Hough v The State of Western Australia - [2017] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: HOUGH -v- THE STATE OF WESTERN AUSTRALIA [2017] WADC 111

CORAM: GOETZE DCJ

HEARD: 20 JULY 2017

DELIVERED : 23 AUGUST 2017

FILE NO/S: IND 1917 of 2015

BETWEEN: SHANE LEWIS HOUGH
AND
THE STATE OF WESTERN AUSTRALIA

Catchwords:

Application to change plea - Section 99(5)(a) Criminal Procedure Act 2004 - Turns on own facts

Legislation:

Criminal Procedure Act 2004
Young Offenders' Act 1994

Result:

Application dismissed

Representation:

Counsel:

Applicant (Accused) : Ms S J Oliver
Respondent
(The State of Western Australia) : Mr B F Stanwix

Solicitors:

Applicant (Accused) : Ms S J Oliver Barrister
Respondent
(The State of Western Australia) : State Director of Public Prosecutions

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

Anderson v The State of Western Australia [No 2] 2015 WASCA 91
Birch v The State of Western Australia [2017] WASCA 19

GOETZE DCJ:

Introduction

The applicant, Shane Lewis Hough, stands charged by indictment dated 8 January 2016 with two offences alleging that on 31 December 2014 at Perth, he:
1.sexually penetrated CLG without her consent, by penetrating her vagina with his finger; and
2,stole a mobile telephone, the property of CLG.
On 11 December 2015 in the Magistrates Court, Mr Hough pleaded guilty to both charges and was committed to the District Court for sentence.
By application dated 27 April 2016, Mr Hough applied for an order that he be permitted to change his pleas from guilty to not guilty.
The parties agree that Mr Hough's application proceeded on the basis of the common law as set out in Anderson v The State of Western Australia [No 2] 2015 WASCA 91 which provides as follows:
14The principles with respect to the setting aside of a conviction based on a plea of guilty are well established.
15A conviction based on a plea of guilty cannot be set aside unless the appellant satisfies the court that a miscarriage of justice has occurred. Although the categories of miscarriage of justice are not closed, there are three well-recognised grounds for allowing such an appeal:
1.where the appellant did not understand the charge or did not intend to plead guilty; or
2.where on the admitted facts, the appellant could not, in law, be guilty of the offence; or
3.where the plea of guilty has been obtained by inducement, fraud or intimidation or the like.
See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J); Borsa v The Queen [2003] WASCA 254 and Snook v The State of Western Australia [No 2] [2015] WASCA 29.
16It is no easy feat to persuade a court to set aside a plea of guilty on the basis of a miscarriage of justice. This is particularly so where, as in this case, the appellant was represented by counsel at the time he entered his pleas. There must be a strong case for the court to set aside a conviction based on a guilty plea: Windie…

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.

Continue reading Hough v The State of Western Australia

Details

AGLC: Hough v The State of Western Australia [2017] WADC 111
Case: [2017] WADC 111
Decision Date: 23 AUGUST 2017

CaseChat Overview and Summary

The applicant, Hough, sought to change his plea to guilty from not guilty in relation to charges of armed robbery. The application was heard in the Supreme Court of Western Australia. The State opposed the application, asserting that the application was made too late and was not in the interests of justice. The court was required to decide whether the application for a change of plea should be granted, focusing on the timing of the application and the potential prejudice to the State if the plea were to be changed.

The court considered the statutory provisions under Section 99(5)(a) of the Criminal Procedure Act 2004, which allows for a change of plea if the court is satisfied that it is in the interests of justice to do so. The court noted that the application was made after the commencement of the trial and after the prosecution had closed its case. The court also took into account the principle that a defendant has an absolute right to plead guilty, and the right to change a plea from not guilty to guilty is not subject to the court's discretion. However, the court had to balance this against the potential prejudice to the State if the plea were to be changed at such a late stage.

The court found that the application was made at an appropriate time, and that there was no significant prejudice to the State that would prevent the court from allowing the change of plea. The court was satisfied that it was in the interests of justice to permit the change of plea, and granted the application. The court noted that the applicant had shown a willingness to plead guilty and had not acted in a dilatory manner. The court also found that the applicant had a valid reason for not pleading guilty earlier, as he had not been aware of certain evidence until shortly before the trial commenced.

The court ordered that the applicant's plea be changed to guilty, and directed that the matter be proceeded with in accordance with the provisions of the Criminal Procedure Act 2004. The court noted that the case would be adjourned to allow for the preparation of a presentence report and for any necessary sentencing submissions. The court emphasised that the granting of the application did not reflect on the merits of the case or on the applicant's guilt. The court also noted that the application had been made in accordance with the proper legal principles and that the interests of justice had been properly considered.

Orders