Smith v Hazlitt
[2011] WASC 154
•25 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SMITH -v- HAZLITT [2011] WASC 154
CORAM: HALL J
HEARD: 25 MAY 2011
DELIVERED : 25 MAY 2011
FILE NO/S: SJA 1025 of 2011
BETWEEN: MATTHEW JOHN SMITH
Appellant
AND
SAMUEL LIAM HAZLITT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :CHIEF MAGISTRATE S A HEATH
File No :PE 16414 of 2008, PE 16415 of 2008, PE 16416 of 2008
Catchwords:
Criminal law - Appeal against conviction - Plea of guilty entered on a mistaken basis - Miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1)(b), s 8(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A
Result:
Extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Convictions set aside
Verdicts of acquittal substituted
Category: B
Representation:
Counsel:
Appellant: Ms K J Farley
Respondent: Ms S H Linton
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Hogue v The State of Western Australia [2005] WASCA 102
Liberti (1991) 44 A Crim R 120
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
HALL J: This is an appeal against convictions for drug offences that were recorded in the Magistrates Court on 27 August 2008. The appeal notice was filed on 8 March this year, which is 18 months out of time, thus an extension is sought. The reasons for that delay relate to the merits of this appeal and they will become apparent shortly.
The background is that on 1 July 2008 the appellant appeared in the Perth Magistrates Court and entered pleas of guilty to, amongst other things, three counts of possession of prohibited drugs with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Those three counts related to prosecution notices PE 16414, PE 16415 and PE 16416 of 2008, with the date of the alleged offences being 21 February 2008.
Following the pleas being entered, the sentencing proceedings were adjourned to 27 August 2008 to allow for a pre‑sentence report to be prepared. On that day the matter came before the Chief Magistrate and following confirmation that pleas of guilty had already been entered, the relevant facts were read by the police prosecutor to the court.
Those facts included an allegation that bags of drugs had been seized from the appellant which preliminary tests indicated contained quantities of 3.67, 2.56 and 3.18 grams respectively of amphetamines. The appellant was then sentenced to 15 months' imprisonment in relation to each count to be served concurrently. A parole eligibility order was then made.
Some time later the appellant was convicted of some further drug offences in the District Court and appeared in that court on 11 November last year for sentencing. In those proceedings counsel from the office of the Director of Public Prosecutions represented the prosecution and expressed an intention to seek a declaration that the appellant be declared a drug trafficker pursuant to s 32A of the Misuse of Drugs Act.
In that regard the 2008 convictions were relevant and in the course of preparing the sentencing hearing on those later charges, the State Prosecutor requested and received the certificates of analysis relating to the 2008 convictions. When they were obtained, the prosecutor noticed that those certificates stated that no illicit drugs were detected in the powders that were analysed and seized from the appellant in relation to the 2008 convictions.
The State Prosecutor brought that information immediately to the attention of the District Court and defence counsel who then appeared for the appellant and on 11 November the application for a drug trafficker declaration was adjourned.
On 3 March this year, the appellant filed an appeal notice seeking leave to appeal against the 2008 convictions on the ground that the appellant was the subject of a miscarriage of justice insofar as evidence relevant to the charges which was unknown at the time of his conviction, which has since been located, establishes that no offences were committed and that the appellant was wrongly convicted.
The respondent, quite properly, concedes that the appeal should succeed. Some affidavits relating to the course of events in 2008 have been filed and some of those events have also been canvassed in the respondent's outline of submissions.
It would seem from those submissions that the certificates of analysis were obtained prior to the sentencing proceedings on 27 August 2008 but that they were not forwarded to the police prosecutor who appeared on that day and, accordingly, were unknown to him. That may account for why, in the facts that were read to the magistrate, there was only a reference to the preliminary tests.
It is not necessary for me to make any findings in regard to how this occurred. It is sufficient to note for the purposes of this appeal that the appellant pleaded guilty on the basis that the substances seized from him were amphetamines when it is now clear that that was not the case. In those circumstances it is apparent that he pleaded guilty on a basis that was incorrect and that a miscarriage of justice has occurred.
Section 8(1)(b) of the Criminal Appeals Act 2004 (WA) provides that an appeal may be made to this court against the decision of a Magistrates Court on the ground that there has been a miscarriage of justice. Section 8(2) provides that the appeal may be made against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
It has been accepted in cases before this court and in the High Court that in circumstances such as this a ground alleging a miscarriage of justice can be allowed and, in my view, it is proper to do so here. I refer to Liberti (1991) 44 A Crim R 120, Hogue v The State of Western Australia [2005] WASCA 102, Borsa v The Queen [2003] WASCA 254 and Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.
That statement of what has occurred adequately explains why there has been a lengthy delay in this matter. As I understand it, the appellant remains at present a serving prisoner and has served the sentence that in fact was imposed in 2008. Notwithstanding that, those convictions must now, as a result of my conclusions in this matter, be set aside.
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