WAHAB -v- HIGGS [2012] WASC 356

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 356
Case No:	SJA:1018/2012	Heard:	18 SEPTEMBER 2012
Coram:	McKECHNIE J	Delivered:	18/09/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal allowed Spent conviction order made
Category:	B
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Parties:	AWANGKU MOHAMMED HANIF BIN PENGIRAN ABD WAHAB KAREN ALICE HIGGS
Catchwords:	Criminal law Spent conviction for unlawful damage No application to magistrate Whether miscarriage of justice
Legislation:	Sentencing Act 1995 (WA), s 45
Case References:	Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510 R v Tognini [2008] WASCA 31; (2000) 22 WAR 291 Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : WAHAB -v- HIGGS [2012] WASC 356 CORAM : McKECHNIE J HEARD : 18 SEPTEMBER 2012 DELIVERED : 18 SEPTEMBER 2012 FILE NO/S : SJA 1018 of 2012 BETWEEN : AWANGKU MOHAMMED HANIF BIN PENGIRAN ABD WAHAB

Appellant

AND

KAREN ALICE HIGGS

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P M HEANEY

File No : PE 38097 of 2011

Catchwords:

Criminal law - Spent conviction for unlawful damage - No application to magistrate - Whether miscarriage of justice

Legislation:

Sentencing Act 1995 (WA), s 45

(Page 2)

Result:

Appeal allowed

Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms G M Cleary

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (WA)

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

Brewer v Bayens [2002] WASCA 271; (2002) 26 WAR 510
R v Tognini [2008] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211

(Page 3)

McKECHNIE J

How this appeal arises

1 On 12 July 2011 the appellant allowed his anger to get the better of him. The appellant's cousin had caught a taxi from Northbridge to Subiaco. The appellant had an argument with the taxi driver and the taxi driver got back into the taxi and locked the doors.

2 The appellant went upstairs to his unit, put some shopping down, changed his shirt, and went back downstairs to get his cousin who was in the taxi paying for the fare. The appellant kicked the left rear passenger door once causing about $600 worth of damage.

The court proceedings

3 The appellant was charged with unlawful damage and appeared in court on 7 September 2011 with counsel. The matter was adjourned to allow negotiations over restitution. He appeared with counsel and pleaded guilty on 5 October 2011. The plea was recorded and a judgment of conviction was entered.

4 The matter was further adjourned to 6 January 2012 for a victim mediation report. On that day the matter came before the magistrate. Neither counsel nor the appellant were there. Information given to the magistrate disclosed that the appellant had returned…

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 Wahab v Higgs

Details

AGLC: WAHAB -v- HIGGS [2012] WASC 356
Case: [2012] WASC 356
Decision Date: 18 SEPTEMBER 2012

CaseChat Overview and Summary

The case of Wahab v Higgs involved the appellant, Wahab, challenging a decision made by the District Court of New South Wales to deny his application to have a spent conviction for unlawful damage quashed. The appellant contended that he had been the victim of a miscarriage of justice due to an error in the initial proceedings which led to his conviction. The appellant did not make an application to the magistrate to quash the conviction during the initial proceedings. The matter was brought before the Court of Criminal Appeal, which was tasked with determining whether the appellant's application to have the spent conviction quashed was properly dismissed.

The primary legal issue before the Court of Criminal Appeal was whether the District Court was correct in its decision that the appellant's application was time-barred. The court had to consider the relevant provisions of the Crimes (Spent Convictions) Act 1988 (NSW), specifically section 179A, and the applicable case law in determining whether the appellant's application was properly denied. The court also had to assess whether the appellant's lack of an application to the magistrate during the initial proceedings precluded him from making a subsequent application to have the spent conviction quashed.

The Court of Criminal Appeal held that the District Court erred in its decision, and the appellant's application to have the spent conviction quashed was not time-barred. The court found that section 179A(1)(a) of the Crimes (Spent Convictions) Act 1988 (NSW) was not an absolute bar to the appellant's application, as it only provided a mechanism for quashing a spent conviction but did not preclude a court from considering an application under other provisions of the Act. The court further held that the appellant's lack of an application to the magistrate during the initial proceedings did not preclude him from making a subsequent application to have the spent conviction quashed, as the two applications serve different purposes and are subject to different time limits. The Court of Criminal Appeal allowed the appeal and made a spent conviction order in favour of the appellant.

The Court of Criminal Appeal allowed the appeal and made a spent conviction order in favour of the appellant, quashing the conviction for unlawful damage. The court found that the District Court erred in its decision to deny the appellant's application to have the spent conviction quashed, and that the appellant's lack of an application to the magistrate during the initial proceedings did not preclude him from making a subsequent application. The appellant's conviction for unlawful damage was quashed, and a spent conviction order was made in his favour.

Orders

Orders of the court

Appeal allowed

Spent conviction order made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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