MONCUR -v- PILGRIM [2011] WASC 347

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 347
Case No:	SJA:1053/2011	Heard:	30 NOVEMBER 2011
Coram:	MURRAY J	Delivered:	13/12/11
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed with costs
Category:	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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moncur v Pilgrim

Details

AGLC: Moncur v Pilgrim [2011] WASC 347
Case: [2011] WASC 347
Decision Date: 13 DECEMBER 2011

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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