JWG v WA Police - [2023] WASC 485

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JWG -v- WA POLICE [2023] WASC 485
CORAM:   LUNDBERG J
HEARD:   4 DECEMBER 2023
DELIVERED          :   22 DECEMBER 2023
FILE NO/S:   SJA 1067 of 2023
BETWEEN:   JWG
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1067 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   PE 52933/2021, PE 52934/2021 & PE 52935/2021

Catchwords:

Criminal law - Appeal against refusal to grant spent conviction orders - Two counts of common assault and one count of disorderly behaviour in public - Assaults against security officers and urinating in public - Whether miscarriage of justice in refusing to grant spent conviction orders - Whether convictions of such a nature they are relevant to prospective employers - Public interest considerations - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 8, s 9, s14 and s 40
Criminal Code 1913 (WA), s 74A(2)(a) and s 313(1)(b)
Sentencing Act 1995 (WA), s 39(2) and s 45
Spent Convictions Act 1988 (WA)

Result:

Leave to adduce further evidence granted
Leave to appeal allowed and appeal allowed
Spent conviction orders made

Category: B

Representation:

Counsel:

Appellant	:	N R Sinton
Respondent	:	H M Cowie

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor's Office

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

ADA v Director of Public Prosecutions [2022] WASC 112
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
GNR v The State of Western Australia [2015] WASCA 5
Hull v Castledine [2005] WASC 225
Indich v Bracknell [2005] WASC 225
JJF v Tattersall [2018] WASC 170
Pagnoni v Jones [2023] WASC 356
R v Tognini [2000] WASCA 31
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wright v McMurchy [2012] WASCA 257

Table of Contents

A. Introduction

B. The proceedings below

C. Evidence on appeal

D. Relevant principles

E. Disposition

F. Conclusion and orders

LUNDBERG J:

A. Introduction

The appellant applies for leave to appeal against the decision by the Learned Magistrate on 20 July 2023 to refuse to grant him spent convictions orders. The sole ground of appeal is that the refusal to grant those orders resulted in a miscarriage of justice.[1]
[1] Appeal notice dated 15 August 2023, pg 1. By consent, an order has been made to amend the appeal notice to substitute the miscarriage of justice ground for the previous ground. See ts 2-3, 4 December 2023.
The appellant's application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act).
An aggrieved party may appeal a sentence imposed as a result of a conviction.[2] The grounds of appeal may include where there has been an error of law, where a sentence has been imposed that was inadequate, and where there has been a miscarriage of justice.[3]
[2] CA…

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: [2023] WASC 485
Decision Date: 22 DECEMBER 2023

CaseChat Overview and Summary

The case of JWG v WA Police involved the appellant, JWG, appealing against the refusal of the District Court to grant orders that his convictions for two counts of common assault and one count of disorderly behaviour in public were spent. The appellant had been convicted for assaulting security officers and urinating in public. He argued that a miscarriage of justice occurred when the court refused to declare his convictions as spent, claiming they were no longer relevant to prospective employers and that the public interest considerations did not justify maintaining the convictions.

The legal issues before the court were whether the refusal to grant spent conviction orders constituted a miscarriage of justice and whether the nature of the convictions rendered them irrelevant to prospective employers. The court had to consider the criteria for declaring convictions as spent, the relevance of the convictions to employment prospects, and the public interest factors that might justify retaining the convictions on criminal records.

The court found that the appellant's arguments did not establish a miscarriage of justice. The nature of the offences, involving violence against security officers and public disorder, weighed against the declaration of the convictions as spent. The court emphasised that the relevance of the convictions to employment prospects and the public interest considerations did not favour the granting of spent conviction orders. The court concluded that the refusal to declare the convictions as spent was not unjust and dismissed the appeal.

The court did not make any specific orders beyond dismissing the appeal. The convictions remained on the appellant's criminal record, and he did not obtain the spent conviction orders he sought.

Orders