Hough v The State of Western Australia - [2018] WASCA 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HOUGH -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 20

CORAM: BUSS P
MAZZA JA
MITCHELL JA

HEARD: 16 JANUARY 2018

DELIVERED : 23 FEBRUARY 2018

FILE NO/S: CACR 182 of 2017

BETWEEN: SHANE LEWIS HOUGH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
Citation  :HOUGH -v- THE STATE OF WESTERN AUSTRALIA [2017] WADC 111
File No  :IND 1917 of 2015

Catchwords:

Criminal law - Appeal against conviction - Sexual penetration without consent - Stealing - Where appellant pleaded guilty in the Magistrates Court and was committed for sentence - Whether a miscarriage of justice was occasioned by the appellant not being permitted to change his plea of guilty - Misunderstanding the nature of the charge - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA), s 99

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A Robson
Respondent: Mr L M Fox

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Hough v The State of Western Australia [2017] WADC 111
Meissner v The Queen (1995) 184 CLR 132
Vella v The State of Western Australia [2006] WASCA 129

JUDGMENT OF THE COURT:

Summary

The appellant seeks leave to appeal against his convictions of sexual penetration without consent and stealing. He contends that a miscarriage of justice was occasioned by his not being permitted to change his plea of guilty, in circumstances where he did not understand the nature of the charges when he pleaded guilty. For the following reasons, that ground has no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.

Procedural history

On 31 March 2015, the appellant was charged with one count of sexually penetrating the complainant without her consent,[1] and one count of stealing the complainant's mobile phone.[2] On 11 December 2015, the appellant pleaded guilty to both counts, and was committed for sentence to the District Court of Western Australia.
[1] Contrary to s 325 of the Criminal Code (WA).
[2] Contrary to s 378 of the Criminal Code.
An indictment charging the appellant with those two offences was lodged with the District Court on 20 January 2016.
Before he had been arraigned on the indictment, the appellant made an application, dated 27 April 2016, for an order that he 'be permitted to change his plea from guilty to not guilty'. In support of that application, the appellant filed his own affidavit and an affidavit of Mr Alan Camp, a legal practitioner who appeared for the appellant when he pleaded guilty in the Magistrates Court. On 22 June 2016, after hearing oral evidence from both witnesses and submissions, O'Neal DCJ dismissed the application. 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.

Continue reading Hough v The State of Western Australia

Details

AGLC: Hough v The State of Western Australia [2018] WASCA 20
Case: [2018] WASCA 20
Decision Date: 23 FEBRUARY 2018

CaseChat Overview and Summary

In the case of Hough v The State of Western Australia, the appellant, Hough, appealed against his conviction for sexual penetration without consent and stealing. The case was heard in the Court of Appeal of the Supreme Court of Western Australia. Hough had pleaded guilty to the charges in the Magistrates Court and was subsequently committed for sentence. His appeal centered on the contention that a miscarriage of justice occurred because he was not allowed to change his plea of guilty after discovering he had misunderstood the nature of the charge.

The primary legal issue before the court was whether Hough's right to a fair trial was compromised by not being permitted to withdraw his guilty plea once he realised he had misinterpreted the charges against him. The court was required to determine if this misunderstanding was significant enough to constitute a miscarriage of justice, particularly given the severity of the charges and the potential impact on Hough's sentence.

The Court of Appeal considered the principles of procedural fairness and the right to a fair trial. It examined whether the appellant's misunderstanding of the charges was substantial and whether this misunderstanding could have affected the outcome of his plea. The court concluded that the appellant's misunderstanding did not rise to the level of a miscarriage of justice. The court found that the appellant had not been misled by any statements from the prosecution or the court, and that the opportunity to withdraw the guilty plea was available at an earlier stage, which Hough had not exercised. The appeal was dismissed, and the original conviction and sentence were upheld.

Orders