHURST [No 2] [2012] WASC 326 CORAM : HALL J HEARD : 4 SEPTEMBER 2012 DELIVERED : 4 SEPTEMBER 2012 PUBLISHED : 11 SEPTEMBER 2012 FILE NO/S : SJA 1073 of 2012 BETWEEN : JOSEPH DOUGLAS ANDERSON Appellant
AND
LINDSAY DALE PANKHURST
Respondent
ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE S M WILSON
File No : NO 1095 of 2009
Catchwords:
Criminal law - Appeal against conviction - Appeal after plea of guilty - Conviction for offence not open on admitted facts - Whether conviction for lesser offence can be substituted
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Legislation:
Criminal Appeals Act 2004 (WA), s 14
Road Traffic Act 1974 (WA), s 64AB, s 64AC
Result:
Extension of time granted
Leave to appeal granted
Appeal allowed
Conviction for lesser offence substituted
Category: B
Representation:
Counsel:
Appellant : Ms V Amidzic
Respondent : Ms A Johnson
Solicitors:
Appellant : Amidzic Lawyers
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):Anderson v Prankhurst [2012] WASC 287Borsa v The Queen [2003] WASCA 254Hogue v The State of Western Australia [2005] WASCA 102Liberti (1991) 55 A Crim R 120McLeod v The State of Western Australia [2009] WASCA 233
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1 HALL J: On 4 September 2012 I allowed this appeal against conviction. These are my reasons for doing so.
2 On 26 October 2008, the appellant was stopped while riding his motor cycle and required by police to submit to a drug test. Positive results to methylamphetamine and MDMA were obtained following testing at the ChemCentre. The appellant was then charged with driving a motor vehicle whilst impaired by drugs contrary to s 64AB of the Road Traffic Act 1974 (WA). The appellant was served with a summons and endorsed a plea of guilty and returned it to the Magistrates Court.
3 The charge was dealt with in the Northam Magistrates Court on 25 May 2009. The appellant did not appear on that day and was not represented. The magistrate noted that the appellant had prior convictions for driving under the influence of alcohol and in consequence he was liable to an increased penalty for this offence. The relevant penalty provision, being s 64AB(2)(c), requires the court to order permanent disqualification where there was a third or subsequent relevant offence, in addition to a monetary penalty or imprisonment. The magistrate imposed a fine of $2,000 and imposed, as required, the permanent disqualification.
4 An appeal notice was filed on 12 July 2012. The appeal was against both conviction and sentence. The appeal was more than three years out of time and an extension was required. The appellant filed an affidavit explaining the delay. Essentially he says that the delay occurred because, whilst he initially sought legal advice regarding an appeal against the permanent disqualification, he was told there was little hope because he had pleaded guilty. He had more favourable advice from another lawyer but could not afford the fees required. The appellant says he was then distracted by other proceedings and only consulted another lawyer comparatively recently. Whilst those facts may explain some of the delay they do not adequately justify the full extent of it.
5 However it is open to grant an extension if it can be established that not to do so would result in a miscarriage of justice: McLeod v The State of Western Australia [2009] WASCA 233 [79] (McLure P). That requires a consideration of the merits of the appeal.
6 The appellant's grounds are in essence that the facts as alleged by the prosecution were insufficient to establish the offence with which he was charged and that he entered a plea of guilty on a mistaken understanding of the nature of that charge. It is important to understand that the offence with which the appellant was charged alleged that he was driving whilst
(Page 4) impaired by drugs. It is an essential element of that offence that the driving of the person be actually impaired. Thus the offence is not committed merely because a drug is detected in the driver's oral fluid. Impairment can be established by proving conduct consistent with having consumed a drug and inconsistent with having proper control of a motor vehicle: s 64AB(5) Road Traffic Act.
7 A less serious offence exists, being driving whilst a prescribed or illicit drug is present in the person's oral fluid or blood contrary to s 64AC of the Road Traffic Act. An offence under s 64AC carries significantly lower penalties and can not result in permanent disqualification. 8 It would appear from the statement of material facts that there was no allegation in this case that the driving of the appellant was actually impaired. There was no suggestion that he had been stopped by the police as a result of any observations regarding his driving. The amount of drug detected was comparatively small. It would seem in these circumstances that there was no basis for proof of the necessary element of impairment to establish the more serious charge under s 64AB.
9 Whilst the appellant entered an endorsed plea of guilty to the charge and such a plea is normally taken to be an acceptance of all of the elements, he has sworn an affidavit stating that he was told by the police that he would be charged with an offence that would result only in a small fine and that when he received the prosecution notice he assumed that it reflected what he had been told by the police. He says that he would not have pleaded guilty had he appreciated that, contrary to the indications he had been given, the prosecution notice referred to the more serious charge.
10 Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122, (Kirby P, Grove and Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA); Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).
11 Before an appellate court will set aside a conviction based upon a plea of guilty, the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22]; Borsa [20]. In Borsa, Steytler J
(Page 5) referred to three well-recognised circumstances in which a conviction based on a plea of guilty will be set aside: (1) where the appellant did not understand the nature of the charge and did not admit guilt;
(2) if upon the admitted facts the appellant could not in law have been guilty of the offence; and
(3) where the guilty plea has been obtained by improper inducement, fraud or the like.
12 This is a case that falls within the second category referred to in Borsa. That is to say, on the admitted facts the appellant could not in law have been convicted of the offence with which he was charged. That is because it was not alleged that the appellant's driving was impaired and there was no evidence that it was. 13 On 1 August 2012 I granted an application for a stay of the driver's licence disqualification pending determination of the appeal: Anderson v Prankhurst [2012] WASC 287. The merits of the appeal could not be determined at that stage as the respondent had not been given an opportunity to file any affidavits in response to that filed by the appellant. The respondent filed no affidavits and has not sought to contest that filed by the appellant.
14 Prior to the hearing of this appeal, the appellant conceded that leave to appeal should be granted and that the appeal should be allowed. In light of the uncontested evidence from the appellant, I am satisfied that that concession is properly made. The question that remained was whether a conviction for the lesser offence should be substituted.
15 The powers of this court on an appeal include the power to substitute a decision that should have been made by the Magistrates Court: s 14(1)(d) Criminal Appeals Act 2004 (WA). Where a person is charged with an offence under s 64AB it is open to the Magistrates Court to enter a conviction for the lesser offence under s 64AC: s 64AB(6) Road Traffic Act.
16 It was submitted by counsel for the respondent in oral submissions that this power would only be open following a trial. This submission was not advanced or supported by counsel for the appellant. Nor was it referred to in written submissions (indeed the respondent's written submissions were to the contrary). The submission is, in my view,
(Page 6) contrary to the clear provisions of the Road Traffic Act and the Criminal Appeals Act.
17 The words of s 64AB(6) do not contain any limitation of the type suggested by the respondent's counsel. That sub-section provides as follows: A person charged with an offence against this section may, instead of being convicted of that offence, be convicted of an offence against section 63 or 64AC.
18 It is not unusual for an appellate court to exercise a power to substitute a conviction for a lesser offence where this is justified. The powers of this court on an appeal include the power to make any other order that it sees fit: s 14(1)(h) Criminal Appeals Act. The clear intention of the appeal provisions is to ensure that the appeal court can make orders that will achieve a just result. This must include substituting a decision to convict an appellant for a lesser offence where that lesser offence is admitted and the circumstances otherwise justify it. 19 In his affidavit filed in this appeal, the appellant has accepted that he used drugs the night before he was stopped by the police. He expected that those drugs would have passed through his system by the time he drove. He does not, however, dispute the results of the chemical analysis. In those circumstances it is clear he has admitted the elements of the lesser offence.
20 It was submitted by the appellant's counsel that bearing in mind that the appellant had suffered the consequences of the original penalty, it would not now be appropriate to substitute a conviction for the lesser offence. I did not accept that submission. The reasons for that are as follows. Firstly, the appellant suffered the effects of the disqualification for the period that he did as a consequence of the long delay in bringing these appeal proceedings. That delay was largely due to his own dilatoriness. Secondly, the appellant has held an extraordinary licence for a significant proportion of the time since he was convicted and more recently there has been a stay of the disqualification. Thirdly, the fine imposed in the Magistrates Court will be refunded to the appellant. Fourthly, the adverse effects upon the appellant can be adequately recognised by imposing no penalty for a substituted conviction. Fifthly, it would not be appropriate to relieve the appellant of any conviction in circumstances where he has clearly admitted committing the lesser offence.
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21 The appellant also sought an order directing that the relevant government department responsible for issuing driver's licences issue a new licence to him. I declined to make such an order. The reasons for that were, first, that I was not satisfied that I had a power to do so. Secondly, there may well be requirements relevant to the issue of licence such as the payment of fees or establishing driving competence, which would normally need to be met. I appreciate that the appellant was seeking to undo the effect of the conviction that has now been set aside. He may well have a good claim to be issued with a new licence, but this is best dealt with by the relevant government authorities, who no doubt have some discretion in this regard.
22 For those reasons I made the following orders:
(1) Extension of time to appeal be granted. (2) Leave to appeal on all grounds be granted.
(3) The appeal be allowed.
(4) The conviction is set aside and a conviction for an offence under s 64AC of the Road Traffic Act substituted.
(5) No penalty be imposed in respect of the substituted conviction pursuant to s 46 of the Sentencing Act 1995 (WA).
(6) A certificate be granted to the appellant under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) for costs fixed in the sum of $5,500.