R v Wilkes - [2001] NSWCCA 383

CITATION: Regina v WILKS [2001] NSWCCA 383

FILE NUMBER(S): CCA 60852/00

HEARING DATE(S): 25/09/01

JUDGMENT DATE:
25 September 2001

PARTIES :

Terrence George WILKS (Appellant)
Regina

JUDGMENT OF: Powell JA at 27; Sully J at 28; Bell J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/31/0392

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : R Button (Appellant)
L M B Lamprati (Crown)

SOLICITORS: David Giddy & Associates (Appellant)
S E O'Connor (Crown)

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Justices Act 1902

CASES CITED:
R v Wilkes [2001] NSWCCA 97

DECISION: Time extended pursuant to s 10(3) of the CAA; Appeal against conviction allowed; Conviction recorded in the District Court quashed; Proceedings to be continued before the Local Court at Scone on the first date available convenient to the Court and to the parties

IN THE COURT OF
CRIMINAL APPEAL

60852/00

POWELL JA
SULLY J
BELL J

TUESDAY 25 SEPTEMBER 2001

REGINA v Terrance George WILKS
Judgment

1 POWELL J: I will ask Bell J to deliver the first judgment.

2 BELL J: The appellant pleaded guilty before the Local Court at Scone to one charge of break enter and steal contrary to s 112(1) of the Crimes Act 1900 (“the Act”) He was committed for sentence to the District Court. On 12 December 2000 he adhered to his plea of guilty in the District Court. He was sentenced on that date to a term of imprisonment of three years, to commence on 6 September 2000 and to expire on 5 September 2003. A non-parole period of two years, to expire on 5 September 2002 was specified. The sentencing judge directed that the appellant be released on parole under the supervision of the Probation Service upon the expiration of the non-parole period.

3 The appellant appeals against his conviction upon a single ground; namely, that there has been a miscarriage of justice in that despite his plea of guilty he should not have been convicted of any offence that incorporated “breaking” as an element.

4 The appellant requires an extension of time in order to bring his appeal. It appears that an appeal against the severity of sentence was lodged within time. The notice of appeal against conviction was not lodged until 30 July of this year.

5 In the circumstances of this case I would propose that the extension of time be granted.

6 The charge to which the appellant pleaded guilty alleged that on 12 July 2000 he broke and entered premises at 177 Liverpool Street, Scone, and that he stole a substantial sum of cash and a fob watch, the property of Ms Lilly Adams, from those premises.

7 At the sentence hearing an agreed statement of facts was tendered together with the statements of a number of witnesses including that of Ms Adams, Laura Dever and a number of investigating police. The agreed statement of facts contained no assertion that the appellant had broken into the premises…

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 R v Wilkes

Details

AGLC: R v Wilkes [2001] NSWCCA 383
Case: [2001] NSWCCA 383
Decision Date: 25 September 2001

CaseChat Overview and Summary

The Court of Criminal Appeal in Regina v Wilkes dealt with an appeal against conviction by Terrence George Wilkes, who had pleaded guilty to breaking and entering and stealing. The District Court sentenced Wilkes to three years in prison with a non-parole period of two years. Wilkes's appeal focused on the argument that he should not have been convicted of the offence that included "breaking" as an element, despite his guilty plea. The court was required to decide whether there had been a miscarriage of justice and if the appeal should be allowed.

The court considered the evidence and statements provided during the trial, which did not support the claim that Wilkes had broken into the premises. The agreed statement of facts and the victim's statement indicated that Wilkes had entered the premises through an open door, not by breaking. Wilkes's own statement at the sentencing hearing corroborated this, as he described entering through an open back door. The Crown conceded that there was no evidence of a breaking, aligning with the principles of the common law as outlined by Mr Button. The court referenced a previous decision, Wilkes [2001] NSWCCA 97, to determine whether the conviction should be set aside despite the guilty plea.

The court concluded that a miscarriage of justice had occurred, as there was no evidence of a breaking, and the conviction could not stand. The court noted that while the Crown did not dispute the principles of law, it also did not challenge the concession regarding the lack of evidence for a breaking. The court found that the appropriate remedy was to allow the appeal against conviction, quash the conviction recorded in the District Court, and continue the proceedings before the Local Court at Scone. The court did not find it appropriate to substitute a verdict for a lesser offence, as Wilkes had pleaded guilty to the original charge, and the legislation did not permit such a substitution in this context. The court extended the time for Wilkes to bring his appeal and ordered the proceedings to be continued at the earliest convenient date for all parties involved.

Orders