Waters v Wigger - [2017] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WATERS -v- WIGGER [2017] WASC 268

CORAM: MCGRATH J

HEARD: 7 SEPTEMBER 2017

DELIVERED : 14 SEPTEMBER 2017

FILE NO/S: SJA 1005 of 2017

BETWEEN: CRAIG ANTHONY WATERS
Appellant
AND
FRANCIS WIGGER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E CAMPIONE
File No  :FR 7407 of 2015

Catchwords:

Criminal law - Appeal against conviction - Possession of amphetamine with intent to sell or supply - Plea of guilty - Whether to set aside a conviction based on a plea of guilty - Integrity of plea - Whether the appellant entertained a genuine consciousness of guilt - Extension of time to appeal not granted - Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), pt 2, s 8(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), pt 3A

Result:

Extension of time in which to appeal not granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B M Murray

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Borsa v The Queen [2003] WASCA 254
Gibson v The State of Western Australia [2017] WASCA 141
Gillespie v The State of Western Australia [2016] WASCA 216
Liberti v The Queen (1991) 55 A Crim R 120
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Ramsay v Trovarello [2009] WASC 146
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Vella v The State of Western Australia [2006] WASCA 129
Waters v Wigger [2016] WASC 377
Waters v Wigger [2017] WASCA 46

MCGRATH J:

Introduction

The appellant seeks leave to appeal against his conviction for one charge of possession of a prohibited drug, namely amphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
The appellant, who was caught red‑handed with amphetamine inside the underwear he was wearing, pleaded guilty to the charge before a magistrate whilst represented by counsel. The appellant now wishes to set the conviction aside that was based on his own plea of guilty to the charge. This appeal against conviction was filed out of time and, therefore, an extension of time is required. For the following reasons, I have determined that an extension of time should not be granted and accordingly the appeal is dismissed.
In these reasons for decision, I will consider the following:
1.The procedural history.
2.The grounds of the appeal.
3.The law regarding setting aside a plea of guilty.
4.The merits of the appeal.

Procedural history

On 6 July 2015, a Prosecution Notice was lodged alleging that the appellant, with intent to sell or supply to another, had in his possession a prohibited drug, namely 3.99 g of amphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act. After…

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 Waters v Wigger

Details

AGLC: Waters v Wigger [2017] WASC 268
Case: [2017] WASC 268
Decision Date: 14 SEPTEMBER 2017

CaseChat Overview and Summary

The appeal against conviction was brought before the court by the appellant, Waters, against the respondent, Wigger, the State of Queensland. The dispute arose from Waters' conviction for possessing amphetamine with the intent to sell or supply. Waters had pleaded guilty to the charge, but now sought to set aside the conviction, arguing that the plea was not entered into with a genuine consciousness of guilt. The court was tasked with determining whether the plea of guilty was made with a genuine consciousness of guilt and whether the conviction should be set aside. Additionally, the court needed to consider the application for an extension of time to lodge the appeal.

The court considered the appellant's argument that the plea was not entered into with a genuine consciousness of guilt. In evaluating this argument, the court examined the circumstances under which the plea was made, including the appellant's demeanour and the advice provided by legal counsel. The court found that the appellant had indeed entertained a genuine consciousness of guilt when entering the plea. The court further noted that the appellant had failed to establish any grounds for setting aside the conviction. The court also dismissed the application for an extension of time to lodge the appeal, finding that the appellant had not demonstrated any exceptional circumstances warranting such an extension.

In light of the above, the court concluded that the appellant's plea of guilty was made with a genuine consciousness of guilt. Consequently, the appeal against conviction was dismissed, and the conviction remained intact. The court did not grant the extension of time to lodge the appeal, as the appellant had not provided sufficient justification for the delay. The appellant's conviction for possessing amphetamine with the intent to sell or supply was upheld, and no further orders were made by the court.

Orders