Arkeveld v Director of Public Prosecutions for Western Australia
[2023] WASC 264
•17 JULY 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ARKEVELD -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 264
CORAM: LUNDBERG J
HEARD: 26 APRIL, 27 JUNE & 17 JULY 2023
DELIVERED : 17 JULY 2023
FILE NO/S: SJA 1067 of 2022
BETWEEN: DAMIAN JOSHUA ARKEVELD
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D POTTER
File Number : PE 44638/2021, PE 24700/2021, PE 44640/2021 - PE 44642/2021, PE 44645/2021, PE 44646/2021
Catchwords:
Criminal law - Single judge appeal - Appeal against convictions entered following pleas of guilty in the Magistrates Court - Appellant was legally represented in the Magistrates Court - One charge of aggravated stalking and multiple charges of breaching a family violence restraining order - Declaration that appellant was serial family violence offender - Appellant asserts the existence of coercive influence, unsound mind and unsound legal advice - Whether a miscarriage of justice demonstrated - Court must approach an attempt to set aside a conviction based upon a plea of guilty with caution bordering on circumspection - Public interest in finality of legal proceedings
Legislation:
Bail Act 1982 (WA), Schedule 2
Criminal Appeals Act 2004 (WA), s 8, s 9, s 10 and s 40
Criminal Code (WA), s 338E
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 124E
Result:
Extension of time refused
Leave to appeal refused
Appeal is dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Borsa v The Queen [2003] WASCA 254
Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496
Hogue v The State of Western Australia [2005] WASCA 102
Liberti v The Queen (1991) 55 A Crim R 120
Meissner v The Queen (1995) 184 CLR 132
Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154
R v O [2003] QCA 446; (2003) 139 A Crim R 432
Snook v The State of Western Australia [2015] WASCA 29
Webster v The Queen [2015] WASCA 20
Table of Contents
A. Introduction and Summary
B. The offences
C. Proceedings on appeal
Primary material before the court
Hearing listed for 26 April 2023
Hearing listed for 21 June 2023
Hearing listed for 27 June 2023
D. The appellant's contentions
E. Relevant principles
F. Disposition
G. Orders
LUNDBERG J:
(This judgment was delivered ex temporaneously on 17 July 2023 and has been edited from the transcript to correct matters of grammar, add headings, and include complete references.)
A. Introduction and summary
This is an appeal against convictions entered in the Magistrates Court in Perth following the appellant's pleas of guilty to six charges of breaching a family violence restraining order and one charge of aggravated stalking.
The appellant was legally represented at the time he entered the pleas of guilty. He now asserts on this appeal that the convictions should be quashed by reason of 'coercive influence', 'unsound mind' and 'unsound legal advice'. None of these are competent grounds of appeal. As the appellant is unrepresented, I will interpret these grounds as constituting an allegation there has been a miscarriage of justice pursuant to s 8(1)(b) of the Criminal Appeals Act 2004 (WA) (CAA).
The appellant requires leave to bring this appeal out of time pursuant to s 10(3) CAA, and leave to appeal generally pursuant to s 9(1) CAA. The respondent opposes leave to appeal as well as the appeal generally. Initially, the respondent opposed the extension of time, but quite properly withdrew that objection at that hearing on 26 April 2023 having regard to the course of events before the magistrate on 23 June 2022 (of which the respondent was not aware prior to the hearing on 26 April 2023).[1] Whether the extension should be granted will naturally be impacted by the underlying merits of the appeal itself.
[1] ts 24 ‑ 25. It is evident from the transcript of proceedings on 23 June 2022 that the appellant had sought to agitate his objections to the convictions at that hearing. The fact the appellant had raised these objections at this early point in time is a factor which points in favour of the grant of an extension of time, noting that the appeal filing deadline was 25 May 2022 and the appeal itself to this court was not filed until 30 August 2022.
B. The offences
On 27 October 2021, the appellant was charged with various offences including six charges of breaching a family violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (Restraining Orders Act) and one charge of aggravated stalking, contrary to s 338E(1)(a)(B) of the Criminal Code (WA), as well as other serious offences.
The offences were alleged to have been committed over the period between April and October 2021. In broad terms, the conduct in question was directed towards a person with whom the appellant had previously been in a relationship. The relationship apparently ended in around March 2020. The appellant's former partner obtained a family violence restraining order against the appellant on 18 June 2020, being order No. 1300/2020 (the FVRO).
The FVRO prohibited the appellant from communicating with his former partner by whatever means, behaving in an intimidating, offensive, emotionally abusive manner, entering upon her address, or causing or engaging any other person to behave in that manner.
The table below details the charges relevant to this appeal:
Charge No.
Description of Offence
44638/2021
Between 11 April 2021 and 16 October 2021, the appellant pursued another person with intent to intimidate in circumstances of aggravation, namely that he was in a family domestic relationship with that person. Offence of aggravated stalking contrary to s 338E(1)(a)(B) Criminal Code.
24700/2021
On 24 April 2021, the appellant was bound by the FVRO and he breached that Order, contrary to s 61(1) Restraining Orders Act.
44640/2021
On 11 April 2021, the appellant was bound by the FVRO and he breached that Order, contrary to s 61(1) Restraining Orders Act.
44641/2021
On 11 April 2021, the appellant was bound by the FVRO and he breached that Order, contrary to s 61(1) Restraining Orders Act.
44642/2021
On 25 April 2021, the appellant was bound by the FVRO and he breached that Order, contrary to s 61(1) Restraining Orders Act.
44645/2021
On 24 August 2021, the appellant was bound by the FVRO and he breached that Order, contrary to s 61(1) Restraining Orders Act.
44646/2021
On 16 October 2021, the appellant was bound by the FVRO and he breached that Order, contrary to s 61(1) Restraining Orders Act.
The conduct which was alleged to constitute the above offences included the following matters:
(a)sending friend requests on Instagram to the victim using the appellant's Instagram account;
(b)a phone call to the victim from a withheld phone number which involved the appellant screeching down the phone and a further phone call to the victim from a withheld phone number which the victim did not answer;
(c)a phone call to the victim from the appellant's home address during which another man in company with the appellant screamed abuse about the victim down the phone;
(d)phone calls to the victim from the phone of a friend of the appellant, one of which was answered and during which the victim recognised the appellant's voice;
(e)the appellant ordered take away food from a fast‑food outlet to be delivered to the victim's residence using an online app, and the food was in fact delivered; and
(f)late in the evening, contacting the victim by telephone from a no‑caller identification number, which the victim answered and after speaking briefly, the victim told the appellant not to call her again.
On 12 April 2022, the charges were brought before the Deputy Chief Magistrate and the appellant pleaded guilty to the charges. Convictions were duly recorded. Between his arrest and the pleas of guilty being entered, the appellant was brought before the Magistrates Court on several occasions, namely 28 October 2021, 29 October 2021, 11 February 2022, 22 March 2022, and 12 April 2022. On each occasion, the appellant was represented by the same lawyer and the appellant was present in court in person or appeared by video‑link.
On 27 April 2022, the appellant was sentenced by another magistrate. He was sentenced to 9 months' imprisonment for the aggravated stalking charge and 1 month imprisonment for each of the breaches of the FVROs, to be served concurrently with the head sentence. At the sentencing hearing, the appellant's lawyer delivered a lengthy plea in mitigation which occupies over seven pages of the transcript. The appellant's lawyer also outlined various circumstances in order to give context to the conduct on behalf of the appellant, including that:
(a)although the appellant accepted his Instagram account was used to send the friend requests to the victim, the plea of guilty was made on the basis that a friend with access to his account had made the requests, not the appellant;
(b)certain of the phone calls were made by a friend of the appellant, but the appellant had allowed that person to do so by giving them the victim's phone number; and
(c)the order from the fast‑food outlet was addressed to the victim's father, who lived at the same address, rather than to the victim herself.
At a later hearing, on 25 July 2022, on the application of the prosecutor, the appellant was declared to be a serial family violence offender, pursuant to s 124E of the Sentencing Act 1995 (WA) (Sentencing Act). The appellant agitated a complaint about this declaration during the course of the hearing in this court on 26 April 2023. The notice of appeal filed with this court did not directly challenge the making of this declaration, a fact which I raised with the appellant during the hearing.[2] I was nonetheless prepared to consider this issue as part of the appeal, given the appellant was unrepresented and the issue was related to and arose out of the convictions which were the subject of the notice of appeal.
[2] ts 19 and 44.
C. Proceedings on appeal
Primary material before the court
For the purposes of this appeal, I have before me the notice of appeal from the appellant filed 30 August 2022, and I have received an undated and unsigned statement from the appellant filed on 30 August 2022, as well as a further undated and unsworn statement filed on 10 January 2023. I also have the respondent's comprehensive submissions in opposition to the appeal, filed on 27 January 2023.
As to the proceedings below, I have before me copies of the prosecution notices for each charge and copies of the transcripts of the various appearances in the Magistrates Court on 28 October 2021, 29 October 2021, 11 February 2022, 22 March 2022, 12 April 2022, 20 April 2022, 27 April 2022, 23 June 2022 and 25 July 2022.
Hearing listed for 26 April 2023
The appeal was first listed for hearing before me on 26 April 2023. The appellant appeared without legal representation at that hearing (and has been unrepresented throughout the appeal proceedings). The respondent has been represented by counsel, Mr R P Arndt.
During the course of the hearing on 26 April 2023, it became apparent that the appellant wished to adduce medical evidence in support of his appeal.[3] This in turn may have required the respondent to adduce evidence in reply and the possibility of cross‑examination of medical experts was the subject of interchanges between the court and the parties. In the circumstances, I formed the view that I should adjourn the hearing and made an order that the appellant was to notify the court and the respondent by 5 May 2023 whether he intended to apply to the court to adduce further evidence on this appeal from the psychiatrist who had assessed him.[4] I adjourned the appeal for a further hearing on 9 May 2023.
[3] ts 45 ‑ 49.
[4] As is permitted by s 40(1)(e) CAA.
On 3 May 2023, the appellant informed the court by email the psychiatrist was on leave until 6 June 2023. I instructed my associate to respond to the parties in the following terms:
1.Mr Arkeveld's email communicates that [the psychiatrist] is away until 6 June 2023.
2.Order 1 of his Honour's orders made on 26 April 2023 states that the appellant was to notify the court whether he intends to apply to the court to adduce further evidence in relation to this appeal from [the psychiatrist] by Friday, 5 May 2023. Although Mr Arkeveld's email does not represent notification as to whether he intends to apply to adduce further evidence, in light of the unavailability of [the psychiatrist], his Honour is disposed to allow Mr Arkeveld further time to notify the court whether he intends to apply to the court to adduce further evidence from [the psychiatrist].
3.Accordingly, and subject to the position of the respondent, including whether further delay prejudices the respondent, his Honour is disposed to make the following orders:
1.The directions hearing on Tuesday, 9 May 2023 be vacated.
2.The appellant is to notify the court and the respondent by 4.00 pm on Tuesday, 13 June 2023 whether he intends to apply to the court to adduce further evidence on this appeal from [the psychiatrist].
3.The appeal is otherwise adjourned to a directions hearing on Wednesday, 21 June 2023 at 9.30 am.
I ultimately made orders to this effect on 8 May 2023.
On 13 June 2023, the appellant informed the court by email that he would like to apply to adduce evidence on this appeal but indicated he had not been able to contact the psychiatrist in question. The respondent's position in response to this email was understandable. The respondent informed the court by email that:
(a)whether it would consent to, or oppose, an adjournment to obtain further evidence was dependent on how long an adjournment was sought;
(b)the material presently before the court did not establish that a miscarriage of justice had occurred, and there was no evidence presently before the court to show that the appellant was unfit to plead or that his plea of guilty was not the exercise of his own choice;
(c)the appeal ought not be adjourned indefinitely while the appellant seeks additional evidence;
(d)the earlier directions hearing has been postponed due to the psychiatrist's absence and, when that directions hearing had been listed, it had been envisaged that by the time of the directions hearing the appellant would at least know when he would be able to obtain a report from the medical practitioner;
(e)at the directions hearing on 21 June 2023, the court should make orders as to when the appellant is to provide any further evidence and the respondent should then be given sufficient time to determine if it will seek to adduce any evidence and whether there is a need for the psychiatrist to be cross‑examined; and
(f)if the appellant is not in a position to inform the court at the directions hearing how long he will require to obtain any evidence to be adduced, then the respondent's application will be that the court list the matter for the conclusion of the appeal which was adjourned part‑heard on 26 April 2023.
Accordingly, I maintained the listing of the appeal for 21 June 2023.
Hearing listed for 21 June 2023
On the morning of 21 June 2023, the appellant emailed the court to indicate he would be unable to attend. His email stated as follows:
I am writing with regards to the upcoming hearing scheduled for 21/06/2023 in the matter of SJA 1067. I regret to inform the Court that due to unforeseen circumstances, I am unable to attend the hearing on the designated date. I kindly request that you bring this matter to the attention of the presiding Judge. [emphasis added]
Furthermore, I would like to bring to the Court's attention my intention to adduce further evidence in the form of reports from [the psychiatrist]. Unfortunately, despite repeated attempts to contact [the psychiatrist] via email, I have not received any response. Therefore, I have initiated a freedom of information request with the Department of Justice to obtain any relevant reports made by [the psychiatrist] that could be crucial to this case.
In light of these circumstances and my desire to present the most complete and comprehensive evidence to the Court, I respectfully request an adjournment of the hearing to allow sufficient time for the completion of the freedom of information request and the acquisition of [the psychiatrist's] reports.
I assure the Court that I am fully committed to cooperating with the judicial process and will comply with any orders made by His Honour regarding the adjournment or submission of additional evidence. I understand the importance of a fair and just legal proceeding.
I kindly ask the Court to consider my request and grant an adjournment to accommodate the inclusion of the aforementioned evidence. I am available at your convenience to discuss any further details or requirements related to this matter.
Thank you for your attention to this request. I look forward to the Court's guidance and appreciate your understanding in this regard.
The view I took in response to this email was to proceed with the listed hearing, in the absence of any good reason being advanced by the appellant for his inability to appear and given the previous adjournments. However, a building incident at the David Malcolm Justice Centre prevented the court accessing the necessary documents and files for the purposes of the hearing, and it was necessary to adjourn the hearing for a further week, to 27 June 2023.
Hearing listed for 27 June 2023
On the morning of 27 June 2023, the appellant again emailed the court to indicate he could not attend the listed hearing. The email was copied to the respondent's counsel and to the psychiatrist. The substantive portions of the email were as follows:
I will not be able to make today's hearing. [emphasis added]
If possible I would like his honour to make an order that the Department of Justice or Casuarina Prison are to lodge all files to the court that relate to myself receiving treatment from [the psychiatrist] and the mental health team at the prison.
To this date I have not received any reply from [the psychiatrist] except for his away message. I have ccd him into this email.
In response, I informed the appellant by email through my associate the directions hearing on 27 June 2023 would continue. Plainly, the appellant had disclosed no justifiable reason in his email for being unable to attend court and, indeed, the email sent on 27 June 2023 was somewhat dismissive of the processes of the court (which processes have been engaged by the appellant, through the filing of a notice of appeal, seeking orders to set aside convictions imposed by the magistrate below). As earlier noted, the appellant's communication to the court on 21 June 2023 was similarly dismissive, referring only to 'unforeseen circumstances'.
The resources of the court are finite and litigants seeking to invoke the court's processes must be mindful of the importance of utilising those resources in an efficient manner, not to mention the resources of the Office of the Director of Public Prosecutions.
There was no appearance by the appellant at the hearing on 27 June 2023. The respondent quite properly indicated through counsel it would not be appropriate to proceed to determine the appeal on that date, as the matter had been listed for a directions hearing only. In the circumstances outlined and given the history of the matter, I was of the view that it was in the interests of justice to list the appeal for final hearing and determination and was satisfied the appellant had had sufficient time to place evidentiary materials before the court to support his application to adduce further evidence, but had not done so.
I was also of the view that there was no sufficient evidentiary basis before the court to make the order sought by the appellant in his email, that is to compel either the Department of Justice or Casuarina Prison to lodge all files with the court that relate to the treatment received by the appellant from the psychiatrist in question, or by the mental health team at Casuarina Prison.
I therefore ordered that the hearing of the appeal be re‑listed for 17 July 2023, and that a copy of the transcript of the hearing on 27 June 2023 be provided to the appellant. I declined to make any further order to permit the appellant an opportunity to adduce further evidence, given the appellant had already had some two additional months since the appeal was first listed on 26 April 2023 and he had failed to produce any material of substance in support of the application. I note that the appeal itself was filed in August 2022 and the parties were notified in mid-March 2023 of the date of the first hearing.
At the resumed hearing of the appeal on 17 July 2023, there was no appearance for the appellant and the court had received no further communication from the appellant, whether requesting an adjournment or substantively in relation to the appeal. I was satisfied the appellant had been given proper notice of the hearing and formed the view the matter should be determined without any further adjournment.
D. The appellant's contentions
The appellant contends on this appeal that he pleaded guilty to these charges in order to facilitate an application for bail to be made thereafter in respect of the other charges which were then pending against him. The appellant had initially sought bail in October 2021 shortly after being arrested. The provisional view expressed by the presiding magistrate on the initial application was against the grant of bail, bearing in mind the stalking and breach of FVRO offences fell within Schedule 2 of the Bail Act 1982 (WA). Accordingly, the appellant was required to show exceptional reasons before being eligible for a grant of bail.
The appellant asserts he was anxious at the time because his grandmother was extremely unwell, having been diagnosed with a brain tumour. The appellant notes that, in January 2022, his grandmother was given only six to 12 months to live. Flowing from his personal circumstances and his grandmother's serious health issues, the appellant says he was diagnosed at the time with anxiety and depression. The appellant states that he instructed his lawyer to get him released from custody to allow him to be with his grandmother in her final days. The appellant further states that his lawyer gave him advice that if he was sentenced to a period of imprisonment for under 12 months he would receive parole without applying for it, and a bail application could be made in the District Court the following week (after his plea of guilty). The appellant states he believed he would then be released on or about 15 April 2022. For these reasons, the appellant says he pleaded guilty to the charges.
The appellant's letter to this court dated 30 August 2022, filed in conjunction with the notice of appeal, states the appellant's position as follows (using the original spelling and style of the appellant's letter):
[19]During this time my Grandmothers health was deteriorating. For this reason My Depression and anxiety was becoming much worse along with other Mental illness that I have been unable to have treated or Diagnosed due to my incarceration.
[20]I instructed my Lawyer to get me released from Custody as I needed to be with my Grandmother in her final days.
[21]My lawyer stated he would have the statement of Material Facts changed and that if I was sentenced to under 12 months I would receive Parole without applying for it, He then stated I would have a Bail hearing in the District Court the following week which should have enabled My release on or about 15 April 2022.
[25]The following week the matter was Re-called. The Prosecutor that agreed to change the Material facts was still not Back. This was the 20th April 2022. The health of My Grandmother was Significantly worse and I was in a deep depression. I instructed I wished to enter a plea of Guilty to enable a Bail Application the following week.
[26]I did this as I was forced to do so in order to be out of Prison Before my Grandmother passed.
[27]I was then sentenced on the 20 April 2022 for a term of 9 Months Imprisonment. My Lawyer … advised that I Automatically had parole as the term was under 12 Months.
The dates and order of events in the appellant's letter are not consistent with the record. Specifically, the appellant entered his pleas of guilty on 12 April 2022 (not 20 April 2022) and the appellant was sentenced on 27 April 2022 (not 20 April 2022).
Most unfortunately, the appellant's grandmother passed away on 24 April 2022 while he was still in custody. Further, although he says he had been advised he did not need to make an application for parole, he was later informed by the Prisoners Review Board that he would need to make such an application. He subsequently received a parole date of 16 June 2022.
The appellant states that his lawyer did not apply for bail during this time and changed his intentions (i.e. his lawyer changed his intentions) to delay filing a bail application until the District Court charges had been listed for trial.
The appellant also filed handwritten submissions for the purposes of the hearing of the appeal, dated 18 January 2023. Those submissions include the following assertions (using the original spelling and style of the appellant's letter):
[11]At this point Legal advice was then said[5] to me, to enable myself to secure bail was to plea guilty to 6 x Breach Family Violence Restraining order and 1 x Aggravated Stalking.
[12]At this point my mental health Declined.
[13]Dr Mark Hall, My psychiatrist has diagnosed myself with having a physotic Breakdown, This affected my cognitive abilities at the time and changed my mental state.
[14]Having Regard to the totality of evidence the Convictions Cannot be supported and is unreasonable
[15]No evidence put forward or disclosed directly implicated myself.
[16]During Sentencing Magistrate Potter stated he did not believe My Mental State was in a phycotic state. This was an Error in law as Magistrate Potter was unable to Judge or hold view of My Mental state.
[17]My pleas of Guilty were entered on the Basis that My Lawyers would be applying for bail the following week So I could be out for my Dying grandmother.
[18]I Have Strong defences to the charges.
[19]The Costs awarded for the two discontinued charges was not enough, the costs incurred was $7,000
[20]I submit the Conviction be set aside and the matters be reset in the Magistrates Court for trial.
[5] The word 'said' has been deleted in the handwritten document.
E. Relevant principles
In Meissner v The Queen(1995) 184 CLR 132, the High Court was required to closely examine the nature and effect of a plea of guilty to a criminal charge. The precise circumstance before the Court was whether the crime of attempting to pervert the course of justice could be proved by evidence which established that the accused had attempted to influence a person by improper means to plead guilty to an offence, but where the evidence failed to establish that that person was not guilty of the offence in question.
Brennan, Toohey and McHugh JJ observed that a person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty (at 141). Their Honours went on to state:
A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.[6]
[6] Meissner (141) (Brennan, Toohey & McHugh JJ).
Dawson J adopted a similar approach, holding that:
… a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty.[7]
[7] Meissner (157) (Dawson J).
Fundamentally, a plea of guilty constitutes an admission to all of the elements of the offence.[8] An appellant will ordinarily be bound by a plea of guilty made as a result of a considered judgment, understanding the effect of what was being done, particularly when the plea is made after receiving legal advice.
[8] Meissner (157) (Dawson J).
A court will approach any attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection' primarily because there is a public interest in the finality of legal proceedings and because, as noted above, a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission of the necessary legal ingredients of the offence: Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing); Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154 [5] (Murray J), [57] (Steytler J); Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA, Malcolm CJ & Le Miere AJA agreeing); and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing).
An appeal against conviction following a plea of guilty will therefore succeed only in exceptional circumstances: Nelson v Haynes [5] (Murray J), [54] (Steytler J). Put another way, an appellant seeking to establish that a miscarriage of justice has occurred faces a 'high hurdle': R v O [2003] QCA 446; (2003) 139 A Crim R 432 (McMurdo P, Davies & Jerrard JJA).
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. The categories of what might constitute a miscarriage of justice are not closed. Drawing on the analysis of Dawson J in Meissner, Hall J in Snook v The State of Western Australia [2015] WASCA 29 [102] (Buss & Mazza JJA agreeing) summarised the three well‑recognised grounds or categories in which a change of plea may be entertained:[9]
(a)where the appellant did not understand the charge or did not intend to plead guilty;
(b)where on the admitted facts the appellant could not in law be guilty of the offence; and
(c)where the plea of guilty has been obtained by inducement, fraud, or intimidation.
[9] Referring to Borsa and Webster v The Queen [2015] WASCA 20.
Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea. As Hall J explained in Snook:
A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment. Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty: Meissner v The Queen. The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure [105].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IHN
Associate to the Honourable Justice Lundberg
17 JULY 2023
3.The appeal is dismissed.
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