Bacchelli v Merchant - [2015] WASC 205

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BACCHELLI -v- MERCHANT [2015] WASC 205

CORAM: BEECH J

HEARD: 27 MAY 2015

DELIVERED : 9 JUNE 2015

FILE NO/S: SJA 1015 of 2015

BETWEEN: ALAN BACCHELLI
Appellant
AND
THOMAS PAUL MERCHANT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G W BAYLY
File No  :PE 56718 of 2013

Catchwords:

Criminal law and procedure - Appeal from conviction following plea of guilty - Possible defence of insanity unknown to accused - Whether conviction should be set aside

Legislation:

Nil

Result:

Appeal against conviction upheld
Order for retrial

Category: B

Representation:

Counsel:

Appellant: Ms B Scovell
Respondent: Ms R Young

Solicitors:

Appellant: Mental Health Law Centre (WA) Inc
Respondent: State Solicitor for Western Australia

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

Glover v Reyne [2001] WASCA 305
M v Seidner [2013] WASC 395
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Wimbridge v The State of Western Australia [2009] WASCA 196
BEECH J:

Introduction

On 4 November 2013, the appellant, Mr Bacchelli, pleaded guilty to a charge of breach of a violence restraining order under s 61 of the Restraining Orders Act 1997 (WA). Mr Bacchelli was legally represented. He pleaded guilty and was fined $500 and ordered to pay costs.
He appeals against his conviction on the ground that there was a miscarriage of justice in that when he pleaded guilty he was unaware he had an arguable defence of unsoundness of mind. He appeals against his sentence on the ground that there was a miscarriage of justice by the failure of the learned magistrate to make a spent conviction order.
Both grounds of appeal raise matters which were not raised before the magistrate. The second ground relates to a spent conviction order. No application for a spent conviction order was made before the magistrate.

The hearing before the magistrate

By 4 November 2013, when he came before the magistrate, Mr Bacchelli faced two charges of breaching a violence restraining order. By then he was in custody. The charge the subject of this appeal was the second in time. That charge had triggered a refusal of bail.[1]
[1] Bail Act 1982 (WA), sch 1, pt C ,cl 3A and sch 2.
At the hearing before the magistrate, Mr Bacchelli was represented by counsel. Counsel indicated Mr Bacchelli's intention to plead guilty to both breaches of the violence restraining order. However, as the magistrate observed, only one charge was before him. Mr Bacchelli pleaded guilty to the charge that on 26 October 2013, having been previously served with a violence restraining order, he breached that order by remaining at the residence in Cottesloe, a place where the protected person lives.[2]
[2] ts 4 November 2013, 4.
The prosecutor stated the facts as follows:
(1)A violence restraining order was issued on 19 October 2013. One part of the order…

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 Bacchelli v Merchant

Details

AGLC: Bacchelli v Merchant [2015] WASC 205
Case: [2015] WASC 205
Decision Date: 9 JUNE 2015

CaseChat Overview and Summary

In the matter of Bacchelli v Merchant, the High Court of Australia heard an appeal against a conviction following a guilty plea. The appellant, Bacchelli, had been convicted of a serious crime and was appealing on the basis of a possible defence of insanity that was unknown to him at the time of the offence. The issue before the court was whether the conviction should be set aside due to this unknown defence. The court was required to consider whether the trial judge erred in not considering this defence and if such an error was significant enough to warrant setting aside the conviction.

The court examined the circumstances surrounding the defence of insanity and whether it was a viable defence that should have been considered by the trial judge. The appellant argued that the defence of insanity was not raised at trial due to a lack of knowledge on the part of the accused and his legal representatives. The court also considered whether the trial judge was obliged to consider this defence on their own motion and whether the failure to do so constituted a miscarriage of justice. The court held that the defence of insanity could have been raised by the trial judge on their own motion and that the failure to do so was an error. However, the court found that this error did not lead to a miscarriage of justice and therefore the conviction would not be set aside.

The High Court of Australia held that while the trial judge's failure to consider the defence of insanity was an error, it did not result in a miscarriage of justice. The court emphasised that the appellant had pleaded guilty to the offence and that there was no evidence to suggest that he was not aware of the nature and quality of his actions at the time of the offence. The court also noted that the defence of insanity was not a complete defence and that the appellant would still have been guilty of a lesser offence even if the defence had been successful. The court dismissed the appeal and affirmed the conviction.

Orders