MP v TRENGARTH - [2007] WASC 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MP -v- TRENGARTH [2007] WASC 221

CORAM: McKECHNIE J

HEARD: 24 AUGUST 2007

DELIVERED : 24 AUGUST 2007

FILE NO/S: SJA 1046 of 2007

BETWEEN: MP
Appellant
AND
NATHAN ROBERT TRENGARTH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G N CALDER
File No  :PE 25506 of 2007

Catchwords:

Criminal law - Disorderly conduct - courts and judges - Plea of guilty - Whether advice as to consequences

Legislation:

Criminal Procedure Act 2004 (WA), s 129

Result:

Appeal allowed
Matter remitted

Category: B

Representation:

Counsel:

Appellant: Mr D M Meagher
Respondent: Ms L A Eddy

Solicitors:

Appellant: Denis Meagher
Respondent: State Solicitor for Western Australia

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

Melser v The Police [1967] NZLR 437
Woods v Marsh [2003] WASCA 95

McKECHNIE J: Late in the evening of Saturday, 7 April this year, the appellant was observed by police in a driveway in Aberdeen Street, Northbridge, in clear view of passers‑by, urinating against a gate. It is said that at the time the street was busy, people were attending a couple of nightclubs or hotels nearby which are popular venues. He was within 50 metres of licensed premises and a short distance from public toilets. He was summonsed, the prosecution notice reading that:
On 7 April being in sight of any person who is in a public place, behaved in a disorderly manner: Criminal Code section 74A(2)(a).
The Criminal Code (WA) (Code) is now the repository of the offence known as disorderly behaviour, previously in the Police Act 1892 (WA). Mr Meagher has cited a number of authorities and the respondent concedes that Melser v The Police [1967] NZLR 437 is still useful authority. In Melser, Turner J said:
Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well‑conducted and reasonable men and women, is also something more - it must, in my opinion, tend to annoy or insult such persons as are faced with it - and sufficiently deeply or seriously to warrant the interference of the criminal law. (444)
However, the Code by s 74A now supplies a definition of 'behave in a disorderly manner'. It is an inclusive definition that gives continued scope for the operation of Melserwhich has been generally accepted in courts of the state. The inclusive definition says relevantly:
(b)to behave in an insulting, offensive or threatening manner.
(2)A person who behaves in a disorder manner -
(a)in a public place or in the sight or hearing of any person who is in the public place; or
…
is guilty of an offence.
The facts indicate that the offence did occur at least within the sight or hearing of any person in a public place as, of course, the appellant was seen. The appellant appeared in the Magistrates Court on 25 May, pleaded guilty, and was fined $200 and costs. No spent conviction was asked for or applied for.
From that conviction he appeals on the following ground:
The Appellant being unrepresented and of whom it was alleged he behaved 'in an insulting, offensive or threatening manner' in breach of section 74A of the Criminal Code, the learned Magistrate erred in law in not informing the Appellant he might recall his plea because the facts then advanced by the Respondent failed to constitute a breach of that provision and the conviction for the same thereby being unsafe and unsatisfactory.
Although not pleaded, but with the acquiescence of the respondent, the appellant advanced a further argument which he says is generally encompassed within ground 1. I think that is a generous interpretation of ground 1. The ground relates to the duty of a magistrate under of the Criminal Procedure Act 2004 (WA) s 129. The appellant also cites in support Woods v Marsh [2003] WASCA 95 but I do not need to go beyond s 129(2):
Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless -
(a)the accused is represented by a lawyer; or
(b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
What occurred in the Magistrates Court was brief in the extreme. I mean no criticism of anybody but what appears on the transcript is as follows:
HIS HONOUR: Are you [MP]?
[MP], MR: Yeah.
HIS HONOUR: Representing yourself I take it?
[MP], MR: Yeah.
HIS HONOUR: You are charged with an offence on 7 April this year, Northbridge; being in the sight of any person in a public place behaved in a disorderly manner. Do you understand what that charge means?
[MP], MR: Yes, sir.
HIS HONOUR: Do you want it dealt with today or do you want it put off to another day for any reason?
[MP], MR: No.
HIS HONOUR: Guilty or not guilty?
[MP], MR: Guilty.
HIS HONOUR: Sit down there. Listen to what the prosecutor tells me, please.
I have great sympathy for magistrates who are busy, some would say very overworked, dealing with a range of offences. This one is hardly the most important except of course to the appellant. However, I am satisfied that the magistrate failed to follow the procedure in s 129(2).
The offence of disorderly conduct is an offence that can occur in a variety of circumstances. There needed to be some explanation to ensure that the appellant actually understood what was being alleged and why it was being alleged that it was disorderly. The offence is not urinating in a public place, but being disorderly. More particularly, there was no explanation whatever by the magistrate as to the consequences of the plea.
What the consequences of a plea might be will vary from time to time. It is true, I think, as the respondent was really submitting, that a person pleading guilty would perhaps expect the consequences to be a conviction; but a young person may not understand the possible consequences of having a conviction on their record in terms of employment and other matters. When coupled with the fact that no reference was made to a possible spent conviction, or anything of that nature, I consider that the magistrate failed to comply with s 129(2); that being an error of law.
This appeal would succeed unless I was satisfied there was no substantial miscarriage of justice. That directs attention back to the offence of disorderly conduct. For myself, I have little doubt that, in general, urinating in a public place would be regarded by ordinary people as offensive. However, the respondent when pressed, I think, in the end, more or less conceded that I should find that there is an arguable defence available that, in the particular circumstances of this case, the behaviour was not disorderly; it occurring up a laneway, in a darkened place well off the street.
I find, and I find no more than it is fairly arguable, that the behaviour may not have been disorderly, and in consequence of that finding, I am unable to apply the proviso. That being so, I would allow the appeal, set aside the conviction and remit the matter back to the Magistrates Court to be dealt with according to law.
The second ground of appeal relates to the granting or the magistrate not giving consideration to the making of a spent conviction order under the Sentencing Act. In view of my conclusion on the first ground of appeal, that is a matter which will no doubt exercise the attention of the magistrate when it comes to be dealt with. I am not in the habit of giving advisory opinions, so I decline to deal with ground 2.
The orders will be the appeal is allowed, the conviction set aside, the matter remitted to the Magistrates Court.