McGARRY v The State of Western Australia
[2011] WASCA 250
•15 NOVEMBER 2011
McGARRY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 250
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 250 | |
| THE COURT OF APPEAL (WA) | 15/11/2011 | ||
| Case No: | CACR:110/2011 | 14 SEPTEMBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA J | 14/09/11 | |
| 3 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Conviction of the appellant on count 1 in Indictment 175 of 2009 quashed Appellant acquitted of charge | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ALEXANDER McGARRY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against conviction Appellant convicted on plea of guilty of an offence not known to the law Appeal conceded Turns on own facts |
Legislation: | Criminal Code (WA), s 178 Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | The State of Western Australia v O'Rourke [2010] WASCA 141 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McGARRY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 250 CORAM : McLURE P
- BUSS JA
MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
File No : INS 175 of 2009
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted on plea of guilty of an offence not known to the law - Appeal conceded - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 178
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Leave to appeal granted
Appeal allowed
Conviction of the appellant on count 1 in Indictment 175 of 2009 quashed
Appellant acquitted of charge
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondent : Mr D Dempster
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
The State of Western Australia v O'Rourke [2010] WASCA 141
(Page 3)
1 JUDGMENT OF THE COURT: This appeal against conviction was conceded by the respondent. The appellant was charged on Indictment 175 of 2009 (the Indictment) with two offences contrary to s 178 of the Criminal Code (WA) (the Code). The offences alleged disobedience to a lawful order for supervision made under the Dangerous Sexual Offenders Act 2006 (WA).
2 The appellant entered a plea of guilty to the first count on the Indictment before her Honour Jenkins J on 18 September 2009. Her Honour entered judgment of conviction on that count. The appellant entered a plea of not guilty on the second count.
3 On 30 July 2010, in an unrelated matter, this court dismissed the prosecution's appeal against the decision of Murray J to enter judgment for the accused in that case upon his plea that the offences there charged were not offences under s 178 of the Code: The State of Western Australia v O'Rourke [2010] WASCA 141.
4 The relevant facts and applicable law in the case of this appellant are indistinguishable from the charges in the indictment in O'Rourke. Accordingly, the offence the subject of the appellant's conviction could not be made out and the appeal was allowed. In accordance with the terms of a consent notice as amended at the hearing, the court ordered that: (1) leave to appeal is granted; (2) the appeal is allowed; (3) the conviction of the appellant on count 1 in Indictment 175 of 2009 is quashed; and (4) the appellant is acquitted of that charge.
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