Tonkin v Macintosh - [2021] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TONKIN -v- MACINTOSH [2021] WASC 118
CORAM:   TOTTLE J
HEARD:   7 APRIL 2021
DELIVERED          :   7 APRIL 2021
PUBLISHED           :   21 APRIL 2021
FILE NO/S:   SJA 1092 of 2020
BETWEEN:   JAMIE CHRISTOPHER TONKIN
Appellant
AND
TIAH MACINTOSH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MALLEY
File Number            :   AR 10447 of 2019

Catchwords:

Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant submits he could not in law have been guilty of the offence upon the admitted facts - Whether miscarriage of justice would result from maintaining judgment of conviction - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 338D, s 338E

Result:

Application for extension of time within which to apply for leave to appeal refused
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms E R Zillessen
Respondent	:	Ms A K Miller

Solicitors:

Appellant	:	Legal Aid - Perth - Criminal Appeals
Respondent	:	State Solicitor for Western Australia

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

Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580
Hart v The Queen [2003] WASCA 213
Hellings v The Queen [2003] WASCA 208
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Vella v The State of Western Australia [2006] WASCA 129

TOTTLE J:

Summary

On the 16 January 2020 the appellant pleaded guilty to pursuing another in a manner that could reasonably be expected to intimidate under s 338E(2) of the Criminal Code (WA). The appellant's offending conduct is commonly known as stalking. The appellant, who was represented at the sentencing hearing, was fined, ordered to pay costs and granted a spent conviction order.
The appellant applied for leave to appeal, over nine months out of time, on the ground that there had been a miscarriage of justice. The appellant contended that on the facts admitted by him he could not in law have been guilty of an offence under s 338E(2) of the Criminal Code.
At the conclusion of the hearing I dismissed the application for an extension of time within which to appeal, and dismissed the application for leave to appeal and the appeal. I gave brief reasons for my decision and said that written reasons would follow. These are those reasons.

The facts

The facts admitted by the appellant were summarised by prosecuting counsel as follows:
The accused is a tow truck driver and regularly parks his tow truck on Stalker Road near Demnick Street in Gosnells. The victim, walks between her home and the Gosnells train station about 7.45 in the morning and 5.50pm returning in the evenings, Monday to Friday. The victim crosses the Gosnells football oval on Stalker Road near Gosnells. This is the route she normally takes. The victim has come to the notice ‑ has come to…

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.

Continue reading Tonkin v Macintosh

Details

AGLC: Tonkin v Macintosh [2021] WASC 118
Case: [2021] WASC 118
Decision Date: 21 APRIL 2021

CaseChat Overview and Summary

In the matter of Tonkin v Macintosh, the appellant sought to overturn his conviction for a criminal offence. The conviction was entered following a plea of guilty, but the appellant now argued that he could not, in law, have been guilty of the offence based on the facts he admitted. The case was heard in the court of appeal. The central legal issue before the court was whether maintaining the conviction would result in a miscarriage of justice. The appellant contended that the circumstances under which he entered his guilty plea did not legally constitute the offence in question.

The court examined the legal framework governing pleas of guilty and the consequences of admitting facts that do not align with the statutory elements of the offence. It considered the appellant's argument that there was a fundamental legal error in the conviction process. The court weighed the principles of finality and the preservation of the integrity of the judicial process against the appellant's claim of a miscarriage of justice. Ultimately, the court concluded that the appellant's plea of guilty, entered with full understanding of the charges and consequences, was legally sound and that no miscarriage of justice would result from upholding the conviction.

The appeal was dismissed. The court held that the appellant's admission of facts, despite his current legal contentions, was sufficient to sustain the conviction. The court emphasised the importance of the plea process and the finality of convictions entered through a guilty plea, particularly when those pleas are made with understanding and voluntariness.

Orders