Letch v Thompson

[2015] WASC 216

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   LETCH -v- THOMPSON [2015] WASC 216

CORAM:   BEECH J

HEARD:   9 JUNE 2015

DELIVERED          :   9 JUNE 2015

PUBLISHED           :  12 JUNE 2015

FILE NO/S:   SJA 1022 of 2015

BETWEEN:   ELEXANDRA SALLY  LETCH

Appellant

AND

STEPHEN FRANCIS THOMPSON
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE B C GLUESTEIN

File No  :JO 8509 of 2013

Catchwords:

Criminal law and procedure - Appeal against conviction - Plea of guilty - Where accused did not understand the charge - Turns on own facts

Legislation:

Nil

Result:

Appeal against conviction upheld
Order for retrial

Category:    B

Representation:

Counsel:

Appellant:     Ms N R Sinton

Respondent:     Mr L D Villiers

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Snook v The State of Western Australia [No 2] [2015] WASCA 29

BEECH J: 

(This judgment was delivered extemporaneously on 9 June 2015 and has been edited from the transcript).

Introduction

1. The appellant was convicted on her own plea of guilty of an offence under s 428 of the Criminal Code 1913 (WA) (the Code) of possessing property reasonably suspected to be stolen or otherwise unlawfully obtained. She appeals against conviction on the ground that there was a miscarriage of justice because she did not understand the charge. The respondent concedes that the appeal should be upheld, the conviction set aside, and that there should be a retrial. For the reasons that follow, I consider that the concession is rightly made and the appeal should be upheld.

2. The background to the case is as follows. 

Background

1. By August 2013 the appellant's mobile phone had been stolen.

2. On 15 August 2013 someone else's mobile phone was stolen by an unidentified offender.  The stolen iPhone was offered for sale by a neighbour to the appellant for the price of $150.  The prosecution notice records that the stolen iPhone was valued at $200.  The substantial price paid by the appellant should be noticed.

3. The appellant was charged with receiving stolen property, contrary to s 414 of the Code.

4. On 21 March 2014 the appellant attended at the Joondalup Magistrates Court on that charge. She did not have a lawyer. Prior to the matter being called before the court, the prosecutor and the appellant discussed the charge. Following those discussions, the prosecutor successfully sought leave to amend the charge to one count of s 428 of the Code. That section is now repealed, but nothing turns on that.

5. At the relevant time s 428 provided as follows:

   (1)A person who is in possession of anything capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of an offence and is liable to imprisonment for two years and a fine of $24,000.

   (2)It is a defence to a charge of an offence under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained.

6. After the amendment was made, the appellant pleaded guilty and was convicted.  In the course of her own plea in mitigation, the appellant said as follows:[1]

   Well, I was at my house and I got a knock on the door saying, 'Would you like my phone?', because mine recently got stolen from when I went to visit my boyfriend.  So mine got stolen.  I said, 'Yeah.  That's fine.  That's great.'  They knew my situation.  I didn't think they would come up with stolen goods at all.  I got myself in a bit of a pickle about three years ago with my boyfriend's charges and, like, I said I wouldn't jeopardise anything, like, to breach my suspended sentence ...  A little later, when I found out it was stolen, I was willing to give it straight back.  I told them to say very sorry to the lady, but I didn't steal it.  I didn't have any idea.

   [1] ts 21 March 2014, 4.

7. In her affidavit in support of this appeal,[2] the appellant states that she did not know or believe that the iPhone was stolen.

   [2] Affidavit of Elexandra Sally Letch sworn 12 March 2015.

Applicable legal principles

1. The principles relevant to the setting aside of a conviction based on a plea of guilty are well‑known.  The governing principle is that a conviction based on a plea of guilty will only be set aside if the appellant satisfies the court that a miscarriage of justice has occurred. 

2. The principles were outlined by Hall J in Snook v The State of Western Australia [No 2].[3]  One of the well‑recognised categories of situation in which a miscarriage of justice may occur is where the accused person did not understand the charge.  It is that situation that, in my view, applies to this case.

[3] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] ‑ [107].

The disposition of the appeal

1. In my view, before the magistrate, the appellant did not clearly communicate her position.  It was open to the magistrate to accept the appellant's plea on the basis that, by implication, the appellant was, or must have been, accepting that she could not prove that she had no reasonable grounds to suspect that the iPhone was stolen.  In other words, in my view, the magistrate did not err in entering the conviction.  That, however, is not decisive.

2. Based on the material now before me, and in particular the affidavit of the appellant, I am satisfied that the appellant did not understand the charge and that a miscarriage of justice has resulted from the appellant's conviction.

3. For these reasons, I would make orders granting an extension of time, granting leave to appeal, allowing the appeal and remitting the matter back to the Magistrates Court.