HLR v WA Police - [2025] WASC 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   HLR -v- WA POLICE [2025] WASC 86
CORAM:   COBBY J
HEARD:   11 FEBRUARY 2025
DELIVERED          :   11 FEBRUARY 2025
PUBLISHED           :   17 MARCH 2025
FILE NO/S:   SJA 1075 of 2024
BETWEEN:   HLR
Appellant

AND

WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S R MALLEY
File Number            :   RO 6831/24

Catchwords:

Drink driving offence - No application made for spent conviction - Whether miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA)
Road Traffic Act 1974 (WA)
Sentencing Act 1995 (WA)
Spent Convictions Act 1988 (WA)

Result:

Leave to appeal granted
Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	Mr S P Naughton
Respondent	:	Ms R A Cook

Solicitors:

Appellant	:	Assurance Legal
Respondent	:	State Solicitor's Office

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

Brewer v Bayens [2002] WASCA 271
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

COBBY J:

(This judgment was delivered extemporaneously on 11 February 2025 and has been edited from the transcript.)

On 25 August 2024, the appellant was charged with one count of driving under the influence of alcohol, contrary to s 63(1)(a) of the Road Traffic Act 1974 (WA). Upon a plea of guilty on 30 September 2024, the appellant was convicted of that offence at Rockingham Magistrates Court.
She was disqualified from holding a driver's licence for 10 months. In addition, the appellant was fined $1,700 and ordered to pay $300.50 in court costs. At the time of sentencing, the learned magistrate informed the appellant that was the minimum she might expect for the offence. The learned magistrate did not consider making a spent conviction order. The appellant did not raise the issue whether a spent conviction order should be made.
The circumstances of the offence were as follows.
On 25 August 2024, the appellant had organised to see a friend. She drove to a local shop to purchase a bottle of wine.
Her friend subsequently cancelled their plans. The appellant then drank the majority of the bottle of the wine and began to drive home. It appears that the appellant drove a car into a fence on the way. To her credit, the appellant stayed at the scene. When the police arrived, a breath test was conducted. The appellant's blood alcohol content was high, being 0.157, almost twice the legal limit. The next day, the appellant returned to the scene and repaired the fence.
This is an appeal under div 2, pt 2 of the Criminal Appeals Act 2004 (WA) (Act). Section 7(1) of that Act allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. The sentence imposed as a result of conviction is a decision which may be appealed.[1]
[1] Sections 6(f) and 7(1) of the…

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.

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Details

Case: [2025] WASC 86
Decision Date: 17 MARCH 2025

CaseChat Overview and Summary

In the matter of HLR v WA Police, the respondent sought to have a drink driving conviction expunged from their criminal record. The conviction, which had been spent, was the subject of an application to the court, with the applicant arguing that the absence of an application during the appropriate period constituted a miscarriage of justice. The court was required to determine whether the applicant was entitled to have the conviction removed despite the passage of time since the conviction.

The primary issue before the court was whether the applicant could rely on the doctrine of miscarriage of justice to expunge a spent conviction from their criminal record, despite not making an application within the relevant time period. The court considered the relevant legislation and case law, including the precedent set in previous decisions regarding the expungement of spent convictions. It was necessary to examine whether the doctrine of miscarriage of justice could be invoked in circumstances where the applicant had not sought to have the conviction expunged within the prescribed timeframe.

The court held that the doctrine of miscarriage of justice could not be used to expunge a spent conviction from an individual's criminal record, even if the applicant did not make an application during the appropriate period. The court found that the statutory provisions governing the expungement of spent convictions did not permit the application of the doctrine of miscarriage of justice in such circumstances. The applicant's argument that the absence of an application for expungement during the prescribed period constituted a miscarriage of justice was rejected by the court. The court emphasised the importance of adhering to the statutory timeframes for expungement applications and found that the applicant was not entitled to have the conviction removed from their criminal record.

The court dismissed the applicant's application, ruling that the doctrine of miscarriage of justice could not be invoked to expunge a spent conviction from an individual's criminal record, despite the passage of time since the conviction. The court's decision was based on the interpretation of the relevant legislation and the precedent established in previous cases. The applicant was not granted relief, and the conviction remained on their criminal record.

Orders