Topic v Lynch
[2012] WASC 446
•22 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: TOPIC -v- LYNCH [2012] WASC 446
CORAM: HALL J
HEARD: ON THE PAPERS
DELIVERED : 22 NOVEMBER 2012
FILE NO/S: SJA 1063 of 2012
BETWEEN: BOZO TOPIC
Appellant
AND
PATRICK THOMAS LYNCH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R B LAWRENCE
File No :FR 3864 of 2012
Catchwords:
Criminal law - Appeal against conviction - Breach of violence restraining order - Plea of guilty - Restraining order not breached on admitted facts - Appellant could not in law be convicted - Miscarriage of justice
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Frichot & Frichot
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 (1991) 55 A Crim R 120
HALL J: On 4 May 2012 the appellant pleaded guilty to a charge of breaching a violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA). He was fined $500 and ordered to pay costs of $66.
On 1 June 2012 the appellant filed a notice of appeal. There is one ground of appeal. It is that there has been a miscarriage of justice as the appellant could not in law have been convicted of the offence because the facts alleged against him did not constitute a breach of the violence restraining order in question.
The respondent has conceded that the appeal should be allowed and that the conviction should be set aside. For the reasons that follow I am satisfied that that concession has been properly made and that the appeal must be allowed.
On 31 March 2011 an interim violence restraining order in respect of the appellant was granted in the Magistrates Court. One of the conditions of that order was that the appellant was not to approach within 100 metres of the nearest external boundary of any premises where the protected person lived or worked. The interim order was served on the appellant on 2 June 2011.
On 27 June 2011 the interim violence restraining order was varied and a final order made by consent. The order as varied provided that the appellant was not to enter or remain upon a specified residential premises or any premises where the person protected lived or worked, and was not to approach within 20 metres of the person protected.
At approximately 8.20 pm on Wednesday, 18 April 2012 the appellant drove his motor vehicle to an address in the same suburb as the specified residential premises. He later said that did so to attend the home of a friend who lived in the same neighbourhood. He was concerned about the welfare of his son and wished to ask the friend whether the friend had seen his son. He then drove to an intersection some distance from the specified residence and from which it could be viewed. His presence there was reported to the police.
The appellant was charged with breaching the violence restraining order. The charge stated that the order was breached because the appellant had come within 100 metres of the nearest external boundary of the specified premises. The appellant was arrested and held in custody on this and other charges.
On 4 May 2012 the appellant appeared and entered a plea of guilty to the charge. He was not represented on that day. The facts read to the court were consistent with the charge in that the allegation was that he had breached the order by coming within 100 metres of the specified premises. In a bail application on 19 April 2012 the prosecutor stated that it was alleged that the appellant was 93 metres from the property on the evening of 18 April 2012 when the breach occurred.
A certified copy of the final violence restraining order as consented to by the parties on 27 June 2011 has been filed in these proceedings. The respondent takes no issue with that document being a copy of the relevant order that was operative as at the date of the alleged offence.
Section 8(2) of the Criminal Appeals Act 2004 (WA) permits an appeal against conviction where a plea of guilty has been made. However, an appellate court will approach an attempt to set aside a conviction based upon a plea of guilty with 'caution bordering on circumspection': Liberti (1991) 55 A Crim R 120, 122 (Kirby P, Grove and Newman JJ agreeing). See also Hogue v The State of Western Australia [2005] WASCA 102 [22] (Wheeler JA) and Borsa v The Queen [2003] WASCA 254 [20] (Steytler J, Murray ACJ and Hasluck J agreeing).
Before an appellate court will set aside a conviction based upon a plea of guilty the appellant must demonstrate that there has been a miscarriage of justice: Hogue [22], Borsa [20]. In Borsa Steytler J referred to three well recognised circumstances in which a conviction based on a plea of guilty will be set aside:
1.when the appellant did not understand the nature of the charge or did not intend to admit guilt;
2.if, upon the admitted facts, the appellant could not in law have been guilty of the offence;
3.where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.
In this case, the allegation that the appellant approached within 93 metres of the specified premises could not constitute a breach of the violence restraining order that was referred to in the charge. His plea of guilty did not alter that fact. In these circumstances, his conviction for breaching the violence restraining order was a miscarriage of justice.
Accordingly, the following orders are made:
1.leave to appeal is granted.
2.the appeal is allowed.
3.the conviction of the appellant on charge FR 3864 of 2012 is set aside.
4.judgment acquitted is entered on charge FR 3864 of 2012; and
5.the appellant is granted a certificate under s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA) for costs fixed in the sum of $5,000.00.