Henning v KHAW

[2013] WASC 270

HENNING -v- KHAW [2013] WASC 270

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 270
Case No:	SJA:1020/2013	Heard:	3 JULY 2013
Coram:	McKECHNIE J	Delivered:	3/07/13
No of pages:	3	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	PATRICK HENRY HENNING SEAN MICHAEL KHAW
Catchwords:	Criminal law and procedure Plea of guilty Equivocal Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : HENNING -v- KHAW [2013] WASC 270 CORAM : McKECHNIE J HEARD : 3 JULY 2013 DELIVERED : 3 JULY 2013 FILE NO/S : SJA 1020 of 2013 BETWEEN : PATRICK HENRY HENNING

Appellant

AND

SEAN MICHAEL KHAW
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE D JONES

File No : PE 24221 of 2012

Catchwords:

Criminal law and procedure - Plea of guilty - Equivocal - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr S D Freitag
Respondent : Ms A Johnson

Solicitors:

Appellant : Lewis Blyth & Hooper
Respondent : State Solicitor for Western Australia

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



(Page 3)

1 McKECHNIE J: This is yet another case about young men urinating or attempting to urinate in Northbridge. Judging by the numbers of appeals reaching this court, it must be a commonplace occurrence. On the evening of 31 March 2012, the appellant ,who had been drinking beer all evening, decided to relieve himself in Shafto Lane. He was seen by a police officer and, in due course, charged that: being in a public place behaved in a disorderly manner by urinating in public.

2 He wrote a letter to the magistrate saying:

[I]n all honesty, the charge of urinating in public is a bit harsh, as, when I saw the officer approach me, I got which is colloquially known as 'stage fright'. What followed was that the Call of Nature, - so powerful a few minutes earlier - faded away into a soft whimper.

So, in summary, I apologise for intending to urinate in public and reluctantly plead guilty to the charges.

3 The magistrate accepted this as a plea of guilty and fined the appellant $100. The respondent concedes that the letter made the plea equivocal and in the circumstances the magistrate ought not to have accepted the plea but entered the matter for trial in due course. This is because the respondent correctly accepts that the appellant did not clearly understand the nature of the charge because he pleaded guilty to an offence while denying a central element of the particulars of the charge: Criminal Procedure Act 2004 (WA) s 51(5). In these circumstances, the respondent does not oppose the extension of time within which to appeal.

4 In consequence, as I will allow the first ground of appeal, it is unnecessary to deal with the appellant’s second ground of appeal, namely that the failure to grant a spent conviction order caused a miscarriage of justice. Normally the appropriate order would be that the appeal be allowed, conviction set aside, and the matter remitted to the Magistrates Court for trial. However, Ms Johnson for the respondent has been advised by the police that they will not pursue the charge partly because of, in their opinion, the inevitability of a spent conviction order; an opinion which might be said to be well-founded. In the circumstances I will dismiss the charge.

5 Finally, it should not be thought that the act of attempting to urinate may not, in some cases, be disorderly conduct. That is a question of fact in each case. In the present case, that was not the conduct as particularised and that is why the respondent’s concession was appropriate. The orders will be appeal allowed and the charge dismissed.