Staines v West

[2017] WASC 330

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   STAINES -v- WEST [2017] WASC 330

CORAM:   HALL J

HEARD:   13 NOVEMBER 2017

DELIVERED          :   13 NOVEMBER 2017

PUBLISHED           :  16 NOVEMBER 2017

FILE NO/S:   SJA 1052 of 2017

BETWEEN:   ALAN STEPHEN STAINES

Appellant

AND

ALEXANDER ANDREW WEST
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE TARR

File No  :WG 144 of 2004

Catchwords:

Criminal law - Appeal against conviction - Error in DNA evidence - No other evidence to implicate appellant in the offence - Miscarriage of justice established

Legislation:

Nil

Result:

Appeal allowed
Conviction set aside
Judgment of acquittal entered

Category:    B

Representation:

Counsel:

Appellant:     Mr M D Howard SC

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     Haynes Robinson Lawyers

Respondent:     Director of Public Prosecutions (WA)

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

Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199

Meissner v The Queen [1995] HCA 41; [1995] 184 CLR 132

Spratt v Fowler [2011] WASC 52

HALL J: 

(These reasons were delivered extemporaneously and have been edited from the transcript.)

1. This is an appeal against conviction.  The background is that on 5 April 2005 the appellant appeared in the Perth Magistrates Court and pleaded guilty to a charge of burglary.  A conviction was recorded and he was sentenced to 12 months' imprisonment, suspended for 18 months. 

2. The prosecution case critically depended on a sample of blood found at the scene of the burglary.  Testing of the blood for DNA resulted in a report that the appellant was a match.  However, there was an error at PathWest.  The match was not, in fact, to the appellant but to another person with the same first name and surname.

3. The error was not discovered for many years.  In April 2016, PathWest advised the WA Police.  The police then advised the appellant in a letter dated 3 April 2017.  In that letter, a police lawyer stated that without the DNA evidence there would not have been a prima facie case and the appellant could not have been convicted.  It is not apparent why there was a delay in notifying the appellant of the error once it became known.  The appellant then retained a lawyer to bring this appeal.

4. Clearly, the appeal is many years out of time, but that is not due to any fault on the part of the appellant and an extension of time should be granted. 

5. The appellant has filed an affidavit in which he deposes that he pleaded guilty on the basis of legal advice that, given the DNA evidence, he was likely to be found guilty in any event.  Though he did not commit the offence, he pleaded guilty because conviction appeared to him to be inevitable.

6. The respondent has also filed an affidavit.  That affidavit of Mr Robert Wilson, a senior DPP State prosecutor, confirms the DNA report error.  A copy of the prosecution brief is annexed to the affidavit.  It is apparent from that brief that the only evidence that could identify the appellant as the person who committed the burglary was the DNA evidence.  Mr Wilson has independently confirmed that there was no other forensic evidence of any type and no admissions made by the appellant when arrested.

7. The ground of appeal is that there was a miscarriage of justice: s 8(1)(b) Criminal Appeals Act2004 (WA).

8. 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 was misled as to the material facts or upon the real facts could not, in law, have been convicted of the offence, the court may allow an appeal against a conviction.  These are not the only circumstances in which a plea of guilty may be impugned.  A miscarriage of justice may be shown to have been established in other ways:  Meissner v The Queen [1995] HCA 41; [1995] 184 CLR 132, Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [154].

9. Relevant to the circumstances of this case is Spratt v Fowler [2011] WASC 52, where the appellant had no memory of obstructing a police officer but accepted the alleged facts and pleaded guilty. In that case, CCTV evidence was later found that not only did not support the alleged facts but proved that the appellant was not guilty. In that case, the conviction was set aside on appeal.

10. The respondent concedes that the appeal should be allowed and the conviction set aside.  That concession is properly made. 

11. Not every case involving an error in the DNA evidence will necessarily result in a conclusion that there has been a miscarriage of justice.  In any particular case the outcome will depend on the significance of the DNA evidence, whether there was other evidence implicating the accused and the effect that the erroneous evidence had upon the decision of the appellant to plead guilty.

12. In this case, it is clear that the guilty plea was entered because of the erroneous DNA evidence.  In any event it is now apparent that without the DNA evidence there was no evidence upon which the appellant could be lawfully convicted.  I am satisfied that a miscarriage of justice has been established. Accordingly I make the following orders:

    1.An extension of time is granted.

    2.Leave to appeal is granted.

    3.Leave to rely upon the affidavits filed by the parties is granted. 

    4.The conviction is set aside and the sentence and any consequential orders are also set aside. 

    5.A judgment of acquittal is entered.

    6.A costs order is made in favour of the appellant for costs in the appeal court and in the summary court pursuant to s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973 (WA), the amount to be referred for determination in chambers.