Lance v Weston
[2014] WASCA 62
•25 MARCH 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LANCE -v- WESTON [2014] WASCA 62
CORAM: PULLIN JA
BUSS JA
MAZZA JA
HEARD: 4 NOVEMBER 2013
DELIVERED : 25 MARCH 2014
FILE NO/S: CACR 34 of 2013
BETWEEN: ROBERT LANCE
Appellant
AND
LEE WESTON
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
File No :SJA 1142 of 2012
Catchwords:
Criminal law and procedure - Appeal against dismissal of single judge appeal - Whether substantial miscarriage of justice demonstrated - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), pt 2 div 1, div 2, div 3, s 6, s 7(1), s 8, s 9, s 10, s 14(2)
Criminal Code (WA), s 22, s 24, s 32, s 70A(2)
Criminal Procedure Rules 2005 (WA), pt 14, r 60, r 63, r 65
Result:
Extension of time to appeal granted
Leave to appeal in respect of grounds 2 to 6 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr T C Russell
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Pengelly v Shire of Serpentine [2014] WASCA 5
Vella v The State of Western Australia [2006] WASCA 129
Wilson v McDonald [2009] WASCA 39
Windie v The State of Western Australia [2012] WASCA 61
REASONS OF THE COURT: The appellant seeks an extension of time to appeal pursuant to pt 2 div 3 of the Criminal Appeals Act 2004 (WA) (CAA). The appellant has, at all stages of the proceedings, represented himself.
The appellant was charged in the Magistrates Court with trespassing on the Subiaco Library without lawful excuse, contrary to s 70A(2) of the Criminal Code (WA). Initially, he pleaded not guilty, but on 2 November 2012, the scheduled date of his trial, he changed his plea to guilty. As a consequence he was convicted and fined $250. He appealed his conviction to a single judge of the Supreme Court. On 18 January 2013, McKechnie J refused leave to appeal and dismissed the appeal without oral submissions from the parties. The appellant now appeals to this court against that decision. He filed his appeal notice seven days out of time. In light of the short delay and the absence of prejudice to the respondent, we would grant the extension of time.
Factual background
At about 12.05 pm on 24 August 2012, the appellant was sitting at a desk using his personal computer at the Subiaco Library. There were other members of the public inside the library at the time. Library staff received a complaint that the appellant was being verbally abusive towards some of these people. The appellant was approached by library staff who asked him to leave the premises. It appears from what he said to the magistrate during the course of the proceedings on 2 November 2012 that he thought he had done nothing wrong and was, in fact, being harassed by another patron of the library. In any event, he refused to leave. At about 12.35 pm, the police arrived and, in company with the library director, asked the appellant several times to leave the library. Once again he refused. He was then arrested and charged.
Proceedings before the magistrate
The transcript of the proceedings before the learned magistrate on 2 November 2012 records that the appellant entered his plea of guilty in this way:
HIS HONOUR: How do you plead?
LANCE, MR: No contest.
HIS HONOUR: So you're pleading guilty?
LANCE, MR: Guilty.
After the police prosecutor read a statement of the facts, the appellant addressed the court in mitigation. He explained to his Honour that he had been harassed by another patron of the library. He admitted that he had been asked to leave, but felt that the request was 'very unfair' and that as a member of the public, he was entitled to remain in a public library. In an exchange with the appellant, his Honour explained, in effect, that although the library was open to the public, it was 'run by the Subiaco Council', who had the right to control who entered and remained on the premises. As his Honour put it:
[I]f I went down there and they didn't like the cut of my jib, they could just ask me not to enter. If I entered I would be trespassing even if I'd done nothing wrong. So that's just the law.
The appellant asked his Honour to make a spent conviction order. The appellant explained that he had been told by his legal counsel that he was 'entitled' to do so.
The learned magistrate declined to make a spent conviction order, citing, in particular, the appellant's previous convictions.
The appeal to the single judge
On 28 November 2012, the appellant filed an appeal against his conviction. The grounds of appeal were as follows:
In dealing with the case there was a denial in the natural course of justice. The Magistrate erred in fact when he handed down his decision. The magistrate erred when he stated 'that a librarian can refuse a member of the public access if they don't like the look of a person'.
The appellant's address as stated in the appeal notice was given as 506 Charles Street, North Perth, WA, 6006. His postal address was given as PO Box 558, Mount Hawthorn, WA, 6915.
On 5 December 2012, a letter was sent from the Supreme Court registry to the appellant at his street address advising him that:
This appeal cannot proceed further until you lodge the following documents:
•A copy of the transcript of the proceedings in the primary court.
•A certified copy of the Prosecution Notice for each charge being appealed. This must be certified by the Magistrates Court, and not a solicitor or Justice of the Peace.
•A Certificate of Service (Form 21) certifying that the respondent has been served [with] the Appeal Notice and these other documents.
If the Supreme Court Registry does not receive the abovementioned document [sic] by 9 January 2013, the matter will be referred to a judge, who may at his or her discretion, dismiss the appeal. If you are unable to comply within this time‑frame then you should provide an explanation in writing. Such an explanation will be provided to the judge.
The appellant claims that he did not receive this letter, pointing out that it was sent to his street address and not his postal address.
On 3 January 2013, the appellant filed an amended appeal notice. The grounds of appeal in that document are:
In dealing with the case there was a denial in the natural course of justice. The Magistrate erred in fact when he handed down his decision. The Magistrate arrived at his decision without proper evidence to support it.
On the same day, the transcript of the proceedings before the magistrate on 2 November 2012 was filed. However, no copy of the prosecution notice, either certified or uncertified, was filed by the appellant at any stage. The appellant claims that he was ignorant of this requirement.
An examination of the Supreme Court file indicates that the appellant failed to provide a service certificate. Again, the appellant says that he was ignorant of this requirement.
In due course, the matter was referred to the primary judge. Without receiving oral submissions, his Honour refused leave to appeal and dismissed the appeal. The formal order reads:
UPON APPLICATION OF THE APPELLANT for leave to appeal against a decision of his Honour Magistrate Bayly, UPON the certified prosecution notice not being filed, and UPON the appeal notice failing to disclose a decision that can lawfully be appealed, THEREFORE THERE BEING non‑compliance with the Criminal Appeals Act 2004 and the Criminal Procedure Rules 2005, IT IS ORDERED THAT:
1.leave to appeal be refused; and
2.the appeal be dismissed.
By letter dated 29 January 2012 (the year plainly should have been 2013), the Supreme Court sent to the Western Australian Police, the Magistrates Court, the Sentence Information Unit, Offender Record Unit and the Director of Public Prosecutions a copy of the certificate of conclusion in the appeal. No notification of the order was apparently sent to the appellant.
Appeal to this court
It is not clear when the appellant became aware that his appeal had been dismissed. His appeal notice in this court was filed on 15 February 2013.
The grounds of appeal
The grounds of appeal in this court are:
1.The Supreme Court Registry failed to notify the appellant of any additional papers that needed to [be] filed with the appeal. Rules of the Supreme Court 1971 [(WA)] order 2 rule 1(1)(3). Supreme Court (Court of Appeal) Rules 2005 [(WA)] division 3 s 8. Criminal Appeals Act 2004 [(WA)] part 2 s 8(3).
2.That there has been a miscarriage of justice. Criminal Code Act Compilation Act 1913 [(WA)] s 32.
3.The appellant was acting under an honest and reasonable 'mistake of fact'. Criminal Code [(WA)] s 24. 'Honest claim of right'. Criminal Code Act Compilation Act 1913 [WA] chapter 5 s 22.
4.Fault was not established beyond a reasonable doubt. The appellant was called a sexually derogative term amongst other statements by the complaining patron and merely replied that he was not interested in the patron's 'bigoted opinions'. The appellant was the patron being harassed. Local Government Property Law [sic] part 4.
5.Protocol was not followed by library staff in determining fault which led to the appellant's arrest. Members of staff, complaining patrons and arresting officers are partial blood relatives. Conflict of interest.
6.The appellant has a lawful excuse for being on the library premises. Crimes Act 1958 [(WA)] s 201 [sic]. Criminal Code Act Compilation Act 1913 [WA] s 32.
Leave to appeal has been granted with respect to ground 1. The question of leave with respect to the other grounds was referred to the hearing of the appeal.
We note immediately that there are no Western Australian statutes called the Local Government Property Law Act or the Crimes Act. There is in this State the Local Government Act 1995. Part 4 of this statute deals with elections and other polls and has no relevance to this case. The Crimes Act 1914 is a Commonwealth statute and is irrelevant to this case. In any case, there is no s 201 in it. In case the appellant was referring to s 207 of the Criminal Code, that section was repealed in 1988 and was, in any event, irrelevant. Finally, the statutory provisions referred to in ground 1 are irrelevant to that ground.
Although not precisely captured in the grounds of appeal, a consideration of the grounds and the appellant's written and oral submissions reveals that his real contentions are:
1.There has been a miscarriage of justice because the Supreme Court had the obligation to inform him of the documents needed to properly commence his appeal. Furthermore, his Honour should have given him the opportunity to make oral submissions in respect of the question of leave to appeal (ground 1).
2.That despite his plea of guilty to the charge of trespass, a miscarriage of justice has occurred because he has, in law, a good defence to the charge. In particular, he says that:
(a)he had a lawful excuse for remaining in the Subiaco Library;
(b)he honestly believed that he had the right to remain in the library and to refuse requests for him to leave: Criminal Code s 22;
(c)he honestly but mistakenly believed he was entitled to remain in the library: Criminal Code s 24; and
(d)he acted under duress: Criminal Code s 32.
(Grounds 2 to 6).
Relevant provisions of the Criminal Appeals Act 2004 (WA) and the Criminal Procedure Rules 2005 (WA)
An appeal from a court of summary jurisdiction is governed by the provisions of pt 2 div 1 and div 2 of the CAA. Part 14 of the Criminal Procedure Rules 2005 (WA) (CPR) applies to appeals of this kind.
A person aggrieved by a decision of a court of summary jurisdiction may appeal to a single judge of the Supreme Court sitting in its General Division: s 7(1) read with s 6 of the CAA.
The decisions which are amenable to appeal to a single judge are listed in s 6 of the CAA. Those decisions include a decision to convict an accused whether after a plea of guilty or after a trial (s 6(c) CAA) and a sentence imposed or order made as a result of a conviction (s 6(f) CAA).
An appeal may be made to a single judge on one or more of the grounds provided for in s 8(1) of the CAA which include that the court of summary jurisdiction made an error of law or fact or both or because there has been a miscarriage of justice.
A single judge appeal must be commenced and conducted in accordance with the provisions of pt 2 div 2 and the rules of court: s 10(1) CAA. In context, the relevant rules are those contained in pt 14 of the CPR.
Rule 65 of the CPR sets out how a single judge appeal is to be commenced where it is filed within time. Relevantly to this case, in order to commence an appeal, an appellant must lodge:
(a)a Form 20 (appeal notice) that sets out the grounds of appeal. The grounds must be in accordance with r 65(2);
(b)a copy of the prosecution notice in respect of which the decision being appealed was made; and
(c)a copy of the primary court's transcript.
Section 9 of the CAA deals with leave to appeal. Leave to appeal is required on each ground of appeal: s 9(1). The question of leave to appeal is to be determined by a single judge but only after 'an appeal is commenced': s 9(2). Leave to appeal on a ground must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding. Unless the court gives leave to appeal on at least one ground, the appeal is to be taken to have been dismissed: s 9(3).
Section 9(4) of the CAA provides that a single judge may decide whether or not to give leave to appeal with or without written or oral submissions from the parties to the appeal. Thus s 9(4) empowers a single judge to refuse leave to appeal and, in effect, dismiss an appeal on the papers without a hearing.
We make two observations about this power. To dismiss an appeal without an oral hearing, even one which appears unmeritorious on the papers, is a serious step. It is this court's practice to conduct an oral hearing where it has formed a preliminary view on the papers that no ground of appeal has a reasonable prospect of succeeding: Pengelly v Shire of Serpentine [2014] WASCA 5 [4]; s 27(4) CAA. In our opinion, it is desirable for the practices of the General Division to reflect the practices of this court in relation to applications for leave to appeal.
The second observation is that a single judge is obliged to give reasons for a decision to dismiss an appeal where leave to appeal is refused (including where leave is refused on the papers without an oral hearing), considering the decision has serious consequences and is amenable to appeal to this court.
A question which arose in the hearing of this appeal was whether r 60 and r 63 of the CPR apply and, if so, how they apply where a single judge decides to refuse leave to appeal and dismiss an appeal on the papers without an oral hearing pursuant to s 9(4) of the CAA. The issue was not fully argued and the outcome of the appeal does not depend on it. It is a matter to be resolved on another occasion.
Ground 1
There is no merit in ground 1 insofar as it alleges that a miscarriage of justice occurred because of the Supreme Court registry's 'failure' to notify the appellant of any 'additional' papers that needed to be filed with his appeal notice. Any litigant in an appeal, whether represented or self‑represented, must inform themselves and comply with the statutes, rules and other materials that govern the conduct of the appeal. While it is unfortunate that the appellant did not apparently receive the Supreme Court's letter dated 5 December 2012, that failure does not give rise an injustice when it is the appellant who bears responsibility for the conduct of his appeal.
It is unnecessary to decide the question of whether there was a miscarriage of justice because the appellant was not afforded the opportunity to make oral submissions. This is because, as we will show in our analysis of grounds 2 to 6, even if the appellant made good this contention, the appeal would nevertheless be dismissed.
By virtue of s 18 of the CAA, s 14(2) of that Act applies to this appeal. Section 14(2) provides that even if a ground of appeal is decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In the circumstance of the present case, no substantial miscarriage of justice will have occurred if we are satisfied that the appellant's conviction, based on his plea of guilty, should not be set aside.
Although it is unnecessary for us to decide whether the primary judge should have given the appellant an opportunity to make oral submissions, we would not wish it to be thought that we endorse the manner in which his Honour dealt with the case.
Grounds 2 to 6
As this court has said on a number of occasions, it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong basis to do so.
While the categories of cases where a plea of guilty will be set aside are not closed, there are three well recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:
1.where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
2.if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
3.where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like: Vella v The State of Western Australia [2006] WASCA 129 [26]; Windie v The State of Western Australia [2012] WASCA 61 [31].
Based on the record of the proceedings before the learned magistrate, there is nothing to indicate that the appellant did not understand the nature of the charge, nor can it be seriously argued that he did not intend to admit guilt.
The following facts were not contested by the appellant:
(a)he was in the premises of the Subiaco Library;
(b)he was asked more than once by persons in authority, notably the library director and the police, to leave the premises; and
(c)he refused to leave the premises when requested to do so.
Section 70A of the Criminal Code is in these terms
70A.Trespass
(1)In this section -
person in authority, in relation to a place, means -
(a)in the case of a place owned by the Crown, or an agency or instrumentality of the Crown - the occupier or person having control or management of the place or a police officer; or
(b)in any other case -
(i)the owner, occupier or person having control or management of the place; or
(ii)a police officer acting on a request by a person referred to in subparagraph (i);
trespass on a place, means -
(a)to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or
(b)to remain in the place after being requested by a person in authority to leave the place; or
(c)to remain in a part of the place after being requested by a person in authority to leave that part of the place.
(2)A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.
(3)In a prosecution for an offence under subsection (2), the accused has the onus of proving that the accused had a lawful excuse.
When a prosecution is brought for contravention of section 70A, two separate and distinct questions are potentially raised. The first is whether the prosecutor has established beyond reasonable doubt that the alleged offender committed a trespass on a place as defined in s 70A(1)(a), s 70A(1)(b) or s 70A(1)(c). If so, the second question is whether the accused has discharged the onus of proving on the balance of probabilities that he or she had a lawful excuse for the trespass: Wilson v McDonald [2009] WASCA 39 [52].
In Wilson v McDonald, Martin CJ, with whom Wheeler JA and Beech AJA agreed, held that the words 'without lawful excuse' in s 70A(2) should not be confined to those excuses which would provide a defence to a civil claim for trespass. Rather, it is for the court to determine, after the occurrence of the relevant facts, 'the metes and bounds of the conduct proscribed by the statute'. As Martin CJ said, the outcome in any particular case will depend critically upon the facts and circumstances of that case. Essentially, what is required is a value judgment by the court as to whether the excuse established by the defendant justifies the trespass established by the prosecutor [60] ‑ [62].
It may be assumed that the Subiaco Library is a place to which the public has access at the licence of the municipality during its opening hours. It is equally clear that the appellant was told more than once by a person or persons having control or management of the library, and later by the police, to leave the library. Further, having been so told, the appellant remained within the library. The evidence thus established that the appellant committed a trespass on a place as defined in s 70A(1)(b) of the Criminal Code.
The appellant, in effect, argued in this court that he had a lawful excuse to remain in the library, despite being told to leave by the library staff and the police. He submitted that he did nothing to justify being told to leave. Without doubt, there was a disturbance in the library. While there might be a dispute as to who started it, there is no doubt that the appellant was involved in it. Those who own, occupy or have control or management of premises are sometimes confronted with potentially volatile disturbances where it is not possible to determine who is in the right and who is in the wrong. Nevertheless, in order to defuse the disturbance, it is necessary to take action to exclude one or other or both parties from the premises. On the material before this court, whatever the rights and wrongs of the situation, once the appellant was told to leave, his licence to be in the library was revoked and he was bound to leave. It was not a lawful excuse for him to refuse to leave on the basis that he believed that he was in the right.
The appellant submitted that he had an honest right to remain on the premises: s 22 of the Criminal Code. We will assume in his favour that s 22 applied. However, on the material before the court below, it had been unambiguously explained to him on more than one occasion, that whatever right he had to be on the premises, it had been revoked. He clearly understood this and intentionally refused to leave. We are unable to see how any such belief on his part was honestly held. He also submitted that he had an honest and reasonable, but mistaken, belief that he could remain on the premises: s 24 of the Criminal Code. Again, for the reasons that we have just mentioned, any such belief could not have been honest. Certainly, it was not reasonable. Moreover, in order to invoke s 24 of the Criminal Code, the mistake needed to be one as to a state of things, and not as to a matter of law. The appellant's view that he had a right to remain in the library is a mistake of law not fact. As to duress under s 32 of the Criminal Code, there is simply no factual basis upon which the defence could operate to excuse his action in the library.
For these reasons, there is no basis for the contention that, upon the admitted facts, the appellant could not, in law, be found guilty of trespass.
There is nothing to indicate that the guilty plea was secured by improper inducement, fraud or intimidation and the like. The appellant submitted that on 2 November 2012, when he entered the courtroom, there were 'ten police officers' and that he felt intimidated by their presence and so changed his plea to guilty. Police officers are a constant presence in magistrates courts, waiting, as they so often do, to give evidence. There is nothing to indicate that the 'ten police officers' that the appellant says he saw had anything to do with his case. There is no suggestion that any of the police officers approached the appellant, or in any way sought to influence his free choice to plead. The appellant is a mature man. Given the way in which he conducted himself before the magistrate, which was apparently articulate and confident, it is most unlikely that he would have been intimidated by the presence of the police officers in the court.
Conclusion
For these reasons, grounds 2 to 6 have no reasonable prospect of succeeding. There is no basis for the appellant's conviction to be set aside. Even if the appellant had established ground 1, no substantial miscarriage of justice has occurred. The appeal must be dismissed. The orders we would make are:
1.An extension of time to appeal is granted.
2.Leave to appeal in respect of grounds 2 to 6 is refused.
3.The appeal is dismissed.
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