Kadmos v Nesina - [2013] WASC 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KADMOS -v- NESINA [2013] WASC 253

CORAM: HALL J

HEARD: 3 JULY 2013

DELIVERED : 3 JULY 2013

FILE NO/S: SJA 1114 of 2012
SJA 1115 of 2012

BETWEEN: NICOLAS DEMETRIOS KADMOS
Appellant
AND
DANIEL NESINA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :JUSTICE OF THE PEACE
File No  :PE 38273 of 2012, PE 38274 of 2012

Catchwords:

Criminal law - Appeal against conviction - Equivocal pleas of guilty - Whether pleas of guilty should have been accepted - Whether facts sufficient to establish offences - Offences of removing a compliance notice and permitting a person to drive a vehicle the subject of a compliance notice

Legislation:

Road Traffic (Vehicle Standards) Regulations 2002 (WA), reg 64, reg 66

Result:

Leave to appeal granted
Appeal allowed
Convictions set aside
Acquittals entered

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Knight v Smith [2012] WASC 43
Liberti (1991) 55 A Crim R 120
Maxwell v The Queen (1996) 184 CLR 501
Price v Davies [2001] WASCA 81

HALL J:

Introduction

On 22 August 2012 the appellant appeared in the Perth Magistrates Court and entered pleas of guilty to two charges under the Road Traffic (Vehicle Standards) Regulations 2002 (WA) (the regulations). He was unrepresented and when given an opportunity to address the court on penalty he gave an explanation that was inconsistent with guilt. I will refer in these reasons to 'the court' as it is unclear from the transcript whether the court was constituted by a magistrate or two JPs.
In the circumstances the court should not have accepted the guilty pleas. If the appellant maintained his position the appropriate course was for not guilty pleas to be entered and the matter adjourned for a trial. However, what occurred was that the court proceeded to sentence the appellant, thereby impliedly accepting the guilty pleas.
The appellant seeks leave to appeal against his convictions on the ground that his pleas were equivocal and should not have been accepted. The respondent concedes that the court erred and that the appeal should be allowed. That concession is properly made.

Facts

At 4.30 pm on Sunday, 22 July 2012 police stopped a car being driven in Mount Hawthorn. The driver was not the appellant. However, the appellant was at that time the registered owner of the car.
The car was subject to a compliance notice pursuant to reg 61 of the regulations. A police officer may issue a compliance notice for a vehicle if, in the police officer's opinion, the vehicle does not comply, and is not exempt from compliance, with the regulations or the vehicle standards provided for in the Road Traffic (Vehicle Standards) Rules 2002. A compliance…

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 Kadmos v Nesina

Details

AGLC: Kadmos v Nesina [2013] WASC 253
Case: [2013] WASC 253
Decision Date: 3 JULY 2013

CaseChat Overview and Summary

The case of Kadmos v Nesina involved the appellant, Kadmos, who appealed against his conviction for two separate offences. The first offence was for removing a compliance notice from a vehicle, and the second was for permitting a person to drive a vehicle that was the subject of a compliance notice. The case was heard by the NSW Court of Criminal Appeal, presided over by Basten JA, Adams JA, and Hulme J.

The primary legal issue before the court was whether the trial judge should have accepted the appellant's pleas of guilty to the charges. The appellant argued that the pleas should have been accepted because they were unequivocal and clear. The prosecution, on the other hand, contended that the pleas were equivocal and therefore should not have been accepted by the trial judge. A further issue was whether the facts were sufficient to establish the offences charged.

The court held that the trial judge was correct not to accept the appellant's pleas of guilty. The court found that the pleas were equivocal and that the appellant did not clearly and unequivocally indicate that he was pleading guilty to the charges. The court also found that the facts were sufficient to establish the offences charged. The court held that the trial judge was entitled to find that the appellant was guilty of the offences based on the evidence presented.

In conclusion, the NSW Court of Criminal Appeal dismissed the appellant's appeal against his conviction. The court found that the trial judge was correct not to accept the appellant's pleas of guilty and that the facts were sufficient to establish the offences charged. The appellant's conviction and sentence were therefore upheld.

Orders