Knight v Smith
[2012] WASC 43
•10 FEBRUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KNIGHT -v- SMITH [2012] WASC 43
CORAM: EM HEENAN J
HEARD: 3 FEBRUARY 2012
DELIVERED : 3 FEBRUARY 2012
PUBLISHED : 10 FEBRUARY 2012
FILE NO/S: SJA 1128 of 2011
BETWEEN: DREW ROSS KNIGHT
Appellant
AND
BLAIR SMITH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :PE 33768 of 2010, PE 33769 of 2010
Catchwords:
Application for leave to appeal against convictions - Application for extension of time to appeal - Application for bail pending appeal - Convictions for burglary and stealing - 12 months imprisonment cumulative upon sentences for other convictions - Equivocal pleas of guilty - Submissions to sentencing magistrate inconsistent with plea of guilty - New evidence to the effect that offences committed by a third person - Application for bail pending appeal - Concession that appeal should be allowed - Application, leave to appeal and appeal heard instanter - Appeal allowed - Convictions and sentence set aside - Appellant remanded on bail to reappear in the Magistrates Court to answer charges - Application for extension of time
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 27
Criminal Code (WA)
Sentencing Act 1995 (WA), s 11
Result:
Time extended for commencement of appeal
Leave to appeal granted
Appeal allowed
Convictions quashed and sentences set aside
Charges remitted for trial in the Magistrates Court
Applicant remanded on bail to appear before Magistrates Court
Category: B
Representation:
Counsel:
Appellant: Mr P L R Meyer
Respondent: Ms S H Linton
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Horsman v Bishop [2000] WASCA 316
Juma v The State of Western Australia [2011] WASCA 54
Liberti v The Queen (1991) 55 A Crim R 120
Maxwell v The Queen (1996) 184 CLR 501
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tihanyi v The Queen [1999] WASCA 226
Wimbridge v The State of Western Australia [2009] WASCA 196
EM HEENAN J: On 28 September 2010 the appellant, Drew Ross Knight, appeared before His Honour Magistrate Heaney in the Perth Magistrates Court charged with four offences. None of those charges had been listed for hearing that day and the appearance before the court had been only to allocate a date for later trial. However, the appellant by his counsel indicated at the commencement of the hearing that his client intended to plead guilty to all of the charges that day and, accordingly, pleas of guilty were entered.
Two of the charges resulting in convictions from the pleas then entered were for one offence of burglary pursuant to s 401(2) of the Criminal Code (WA) and a related offence of stealing pursuant to s 378 of the Criminal Code. They were the subject of prosecution notices PE 33768 of 2010 and PE 33769 of 2010.
According to the statement of material facts then read to the court by the prosecutor, these two offences were alleged to have occurred on an unknown date between 15 April 2010 and 22 April 2010 at a house in Balga that was under construction by Ventura Homes Pty Ltd. The construction had reached the 'lock‑up' stage. The prosecution alleged that the appellant, who lived across the road, had climbed on to the roof and removed tiles to enter the house. Once inside the house the offender removed the electric oven and gas hotplate which had recently been installed. The appellant was identified by his fingerprints which were located on nearby fence capping. According to the statement of material facts, when interviewed, the appellant admitted being on the roof of the premises and entering the home to attempt to have a shower but strongly denied stealing any items of property from the house.
Before the Magistrates Court on 28 September 2010 when entering these pleas of guilty, the appellant did not expressly admit his guilt of the offences. Rather, he expressed some equivocation and denial of his guilt of the charges. The transcript records the following:
HIS HONOUR: 16/4/10 to 21/4/10 at Balga entered the place of Ventura Homes and committed an offence therein of stealing. How do you plead to that one?
KNIGHT MR: Yeah, guilty, reluctantly.
HIS HONOUR: And then it said you stole kitchen items to the value of $1,300, the property of Ventura Homes.
KNIGHT MR: I didn't steal anything, but I'd rather just nod to it rather than wait for a trial and stick it out in prison for another whatever til the trial date so I'm backed into a corner; guilty.
Notwithstanding the reservations expressed by the appellant in entering those pleas his Honour accepted the pleas without further inquiry or qualification and recorded convictions. Having done so, his Honour adjourned the hearing to 18 November 2010 for sentencing.
The appellant came before the Magistrates Court again on 18 November 2010 for sentencing. No further inquiry was then made into the pleas which had previously been entered. In the course of that sentencing process when the police prosecutor moved for an order for restitution of the property alleged to have been stolen, the learned magistrate made an order for restitution but, in the process, the appellant objected in a form which indicated that he denied committing those offences. The exchange was as follows:
HIS HONOUR: Stole kitchen appliance from the Ventura Homes, s 11 of the Sentencing Act, no further sentence - - -
PROSECUTOR: We would seek an order for return of the property, your Honour.
HIS HONOUR: Yes order for return, was it located somewhere was it?
KNIGHT MR: It wasn't stolen by me so it wasn't located.
Again, no attention was given to the fact that this response indicated a denial of the offences and was inconsistent with the pleas of guilty. His Honour proceeded immediately to impose sentence. For these two offences his Honour imposed a sentence of 12 months' imprisonment in relation to the burglary charge and no sentence for the related stealing charge in view of s 11 of the Sentencing Act 1995 (WA). On the two convictions for the other unrelated offences, the appellant was sentenced to two terms of imprisonment of 6 months to be served cumulatively and the 12 month sentence for the burglary charge was made cumulative upon those other sentences. The result was that the appellant was sentenced to a total effective period of 2 years' imprisonment with eligibility for parole backdated to commence on 31 May 2010 that date being when he went into custody for these charges. Since then, the appellant has been in prison serving these sentences. The periods of imprisonment for the two unrelated charges have now been served and he has remained in prison because of the additional 12‑month term imposed for the burglary offence being one of the convictions the subject of this appeal.
By a notice of appeal dated 6 December 2011, the appellant has sought leave to appeal against these two convictions and an extension of time within which to apply for leave to appeal. By this notice the sole proposed ground of appeal is stated to be that the learned magistrate erred in fact and law, and that there is a miscarriage of justice, when he accepted the appellant's pleas of guilty.
This application is nearly 12 months out of time. By an application dated 20 January 2012, Mr Knight has sought bail pending the determination of his appeal and an 'urgent appeal order' concerning the listing of his application. The bail application had been listed for hearing today but, in view of the written submissions filed by the parties, including a submission on behalf of the Director of Public Prosecutions (the DPP) that the appeal should be allowed, the parties have submitted that all matters arising from the applications should be dealt with together and be disposed of finally today. I am satisfied that in the circumstances this should be done in the interests of justice especially in view of the effect which this will have upon the appellant's liberty.
Extension of time
The appellant's application for an extension of time for the institution of the application for leave to appeal is supported by an affidavit by a clerk in the employ of the appellant's present solicitors. This confirms that the time for the institution of an appeal from the decisions of the Magistrates Court of 18 November 2010 expired on 16 December 2010. However, it was not until early May 2011 that the appellant met a person, BAW, for the first time at Wooroloo Prison Farm, whose disclosures have provided material further evidence.
What then happened may be the subject of controversy in further proceedings, so I shall refrain from giving a detailed explanation of the alleged events and confine these reasons to a short account. According to the appellant, this third person inquired of him why he was in prison and on the appellant giving an explanation, including an explanation of the 12‑month sentence for the burglary and stealing in relation to the kitchen appliances from the house under construction in Balga, the third person became embarrassed and admitted that he, the third person, had stolen those items. He thereupon apologised to the appellant for the consequences which led to the appellant being convicted and sentenced for those offences.
Since then, the appellant has obtained an affidavit from this third person sworn 5 September 2011 in effect confirming, to a large degree, the account given by the appellant and asserting that this person is prepared to testify that the appellant did not commit those offences. Another affidavit from the appellant himself sworn 5 September 2011 gives the details of these accounts and also describes the circumstances which led to him entering the pleas of guilty in the Magistrates Court on 28 September 2010. In this affidavit Mr Knight asserts that the pleas of guilty were due significantly to advice from his then solicitor that even if he pleaded not guilty he would be convicted anyway, and that he did not have the money to go to trial. The appellant also maintains that he was suffering from the effects of some mental illness at the time and entered the equivocal and evasive pleas as a result of a combination of the effects of the legal advice he claims to have received and because he had been led to believe that he would not receive any sentence of imprisonment for those offences.
The affidavit in support of the application for the extension of time sets out that the appellant, following his meeting with the third person at Wooroloo Prison Farm, contacted another lawyer on 9 May 2011 to give instructions to begin the process for an appeal. He experienced difficulty in obtaining money for the proposed appeal and eventually applied for Legal Aid. Legal Aid was not immediately forthcoming, but it was eventually granted after a review hearing. Instructions were then given to the second solicitor who had been approached by the appellant in connection with the appeal and an opinion was given on 26 September 2011 to the effect that there was merit in pursuing an appeal against a conviction. Unfortunately, that lawyer had to withdraw due to a potential conflict of interest and the instructions were transferred to the appellant's present solicitors on 27 October 2011, who later received an approved grant for Legal Aid for the appeal on 21 November 2011. Following those instructions and the grant of Legal Aid, the appellant's present solicitors instituted the present application for leave to appeal on 6 December 2011, as already noted.
Where there has been a lengthy delay in instituting an application for leave to appeal, this court will require exceptional circumstances to be established before an extension of time will be granted unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Juma v The State of Western Australia [2011] WASCA 54 [5]; and Wimbridge v The State of Western Australia [2009] WASCA 196 [19] (Wheeler JA, Buss & Miller JJA agreeing). For the reasons which follow, I am satisfied that the appellant has a strong arguable case of merit and, indeed, the respondent concedes that the appeal, if instituted, should be allowed. It follows that there would be a miscarriage of justice if the appellant were not to be granted access to review of these convictions and sentence by the process of appeal. I am satisfied that the delays which have occurred in the institution of the appeal have been adequately explained. There was little prospect of the appellant succeeding in any appeal in this case unless he could establish that, despite the equivocal nature of his pleas of guilty, there were strong grounds to contend that he had been wrongly convicted. This did not occur until evidence was obtained from the third person in the period between May and September 2011. The delays since then have been sufficiently explained by the difficulties which the appellant experienced in securing financial support for the appeal, applying for and eventually obtaining Legal Aid and then, because of the necessity, without any responsibility on his part, to change solicitors yet again in order to pursue the appeal process.
Closely associated with the application for an extension of time within which to appeal is the application for leave to appeal. Leave to appeal is necessary by virtue of s 27 of the Criminal Appeals Act 2004 (WA). It cannot be granted unless the applicant demonstrates that any proposed ground or grounds of appeal have reasonable prospect of success: s 27(2). For any proposed ground to have reasonable prospects of success the ground must have a rational and logical prospect of succeeding or, in other words, a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]. These issues have already been canvassed in the application for extension of time and I am satisfied that leave to appeal should also be granted.
Appeal against conviction: guilty plea
Under s 8(1)(b) of the Criminal Appeals Act an appeal may be made to the Supreme Court against a decision of a court of summary jurisdiction on the ground 'that there has been a miscarriage of justice'. Section 8(2) expressly provides that an appeal may be instituted against a decision 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'.
Despite the amplitude of the right of appeal after a plea of guilty as set out by s 8(2), a court will approach any attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti v The Queen (1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing); Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA, Malcolm CJ & Le Miere AJA agreeing); and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing). The fundamental question is whether there has been a miscarriage of justice. Justice Steytler in Borsa identified three well recognised, although not exhaustive, circumstances in which a plea of guilty will be set aside on appeal:
The first is when the appellant did not understand the nature of the charge or did not intend to admit guilt; the second is if, upon the admitted facts, the appellant could not in law have been guilty of the offence; the third is where the guilty plea was obtained by improper inducement, fraud or intimidation and the like [20].
Counsel for the respondent has referred to Tihanyi v The Queen [1999] WASCA 226 where Murray J (Malcolm CJ & Parker J agreeing) adopted the statement set out in the judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501, 510 ‑ 511 where their Honours observed:
The plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. ... If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered.
As already noted, the DPP accepts that in this case a miscarriage of justice has occurred because it is plain that the appellant's plea of guilty to the charges before the learned magistrate on 28 September 2010 were not unequivocal.
The exchanges already set out between the appellant and the learned magistrate at the time the pleas were taken, and again when sentence was imposed, reveal that the appellant was asserting his innocence of the charges but was entering the pleas of guilty reluctantly and for pragmatic purposes. The additional evidence contained in the affidavits of the appellant and of the third person with whom he met at Wooroloo Prison Farm in 2011, is consistent with this position. For the reasons given by their Honours in Maxwell, the learned magistrate should either have made further inquiry of the appellant before accepting the pleas of guilty in order to obtain, if they were forthcoming, unequivocal pleas of guilty or, failing that, directed that pleas of not guilty should be entered notwithstanding the position adopted by the appellant. In contrast to the position examined by the court in Horsman v Bishop [2000] WASCA 316 these two pleas of guilty were not unequivocal.
I am satisfied therefore that, as both counsel have submitted, the ground of appeal proposed has been established and that the court should, in addition to extending time and giving leave to appeal, allow the appeal and set aside these two convictions and the ensuing sentence. These two charges should then be remitted to the Magistrates Court to allow the appellant to enter pleas of not guilty and to proceed to a trial of those charges if, indeed, they are pursued by the prosecution.
In view of this conclusion, the application for bail must be examined from the standpoint that the appellant is to be remanded for trial on the two charges in respect of which the convictions and sentence have been set aside and that he is not in the position of a convicted person seeking bail pending appeal. He has completed serving the periods of imprisonment imposed for the two unrelated offences and must, therefore, be treated as a person charged with offences pending in a court of summary jurisdiction and awaiting trial.
Counsel for the respondent acknowledges that, in view of all the circumstances including the significant time already spent in custody as a result of these convictions, the appellant should be granted bail, on conditions, pending trial in the Magistrates Court. A series of conditions resembling those previously imposed on the appellant have been propounded and accepted by counsel for the appellant. Bail will therefore be granted on a personal undertaking subject to curfew and reporting conditions and requiring the appellant to appear at a date to be fixed before the Magistrates Court at Perth.
Accordingly, the orders must be that an extension of time to appeal be granted, leave to appeal be granted, the appeal be allowed, the two convictions of the appellant be quashed and the corresponding sentence of 12 months imprisonment be set aside. The appellant is remanded on bail, the terms of which have been set by the court, to appear for the further determination of these charges on a date to be set in the Magistrates Court at Perth.
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