Kadmos v Nesina
[2013] WASC 253
•3 JULY 2013
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 notice may include a number of possible directions. Amongst them are a direction that the vehicle not be driven at all or a direction that a vehicle not be driven except at a time or during a period specified in the notice. A compliance notice must be served either by serving a copy of it personally on the driver of the vehicle or by affixing of a copy of it in a conspicuous place on the vehicle: reg 64(1). It is an offence for a person to remove a copy of a compliance notice fixed to a vehicle except for the purpose of ensuring that the notice is complied with: reg 64(2)(b). It is also an offence for a person to drive a vehicle, or cause or permit a vehicle to be driven, when the vehicle is subject to a compliance notice otherwise than in accordance with that notice: reg 66(1).
In the present case the compliance notice had issued on 1 July 2012 and permitted the vehicle to be driven until 11 July 2012. After 11 July 2012 the vehicle could not be driven whilst the compliance notice continued in force. The compliance notice was still in force on 22 July 2012 when the car was stopped by police in Mount Hawthorn.
A copy of the compliance notice had been affixed to the car. When stopped by the police the notice had been removed. Residue from the notice could be seen in the area to which it had been affixed.
When later spoken to by the police, the appellant said, 'The vehicle was not mine'. He was charged by summons with removing a compliance sticker contrary to reg 64(2)(c) and permitting a vehicle to be driven contrary to a compliance notice contrary to reg 66(1).
Proceedings in the Magistrates Court
On 22 August 2012 the appellant appeared in the Perth Magistrates Court. When the first charge was put to the appellant and he was asked how he pleaded, he said, 'From the notice I had from the police I had no choice but to plead guilty'. He also entered a plea of guilty in respect of the second charge.
After the facts were read the appellant was asked if he wished to say anything in response. The appellant then said:
KADMOS, MR: Just quickly, your Honour, just so that I in hindsight was silly to sign the transfer papers that were delivered when the vehicle was received. My partner was not home at the time. It was her car. She asked me if I could sign the transfer papers and I really didn't think about the consequences. You know, for that whole time I probably drove the car once and, you know, basically I had no idea what was happening to that red car.
I got a knock on the door from the police that afternoon saying that, you know, I am going to be charged with the offence because the car was in my name. Now, in hindsight, I realise that it was silly for me to have signed the transfer papers.
JP1: Who removed the sticker?
KODMOS, MR: I have no idea. I have no idea who removed the sticker. As I said, at that particular time the car was not at our address. My partner had given it to a friend to drive like a week earlier and it turns out that that friend gave it to Spiro - this Spiro guy to drive. So I really - you know, I really had nothing to do with it other than signing the transfer papers.
JP2: Was the sticker on there when she lent it?
JP1: Do you know if the sticker was on it when she lent it to whoever it was?
KADMOS, MR: I believe it was, yeah. Yeah. I certainly did not removed the sticker.
JP1: Well, there's mandatory fines so you can sort that out with her.
KADMOS, MR: Yeah, good.
JP1: Good. Thanks
KADMOS, MR: Okay.
JP1: Okay. In the matter of 12/38273 the charge is proven, conviction recorded. Fine. In normal circumstances the fine for this offence is up around the 2000 mark but it's a modified penalty so it's only $100 in this case. Court number 12/38274, same applies. Modified penalty, $600. So that gives us a global fine of $1000. Costs of $125.70 (ts 3 - 4).
Merits of the appeal
It would seem that what the appellant was saying was that he did not consider himself to be the owner of the vehicle. It had been registered in his name because he had signed the transfer papers when his partner had purchased the vehicle because she had not been at home when it had been delivered. Clearly the appellant was under the impression that if he was the registered owner of the vehicle he was responsible if another person removed the compliance sticker or drove the vehicle. In fact there is no deeming provision making a registered owner liable with respect to such acts.
Regardless of whether or not the appellant was the registered owner of the vehicle he could only be guilty of the first charge if he had removed the copy of the compliance notice. This was something he very clearly denied. He could only be guilty of the second charge if he had caused or permitted the vehicle to be driven otherwise than in compliance with the notice. This was also something that he clearly denied by saying that his partner had loaned the car to another person about a week earlier and that he, the appellant, 'had nothing to do with it'. The appellant's explanations were inconsistent with an admission of guilt in respect of either charge.
Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction even where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA) and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing).
Before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22], Borsa [20]. In Borsa, Steytler J referred to three well recognised circumstances in which a conviction based on a plea of guilty will be set aside:
1.where the appellant did not understand the nature of the charge and did not admit guilt;
2.if, upon the admitted facts, the appellant could not in law have been guilty of the offence; and
3.where the guilty plea has been obtained by improper inducement, fraud or the like.
A plea of guilty must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v The Queen (1996) 184 CLR 501, 510 ‑ 511 (Dawson & McHugh JJ). If it appears that a plea of guilty is not genuine, or is reluctant, a trial judge must obtained an unequivocal plea of guilty or direct that a plea of not guilty be entered: Maxwell (510 ‑ 511) and Knight v Smith [2012] WASC 43. This is also confirmed by s 129(2) of the Criminal Procedure Act which provides that a court must not accept a plea of guilty unless an accused person is represented by a legal practitioner or, if the accused is not so represented, the court is satisfied that the accused understands the plea and its consequences.
In the present case, it is plain that the appellant did not understand the nature of the charge, at least to the extent that he was under a mistaken belief that his ownership of the vehicle was sufficient in itself to render him guilty of the offence. It is apparent from his statements in the Magistrates Court that he denied elements of each of the offences.
In these circumstances, his pleas of guilty should not have been accepted. A miscarriage of justice has occurred because the appellant has been denied the opportunity to have a trial on each charge on the merits: Price v Davies [2001] WASCA 81 [57] (Roberts‑Smith J).
A conviction must also be set aside if, upon the admitted facts, the appellant could not in law have been guilty of the offence. The facts read to the court by the prosecutor did not allege that the appellant had removed the compliance notice nor that he had caused or permitted the vehicle to be driven. These were essential elements of the offences and if not alleged and admitted the offences could not have been committed. If there is no evidence other than that referred to in the facts the appellant could not be guilty of the offences charged. The respondent has considered the available evidence and conceded that the appropriate outcome is for acquittals to be entered.
Conclusion
There was an error of law in convicting the appellant and a miscarriage of justice has thereby occurred. The following orders are made:
1.Leave to appeal granted.
2.Appeal allowed.
3.The convictions and sentences imposed in the Magistrates Court are set aside.
4.In lieu thereof the appellant is acquitted of both charges.
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