Hondema v Carroll

[2008] WASC 155

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   HONDEMA -v- CARROLL [2008] WASC 155

CORAM:   HASLUCK J

HEARD:   23 JULY 2008

DELIVERED          :   23 JULY 2008

FILE NO/S:   SJA 1025 of 2008

BETWEEN:   PIETER JAN FREDERIK HONDEMA

Appellant

AND

MATTHEW CHRISTOPHER CARROLL
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE L H JONES

File No  :AR 2496 of 2008

Catchwords:

Appeal against conviction - Offence of reckless driving - Whether driving was wilful, inherently dangerous or dangerous to public or any person - Effect of a plea of guilty to a charge and nature of conviction - Effect of flawed legal advice on plea and available defence - Whether magistrate should accept a guilty plea if facts do not fit the elements of the offence - Whether magistrate is obliged to act upon plea of guilty when a triable defence may be available - Plea of guilty does not amount to a conviction - Miscarriage of justice will result if conviction entered pursuant to inappropriate plea of guilty - Appeal allowed and conviction quashed

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 78
Criminal Procedure Act 2004 (WA), s 3(2)(a), s 128, s 147, s 148
Road Traffic Act 1974 (WA), s 60

Result:

Appeal allowed
Matter remitted

Category:    A

Representation:

Counsel:

Appellant:     Mr S D Freitag

Respondent:     Mr D Leigh

Solicitors:

Appellant:     Simon Freitag

Respondent:     State Solicitor for Western Australia

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

Avins v Honnor (1997) 25 MVR 188

Di Camillo v Wilcox [1964] WAR 44

Maxwell v The Queen (1996) 184 CLR 501

Slater v Marshall [1965] WAR 222

Thomason v Martin [1964] WAR 136

HASLUCK J: 

Introduction

1. The appellant, Pieter Jan Frederik Hondema, has obtained leave to appeal against a conviction for reckless driving contrary to s 60(1) of the Road Traffic Act 1974 (WA). The appeal raises interesting questions as to the effect of a plea of guilty to a charge and the nature of a conviction.

2. In order to resolve the matters in question it is necessary to set out the procedural steps bearing upon the matters in issue with some care.

Prosecution notice

1. By s 60(1) of the Road Traffic Act every person who wilfully drives a motor vehicle in a manner that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.  It follows from s 73 of the Act that a reference to driving a motor vehicle is to be construed as a reference to the driving of a motor vehicle on a road or in any place to which the public is permitted to have access.

2. It appears from a prosecution notice dated 3 December 2007 that the appellant was charged with reckless driving contrary to s 60(1) of the Road Traffic Act.  It was alleged that he wilfully drove the subject motor vehicle on a road, namely, Brookton Highway,…