Leathley v Police No. Scgrg-99-531 Judgment No. S246

[1999] SASC 246

LEATHLEY  v  POLICE
[1999] SASC 246

Magistrates Appeals:  Criminal

1. DOYLE CJ.                 This is a purported appeal against a conviction by the Magistrates Court.

2. On 19 November 1997 Ms Leathley pleaded guilty to a charge of taking part in the production of a prohibited substance, namely cannabis, contrary to s32(1)(B) of the Controlled Substances Act.  The magistrate recorded a conviction and sentenced the appellant to 40 hours of community service within 9 months of the date of the order.

3. On 12 March 1999 the appellant filed a notice of appeal against the conviction.  She offers in the notice of appeal no reason for the delay of some 16 months.  Ms Leathley had 14 days within which to appeal.  The court has power to extend the time if it is just to do so.  It is for the appellant to establish the circumstances that would support the exercise of the discretion in her favour.

4. A relevant matter is that Ms Leathley was not represented before the Magistrates Court.  I am prepared to assume that she was not informed that if she were to appeal she had only 14 days.  Ms Leathley gave sworn evidence before me.  She told me that she had not really thought about appealing until about February of this year, when she became interested in obtaining employment in America.  In connection with that employment application she had to disclose whether she had committed any offences against the criminal law.  She went to the court to enquire about the matter and was informed that her appearance in court relating to the production of cannabis had resulted in a conviction that would have to be disclosed.  It was then she decided to appeal.

5. I have to say, under all the circumstances, that that does not seem to me to be an adequate reason for the delay.   It is simply a case in which Ms Leathley, for good reason, from her point of view, has now decided after this passage of time that she would like to get the conviction set aside if she can.

6. Another relevant matter is that Ms Leathley pleaded guilty.  This is, therefore, an appeal with a view to getting leave to withdraw a plea of guilty.  That would require Ms Leathley to satisfy the court that there was a significant misunderstanding on her part as to the nature of the charge or as to the effect of the plea of guilty.

7. Again, having heard Ms Leathley, it appears to me she understood the proceedings before the Magistrates Court and understood the significance of pleading guilty.  I accept that she did not and would not have realised the significance of a conviction being recorded.  However, there is no indication in the evidence I have heard that she did not understand what she was doing and did not understand, in general terms, the significance of the plea of guilty.

8. Therefore, to begin with, this is a case in which there do not appear to be good reasons for allowing Ms Leathley to change her plea to not guilty and there is no satisfactory explanation for the delay.

9. Another matter to consider is the prospect of success were the appeal to be allowed, and Ms Leathley to be allowed to substitute a plea of not guilty for her plea of guilty.  The charge to which she pleaded guilty was taking part in the production of cannabis.  The plants in question were being grown by Ms Leathley’s adult son in his room in a house that she occupied with her son.  By her plea she admitted having allowed this.  As the occupier of the house on the law as it stands, it appears that if she was aware that plants were being grown in the bedroom, and passively allowed that continue, she would be guilty of the offence.

10. This, of course, is not the occasion to go into the facts in fine detail.  However, on the facts, as Ms Leathley has disclosed them to me in her evidence, it seems to me her prospects of a successful plea of not guilty are not at all strong.

11. In conclusion, my view is that this is not a case in which it would be appropriate to excuse the delay, referring there mainly to the reason given by Ms Leathley for the delay, nor is it a case in which, as I see things, it would be appropriate to give leave to Ms Leathley to substitute a plea of not guilty for her plea of guilty.  As well, I take account of the fact that if all of that were done, the prospects of success on a plea of not guilty are slight.

12. I do not overlook the fact that one of the main objects of Ms Leathley would be to avoid the recording of a conviction.  It may be that her chances at the end of the day of avoiding the recording of a conviction are slightly better but, even so, I consider are slight, having regard to the seriousness with which Parliament treats this offence.

13. For those reasons the notice of appeal will be struck out as incompetent.

    ORDER:

    1.     That the purported notice of appeal be struck out as incompetent.

    2.     That there be no order as to costs of the appeal.