Spratt v Fowler

[2011] WASC 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   SPRATT -v- FOWLER [2011] WASC 52

CORAM:   HALL J

HEARD:   24 FEBRUARY 2011

DELIVERED          :   24 FEBRUARY 2011

FILE NO/S:   SJA 1003 of 2011

BETWEEN:   KEVIN JOHN SPRATT

Applicant

AND

BRETT ANDREW FOWLER
Respondent

Catchwords:

Criminal law - Appeal against conviction - Plea of guilty - Plea induced by false statement of facts - Miscarriage of justice

Legislation:

Nil

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Applicant:     Mr S Penglis

Respondent:     Mr J Mactaggart

Solicitors:

Applicant:     Freehills

Respondent:     Director of Public Prosecutions (WA)

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

Meissner v R (1995) 184 CLR 132

HALL J:

(This judgment was delivered orally on 24 February 2011 and has been edited from the transcript.)

1. On 30 January 2009, the appellant, Kevin John Spratt, appeared in the Perth Magistrates Court on a number of charges.  One of those charges was a charge of obstructing a public officer.  He pleaded guilty and was sentenced to 2 months' imprisonment, to be served concurrently with other terms of imprisonment imposed for other offences which are not the subject of this appeal.  Mr Spratt now seeks leave to appeal against his conviction on the obstruction charge which I have referred to, which is numbered 52508 of 2008.  He also seeks an extension of time in which to bring that application. 

2. In support of his application, Mr Spratt has filed an affidavit setting out the circumstances of his conviction.  In brief, the facts are that on 31 August 2008 Mr Spratt was arrested and taken to the watch house in East Perth.  He was intoxicated at the time.  He recalls staggering around on arrival at the watch house but otherwise has very little memory of what occurred.  He was charged with two assaults and two offences of obstructing public officers.  The assaults and one obstruction charge related to events that occurred in Bayswater that had led to Mr Spratt's arrest.  The fourth charge, also of obstruction, was said to relate to events that had occurred at the watch house. 

3. Mr Spratt's memory of the events was no better when he appeared in the Magistrates Court on 30 January 2009.  On that day he pleaded guilty to all of the charges, including the obstruction at the watch house.  He says in his affidavit that he pleaded guilty to that charge because he accepted that what was alleged must be correct.  The facts that were alleged by the prosecution in respect of that charge were that Mr Spratt had resisted police by holding onto a seat and bracing his arms.  It was said that he became violent and aggressive by kicking and flailing his arms.  It was said that a Taser was used to prevent injury to police and Mr Spratt but that it had little effect.

4. Those alleged facts were not correct.  Though a Taser had been used, Mr Spratt had not violently resisted the police in the way alleged.  This was apparent from closed circuit television footage of the events.  The respondent, represented here by the Director of Public Prosecutions, accepts that the alleged facts were incorrect and that there was no proper basis for the obstruction charge.  The respondent also accepts that in all of the circumstances of this case the extension of time should be allowed, the application for leave to appeal should be granted, the appeal should be allowed and the conviction should be quashed.

5. I have read all the papers filed in this matter and I am of the view that those concessions made by the prosecution are properly made.  Whilst Mr Spratt had been shown the CCTV footage whilst on remand before he entered the plea of guilty, he was not provided with a copy of it.  When he later appeared in court, he did not appreciate that there was any inconsistency between the CCTV footage and what was alleged.  It is plain that he pleaded guilty on a false basis; that is, that he accepted the truth of what was alleged, not having available any recollection or evidence to suggest that it was wrong. 

6. The inconsistency between the allegations and the CCTV footage was publicly exposed in December of last year.  That enabled Mr Spratt to appreciate the false basis of the conviction.  He was then able, with the benefit of legal advice, to bring this appeal and that accounts for the delay.

7. An appeal court can set aside a conviction where there has been a guilty plea in certain circumstances.  Usually a plea of guilty is taken to be an admission of all elements of the offence.  However, where it is established that an accused person did not understand the charge or upon the real facts he could not in law have been convicted of the offence, the court may allow an appeal against conviction. 

8. These are not the only circumstances in which a plea of guilty may be impugned and a miscarriage of justice can be shown to have been established in other ways:  Meissner v R (1995) 184 CLR 132.

9. In the present case, it is clear that Mr Spratt's plea of guilty was induced by the false allegations made by the prosecution.  On the real facts, as now known, he could not lawfully have been convicted of the offence.  In those circumstances, I am satisfied that there has been a miscarriage of justice. 

10. The orders of the court are that the time for appealing is extended; leave to appeal is granted on the ground that there has been a miscarriage of justice; the ground of appeal is allowed; the conviction is quashed and a verdict of not guilty is substituted.