M v Seidner

Case [2013] WASC 395

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   M -v- SEIDNER [2013] WASC 395

CORAM:   PRITCHARD J

HEARD:   22 OCTOBER 2013

DELIVERED          :   22 OCTOBER 2013

FILE NO/S:   SJA 1067 of 2013

BETWEEN:   M

Appellant

AND

JOHN DAVID SEIDNER
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R LAWRENCE

File No  :PE 43173 of 2009

Catchwords:

Criminal procedure - Spent conviction for disorderly conduct - Delay - Application for an extension of time in which to appeal - No application for spent conviction made to Magistrate - Whether on all the evidence before the Court there would be a miscarriage of justice if spent conviction were not ordered - Sentencing Act 1995 (WA) s 45

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Spent conviction order made

Category:    B

Representation:

Counsel:

Appellant:     Ms B L Lonsdale

Respondent:     Ms C A Lakewood

Solicitors:

Appellant:     Leaker Partners

Respondent:     State Solicitor for Western Australia

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

A v Esposito [2011] WASC 198

A v Staples [2007] WASC 36

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Butler v The Queen (1989) 44 A Crim R 214

Colwell v The State of Western Australia [No 2] [2012] WASC 196

Costello v Bennasar [2012] WASC 406

CW v Hounsham [2013] WASC 20

Davidson v Di Gregorio [2012] WASC 505

Eastough v The State of Western Australia (No 2) [2010] WASCA 88

Elmi v Rozario [2013] WASC 38

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

HBM v Ball [2013] WASC 167

Papas v Godwin [2010] WASC 226

R v Tognini [2000] WASCA 31; (2000) 22 WAR 291

Samuels v The State of Western Australia (2005) 30 WAR 473

Scanlon v Bove [2008] WASC 213

Wimbridge v The State of Westerm Australia [2009] WASCA 196

(These reasons were delivered orally and have been edited from the transcript.)

  1. PRITCHARD J:  Ms M is 24 years old.  On 16 May 2009, when she was 19 years old, she went out with some friends to a bar in Perth.  It was obviously a popular bar because, when they arrived at the venue, there was a queue to obtain entry and the queue did not move quickly. 

  2. After about half an hour, Ms M and one of her friends who was with her needed to use the toilet.  They asked the bouncers at the bar if they could use the toilets in the bar and were refused.  They asked whether there were any public toilets nearby and were told that they were a fair distance away. Ms M and her friend rejoined the queue, hoping it would move more quickly. 

  3. Eventually, their need to use the toilet became quite desperate.  The two friends saw a laneway nearby, which appeared to be poorly lit.  They hid behind some bins and relieved themselves in what they thought…

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Details
AGLC
M v Seidner [2013] WASC 395
Case
[2013] WASC 395
Decision Date

CaseChat Overview and Summary

The case of M v Seidner was heard in the Supreme Court of Western Australia. Ms M, the appellant, sought an extension of time to appeal against a conviction for disorderly conduct and a related fine, and a spent conviction order for that conviction. The respondent, Mr Seidner, opposed the application on various grounds, including the delay in bringing the application. The legal issues the court had to decide included whether there were exceptional circumstances justifying the delay in bringing the appeal and whether the court should exercise its discretion to grant a spent conviction order.

The court considered the principles of leave to appeal and the discretion to grant a spent conviction order. It found that Ms M's application for leave to appeal required a demonstration of a real prospect of success on the grounds of appeal. The court also noted that leave to appeal should not be granted if there is no real prospect of success on the merits of the appeal. Regarding the discretion to grant a spent conviction order, the court considered whether there would be a miscarriage of justice if the order were not granted, based on the evidence presented.

The court determined that there were no exceptional circumstances justifying the delay in bringing the appeal, and therefore, leave to appeal should not be granted. The court also found that, based on all the evidence before it, there would not be a miscarriage of justice if a spent conviction order were not granted. The application for an extension of time to appeal and the application for a spent conviction order were both dismissed.

Ms M's application for leave to appeal and her application for a spent conviction order were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Nature of the additional evidence which is sought to be admitted Ms M seeks to rely on two affidavits: one sworn by her solicitor, Mr Di Menna, on 28 May 2013, and one sworn by Ms M on 24 May 2013. Ms M's affidavit, in particular, contains material relevant to the ground of appeal, and which is relied upon by her counsel as supporting the exercise of discretion to grant a spent conviction order. The circumstances of the offence the subject of the Charge are set out in the Statement of Material Facts annexed to her affidavit. In addition, Ms M's affidavit deals with matters relating to her present employment, the possible impact of the conviction on her employment, and her good character. Ms M's affidavit also annexes two character references from longstanding family acquaintances, which are testament to Ms M's good character. For completeness, I note that both affidavits also deal with matters relevant to the application for an extension of time in which to bring the appeal, and Mr Di Menna's affidavit also deals with the availability of documents in relation to the hearing of the Charge. Principles in relation to leave to appeal and why leave to appeal should be granted Ms M requires leave to appeal. Her application for leave to appeal was referred to this hearing by Hall J on 21 June 2013. Under s 9(1) of the Criminal Appeals Act 2004 (WA), leave of the Court is required for each grant of an appeal in an appeal under Div 2 of Pt 2 of that Act. The Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of success.[1] [1] Criminal Appeals Act 2004 (WA) s 9(2). A grant of leave requires the applicant to demonstrate that the ground of appeal has a rational and logical prospect of success or, in other words, a real prospect of success.[2] [2] Samuels v The State of Western Australia (2005) 30 WAR 473, 487 [56] (the Court). It is appropriate to mention that there is limited information available as to what occurred in the Magistrates Court when the charge was heard. In his affidavit Mr Di Menna deposes that in early January 2013 he made an application for a copy of the transcript of the proceedings for the hearing on 27 July 2009, for a copy of the prosecution notice for the Charge and for any documents sent to the court by Ms M in respect of the Charge. The outcome of that inquiry was that a copy of the prosecution notice was provided, which is endorsed by the learned Magistrate to indicate the entry of a conviction and the imposition of a fine and costs, but no mention is made of any application for, or consideration of, a spent conviction order. Although Mr Di Menna's affidavit does not expressly deal with the matter, he has not annexed copies of any documents provided by the court which were sent to the court by Ms M in connection with the Charge, such as her endorsed plea of guilty. (In her affidavit, Ms M deposed that she sent a letter to the court explaining why she committed the offence and pleading guilty.) There is no information available as to whether any such documents still exist. In any event, there is no suggestion in Ms M's affidavit that she requested a spent conviction order be made, or provided information to the court which might support the making of such an order, because she was not aware of the possibility of such an order at that time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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