Tickler v TARBETT
[2012] WASC 85
•14 MARCH 2012
TICKLER -v- TARBETT [2012] WASC 85
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 85 | |
| Case No: | SJA:1088/2011 | 14 MARCH 2012 | |
| Coram: | PRITCHARD J | 14/03/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Conviction set aside | ||
| B | |||
| PDF Version |
| Parties: | PETER TICKLER IAN ALEXANDER TARBETT |
Catchwords: | Leave to appeal Appealing from a plea of guilty Miscarriage of justice Road Traffic Act 1974 (WA) s 15(3) Driving an unlicensed vehicle |
Legislation: | Criminal Appeals Act 2004 (WA), s 8(2), s 9(2) Road Traffic (Licensing) Regulations 1975 (WA), reg 4C(5) Road Traffic Act 1974 (WA), s 15(3) |
Case References: | Borsa v The Queen [2003] WASCA 254 Hogue v The State of Western Australia [2005] WASCA 102 Liberti v The Queen (1991) 55 A Crim R 120 Nelson v Haynes (2003) 27 WAR 154 Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187 Samuels v The State of Western Australia (2005) 30 WAR 473 Vella v The State of Western Australia [2006] WASCA 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
IAN ALEXANDER TARBETT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : JUSTICES OF THE PEACE
File No : PE 32259 of 2011
Catchwords:
Leave to appeal - Appealing from a plea of guilty - Miscarriage of justice - Road Traffic Act 1974 (WA) s 15(3) - Driving an unlicensed vehicle
Legislation:
Criminal Appeals Act 2004 (WA), s 8(2), s 9(2)
Road Traffic (Licensing) Regulations 1975 (WA), reg 4C(5)
Road Traffic Act 1974 (WA), s 15(3)
(Page 2)
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C A Lakewood
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
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 v The Queen (1991) 55 A Crim R 120
Nelson v Haynes (2003) 27 WAR 154
Re The State of Western Australia; Ex parte Worswick [2005] WASCA 187
Samuels v The State of Western Australia (2005) 30 WAR 473
Vella v The State of Western Australia [2006] WASCA 129
(Page 3)
- PRITCHARD J:
Introduction
1 Mr Tickler was charged on 13 June 2011 with using a vehicle on a road when there was no valid vehicle licence granted for that vehicle, contrary to s 15(3) of the Road Traffic Act 1974 (WA) (the Act). Mr Tickler entered an endorsed plea of guilty to that offence, and on 26 July 2011 was convicted in the Magistrates Court, and ordered to pay a fine, court costs, and an additional penalty equal to the charges payable for the grant of a vehicle licence for the vehicle concerned for a period of six months.
2 Mr Tickler now appeals against that conviction. The respondent concedes that the appeal should be upheld, and the conviction set aside. For the reasons which follow, it is my view that the respondent's concession was properly made, that leave to appeal should be granted, the appeal upheld and Mr Tickler's conviction set aside.
3 In these reasons for decision I deal with three issues:
(i) the legislative framework for the offence with which Mr Tickler was charged and convicted;
(ii) leave to appeal; and
(iii) the application to this case of the principles concerning appeals against conviction following a plea of guilty by an accused.
The legislative framework for the offence with which Mr Tickler was charged and convicted
4 It was common ground in the appeal that the licence for Mr Tickler's vehicle expired on 2 June 2011, and that Mr Tickler renewed that licence on 13 June 2011.
5 Section 15(3) of the Act provides that where a vehicle for which there is not a valid vehicle licence granted under the Act is used on any road, a responsible person for the vehicle, and any person using the vehicle, will commit an offence. However, s 15(3)(a) of the Act provides that:
[I]f the regulations provide that when a vehicle licence is renewed on an application made within a prescribed period after the expiry of the licence the renewal is to be regarded as having taken effect immediately after the licence expired, [s 15(3)] does not apply to the use of the vehicle within that prescribed period.
(Page 4)
6 Regulation 4C(5) of the Road Traffic (Licensing) Regulations 1975 (WA) (the Regulations) made such a provision for the purposes of s 15(3)(a) of the Act. Regulation 4C(5) provides that when a vehicle licence is renewed within 15 days of the date on which the licence expired, the renewal is to be regarded as having taken effect immediately after the licence expired.
Leave to appeal
7 Mr Tickler appeals against his conviction pursuant to the Criminal Appeals Act 2004 (WA). An appeal may be brought pursuant to the Criminal Appeals Act against a decision of a court of summary jurisdiction to convict an accused of a charge, even if the decision was made after a plea of guilty: s 8(2) of the Criminal Appeals Act.
8 In appeals of this kind, leave to appeal is required for each ground of appeal: s 9 of the Criminal Appeals Act. The question of leave to appeal was referred to the hearing of the appeal itself.
9 Leave to appeal may only be granted on a ground of appeal if the Court is satisfied that the ground has a reasonable prospect of succeeding: s 9(2) of the Criminal Appeals Act. More must be shown than that the ground is arguable. The ground must have a rational and logical prospect of succeeding, so that in effect it has a real prospect of success: Samuels v The State of Western Australia(2005) 30 WAR 473, 487 [56] (Steytler P, Wheeler & Roberts-Smith JJA agreeing); Re The State of Western Australia; Ex parte Worswick[2005] WASCA 187 [11] (Roberts-Smith JA).
10 Mr Tickler commenced his appeal within time on 22 August 2011, by filing an appeal notice seeking leave to appeal and setting out the grounds for his appeal. Those grounds did not reflect the grounds of appeal on which an appeal may be brought pursuant to the Criminal Appeals Act. On 1 December 2011 Mr Tickler filed an amended appeal notice but the grounds of his appeal again did not reflect the grounds on which an appeal may be brought.
11 However, at the hearing of the appeal, and without objection from the respondent, Mr Tickler amended his grounds of appeal to include a single ground that there had been a miscarriage of justice in that the learned magistrate convicted Mr Tickler when, on the facts set out in the prosecution notice, and in respect of which Mr Tickler entered a plea of guilty, Mr Tickler could not have been guilty of an offence against s 15(3) of the Act.
(Page 5)
12 For the reasons set out below, the ground of appeal which Mr Tickler now pursues clearly has reasonable prospects of success, and leave to appeal should be granted on that ground.
The application to this case of the principles concerning appeals against conviction following a plea of guilty by an accused
13 A court will approach any attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection' primarily because there is a public interest in the finality of legal proceedings and because a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission of the necessary legal ingredients of the offence: Liberti v The Queen(1991) 55 A Crim R 120, 122 (Kirby P, Grove & Newman JJ agreeing); see also Nelson v Haynes(2003) 27 WAR 154, 166 [57] (Steytler J); Hogue v The State of Western Australia[2005] WASCA 102 [22] (Wheeler JA, Malcolm CJ & Le Miere AJA agreeing); and Borsa v The Queen[2003] WASCA 254 [20] (Steytler J, Murray ACJ & Hasluck J agreeing). An appeal against conviction following a plea of guilty will therefore succeed only in exceptional circumstances: Nelson v Haynes(156 - 157) [5] (Murray J), (165) [54] (Steytler J).
14 In order to set aside a conviction following a plea of guilty, an appellant must show that there has been a miscarriage of justice: Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P, Wheeler & Buss JJA agreeing), citing Borsa[20]; Hogue[22].
15 The circumstances amounting to a miscarriage of justice are not closed: see Vella[26] (Steytler P, Wheeler & Buss JJA agreeing). However, one category of case in which it is well recognised that a plea of guilty may be set aside on the ground of a miscarriage of justice is where, on the admitted facts, the appellant could not in law have been guilty of the offence: Vella[26] (Steytler P, Wheeler & Buss JJA agreeing); Nelson v Haynes(156) [5] (Murray J), (165) [56] (Steytler J).
16 This case falls within that category.
17 The respondent conceded that Mr Tickler's plea of guilty was based on the facts set out in the prosecution notice, and that on those facts, Mr Tickler could not in law have been guilty of the offence. That concession was properly made.
18 As Mr Tickler renewed his vehicle licence on 13 June 2011, within the prescribed 15 day period after his vehicle licence expired, the effect of
(Page 6)
- s 15(3)(a) of the Act, when read together with reg 4C(5) of the Regulations, is that Mr Tickler's renewal of his vehicle licence is to be regarded as having taken effect immediately after the expiry of the licence, and the offence-creating provision in s 15(3) of the Act did not apply to the use of the vehicle within that 15 day period. Accordingly, Mr Tickler did not commit an offence against s 15(3) of the Act when he drove his vehicle on 13 June 2011.
19 It follows that leave to appeal should be granted, the appeal allowed, and Mr Tickler's conviction for the offence against s 15(3) of the Act should be set aside.
20 I will hear from the parties as to the orders which should be made to dispose of the appeal.
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