Nelson v Haynes
[2003] WASCA 73
•3 APRIL 2003
NELSON -v- HAYNES [2003] WASCA 73
| (2003) 27 WAR 154 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 73 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1072/2002 | 4 MARCH 2003 | |
| Coram: | MURRAY J ANDERSON J STEYTLER J | 3/04/03 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted, Leave to appeal granted, Appeal allowed, Applicant's conviction set aside | ||
| A | |||
| PDF Version |
| Parties: | KEVIN WAYNE NELSON ROGER HAYNES |
Catchwords: | Criminal law Particular offence Using computer service to obtain objectionable matter Plea of guilty Offence not committed Application for extension of time to appeal against conviction Facts disclosing difference offence attracting same maximum penalty Whether extension of time should be granted |
Legislation: | Censorship Act 1996 (WA), s 59(5), s 101(1)(a), s 101(1)(b) Crimes Act 1900 (NSW) Criminal Appeal Act 1968, (UK), s 3 Criminal Code, s 7, s 693(2) Health Insurance Act 1973 (Cth), s 128A(5) Justices Act 1902 (WA), s 43, s 51, s 101(1)(a), s 101(1)(b), s 196(1)(b), s 199(1)(b) Theft Act 1968 (UK), s 1, s 15(1) |
Case References: | Hawkins v The Queen [1997] 1 Cr App Rep 234 Haynes v Hughes [2001] WASCA 397 Kardogeros v The Queen [1991] 1 VR 269 Lim v Bateman (2001) 125 A Crim R 101 Lim v Bateman (2001) 165 FLR 268 Maxwell v The Queen (1996) 184 CLR 501 Meissner v The Queen (1995) 184 CLR 132 Murphy v The Queen [1965] VR 187 Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996 Piening v Wanless (1968) 117 CLR 498 Pilkington v The Queen [1955] Tas SR 144 R v Boal [1992] QB 591 R v Forde [1923] 2 KB 400 R v Hawkins [1997] 1 Cr App Rep 234 R v Horsman [1998] QB 531 R v Lee (Bruce) [1984] 1 WLR 578 R v Liberti (1991) 55 A Crim R 120 R v Murphy [1965] VR 187 R v Preddy [1996] AC 815 R v Ramsden [1972] Crim LR 547 R v Stewart [1960] VR 106 R v Unger [1977] 2 NSWLR 990 Re Berkeley; Borrer v Berkeley (1945) Ch 1 Reg v Preddy [1996] AC 815 Tihanyi v The Queen (1999) 21 WAR 377 Ashlin v Barrett [1988] Tas R 113 Caruso (1988) 49 SASR 465 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Foley (1962) 80 WN (NSW) 726 Gavin v The Queen (1992) 6 WAR 195 Gower v Ross [1959] SASR 278 Heathcote v King [2002] WASCA 1 Lancaster v The Queen [1989] WAR 83 Lurrsen v Williams, unreported; SCt of WA; Library No 950015; 20 January 1995 Mitchell v The Queen [2001] WASCA 255 Narkle v The Queen (2001) 23 WAR 468 Nutall v The Queen, unreported; FCt SCt of WA; Library No 9200909; 26 February 1992 R v Azaddin (1999) 109 A Crim R 474 R v McHugh (1977) 64 Cr App Rep 92 R v Mitchell (1977) 65 Cr App Rep 185 R v Pickford [1995] QB 203 Ryan v Dimitrovski [2000] WASCA 116 Ryll v The Queen [2001] WASCA 185 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Wearne v Roberts [2001] WASCA 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : NELSON -v- HAYNES [2003] WASCA 73 CORAM : MURRAY J
- ANDERSON J
STEYTLER J
- Applicant
AND
ROGER HAYNES
Respondent
Catchwords:
Criminal law - Particular offence - Using computer service to obtain objectionable matter - Plea of guilty - Offence not committed - Application for extension of time to appeal against conviction - Facts disclosing difference offence attracting same maximum penalty - Whether extension of time should be granted
Legislation:
Censorship Act 1996 (WA), s 59(5), s 101(1)(a), s 101(1)(b)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1968, (UK), s 3
Criminal Code, s 7, s 693(2)
Health Insurance Act 1973 (Cth), s 128A(5)
(Page 2)
Justices Act 1902 (WA), s 43, s 51, s 101(1)(a), s 101(1)(b), s 196(1)(b), s 199(1)(b)
Theft Act 1968 (UK), s 1, s 15(1)
Result:
Extension of time granted
Leave to appeal granted
Appeal allowed
Applicant's conviction set aside
Category: A
Representation:
Counsel:
Applicant : Mr A O Karstaedt
Respondent : Mr G T W Tannin SC & Ms L E Christian
Solicitors:
Applicant : Max Crispe
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Hawkins v The Queen [1997] 1 Cr App Rep 234
Haynes v Hughes [2001] WASCA 397
Kardogeros v The Queen [1991] 1 VR 269
Lim v Bateman (2001) 165 FLR 268
Maxwell v The Queen (1996) 184 CLR 501
Meissner v The Queen (1995) 184 CLR 132
Murphy v The Queen [1965] VR 187
Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996
Piening v Wanless (1968) 117 CLR 498
Pilkington v The Queen [1955] Tas SR 144
R v Boal [1992] QB 591
R v Forde [1923] 2 KB 400
R v Hawkins [1997] 1 Cr App Rep 234
R v Horsman [1998] QB 531
(Page 3)
R v Lee (Bruce) [1984] 1 WLR 578
R v Liberti (1991) 55 A Crim R 120
R v Murphy [1965] VR 187
R v Preddy [1996] AC 815
R v Ramsden [1972] Crim LR 547
R v Stewart [1960] VR 106
R v Unger [1977] 2 NSWLR 990
Re Berkeley; Borrer v Berkeley (1945) Ch 1
Tihanyi v The Queen (1999) 21 WAR 377
Case(s) also cited:
Ashlin v Barrett [1988] Tas R 113
Caruso (1988) 49 SASR 465
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Foley (1962) 80 WN (NSW) 726
Gavin v The Queen (1992) 6 WAR 195
Gower v Ross [1959] SASR 278
Heathcote v King [2002] WASCA 1
Lancaster v The Queen [1989] WAR 83
Lurrsen v Williams, unreported; SCt of WA; Library No 950015; 20 January 1995
Mitchell v The Queen [2001] WASCA 255
Narkle v The Queen (2001) 23 WAR 468
Nutall v The Queen, unreported; FCt SCt of WA; Library No 9200909; 26 February 1992
R v Azaddin (1999) 109 A Crim R 474
R v McHugh (1977) 64 Cr App Rep 92
R v Mitchell (1977) 65 Cr App Rep 185
R v Pickford [1995] QB 203
Ryan v Dimitrovski [2000] WASCA 116
Ryll v The Queen [2001] WASCA 185
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Wearne v Roberts [2001] WASCA 279
(Page 4)
1 MURRAY J: In this matter I have had the advantage of reading in draft the reasons for decision of Anderson J. That relieves me of the need to refer to the facts and the history of the matter to any greater extent than is absolutely necessary for the purpose of making my reasoning clear.
2 A number of aspects of the case can, I think, be disposed of shortly. I agree with Anderson J that there are grounds for an extension of time to be granted so as to permit the hearing of the application for leave to appeal, although in the final analysis, of course, his Honour would refuse the application. Further, it seems to me also to be convenient that leave to appeal should be granted and that the appeal itself should be dealt with by the Full Court at the same time as the application for leave. That was effectively the way in which the hearing proceeded before us and so we had the benefit of full argument in relation to the substantive point at issue in the case.
3 It is accepted on all sides that the applicant did not commit the offence with which he was charged, that of using a computer service to obtain possession of an article, knowing it to be objectionable material, contrary to the Censorship Act1996 (WA), s 101(1)(b), because he did not know what the nature of the material was at the time he received it into his computer by way of an unsolicited email. That was the relevant time and it was of no moment that he knew the nature of the material, which was clearly objectionable within the meaning of the Act, s 99, after he opened the email and transferred the material to his personal directory. So much was established by the decision of this Court in Haynes v Hughes [2001] WASCA 397.
4 However, the applicant was convicted in the Court of Petty Sessions and sentenced to pay a fine of $1000 on 23 August 2000 and the decision in Haynes v Hughes was not delivered until 7 December 2001, nearly 16 months later. Nonetheless that decision simply declared what was always the law under the Censorship Act. The offence is committed when a person uses the computer service to obtain possession of objectionable material. It is obviously necessary that the mental element, knowledge of the nature of the material, is established to exist at the time when possession is obtained. That time is when the relevant computer service is used to receive the email.
5 It is well-established that an appeal against conviction after a plea of guilty will only succeed in exceptional circumstances. Ordinarily, the appellant will be bound by the plea made as a result of a considered judgment, understanding the effect of what was being done, particularly
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- when the plea is made upon legal advice. But an appeal in such circumstances may succeed and a change of plea may be permitted in an appropriate case, where the circumstances demonstrate a clear miscarriage of justice. There is no closed list of circumstances which may be relevant to the exercise of the power to allow such an appeal and, where necessary, permit a change of plea. Recent decisions of this Court include Tihanyi v The Queen (1999) 21 WAR 377 and Lim v Bateman (2001) 165 FLR 268. A clear basis upon which an appeal against conviction may succeed, although made after a plea of guilty, arises where, on the admitted facts, the applicant could not, as a matter of law, be guilty of the offence.
6 Such a case was R v Liberti (1991) 55 A Crim R 120. The case has an additional relevance for present purposes. In that case, the applicant had been convicted on his own plea of supplying prohibited drugs. He had received them from another to mind or keep them safe. The act of supply was said to be his act of returning the drugs to the person from whom they were originally received. As a matter of law at that time, that could not be an act of supply within the meaning of the relevant statute. However, he had returned the drugs because the applicant was aware that his friend was supplying the drug by sale to third parties.
7 It was argued by the Crown that having that knowledge would make the applicant an accessory before the fact of the act of sale to a third party by the person to whom he returned the drug. He could, it was argued, have been charged with that act of sale or supply as a principal without pleading that the basis of his criminal responsibility was the allegation that he was an accessory before the fact. That was the position under the Crimes Act 1900 (NSW) and it would be the position here under the Criminal Code, s 7. However, that was not the basis upon which the applicant had been charged or convicted and so the Court of Criminal Appeal of NSW concluded that the appeal must be allowed and the conviction quashed.
8 The relevance of that case to this is apparent when one has regard to the argument of the respondent, who tendered an affidavit placing before the Court the transcript of a videoed interview of the applicant by investigating police officers. In that interview the applicant admits that he "sent" the material to a person who "hassled" him until eventually he succumbed and sent the material on. Having regard to the nature of the argument presented by the respondent, to which I shall shortly come, I agree with Anderson J that it would be appropriate for this Court to exercise its power under the Justices Act1902 (WA), s 196(1)(b), to receive this additional evidence.
(Page 6)
9 For the respondent it is argued that that material constitutes an admission by the applicant that, on some date unknown, he committed the offence defined by the Censorship Act, s 101(1)(a), in that he used a computer service to transmit an article, knowing it to be objectionable material. There would certainly be no doubt that the applicant by then had the relevant knowledge obtained when he saved the material to his personal directory. For the applicant it is argued that to say he "sent" the material is not to admit that he transmitted it using the computer service, but to my mind it is clear from the words used by the applicant during the interview and the context in which the question and answer appear that that is precisely what he admitted. But, of course, as in the case of Liberti, that is not only not the basis upon which he was charged with the offence of which he was convicted, but it is a different offence, with which he was never charged, albeit it is an offence of equal seriousness, defined as one of a group of five offences in the same section of the Act and subject to the same penalty, a fine of $15,000 or imprisonment for 18 months.
10 The difficulty that would now arise in respect of a charge of an offence under s 101(1)(a) of the Act is that the material was received into the applicant's computer service on 9 May 2000. The interview in question was conducted on 12 June 2000 and so the transmission would have occurred between those dates. Under the Justices Act, s 51, the complaint of such an offence had to be made within 12 months from the time when the matter of complaint arose. This offence is now statute-barred.
11 The respondent relies upon this evidence, however, to support a submission that the appeal should be dismissed on the ground that there has been no substantial miscarriage of justice. In making that submission it relies upon the Justices Act, s 199(1)(b), which provides that upon the hearing of an appeal the Court may:
"dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred;".
12 It is not argued that this Court should substitute a conviction of an offence under s 101(1)(a) of the Act because, of course, that is a quite separate offence from that defined by s 101(1)(b) and, on a complaint of that offence, the Court of Petty Sessions would have no power to convict the applicant of the different offence under s 101(1)(a). There are no
(Page 7)
- provisions in the Justices Act to the same effect as those contained in Ch 63 of the Criminal Code in respect of the power to convict of alternative offences upon indictment: cf Justices Act, s 43.
13 In support of his argument, the respondent relies upon two decisions of the English Court of Appeal. The first is Hawkins v The Queen [1997] 1 Cr App Rep 234. In that case the defendant approached various building societies, pretending to be a person who was buying houses for his own occupation when in fact he was buying them to renovate and resell. He made applications for mortgages with false particulars. He bought 11 houses and let them to tenants. He pleaded guilty to offences of obtaining the monies or attempting to obtain them by deception, contrary to the Theft Act 1968 (UK), s 15(1).
14 After his conviction and sentence the House of Lords decided a case called R v Preddy [1996] AC 815 which is authority for the proposition that to do what the defendant in Hawkins did, could not as a matter of law constitute the offence of obtaining or attempting to obtain property by deception, because what the defendant got or attempted to obtain was not property, but a chose in action in the form of credit provided by the lending institution.
15 In Hawkins, the Court of Appeal refused an extension of time for leave to appeal against the applicant's convictions because on the admitted facts the applicant could have been successfully prosecuted for theft under the Theft Act, s 1. It matters not, for present purposes, how that could be. It is a matter of definition under that Act. The point is, however, that had the law been correctly understood by the court dealing with Hawkins he could have been convicted of theft or attempted theft upon the indictment which was before the court, charging him with obtaining property by deception or attempting to do so. The case was decided upon the basis that under the relevant sections of the Theft Act those alternative convictions were open and that, to my mind, is an important point of distinction between the case of Hawkins and this case.
16 The other case upon which the respondent relies is R v Horsman [1998] QB 531, a case not dissimilar to Hawkins, but with an important difference. Again, the appellant had pleaded guilty to two counts of obtaining cheques by deception contrary to the Theft Act, s 15. Again, the case of Preddy showed that he could not in law have committed those offences because in the circumstances he had not obtained any property, but merely the creation of choses in action. However, unlike the outcome in Hawkins, the Court in Horsman allowed the appeal. It did so because
(Page 8)
- it held that it had no power to substitute a verdict of guilty of the offence which, on the admitted facts, the appellant had committed.
17 That result flowed directly from the wording of the Criminal Appeal Act 1968 (UK), s 3 which authorised the Court of Appeal to substitute a verdict which might have been returned by the jury. In this case, of course, as there had been pleas of guilty no jury verdict was involved. The court referred to Hawkins, which it obviously considered might have had the same result, and noted that the Court in that case had not had put to it the argument which in this case it accepted.
18 In relation to the point upon which Horsman turned I note the power conferred upon the Court of Criminal Appeal by the Criminal Code, s 693(2) to substitute for a verdict found by the jury a verdict of guilty of an alternate offence of which the jury could, on the indictment, have found the applicant guilty. That provision would seem to be subject to the same limitations referred to by the Court of Appeal in Horsman, but in any event, as I have already noted, the Full Court or a single judge of the Supreme Court hearing an appeal under the Justices Act has not even that power, no doubt because the Court of Petty Sessions itself lacks power on a complaint of a simple offence, such as in this case, to convict of some different offence in the alternative.
19 In the final analysis, in my view neither of the cases upon which the respondent relies for the proposition that there was no substantial miscarriage of justice in fact supports that contention. The question then is, can the submission be made good by relying solely upon the power of the Court to dismiss the appeal on the ground that no substantial miscarriage of justice has occurred, under s 199(1)(b) of the Justices Act? In my opinion, the submission cannot be made good.
20 The short point is that due to a misunderstanding of the law the applicant has pleaded guilty to and been convicted of an offence which, as a matter of law, he did not commit. It cannot, in my view, be the case that this Court may conclude that no substantial miscarriage of justice has occurred because the applicant admitted that he committed an offence with which he could have been charged, but with which he was never charged and with which he cannot now be charged. He cannot now be exposed to that conviction and I can see no basis upon which this Court
(Page 9)
- can uphold a conviction for an offence which the applicant did not commit.
21 With respect to the contrary view, I would allow the appeal and quash the conviction.
22 ANDERSON J: This is an application for an extension of time to appeal and for leave to appeal against a conviction recorded in the Court of Petty Sessions at Geraldton following a plea of guilty. The conviction was recorded on 23 August 2000 and the application was not filed until 27 May 2002, some 20 months out of time.
23 The applicant had been charged under s 101(1)(b) of the Censorship Act on a complaint alleging that:
"On the 9th day of May 2000 at Greenough [the applicant] used a computer service to obtain possession of an article knowing it to be objectionable material."
24 This offence is created by the above section which provides:
"101(1) A person must not use a computer service to -
(a) transmit an article knowing it to be objectionable material;
(b) obtain possession of an article knowing it to be objectionable material;
(c) demonstrate an article knowing it to be objectionable material;
(d) advertise that objectionable material is available for transmission; or
(e) request the transmission of objectionable material knowing it to be objectionable material.
Penalty:
(a) In the case of an individual, $15,000 or imprisonment for 18 months
(b) In any other case, $75,000."
(Page 10)
25 The definition of "objectionable material" is contained in s 99 and there is no dispute that the image or images on the applicant's computer satisfied the definition.
26 The applicant took legal advice from an experienced legal practitioner and has deposed that:
"As a result of the legal advice I received and in light of the law as I perceived it to be I entered a plea of guilty to the charge…"
27 The statement of facts read to the Court by the prosecutor was as follows:
"On 9 May 2000, acting upon a complaint received from the Ministry of Justice, detectives conducted an investigation at the Information and Technology Section of the Ministry of Justice at 141 St George's Terrace, Perth. The detectives gained access to the computer service personal directory of the defendant, who was employed by the Ministry of Justice.
This directory is provided by the Ministry for the defendant's use for work related to his employment. An examination of the directory revealed an article entitled 'YEAH.Avi'
[description of article]
Enquiries conducted demonstrated that the defendant was in possession of the article in that he had placed it on his personal computer directory. On 12 June 2000 the defendant participated in a video record of interview and admitted to placing the article on his computer directory within the Ministry's computer system."
28 By his plea of guilty the applicant must be taken to have admitted the above facts. He was fined $1,000 with costs of $357.70. The Magistrate gave consideration to a spent conviction order but decided not to make one because "there is no question in my mind, about the offence being trivial or technical or any of those sorts of aspects; it's not. It can be seen, as I say, as a significant without being [a] terribly serious example of this type of offence."
29 This is another case in which it was accepted on all sides below that saving objectionable material from the email programme to a personal
(Page 11)
- directory in a computer is "use" of a computer service to "obtain possession of an article knowing it to be objectionable material".
30 On 7 December 2001, 16 months after the applicant was sentenced, the judgment of this court in Haynes v Hughes [2001] WASCA 397 was delivered in which it was held that an offence under s 101(1)(b) is not committed unless the defendant knew the nature of the material and intended to obtain possession of it when the computer service was first used for the purpose. The statement of material facts admitted by the applicant in this case does not go so far. The only "use" alleged against the applicant was the saving of the material to his personal directory after it had been received into the computer as an email. No fact was alleged or admitted which could sustain the conclusion that when the article was first received as an email the applicant intended to receive it knowing it was objectionable material. He said it was an unsolicited email and this was not disputed.
31 The applicant's case is that it was only when the judgment in Haynes v Hughes (supra) was published that he realised he had not committed the offence with which he had been charged and to which he had pleaded guilty. There is material before the Court which shows that the applicant immediately set about obtaining legal assistance through his industrial union to bring this appeal and there is satisfactory explanation for the delay that occurred thereafter, the explanation in general terms being that the union was slow in making a decision whether or not to assist him and once it had decided to do so proceedings thereafter were very slow through no fault of the applicant.
32 The grounds on which the applicant seeks to have the conviction set aside are that the plea of guilty was due to a mistake "that as a matter of law the facts upon which he pleaded guilty gave rise to the offence as charged"; and that because on the admitted facts the offence charged had not been committed his conviction, notwithstanding that it was recorded on his own plea of guilty, amounted to a miscarriage of justice.
33 It is not disputed by the respondent that the admitted facts did not constitute the offence of which the applicant was convicted and it is not contended that the applicant appreciated this to be so when he decided to plead guilty. That is, it is not disputed that the plea was due to a mistake as to what facts constitute the offence. In case it matters, I would accept that the mistake was an understandable mistake or, perhaps more accurately, not an unreasonable mistake. The question is whether there has in truth been a miscarriage of justice. It is trite that the applicant must
(Page 12)
- show a miscarriage of justice before the Court will set aside a conviction based on his guilty plea: Nobes v The Queen, unreported; CCA SCt of WA; Library No 960486; 26 August 1996. It has sometimes been said that there must be a "very strong case and exceptional circumstances" before the Court will interfere with a conviction based on a plea of guilty: Pilkington v The Queen [1955] Tas SR 144. However there are other cases in which it has been held that leave to appeal from a conviction after a plea of guilty may be granted if the defendant did not appreciate the nature of the charge or if it appears that upon the admitted facts the defendant could not in law have been convicted of the offence charged: R v Stewart [1960] VR 106. A number of the authorities are gathered in Lim v Bateman (2001) 165 FLR 268. In that case a medical practitioner had been convicted on her plea of guilty to 70 counts of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth). She was legally represented before the Magistrate and her counsel informed the Magistrate that although the defendant did not know that the statements she had made were false it was accepted on her behalf that the relevant section "involve[d] criminality in making a false statement, irrespective of knowledge or [sic] whether those statements are false". This was wrong as by s 128A(5) of the Act it is "a defence if a person charged with an offence under this section in relation to a statement made by the person did not know, and could not reasonably be expected to have known, that the statement was … false". Wallwork J and Einfeld AUJ held in effect that the pleas of guilty were misconceived and there had therefore been a miscarriage of justice which should be corrected. They referred with approval to the judgment of Sholl J in Murphy v The Queen [1965] VR 187 at 191 where that Judge said:
"I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, for example, a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial."
"… it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears …
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- (a) that the appellant did not appreciate the nature of the charges … [whilst] the courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection … ultimately the accused is entitled to look to the Court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts…"
35 I consider that the applicant has established that he pleaded guilty to this charge on a misapprehension as to the true nature of the charge and what constituted the offence of which he was charged. I think it is a clear case of a mistaken plea based upon facts which could not sustain the conviction. But should there be an exercise of discretion in favour of the applicant to extend time by nearly two years and grant leave to appeal?
36 On behalf of the respondent it was contended by Mr Tannin SC that the Court should not exercise its discretion to grant an extension of time because on the admitted facts the applicant was guilty of at least the offence of possessing an indecent or obscene article contrary to s 59(5) of the Censorship Act. This is true but it is a lesser offence carrying a maximum penalty of $5,000 or 6 months' imprisonment. This is no ground to refuse to extend time to appeal against a conviction of the more serious offence based upon a misconceived plea of guilty: R v Horsman [1998] QB 531 at 538.
37 Then it was contended on behalf of the respondent that in the course of a video record of interview at the police station the applicant had admitted that after he had saved the material into his work directory he "sent" it to another person. The passage from the transcript of the interview is as follows:
"Q. As I said Kevin this is pretty straightforward stuff. Unfortunately you have breached the Censorship Act by having it, by possessing it. Did you send it to anyone else?
A. Um, I did send it to one person. He just hassled me and hassled me so eventually I sent it to him.
Q. As I said you don't have to tell us who that person is if you don't want to. Do you want to tell us who that is?
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- A. No, I don't think I should do…
Q. Ok, that's fine…"
38 Mr Tannin submitted that this was an admission of an offence under s 101(1)(a) of the Censorship Act: that of using a computer service to transmit objectionable material knowing it to be objectionable material - an offence just as serious as the offence to which the applicant had mistakenly pleaded guilty.
39 Neither the video record of interview nor the transcript were put in evidence before the Magistrate, no doubt because of the guilty plea. Mr Tannin submitted that we should receive the video or the transcript as evidence in the appeal and we accepted that submission. The evidence goes directly to the question whether there has been a miscarriage of justice and it would be wrong for us not to look at it. It gives rise to the question whether a person wrongly convicted of one offence on a misconceived plea of guilty should have an extension of time and leave to appeal when he admittedly committed an offence just as serious with which he cannot now be charged.
40 There is good authority for the proposition that where it is clear beyond dispute that an applicant for an extension of time and leave to appeal, who had pleaded guilty to an offence not sustainable on the particularised facts, is guilty of an offence just as serious as the one which he mistakenly admitted, should not get leave to appeal or an extension of time for leave to appeal. In R v Horsman (supra) the defendant had pleaded guilty to a charge under s 15(1) of the Theft Act 1968 of "fraudulently obtaining the property of another". He had induced a home lending house to lend him money to purchase a home which he never intended to live in but always intended to rent out. There were a number of other false statements in his lending application. A year or so after his conviction following his plea of guilty, the House of Lords decided in an identical case (R v Preddy [1996] AC 815) that the facts alleged and admitted did not constitute an offence under s 15(1) because on the true analysis of the transaction the defendant had not by his fraud "obtained the property of another". All that had happened was that the lender's account with its own bank was reduced by the amounts of the cheques paid to the defendant. The defendant, who had always intended to repay the loan, had not in any relevant sense obtained property of the lender.
41 After publication of the decision in R v Preddy (supra) the defendant made an application for an extension of time and for leave to appeal his
(Page 15)
- conviction. The extension of time was granted by the Deputy Registrar and leave to appeal was granted by a single Judge. The matter therefore came before the Court of Appeal on the basis that both the extension of time and leave to appeal had already been granted. Under those circumstances, the Court of Appeal had to decide the appeal on its merits and was obliged to allow the appeal on the ground that the charged offence had not been committed. The Court of Appeal held that the conviction had to be quashed notwithstanding that the appellant had plainly committed serious acts of dishonesty carrying the same maximum penalties as an offence under s 15(1) of the Theft Act. In the judgment of the court it was made clear however that if the application for extension of time and leave to appeal had not already been granted in proceedings below it was a case in which, on discretionary grounds, the Court of Appeal would have refused to extend time and grant leave to appeal - essentially because there was no substantial miscarriage of justice.
42 The principle is applicable to this case and I would apply it if possible. An applicant asking for an extension of time to apply for leave to appeal against his conviction on his own confession of an offence under one subsection of the Censorship Act on the ground that he pleaded guilty by mistake should not be given an extension of time and should not be given leave to appeal against that conviction if he had committed an offence just as serious under another subsection of the same Act, with which offence he cannot now be charged because of lapse of time. The circumstances are such that there is no substantial miscarriage of justice which needs to be corrected.
43 In the case before us a question arises whether the Court is permitted to go beyond the facts admitted by the plea of guilty and to go to extraneous materials such as confessional evidence not presented to the Court below in deciding whether there should or should not be an exercise of discretion. This depends on the quality of that material. If it amounts indisputably and unambiguously to a confession of an offence similar to the offence charged and carrying the same maximum penalty as the offence charged I do not consider it would be appropriate to grant the applications for extension of time and leave to appeal against the conviction actually recorded.
44 In this case there is no question about the accuracy of the video record of interview. It is not suggested that the record of interview shown on the video has been tampered with so as to produce a false picture or was other than voluntary. The applicant has plainly and clearly admitted
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- "sending" the material which he possessed in his personal directory on the Ministry of Justice's computer to another.
45 Mr Karstaedt, on behalf of the applicant, submitted that the Court should not construe the relevant part of the record of interview as an admission of an offence against the Censorship Act. The relevant offence is that which is created by s 101(1)(a) set out above namely, using a computer service to "transmit an article knowing it to be objectionable material". Mr Karstaedt submitted that by admitting to sending the material the applicant should not be taken to have admitted to using a computer service to "transmit" it. This is because, so it was submitted, the confessional statement of the applicant was susceptible of another meaning: there are other ways that one can "send" material which is on a computer than by using the computer to transmit it. Mr Karstaedt submitted that because it is possible to download materials from a computer onto a disk and send that disk and because that would not be using the computer service to transmit the article, the Court cannot be satisfied on the face of the admission that an offence against s 101(1)(a) was committed.
46 I am unable to accept this submission. To my mind it is quite clear in the context of the video interview as a whole that when the applicant admitted to police officers that he did send the material to another person he was using the word "send" synonymously with "transmit".
47 On the evidence that is before this Court which is the uncontroverted and unqualified evidence of the video interview, the applicant committed an offence under s 101(1)(a). The two offences are in the same category of seriousness. Justice will not be served if the applicant is granted an extension of time and leave to appeal so that he can claim to be innocent of all wrongdoing when in fact on his own confession to the police he is guilty of an offence just as serious as the offence of which he was convicted.
48 I would refuse the application for an extension of time.
49 STEYTLER J: This application raises the question whether the Court should grant an extension of time and give leave to appeal against a conviction which followed a plea of guilty.
50 The applicant pleaded guilty to a charge under s 101(1)(b) of the Censorship Act 1996, of using a computer service to obtain possession of an article knowing it to be objectionable material. The admitted facts, as read to the Court by the Crown prosecutor, were to the effect that, on
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- 9 May 2000, detectives gained access to the applicant's computer service personal directory and there found the objectionable material. The statement of facts, after describing the offending material, went on as follows:
"Enquiries conducted demonstrated that the defendant was in possession of the article in that he had placed it on his personal computer directory. On 12 June 2000 the defendant participated in a video record of interview and admitted to placing the article on his computer directory within the … computer system."
52 Some 16 months after his conviction, this Court, in Haynes v Hughes [2001] WASCA 397, held that an offence under s 101(1)(b) of the Act is not committed unless the defendant knew the nature of the material and intended to obtain possession of it when the computer service was first used for that purpose. The applicant has said on oath that he had not intended to receive the material, knowing that it was objectionable. The material had arrived by way of an unsolicited e-mail. Consequently, when he came to learn of the judgment in Haynes v Hughes, the applicant sought legal assistance. After some delay (which the applicant could not avoid) legal assistance was obtained for the applicant and proceedings were commenced. The grounds of appeal include contentions to the effect that the applicant could not in law have been guilty of the offence charged and that his plea of guilty consequently produced a miscarriage of justice.
53 It is common cause that the admitted facts do not establish that the applicant knew the nature of the material when he first obtained possession of it. There is also no challenge to the applicant's evidence that the e-mail was unsolicited. It may consequently be accepted, as it has been by the respondent, that the applicant should not have been convicted of an offence under s 101(1)(b) of the Act. However, that, of itself, does not mean that he should be given leave to appeal.
54 It is no easy matter to bring a successful appeal against a conviction which follows upon a plea of guilty. It is even less so to obtain leave to appeal out of time. Exceptional circumstances are required: R v Murphy [1965] VR 187 at 187 - 188; R v Unger [1977] 2 NSWLR 990; R v Boal [1992] QB 591 at 599 - 600; R v Hawkins [1997] 1 Cr App Rep 234 at 239 - 240.
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55 As was pointed out by Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 141, a Court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering it. The Court went on to say (ibid) that there is no miscarriage of justice if a Court does act on such a plea, even if the person entering it is not in truth guilty of the offence. As Dawson J recognised, in that case at 157, a person may plead guilty for all manner of reasons extending beyond his belief in his guilt - for example, to avoid worry, inconvenience or expense, to protect someone else or in the hope of receiving a more lenient sentence than would follow from a conviction after trial.
56 However, the cases establish (albeit with some disconformity in approach) that a court can entertain an appeal against conviction, notwithstanding a plea of guilty, if, inter alia, the appellant did not appreciate the nature of the charge or if, upon the admitted facts, the appellant could not in law have been convicted of the offence charged: R v Forde [1923] 2 KB 400 at 403; R v Murphy, above, at 188; Kardogeros v The Queen [1991] 1 VR 269; R v Liberti (1991) 55 A Crim R 120 at 121 - 122; Meissner v The Queen, above, at 157; Maxwell v The Queen (1996) 184 CLR 501 at 522 and Tihanyi v The Queen (1999) 21 WAR 377 at 390 - 391. The Court will have jurisdiction to hear an application of that kind even though the appellant was fit to plead, knew what he was doing, intended to make the pleas he did and pleaded guilty without equivocation after receiving expert advice: R v Lee (Bruce) [1984] 1 WLR 578 at 583; R v Boal, above, at 599.
57 That said, attempts to appeal against convictions following upon pleas of guilty are approached with "caution bordering on circumspection": R v Liberti, above, at 122, per Kirby P. That is primarily because there is a public interest in the finality of legal proceedings and a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission of the necessary legal ingredients of the offence: R v Liberti, (ibid).
58 The fact that some misconception of the law has been exposed by a later decision is not, of itself, enough for a successful appeal against a conviction which followed upon a plea of guilty: Re Berkeley; Borrer v Berkeley (1945) Ch 1 at 4 and cf, in the case of a conviction following a trial, Piening v Wanless (1968) 117 CLR 498. The consequences flowing from a general policy of permitting the reopening of cases in such an
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- event have been described as "alarming": R v Ramsden [1972] Crim LR 547; R v Unger, above, at 995.
59 Still less is such a circumstance enough, of itself, to justify the grant of an indulgence by way of a lengthy extension of time for leave to appeal: Re Berkeley, above, at 4. Indeed, in R v Hawkins, above, at 239, Lord Bingham CJ said that such an indulgence has not traditionally been shown where the defendant, acting on advice, has pleaded guilty or where he or she has taken a conscious decision not to appeal. He said (page 240) that, were the position otherwise, "a defendant who had roundly and on advice accepted that he had acted dishonestly and fraudulently, and pleaded guilty, or who had been found guilty and chosen not to appeal, could after the event seek to reopen the convictions" and that, if such convictions "were to be readily reopened it would be difficult to know where to draw the line or how far to go back".
60 In practice, in cases of this kind, courts have asked whether there has been a miscarriage of justice: Meissner v The Queen, above, at 141, per Brennan, Toohey and McHugh JJ, and 157, per Dawson J; R v Boal, above, at 600; R v Hawkins, above, at 240. In answering that question, the whole of the circumstances must be looked at: Re Berkeley, above, at 4. One of these, of course, will be the question whether or not the applicant acted upon legal advice in pleading guilty: Re Hawkins, above, at 240; Lim v Bateman (2001) 165 FLR 268 at [41]. However, it must be recognised that an accused person is normally entitled to look to his or her lawyers to explain the legal significance of admitted facts and, ultimately, to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts: R v Liberti, above, at 125, per Kirby P, and Lim v Bateman, above, at 272 – 273.
61 In this case the appellant's then lawyer misapprehended the legal significance of the admitted facts. So, too, did the prosecutor and the Magistrate. The result was that the applicant was convicted of an offence of which he was not guilty in circumstances in which he did not know of, and could not have appreciated, his innocence of the charge brought against him. The applicant had no other reason for pleading guilty. His affidavit evidence satisfies me of this (notwithstanding a submission to the contrary by counsel for the respondent). He has also offered a reasonable explanation for his delay in bringing the application for leave to appeal. In such a case there is undoubtedly a discretion to extend the time and to give leave. However, the Crown submits that we should not do so, essentially for two reasons. The first is that, on the admitted facts, the applicant was guilty of the offence of possessing an indecent or
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- obscene article contrary to s 59(5) of the Act. That is because he admitted to placing the article on his computer directory. The second is that he participated in a video record of interview with a police officer in the course of which he said, in response to a question whether he had sent the offending article to anyone else, that he "did send it to one person" who had "hassled" him to the point at which he had eventually agreed to do so. This, the Crown submitted, amounted to an offence under s 101(1)(a) of the Act, which makes it an offence for a person to use a computer service to transmit an article knowing it to be objectionable material. It is now too late to prosecute the applicant for an offence under either of s 59(5) or s 101(1)(a).
62 There is no doubt that the fact that substitution, by way of amendment, of another, admitted, offence could have been, but cannot now be, made is undoubtedly a highly material circumstance in the exercise of the discretion: R v Horsman [1998] QB 531 at 538; R v Hawkins, above, at 240 - 241. However, there are two difficulties in the respondent's path, so far as its submission is concerned.
63 The first is that the offence under s 59(5) is considerably less serious than that under s 101(1)(b). The latter offence carries a maximum penalty, in the case of an individual, of a fine of $15,000 or imprisonment for 18 months. The former carries a maximum penalty of a fine of $5000 or imprisonment for 6 months. The second difficulty is that the offence under s 101(1)(a) of the Act was not proved by the admitted facts. While it may be, as Anderson J has suggested (I have had the considerable advantage of reading his Honour's judgment), that the applicant's answer to the question posed in the course of the video interview, to which I have earlier referred, amounts to an unambiguous admission to the commission of that offence (although his counsel submits that the offending article could have been sent by way of the delivery of a computer disk) and while it is the case that the offence carries a similar maximum penalty to that under s 101(1)(b), the fact is that the record of interview was never placed in evidence and the applicant has not had the opportunity to say whether his answer was freely and accurately given or otherwise to explain it, if he can.
64 When all of the circumstances are considered, it seems to me that this is one of those rare cases in which there has been a miscarriage of justice sufficient to justify the grant of the extension sought, even given the relatively lengthy delay, the giving of leave to appeal and the upholding of the appeal.
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65 The fact is that the applicant has been convicted of an offence of which he was not guilty only because his lawyer, and the prosecutor and Magistrate, misapprehended the law. That, looked at on its own, gave rise to a substantial miscarriage of justice. While that miscarriage is, to some extent, ameliorated by the fact that the applicant was admittedly guilty of another offence, that offence (under s 59(5) of the Act) was considerably less serious than the offence of which he was convicted and its existence is consequently insufficient to satisfy me that there has been no substantial miscarriage of justice (as to which see s 199(1)(b) of the Justices Act 1902). As to the offence under s 101(1)(b), this was never proved in the Court below and nor is it now admitted by the applicant. In my respectful opinion, it can accordingly not be taken into consideration.
66 I would consequently grant the extension of time which is sought, give leave to appeal, allow the appeal and set aside the applicant's conviction.
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