George v Birtwistle

[2002] WASCA 304

GEORGE -v- BIRTWISTLE [2002] WASCA 304

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 304
Case No:	SJA:1114/2002	Heard:	17 OCTOBER 2002
Coram:	EM HEENAN J	Delivered:	17/10/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Time extended Leave to appeal granted
Category:	B
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Parties:	RICHARDSON WINIFRED BENO GEORGE GEORGE BIRTWISTLE
Catchwords:	Application to extend time, and for leave to appeal under Justices Act (1902) Turns on own facts
Legislation:	Justices Act (1902), s 186, s 187(1)
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GEORGE -v- BIRTWISTLE [2002] WASCA 304 CORAM : EM HEENAN J HEARD : 17 OCTOBER 2002 DELIVERED : 17 OCTOBER 2002 FILE NO/S : SJA 1114 of 2002 BETWEEN : RICHARDSON WINIFRED BENO GEORGE

Applicant

AND

GEORGE BIRTWISTLE
Respondent

Catchwords:

Application to extend time, and for leave to appeal under Justices Act(1902) - Turns on own facts

Legislation:

Justices Act(1902), s 186, s 187(1)

Result:

Time extended

Leave to appeal granted

(Page 2)

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : No appearance

Solicitors:

Applicant : In person
Respondent : No appearance

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 EM HEENAN J: By an application filed on 25 September, this applicant seeks leave to appeal and an extension of time within which to appeal from a conviction and sentences passed upon him by the Court of Petty Sessions at Perth on 30 August 2002. Under the provisions of the Rules, an application for leave to appeal should have been made within 21 days of the date of the convictions and sentence, but this application was only filed on 25 September, some four or five days late.

2 Mr George has deposed in his affidavit to the circumstances which caused this short delay, and I am satisfied that there are reasons to extend the time within which to apply for leave to appeal, and I will make an order extending the time.

3 The applicant seeks to appeal against the conviction and sentence for one of a series of offences to which he pleaded guilty. It appears that there were some discussions between the applicant and prosecuting police officers in prison some days or weeks before the plea, resulting in an agreement that certain charges would be withdrawn and that the applicant would plead guilty to other charges. The applicant indicates that he expected that there would be legal representation for him at the Court and that he would be provided with copies of the charge sheet or sheets.

4 In his affidavit, and again before the Court today, the applicant says that when he appeared before the Court he was not able to have legal representation, that he was not provided with a copy of the charge sheet, and that the charges against him were slightly different to those which he had been led to believe would be pursued, and in particular, that one charge was included which he asserts had not been part of the agreement.

5 With his ignorance of the law, the absence of legal representation, and uncertainty about the nature of the charge, he claims to have pleaded guilty to all the charges, including the additional one, and he now also submits that the consequence of the additional charge being included has led to an increased sentence. I make no observations whatever about whether or not those assertions can be made out or, even if they are, whether they will result in a successful appeal.

6 The provisions of the Justices Act are that an appeal against a conviction or sentence imposed may only be made on a ground or ground specified in s 186 of the Justices Act and only if leave is granted. Section 187(1) provides:

"On an application for leave the judge shall grant leave to appeal unless he considers that the appeal is frivolous or

(Page 4)

vexatious or that the grounds of appeal advanced do not disclose an arguable case."

7 In this particular instance, an assertion by a convicted and sentenced person who pleaded guilty to a series of offences that he did not know or understand one of the many charges to which he pleaded guilty, on the face of it, raises a certain amount of difficulty. Nevertheless, if that could be shown to be true and there was an unintentional plea of guilty, there would be grounds for appeal, so in those circumstances, I will give leave to appeal from this conviction and sentence.