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…

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 Knight v Smith

Details

AGLC: Knight v Smith [2012] WASC 43
Case: [2012] WASC 43
Decision Date: 10 FEBRUARY 2012

CaseChat Overview and Summary

Knight applied for leave to appeal against convictions for burglary and stealing, and sought an extension of time to appeal and bail pending appeal. The convictions resulted in a 12-month imprisonment sentence, cumulative upon other sentences. The legal issues before the court included whether the appeal should be heard and whether the application for bail should be granted. The court considered the appellant's equivocal pleas of guilty and submissions to the sentencing magistrate that were inconsistent with those pleas. New evidence suggested that the offences were committed by a third person. The appellant conceded that the appeal should be allowed, and the application for leave to appeal and the appeal were heard together.

The court found that the convictions and sentence should be set aside and the appellant remanded on bail to reappear in the Magistrates Court to answer the charges. The appeal was allowed, and the appellant was granted bail pending the appeal. The court reasoned that the equivocal pleas of guilty, inconsistent submissions, and new evidence warranted a re-evaluation of the convictions and sentence. The court also considered the appellant's concession that the appeal should be allowed and the need for a prompt resolution of the matter. The court ultimately allowed the appeal, set aside the convictions and sentence, and remanded the appellant on bail pending the appeal.

Orders