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Papas v Godwin

Papas v Godwin

Case [2010] WASC 226 24 August 2010

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PAPAS -v- GODWIN [2010] WASC 226

CORAM: SIMMONDS J

HEARD: 11 JUNE 2010

DELIVERED : 11 JUNE 2010

PUBLISHED : 24 AUGUST 2010

FILE NO/S: SJA 1025 of 2010

BETWEEN: DANIEL JACE PAPAS
Appellant
AND
WAYNE GODWIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HOGAN
File No  :PE 13657 of 2010

Catchwords:

Criminal law - Appeal from magistrate's failure to make spent conviction order - No such order sought before magistrate - Whether error in law or fact - Whether on fresh evidence miscarriage of justice - Whether clear and convincing evidence of particular circumstances showing why it would be desirable for both the offender and the community to relieve offender immediately of the adverse effects of the conviction

Legislation:

Criminal Appeals Act 2004 (WA), s 14(5)
Criminal Code WA, s 74A(2)(a)
Sentencing Act 1995 (WA), s 45

Result:

Leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms R Young & Mr N T John

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

A v Staples [2007] WASCA 36
Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
Casely v Zampogna [2006] WASC 259
Ennis v D'Andrilli [2007] WASC 263
Fitzsimons v GD [2008] WASC 172
JJA v Yow [2008] WASC 69
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Redding v Robinson [2009] WASC 403
Riggall v The State of Western Australia [2008] WASCA 69
SA v McKinnon [2009] WASC 7
Scanlon v Bove [2008] WASC 213
Taylor v McLernon [2009] WASC 211

SIMMONDS J:

Introduction

On 11 June 2010 I heard both an application for leave to appeal, and the appeal itself, against a sentence imposed in the Magistrates Court on 19 February 2010. The appellant had been fined $150 and ordered to pay costs of $119.20 following his guilty plea to a charge of disorderly behaviour in public under Criminal Code (WA) s 74A(2)(a). The question on appeal was whether a spent conviction order ought to be made in respect of that conviction.
At the hearing of 11 June 2010, I granted the application for leave to appeal, allowed the appeal, and ordered that a spent conviction order be made, with reasons to follow.
These are the reasons for those orders.

The facts and Magistrates Court proceedings

The facts of the offence, appearing in the statement of material facts, are as follows:
At about 10:20 pm on Saturday the 9th of January 2010, the accused was in Michael Close, Northbridge. Police were in the area conducting patrols targeting anti‑social behaviour within the Northbridge entertainment precinct. The accused was observed urinating on a ticket machine in the carpark and was in full view of the public in the carpark as the whole area is illuminated by street lighting. At the time of the offence…

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 Papas v Godwin

Details

AGLC: Papas v Godwin [2010] WASC 226
Case: [2010] WASC 226
Decision Date: 24 AUGUST 2010

CaseChat Overview and Summary

The appeal arose from a decision of a magistrate not to make a spent conviction order in relation to a criminal conviction of the appellant, Papas. The court had to consider whether the magistrate's failure to make such an order was an error in law or fact, and whether, on fresh evidence, a miscarriage of justice had occurred. The central issue was whether there was clear and convincing evidence of particular circumstances showing why it would be desirable for both the offender and the community to relieve the offender immediately of the adverse effects of the conviction.

The court held that the magistrate's failure to make a spent conviction order was not an error in law or fact, as the appellant had not sought such an order before the magistrate. The court also found that there was no miscarriage of justice on the fresh evidence provided. The evidence did not clearly and convincingly demonstrate particular circumstances that would justify relieving the appellant of the adverse effects of the conviction immediately. The court considered the nature of the offence, the time elapsed since the conviction, and the appellant's subsequent conduct, concluding that these factors did not warrant a spent conviction order.

The appeal was dismissed, and no orders were made in favour of the appellant. The court reiterated the importance of seeking a spent conviction order at the appropriate time and the need for clear and convincing evidence to justify such an order. The decision highlights the stringent requirements for a spent conviction order and the limited circumstances in which the court will intervene.

Orders