Brown v West Australian Police

[2008] WASC 219

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BROWN -v- WEST AUSTRALIAN POLICE [2008] WASC 219

CORAM:   EM HEENAN J

HEARD:   26 SEPTEMBER 2008

DELIVERED          :   26 SEPTEMBER 2008

FILE NO/S:   SJA 1040 of 2008

BETWEEN:   STEPHEN GLEN BROWN

Appellant

AND

WEST AUSTRALIAN POLICE
Defendant

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R G W BAYLY

File No  :JO 5856 of 2007,  JO 5857 of 2007

Catchwords:

Appeal against convictions and penalty - Possession of unlicensed ammunition - Pleas of guilty - Fine - No spent conviction order - Error in factual basis when sentencing - Plea of guilty entered without appreciation of available defence - Possible miscarriage of justice - Convictions set aside - Matters remitted for trial

Legislation:

Firearms Act 1942 (WA)

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     In person

Defendant:     Ms S Markham

Solicitors:

Appellant:     In person

Defendant:     Director of Public Prosecutions (WA)

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

Nil

1. EM HEENAN J:  I have before me an appeal against convictions for two offences and the fines imposed under the Firearms Act 1942 (WA) resulting from pleas of guilty entered before the learned magistrate in the court at Joondalup on 14 May 2008.  Leave to appeal was granted by an order of McKechnie J made 30 June 2008.

2. The penalties imposed by the learned magistrate were fines for both offences which could not, in any way, be said to be disproportionate to the offences admitted.  However, the learned magistrate refused an application made by counsel for a spent conviction order and in giving reasons for his decision in that respect mentioned, among other things, but with a degree of prominence, his impression that the appellant was the proprietor of his own business and that, therefore, contrary to submissions which had been made on his behalf, his employment and economic career would not be jeopardised by any conviction.

3. That was not the case.  The appellant was not the proprietor but an employee and, according to submissions made for him (and one would be disposed to accept this) his employment may well be jeopardised by the results.  This would be sufficient for this court to uphold the appeals against the fines imposed on the basis that, unfortunately, a mistake as to the basic facts was made by the learned sentencing magistrate.  It would then be for this court to resentence.

4. That, however, would involve a rejection of the appeal against conviction.  The basis for the appeals against conviction essentially is that the pleas of guilty were entered in haste without a proper appreciation of the potential severity of the offence or the likely consequences, although it seems clear that the appellant did have an ample opportunity to consider his position and seek legal advice.

5. Although the appellant was legally represented, it was by the duty lawyer at the Magistrates Court, whom he had consulted only briefly before the appearance and with whom he only had a short consultation of 10 minutes or thereabouts.  In my view, the appellant has shown extraordinary naivety and perhaps consistently with this naivety, a degree of casual inattention to this case which is seriously misplaced.  That is a substantial obstacle to the appeals against conviction.

6. On the other hand, the facts which have been related are that in relation to the control of this ammunition, the appellant was at all material times reasonably under the belief that it had been properly secured in an approved firearms safe which housed other weapons and other ammunition for which he had a licence.  There seems to be a question over whether or not he was entitled to possess this particular ammunition, even if it were in that safe, but it does not seem to me to be appropriate to go into that issue on this present application.  This is because no consideration of that issue has taken place before.

7. Mr Brown's submission before me, to an extent borne out by the materials before the learned magistrate and by the affidavit which he has filed today, is that the particular ammunition had never been kept in the study in the house where it was found.  Instead, he submits that it must have been moved there without his knowledge by some third person, and that in the circumstances it appears that this third person may have been his wife with whom he is engaged in acrimonious divorce proceedings and with whom he had an argument on the morning that the police searched the house.

8. It seems to be admitted that his wife had the only key to the safe, having taken that surreptitiously from Mr Brown's key ring, although I have not heard her version of the story.  If the truth of the matter is that the ammunition had been taken by his wife or by some other person without Mr Brown's knowledge and left in the study and then the police were called, as they appear to have been, by or at the insistence of the wife, a very different complexion of the proceedings appears.  It seems to me that there is a significant risk that there may have been a miscarriage of justice in this case. 

9. I propose to allow the appeal, set aside the conviction and order that the case be remitted to the Magistrates Court for trial in due course.