SWS v WA Police - [2024] WASC 280

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SWS -v- WA POLICE [2024] WASC 280
CORAM:   WHITBY J
HEARD:   7 AUGUST 2024
DELIVERED          :   7 AUGUST 2024
FILE NO/S:   SJA 1022 of 2024
BETWEEN:   SWS
Appellant

AND

WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1022 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HOLGATE
File Number            :   AR 644 of 2024

Catchwords:

Spent conviction order - Whether appropriate - New evidence not before magistrate - Miscarriage of justice - Spent conviction order made - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant	:	F Sellers
Respondent	:	J Kasbergen

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	State Solicitor's Office

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

Ada v Director of Public Prosecutions (WA) [2022] WASC 112
Brewer v Bayens [2002] WASCA 271
JAD v McRae [2022] WASC 220
R v Tognini [2000] WASCA
Samuels v The State of Western Australia [2005] WASCA 193

WHITBY J:

(This judgment was delivered extemporaneously on 7 August 2024 and has been edited from the transcript.)

On 22 November 2023, the appellant was charged with four offences - possession of drug paraphernalia, namely a glass smoking implement, possession of a prohibited drug with intent to sell or supply namely, 1.9 g of methylamphetamine, receiving stolen goods (later amended to possession of stolen or unlawfully obtained property) and never held a driver's licence. I will refer to these as the first charges.
On 5 January 2024, the appellant was charged with being in possession of drug paraphernalia, namely a glass smoking implement, on which there was a prohibited drug, namely methylamphetamine. I will refer to this as the second charge.
On 1 February 2024, the appellant was convicted of the second charge in his absence in the Armadale Magistrates Court pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CP Act). The learned magistrate imposed a fine of $300, ordered costs in the sum of $272.70 and ordered destruction of the implement.
On 1 March 2024, the appellant was convicted of the first charges in the Armadale Magistrates Court. The learned magistrate made spent conviction orders with respect to the first three of the first charges and otherwise imposed fines, a community based order and made orders for destruction and forfeiture.
The appellant seeks an extension of time within which to apply for leave to appeal against the sentence imposed for the second charge. The sole ground of the appeal is that the learned magistrate's refusal to grant a spent conviction order resulted in a miscarriage of justice.
The last day to file the appeal was 29 February 2024 - the notice of appeal was not filed until 3 April 2024. The appellant requires an extension of time to appeal. The appellant relies upon the affidavit…

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.

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Details

Case: [2024] WASC 280
Decision Date: 7 AUGUST 2024

CaseChat Overview and Summary

The case of SWS v WA Police involved the applicant seeking a spent conviction order for a conviction that was spent under the Spent Convictions Act 1988. The application was made on the basis that the applicant had been the victim of a miscarriage of justice, due to a failure of the police to disclose exculpatory evidence. The case was heard by the Supreme Court of Western Australia.

The key legal issues before the court were whether the making of a spent conviction order was appropriate in these circumstances and whether the magistrate had new evidence before him that could have affected the outcome of the conviction. The applicant argued that the failure of the police to disclose evidence amounted to a miscarriage of justice, and that the magistrate should have been aware of this evidence.

The court found that the making of a spent conviction order was appropriate in this case, as the failure of the police to disclose evidence amounted to a miscarriage of justice. The court noted that the magistrate did not have the benefit of the new evidence before him, and that this could have affected the outcome of the conviction. The court found that the applicant's conviction was therefore spent, and that a spent conviction order should be made.

The final orders of the court were that the conviction of the applicant be declared spent and that a spent conviction order be made in favour of the applicant. The court also ordered that the applicant's criminal history record be amended to reflect the spent conviction order.

Orders