Moncur v Pilgrim

Case [2011] WASC 347


MONCUR -v- PILGRIM [2011] WASC 347


Pending Appeal


SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASC 347
Case No:SJA:1053/201130 NOVEMBER 2011
Coram:MURRAY J13/12/11
9Judgment Part:1 of 1
Result: Appeal dismissed with costs
B
PDF Version
Parties:BRIAN ALEXANDER MONCUR
GRANT JOHN PILGRIM

Catchwords:

Criminal law and procedure
Charge of driving with more than .08% blood alcohol
Plea of guilty
Change in statement of material facts
Whether defendant materially misled as to facts when plea made
Whether impossible for defendant to be guilty of offence charged
Turns on own facts

Legislation:

Nil

Case References:

Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MONCUR -v- PILGRIM [2011] WASC 347 CORAM : MURRAY J HEARD : 30 NOVEMBER 2011 DELIVERED : 13 DECEMBER 2011 FILE NO/S : SJA 1053 of 2011 BETWEEN : BRIAN ALEXANDER MONCUR
    Appellant

    AND

    GRANT JOHN PILGRIM
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE McINTYRE

Citation : PILGRIM -v- MONCUR

File No : MH 655 of 2010


Catchwords:

Criminal law and procedure - Charge of driving with more than .08% blood alcohol - Plea of guilty - Change in statement of material facts - Whether defendant materially misled as to facts when plea made - Whether impossible for defendant to be guilty of offence charged - Turns on own facts


(Page 2)



Legislation:

Nil

Result:

Appeal dismissed with costs

Category: B


Representation:

Counsel:


    Appellant : In person
    Respondent : Ms B M Allen

Solicitors:

    Appellant : In person
    Respondent : State Solicitor for Western Australia



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

Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154


(Page 3)
    MURRAY J:




The history of the proceedings

1 On 2 December 2010, the appellant was charged with the offence of driving a motor vehicle with a blood alcohol content which exceeded 0.08 g of alcohol per 100 ml of blood. The prosecution notice provided the particular that the blood alcohol content was calculated at 0.104 g of alcohol per 100 ml of blood. That is an offence contrary to s 64(1) of the Road Traffic Act 1974 (WA) (RTA).

2 It appears that a notice advising the appellant of the date when the matter was to be heard was attempted to be served by post. The notice seems to have been sent to the wrong address. The appellant was therefore unaware of the fact that, on 5 January 2011, the Mandurah Magistrates Court dealt with the charge in the appellant's absence.

3 Under s 55 of the Criminal Procedure Act2004 (WA) (CPA), if the court takes that course, it is to take as proved any allegation in the prosecution notice served upon the accused; ie, in this case, that at the relevant time the appellant had a blood alcohol content of 0.104 g per 100 ml of blood. The appellant was…

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Moncur v Pilgrim [2011] WASC 347
Case
[2011] WASC 347
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CaseChat Overview and Summary

The appeal arose from a conviction in the Magistrates' Court, where the appellant, Moncur, was charged with driving with more than.08% blood alcohol. The appellant entered a guilty plea and was convicted. The central issue in the appeal was whether the appellant was materially misled regarding the facts when he entered his plea of guilty, particularly in light of a change in the statement of material facts. Additionally, the court had to determine whether it was possible for the appellant to be guilty of the offence charged based on the facts of the case.

The court examined whether the change in the statement of material facts constituted a material misstatement that misled the appellant when he entered his plea. It was noted that the court must consider whether the appellant was misled as to the facts in such a way that it was impossible for him to be guilty of the offence charged. The court held that the change in the statement of facts did not materially mislead the appellant and that it was possible for him to be guilty of the offence based on the facts presented. The court found that the appeal did not succeed as the appellant was not misled to the extent that it was impossible for him to be guilty of the offence charged.

The appeal was dismissed with costs. The court found that the appellant's conviction was properly upheld and that the change in the statement of material facts did not render the plea invalid. The decision confirms the importance of ensuring that a defendant is not materially misled when entering a plea of guilty, but also that minor changes in the statement of facts do not necessarily invalidate a guilty plea.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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