Eley v Town of Victoria Park
[2014] WASC 103
•27/03/14
ELEY -v- TOWN OF VICTORIA PARK [2014] WASC 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 103 | |
| Case No: | SJA:1070/2013 | 27 MARCH 2014 | |
| Coram: | EDELMAN J | 27/03/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal Appeal allowed Conviction quashed | ||
| B | |||
| PDF Version |
| Parties: | DAVID ERNEST ELEY TOWN OF VICTORIA PARK |
Catchwords: | Appeal Practice and procedure Misleading submission by prosecutor on a matter concerning disclosure request prior to trial Refusal of adjournment in reliance upon that submission Consequent plea of guilty by appellant Whether miscarriage of justice Whether disclosure sought by appellant was material |
Legislation: | Bush Fires Act 1954 (WA) Criminal Procedure Act 2004 (WA) |
Case References: | Borsa v The Queen [2003] WASCA 254 Chong v City of Mandurah [2013] WASC 470 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Hogue v The State of Western Australia [2005] WASCA 102 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lance v Weston [2014] WASCA 62 Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140 Leary v The Queen [1975] WAR 133 Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 Lyster v Kemp [2010] WASC 47 Myers v Myers [1969] WAR 19 Pallett v Paul [2007] WASC 290 R v Armstrong [2012] QCA 293 R v Greer (1992) 62 A Crim R 442 Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285 Windie v The State of Western Australia [2012] WASCA 61 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
TOWN OF VICTORIA PARK
Respondent
ON APPEAL FROM:
For File No : SJA 1070 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE C ROBERTS
File No : PE 30108 of 2012, PE 6718 of 2013
Catchwords:
Appeal - Practice and procedure - Misleading submission by prosecutor on a matter concerning disclosure request prior to trial - Refusal of adjournment in reliance upon that submission - Consequent plea of guilty by appellant - Whether miscarriage of justice - Whether disclosure sought by appellant was material
Legislation:
Bush Fires Act 1954 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Leave to appeal
Appeal allowed
Conviction quashed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T L Beckett
Solicitors:
Appellant : In person
Respondent : McLeods Barristers & Solicitors
Cases referred to in judgment:
Borsa v The Queen [2003] WASCA 254
Chong v City of Mandurah [2013] WASC 470
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Hogue v The State of Western Australia [2005] WASCA 102
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lance v Weston [2014] WASCA 62
Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140
Leary v The Queen [1975] WAR 133
Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483
Lyster v Kemp [2010] WASC 47
Myers v Myers [1969] WAR 19
Pallett v Paul [2007] WASC 290
R v Armstrong [2012] QCA 293
R v Greer (1992) 62 A Crim R 442
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285
Windie v The State of Western Australia [2012] WASCA 61
- EDELMAN J:
Introduction
1 On 7 May 2013, Mr Eley was convicted upon his plea of guilty of two charges of neglecting to comply with fire break requirements under s 33 of the Bush Fires Act 1954 (WA) in relation to his property in Victoria Park. The charges related to successive years. Mr Eley was fined $350 for the first offence, and $400 for the second offence, with costs.1 He now appeals from his conviction.
2 It is an unusual case where a person is able successfully to appeal following a plea of guilty.2 It is even more unusual where the complaint, and reason for the plea of guilty, arises because of a discretionary decision by a Magistrate.
3 This case is unusual. The discretionary decision by the learned Magistrate to refuse an adjournment ignored a relevant consideration which was Mr Eley's request for disclosure. The learned Magistrate was misled by an inadvertent, incorrect submission by the prosecutor which operated to Mr Eley's detriment. Consequently, the learned Magistrate's discretion to refuse the adjournment miscarried. Mr Eley pleaded guilty only as a result of that decision. He was deprived of the opportunity of presenting a defence which may have had reasonable prospects of success.
The history of the proceedings
4 The first conviction from which Mr Eley appeals arose by prosecution notice dated 29 May 2012, in which Mr Eley was charged with an offence under s 33(1) of the Bush Fires Act as follows:
On 16 February 2012, Mr Eley was an occupier of land within the district of the Town of Victoria Park, to whom a notice was given under s 33(1) of the Bush Fires Act 1954 and who failed to comply with the requisitions in the said notice contrary to s 33(3) of the Bush Fires Act.
5 The second conviction from which Mr Eley appeals arose by prosecution notice dated 24 January 2013, which also alleged an offence under s 33(1) of the Bush Fires Act as follows:
Between 27 November 2012 and 8 January 2013, both dates inclusively, Mr Eley was an occupier of land within the Town of Victoria Park to whom a notice was given under s 33(1) of the Bush Fires Act and who failed to comply with the requisitions in the said notice, contrary to s 33(3) of the Bush Fires Act 1954.
6 On 22 February 2013, the two matters came before Magistrate Tavener. Mr Eley maintained pleas of not guilty to both charges. In the course of the directions hearing Mr Eley was asked how long he estimated the hearing would last. He replied as follows:3
Until I get the documentation from the prosecution, I wouldn't know, your Honour, exactly. Depending what they - depending what they discover, I may need to call experts. I'm not sure what they're going to put forward information wise.
7 Apart from his pleas of not guilty, these were the only substantial remarks made by Mr Eley at the directions hearing on 22 February 2013.
8 His Honour replied that he would hear from the prosecution about the estimate of time. He also indicated that if Mr Eley wished to call experts then 'you might then have to come back and re-list'.4 He then listed the trial for a day on 7 May 2013. Magistrate Tavener also reminded Mr Eley that 'if you do wish to call witnesses who will take longer than the one day, then just come back to the court and we might have to re-list for another day'.5
9 On 7 May 2013, the matters returned to the Magistrates Court for trial before Magistrate Malley. At the commencement of the hearing before Magistrate Malley, Mr Eley reiterated his pleas of not guilty and then said the following:6
I'm also seeking an adjournment today on the basis there's been no disclosure at all to date. I don't have a copy of the first [prosecution] notice as of yet, which makes the process difficult of [sic] going to trial inherently unfair. We did discuss at the last mention before the previous Magistrate that we may need to call evidence pending what was disclosed.
10 Mr Eley later added that when the matter was before Magistrate Tavener for directions he (Mr Eley) had raised the issue of disclosure and counsel for the prosecution had not suggested that no disclosure would be made.7
11 Unfortunately, after Mr Eley's remarks, counsel for the prosecution denied this. The prosecutor mistakenly said to his Honour that on the previous occasion (ie 22 February 2013) '[t]here wasn't a reference to disclosure ... The accused didn't seek or make any comments to or certainly obtain any orders in relation to disclosure'.8
12 Although the submission by the prosecutor was likely to have been caused by an erroneous recollection, the submission that Mr Eley had not made any reference to, or comments about, disclosure was plainly false.
13 It is clear from Mr Eley's remarks on the transcript that Mr Eley expected disclosure. Mr Eley said that he wanted 'documentation from the prosecution' and that he might call experts 'depending what they discover'. At no time between 22 February 2013 and 7 May 2013 was Mr Eley disabused of the notion that he would obtain disclosure. On 7 May 2013, Mr Eley also explained to the learned Magistrate that his expectation that disclosure would occur was based on a previous Local Government matter in which he was involved where disclosure took nine months and five court appearances.9
14 Magistrate Malley refused the application for an adjournment. In the course of argument, the reasons given by his Honour were that:
(1) between 22 February 2013 and 7 May 2013, Mr Eley could have applied to the Magistrate's Court for an adjournment or for disclosure; and
(2) in the same period, Mr Eley could have written to the prosecution explaining that he did not have disclosure and putting the prosecution on notice that if disclosure was not received then he would apply for an adjournment.10
15 After Magistrate Malley refused the adjournment, his Honour stood the matter down for about an hour. The matter then came back before Magistrate Roberts. Mr Eley pleaded guilty to both charges.
The sentencing hearing and facts found
16 After Mr Eley's pleas of guilty, Magistrate Roberts then heard the material facts read, and heard a plea in mitigation from Mr Eley. In summary, the prosecutor explained the facts which included the following:
(i) Mr Eley is the owner of a property at unit 4, 54 Canning Highway, Victoria Park.
(ii) The Town of Victoria Park had issued firebreak notices for 2011/2012 requiring various acts by owners and occupiers of all land which is 2000 square metres or fewer for the period from 31 October 2011 until 30 April 2012. The notices required the removal of inflammable matter (to a height of no more than 50 mm) from the whole of the land, except living trees and shrubs, plants under cultivation, and lawn.11
(iii) In late January 2012, the strata manager for the Canning Highway property attempted to contact Mr Eley and sent him an email advising that there was an issue with overgrown vegetation at the property which should be removed.12
(iv) On 2 February 2012, an officer from the Town of Victoria Park went to the Canning Highway property and took photographs of the courtyard area. The photographs were said to show that there was a large quantity of overgrown and inflammable vegetation in that area. The photographs were handed up to the Magistrate.13 The photos that were provided to the learned Magistrate were not provided to this Court for the appeal and they were not on the Magistrates Court file.
(v) The Town of Victoria Park then sent a letter to Mr Eley, enclosing a caution notice and the firebreak notice. The Town explained that the property needed to comply with the firebreak notice by 15 February 2012.14
(vi) On 16 February 2012, the property was again inspected. The material had not been removed.15 This was the subject of the first charge.
(vii) On 27 November 2012, an officer from the Town of Victoria again inspected the property and saw a 'large quantity of overgrown and inflammable vegetation in that area'.16
(viii) On 8 January 2013, a further inspection showed that the 'material had still not been removed and the property still did not comply with the town's firebreak notice'.17 Further photographs were handed up. Those photographs also were not on the file from the Magistrates Court and were not provided to this Court.
(ix) The events in (vii) and (viii) were the basis of the second charge.
(x) '[T]he overgrown vegetation at [Mr Eley's] property was a high and unacceptable risk to the community and the shire subsequently engaged a contractor to remove the vegetation'.18
17 Mr Eley was asked which facts he disputed and he said only that he disputed fact (x) above. He said that he had not previously heard that the Town of Victoria Park had removed vegetation.19
18 In Mr Eley's plea in mitigation he argued (and the learned Magistrate later accepted) that the risk of a bushfire taking place in the area was minimal.20 He said that '[t]his is really more a question of an untidy backyard as opposed to a bushfire threat'.21 He added that the problem was 'disposal of rubbish and the brown grass which is not yet dead but still too tall'.22
19 The prosecutor later clarified that 'the prosecution itself relates only to the dead, overgrown material, the dry dead grass you have seen in the other photographs'.23
The grounds of appeal
20 Mr Eley appeals from both the decision of Magistrate Malley which refused his request for an adjournment, and also from the decision of Magistrate Roberts in recording his conviction. Both grounds are directed to the same relief. In essence, Mr Eley says that his conviction should be quashed because a miscarriage of justice occurred in circumstances in which
(1) Magistrate Roberts' discretionary decision not to adjourn the trial miscarried, and
(2) Mr Eley pleaded guilty only because he was 'unprepared and not in a position to proceed with the trial'.
The need for Mr Eley to prove a miscarriage of justice
21 There are two relevant matters about which Mr Eley must satisfy the Court before the appeal can be allowed on the basis of a miscarriage of justice under s 8(1)(b) of the Criminal Appeals Act 2004 (WA).
22 First, the discretion of the learned Magistrate must have miscarried.
23 Secondly, the error in the exercise of discretion must have caused such a serious injustice to Mr Eley that there has been a miscarriage of justice requiring his plea of guilty to be set aside.
Did the discretion to refuse an adjournment miscarry?
(1) Principles concerning the discretion to grant an adjournment
24 Six well recognised principles in relation to the discretion to grant an adjournment are as follows:24
(i) Whether an adjournment should be granted is a matter of discretion and it must be shown that the magistrate has erred in exercising discretion.25 This invites consideration of the usual principles relevant to the exercise of discretion.26
(ii) Appeals brought against a refusal of an adjournment by a magistrate have failed in circumstances where the appellant was unable to establish that the refusal gave rise to an injustice.27
(iii) Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party.28
(iv) It is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence.29
(v) The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a miscarriage of justice. The question must be whether it was fair to proceed in the circumstances.30
(vi) Adjournments are not available for the asking. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily.31
25 In The State of Western Australia v Sillich,32 Martin CJ (with whom Hall J agreed) made the following general remarks concerning the relevant interests of justice in relation to adjournment in the context of an adjournment application pending an appeal:
There is a strong public interest in the timely disposition of all criminal cases, including criminal appeals. In most cases, those who are interested in the final resolution of a criminal case are not limited to the prosecutor and the accused. In addition to the public interest in the final resolution of serious criminal cases such as this, there will often be others with a specific and identifiable interest in the timely conclusion of the proceedings ... Public resources provided to the prosecution and the court are also dissipated every time there is a late adjournment. In this sense, the interests of the parties are to be balanced with the effect of the adjournment on 'court resources and the competing claims by litigants in other cases awaiting hearing'.33
While these are important and weighty considerations, they will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused, or an appellant, of the opportunity to present a case which has a real prospect of success.
(2) The reason why the discretion miscarried
26 The learned Magistrate did not take into account a relevant factor. That relevant factor was Mr Eley's statement which clearly implied that he was expecting disclosure from the prosecution and that he may wish to call witnesses based on that disclosure. The learned Magistrate's failure to consider this factor was understandable. There was no way that the learned Magistrate could have known that the statement by the prosecutor about the previous directions hearing was false. His Honour was not the Magistrate at that hearing, and he did not have a transcript of the hearing before him. At that hearing, Mr Eley had informed both the prosecution and the judge that he was expecting disclosure and that he may call witnesses based upon the disclosure he was expecting.
27 Counsel for the Town of Victoria Park submitted that Mr Eley did not suffer prejudice or injustice as a result of the decision of the learned Magistrate because he did not:
(i) request disclosure or seek a formal order for it on 22 February 2013;
(ii) request a copy of the prosecution notice for PE 30108/12;
(iii) contact the Court or the Town of Victoria Park prior to 7 May 2013 to request disclosure or request that the charges be adjourned because he had not received disclosure; or
(iv) provide the Court with any information about the nature of his defence or the information sought.
28 Each of (ii) to (iv) is correct. But, as counsel for the Town of Victoria Park properly conceded in oral submissions, point (i) is not correct because Mr Eley's remarks on 22 February 2013 reasonably should have been understood as a request for disclosure. At the very least they established that he had an expectation of disclosure. In considering whether there was an error in the exercise of the discretion, it is not to the point that there were factors which weighed against adjournment. The point is that as a consequence of being unintentionally misled by the prosecutor, the learned Magistrate failed to consider a relevant, and material, matter.
Whether there was a miscarriage of justice
29 There are a number of well recognised circumstances in which an appellate court will set aside a plea of guilty as involving a miscarriage of justice. Three of those circumstances are:
(i) where the appellant did not understand the nature of the charge, or did not intend to admit guilt;
(ii) where upon the admitted facts, the appellant could not in law have been guilty of the offence; and
(iii) where the guilty plea has been obtained by improper inducement, fraud or intimidation.34
30 These circumstances, or categories,35 are non-exhaustive. But before an appellate court will set aside a plea of guilty there must be a strong case and exceptional circumstances involving a miscarriage of justice.36
31 In this case, the circumstances are exceptional. They are analogous to a circumstance in which a person does not intend to admit guilt. Mr Eley's plea of guilty was made only in circumstances in which the learned Magistrate's discretion in relation to the adjournment had miscarried and consequently (and by inference from Mr Eley's immediate change in plea and his affidavit evidence)37 Mr Eley believed that he could not adequately conduct his defence. But even these matters would not be sufficiently exceptional were it not for the significance to Mr Eley's defence of the disclosure that Mr Eley sought.
32 Counsel for the Town of Victoria Park relied very heavily on the decision of Hall J in Lasscock v Seidner.38 In that case, Ms Lasscock appealed against her conviction for the offence of driving whilst under the influence of alcohol. Her ground of appeal was that a miscarriage of justice arose from the learned Magistrate's failure to adjourn the trial to allow her to get legal representation and to call expert evidence. The appeal was dismissed.
33 The principal reason for the dismissal of the appeal in Lasscock was that Ms Lasscock did not provide a report concerning the nature of the evidence which she wished to adduce from the unavailable expert witness.39 She was given an opportunity to do so. When the appeal first came on for hearing the judge adjourned the appeal to allow Ms Lasscock the opportunity to file and serve a report from the expert witness.40 She did not do so. In those circumstances, there was no support for her argument that she was disadvantaged by the learned Magistrate's refusal to adjourn the trial.41 No error was demonstrated in that refusal.
34 In contrast, in this case the learned Magistrate erred in the exercise of discretion and Mr Eley has provided affidavit evidence and submissions directed to the precise points which he would have raised at trial and the relevance of the evidence about which he sought disclosure.
35 Mr Eley's primary submissions are that he would have focused upon whether the notices were validly issued and whether they had been breached.
36 Section 33 of the Bush Fires Act provides as follows:
33 Local government may require occupier of land to plough or clear fire-break
(1) Subject to subsection (2) a local government at any time, and from time to time, may, and if so required by the Minister shall, as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur, give notice in writing to an owner or occupier of land situate within the district of the local government or shall give notice to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring him or them as the case may be within a time specified in the notice to do or to commence to do at a time so specified all or any of the following things —
(a) to plough, cultivate, scarify, burn or otherwise clear upon the land fire-breaks in such manner, at such places, of such dimensions, and to such number, and whether in parallel or otherwise, as the local government may and is hereby empowered to determine and as are specified in the notice, and thereafter to maintain the fire-breaks clear of inflammable matter;
(b) to act as and when specified in the notice with respect to anything which is upon the land, and which in the opinion of the local government or its duly authorised officer, is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire,
and the notice may require the owner or occupier to do so -
(c) as a separate operation, or in co-ordination with any other person, carrying out a similar operation on adjoining or neighbouring land; and
(d) in any event, to the satisfaction of either the local government or its duly authorised officer, according to which of them is specified in the notice.
(2) A notice in writing under subsection (1) may be given to an owner or occupier of land by posting it to him at his last postal address known to the local government and may be given to an owner of land by posting it to him at the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995, as his address for the service of rate notices.
(2a) The provisions of subsection (2) are in addition to and not in derogation of those of sections 75 and 76 of the Interpretation Act 1984.
(3) The owner or occupier of land to whom a notice has been given under subsection (1) and who fails or neglects in any respect duly to comply with the requisitions of the notice is guilty of an offence.
38 An offence under s 33(1) of the Bush Fires Act is a simple offence. It is not an either way offence. Nor has it been prescribed as a listed simple offence for the purpose of s 60 of the Criminal Procedure Act 2004 (WA).
39 Mr Eley said that if he had been permitted disclosure from the prosecution he would have submitted that 'the Firebreak Notice issued by the Town of Victoria Park under the Bush Fires Act 1956 [sic] was [invalidly] issued [to him]'.42 The operation of the notices would depend upon two requirements of s 33, both of which Mr Eley indicated that he would have contested:43
(i) whether, under s 33, they were issued by the Town of Victoria Park 'as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur'; and
(ii) whether 'in the opinion of the local government or its duly authorised officer, [each of the acts required in the notice] is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire'.
40 Mr Eley gave evidence that he would have argued at trial, and led expert evidence, that 'the property ... is a small courtyard on the ground floor of a complex of 42 strata units on Canning Highway in Victoria Park, where there is no realistic possibility of a bush fire threat'.44
41 Mr Eley submitted that the photographs which were not disclosed prior to sentencing were material to this point. However, I accept the submission by counsel for the Town of Victoria Park that it is very difficult to see how any disclosure of photographs of the courtyard could have any material effect on the validity of the notices which were issued 'to all Owners and/or Occupiers of Land within the Town of Victoria Park and City of Vincent'.
42 Much more material, however, is Mr Eley's evidence that, with disclosure, he would have contested whether he was in breach of the notices.45 By way of example, Mr Eley submitted that the notices could not apply to a resident of Victoria Park who had a small patch of grass or garden located on their balcony. As I explained above, it appears that at the sentencing hearing there was a factual dispute between Mr Eley and counsel for the Town of Victoria Park. This dispute concerned whether, on the one hand, the vegetation was 'overgrown' (as counsel for the Town of Victoria Park initially submitted and Mr Eley accepted) and 'too tall' (as Mr Eley submitted) or 'long grass' as his Honour described it or whether, on the other hand, it was 'dead' (as counsel for the Town of Victoria Park later submitted immediately before the sentence was given). The photographs, if disclosed, would have been relevant to any defence on this factual matter. They were not provided to this Court.
43 The relevance of this factual matter arose because the notices issued to Mr Eley specifically excluded in the definition of inflammable matter 'green standing trees and bushes or growing bushes and plants in gardens or lawns' (emphasis added). As I have explained, the prosecutor had clarified that 'the prosecution itself relates only to the dead, overgrown material, the dry dead grass you have seen in the other photographs' but Mr Eley had submitted that 'the brown grass ... is not yet dead but still too tall'. In the absence of the photographs, I accept that Mr Eley's proposed defence had reasonable prospects of success. Although it appears that there was acceptance that some part of the grass was brown, there is no point in attempting to assess the significance or extent of 'brown' lawn or, as seemed to be common ground, what was meant by it being 'overgrown'.
44 Finally, although it was not an issue on the appeal and is not necessary to decide, I do not necessarily accept that in the circumstances of this case it was for Mr Eley to prove that his defence had a reasonable prospect of success in order to show that there had been a miscarriage of justice. It may be that it would have been sufficient to show a miscarriage of justice that the error in the exercise of the learned Magistrate's discretion to refuse the adjournment caused Mr Eley to plead guilty in the belief that he was unable adequately to present his defence due to the absence of disclosure. The absence of a reasonable prospect of success might then have been a matter for the respondent if it asserted that it was nevertheless still open to apply the proviso46 and that there was no substantial miscarriage of justice.
Conclusion
45 Leave to appeal should be granted and the appeal must be allowed. This is a rare and exceptional case where a miscarriage of justice resulted from a plea of guilty following a Magistrate's refusal to allow an adjournment. In refusing the adjournment the learned Magistrate had not taken into account a relevant, and important, consideration which was that Mr Eley had made remarks on previous occasions indicting that he wanted disclosure. The reason that this consideration was not taken into account was because of an erroneous submission by the prosecutor, no doubt inadvertently made, that '[t]here wasn't a reference to disclosure ... The accused didn't seek or make any comments to or certainly obtain any orders in relation to disclosure'.
46 Mr Eley's desire for disclosure was material and significant in light of his remarks at the sentencing hearing as well as his evidence before this Court. One of his defences to the prosecution would have depended upon matters raised by photographs which the prosecution only provided at the sentencing hearing. In the absence of the photographs before this Court it is not possible to say that those arguments must have failed. It suffices to say that the refusal of the adjournment, based upon an erroneous submission by the prosecutor, had the effect of causing Mr Eley to plead guilty based upon his reasonable perception that he would not be able to conduct an intended defence. That intended defence had reasonable prospects of success.
47 A miscarriage of justice occurred. Mr Eley's conviction must be quashed. I will hear from the parties about other orders sought including for any re-trial.
1 ts 11 (7 May 2013).
2 Compare R v Armstrong [2012] QCA 293.
3 ts 3 (22 February 2013).
4 ts 3 (22 February 2013).
5 ts 4 (22 February 2013).
6 ts 2 (7 May 2013).
7 ts 3 (7 May 2013).
8 ts 3 (7 May 2013).
9 ts 4 (7 May 2013).
10 ts 4 (7 May 2013).
11 ts 2 - 3 (7 May 2013, second hearing).
12 ts 3 (7 May 2013, second hearing).
13 ts 3 (7 May 2013, second hearing).
14 ts 3 (7 May 2013, second hearing).
15 ts 3 (7 May 2013, second hearing).
16 ts 3 - 4 (7 May 2013, second hearing).
17 ts 4 (7 May 2013, second hearing).
18 ts 4 (7 May 2013, second hearing).
19 ts 5 (7 May 2013, second hearing).
20 ts 7 (7 May 2013, second hearing).
21 ts 7 (7 May 2013, second hearing).
22 ts 7 (7 May 2013, second hearing).
23 ts 10 (7 May 2013, second hearing).
24Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140, 145 - 146[20] - [28] (Hall J); Chong v City of Mandurah [2013] WASC 470 [44] - [45].
25House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon CJ, Evatt & McTiernan JJ).
26Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483, 492 - 493 [40] (Buss JA); Lyster v Kemp [2010] WASC 47 [55] (Beech J).
27Pallett v Paul [2007] WASC 290 [118] (Hasluck J); Lyster v Kemp [2010] WASC 47 [113].
28Myers v Myers [1969] WAR 19, 21 (Jackson J); Pallett v Paul [2007] WASC 290 [52]; Lyster v Kemp [2010] WASC 47 [69].
29Leary v The Queen [1975] WAR 133, 138 (Jackson CJ, Lavan & Jones JJ).
30Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 311 (Mason CJ & McHugh J).
31R v Greer (1992) 62 A Crim R 442, 448 (Kirby P).
32The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285, 293 - 294 [36] - [37].
33Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 844 (Brennan, Deane & McHugh JJ).
34Windie v The State of Western Australia [2012] WASCA 61 [31] (Mazza JA; McLure P & Newnes JA agreeing); Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA; Malcolm CJ & Le Miere AJA agreeing).
35Lance v Weston [2014] WASCA 62 [38] (the Court).
36Borsa v The Queen [2003] WASCA 254 [20] (Steytler J; Murray ACJ & Hasluck J agreeing).
37 Affidavit of Mr Eley, sworn 7 March 2014, [2].
38Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140.
39Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140, 147 [31].
40Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140, 143 [6].
41Lasscock v Seidner [2013] WASC 94; (2013) 63 MVR 140, 147 [35].
42 Affidavit of Mr Eley sworn 7 March 2014 [3(e)].
43 Affidavit of Mr Eley sworn 7 March 2014 [3(c)].
44 Affidavit of Mr Eley sworn 7 March 2014 [3(e)].
45 Affidavit of Mr Eley, sworn 7 March 2014 [3(d)].
46Criminal Appeals Act 2004 (WA) s 14(2).
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