Wood v Marsh
[2003] WASCA 95
•12 MAY 2003
WOOD -v- MARSH [2003] WASCA 95
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 95 | |
| THE FULL COURT (WA) | 12/05/2003 | ||
| Case No: | SJA:1093/2002 | 13 MARCH 2003 | |
| Coram: | MALCOLM CJ MURRAY J ANDERSON J | 13/03/03 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against refusal of leave to appeal allowed Appeal allowed Charges remitted to the Court of Petty Sessions at Margaret River to consider the making of a spent conviction order Compensation reduced from $500 to $195 | ||
| B | |||
| PDF Version |
| Parties: | MORGAN RHYS WOOD KRISTOFER JON MARSH |
Catchwords: | Criminal law and procedure Appeal against refusal to grant leave to appeal Procedural fairness Failure by Justices of the Peace to inform appellant of right to seek legal advice Failure to consider a spent conviction order Failure to give reasons for the decision Proceedings not recorded Duty of Court to ascertain whether a defendant is aware of his or her rights |
Legislation: | Justices Act 1902 (WA), s 187, s 196(1)(a), s 196(2) Misuse of Drugs Act 1981 (WA), s 6(2) Police Act 1892 (WA), s 80(1) Sentencing Act 1995 (WA), s 6, s 39, s 39(2)(c), s 45, s 45(1), s 117 Spent Convictions Act 1988 (WA) |
Case References: | "A" v Ray [2001] WASCA 340 Brewer v Bayens [2002] WASCA 271 Cooling v Steel (1971) 2 SASR 249 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Hasting v Hall (1997) 94 A Crim R 437 Jones v Holmwood [1974] WAR 33 Ladlow v Hayes (1983) 8 A Crim R 377 Nisbet v Fullarton, unreported; SCt of WA; Library No 930265; 14 May 1993 R v Tognini (2000) 22 WAR 291 Republic of Peru v Peruvian Guano Co Ltd (1887) 36 Ch D 489 Rowlands v Caporn [2001] WASCA 66 Salter v Seebohm (1972) 4 SASR 192 State of Western Australia v Landers (2000) 22 WAR 278 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WOOD -v- MARSH [2003] WASCA 95 CORAM : MALCOLM CJ
- MURRAY J
ANDERSON J
- Appellant
AND
KRISTOFER JON MARSH
Respondent
Catchwords:
Criminal law and procedure - Appeal against refusal to grant leave to appeal - Procedural fairness - Failure by Justices of the Peace to inform appellant of right to seek legal advice - Failure to consider a spent conviction order - Failure to give reasons for the decision - Proceedings not recorded - Duty of Court to ascertain whether a defendant is aware of his or her rights
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Legislation:
Justices Act 1902 (WA), s 187, s 196(1)(a), s 196(2)
Misuse of Drugs Act 1981 (WA), s 6(2)
Police Act1892 (WA), s 80(1)
Sentencing Act 1995 (WA), s 6, s 39, s 39(2)(c), s 45, s 45(1), s 117
Spent Convictions Act 1988 (WA)
Result:
Appeal against refusal of leave to appeal allowed
Appeal allowed
Charges remitted to the Court of Petty Sessions at Margaret River to consider the making of a spent conviction order
Compensation reduced from $500 to $195
Category: B
Representation:
Counsel:
Appellant : Mr M J Feutrill
Respondent : Mr A J Sefton
Solicitors:
Appellant : Edward John Myers
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
"A" v Ray [2001] WASCA 340
Brewer v Bayens [2002] WASCA 271
Cooling v Steel (1971) 2 SASR 249
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Hasting v Hall (1997) 94 A Crim R 437
Jones v Holmwood [1974] WAR 33
Ladlow v Hayes (1983) 8 A Crim R 377
Nisbet v Fullarton, unreported; SCt of WA; Library No 930265; 14 May 1993
(Page 3)
R v Tognini (2000) 22 WAR 291
Republic of Peru v Peruvian Guano Co Ltd (1887) 36 Ch D 489
Rowlands v Caporn [2001] WASCA 66
Salter v Seebohm (1972) 4 SASR 192
State of Western Australia v Landers (2000) 22 WAR 278
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: This was an appeal from the refusal of Pullin J on 5 August 2002 to grant the appellant leave to appeal from a decision of the Court of Petty Sessions at Margaret River on 23 May 2002. At the conclusion of the argument on 13 March 2003, the Court was unanimously of the opinion that the appeal should be allowed and made orders that:
"1. The appeal be allowed and the order of Pullin J made on 5 August 2002 be set aside;
2. The appellant have leave to appeal to the Full Court from the order of the Justices in the Court of Petty Sessions at Margaret River on 23 May 2002 in respect of Complaint Nos 206/02 and 207/02 whereby the learned Justices convicted the appellant on both complaints, fined him $200 with $76 costs and ordered that compensation of $500 be paid;
3. The appeal be heard instanter;
4. The two charges the subject of the complaints be remitted to the said Court of Petty Sessions to the extent required to consider the making of a spent conviction order under ss 39(2)(c) and 45(1) of the Sentencing Act 1995 (WA);
5. The order of the said Court of Petty Sessions for the payment of compensation of $500 be set aside and in lieu thereof there be an order for the payment of compensation of $195;
6. There be no order as to costs of the application for leave or of the appeal."
2 The Court then indicated that the reasons for making those orders would be published later. These are my reasons for joining in the making of those orders.
3 The appellant was charged on two complaints made by a police officer at Margaret River. Complaint No 206/02 alleged that on 19 May 2002 at Margaret River, the appellant damaged the windscreen of a Toyota vehicle 1BAX-712 to the value of $500, the property of CLA Trading Pty Ltd contrary to s 80(1) of the Police Act 1892 (WA). The maximum penalty for that offence is a fine not exceeding $500 or imprisonment up to a maximum of 6 months or both. The appellant was
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- convicted on his plea of guilty. The Justices of the Peace imposed a fine of $100 with $38 costs and made an order for restitution in favour of the owner of the vehicle in the sum of $500.
4 Complaint No 207/02 alleged that on the same day and at the same place, the appellant had in his possession a prohibited drug, namely, cannabis contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for that offence is a fine not exceeding $2000 or imprisonment for a maximum of 2 years or both. In respect of that offence, the appellant was fined the sum of $100 and ordered to pay $38 costs. The Justices also ordered that the cannabis be destroyed.
5 The material facts were that at about 12.15 am on 19 May 2002, the appellant was at the Settler's Tavern in Margaret River. As a result of an incident, he was forcibly removed from the premises following which he found himself in the Tavern carpark. He was distressed over the incident and affected by alcohol. He was upset at having been ejected from the Tavern and vented his anger on the complainant's car. He hit the windscreen of the vehicle nearest him, causing it to shatter. This was done in the view of the Crowd Controller and other patrons. As a result of his actions, police were summoned and the appellant was arrested. He was compliant with police and admitted his actions. As he was being placed in the police car, a tin was located in his pocket. Further examination revealed it to contain cannabis head material, weighing less than 1 gram. He admitted ownership of it and was consequently charged with the possession offence. The complainant in each case was the respondent, a Senior Constable, based at the Margaret River Police Station.
6 It was common ground before us that the amount of compensation in fact claimed by the owner of the vehicle was the sum of $195, the subject of a letter of demand dated 5 June 2002 which the appellant had paid.
7 On 5 August 2002, the learned Judge ordered that there be an extension of time to hear the application for leave to appeal on 5 August 2002. In an affidavit sworn on 17 July 2002 in support of his application for leave to appeal, the appellant said that his appearance at the Court of Petty Sessions in Margaret River on 23 May 2002 was the first return date for the charges. He was unrepresented. The Court was presided over by two Justices of the Peace. The appellant accepted the statement of material facts to which I have referred. In addition, he said in his affidavit that he had travelled from Bunbury to Margaret River in the afternoon and he had gone to the Settler's Tavern at about 9.30 pm in order to attend a
(Page 6)
- concert. He was dancing on a very crowded dance floor. He bumped into another person accidentally. Without warning, he found himself grabbed by the throat by a bouncer. He was dragged outside. He tried to free himself and, at the same time, was asking why he was being held. Another bouncer attempted to put him into a headlock. He did not try to fight back, nor was it alleged that he had tried to assault them. He suffered various grazes and his shirt was torn from the force used by the bouncers. He was taken outside and told to leave the premises.
8 A friend tried to assist him in reasoning with the bouncers. Once they were outside, they started to leave. At the time, the appellant was outraged at the treatment meted out to him by the bouncers. As he put it:
"I thought it was absolutely over the top and the force used was quite unnecessary."
9 He says at no time did the bouncers tell him what he was supposed to have done wrong other than that he was "aggro". He admits that he was extremely angry and that he punched a car windscreen as he was going past it. The windscreen shattered. The bouncers then told him to stay where he was while they called the police. He did as he was told. His friend tried to resolve the situation and the appellant agreed that he would pay for the damage to the windscreen. He understood that the bouncers had accepted that proposal. When the police arrived, they searched the appellant and discovered the cannabis. He then accompanied them to the police station. According to the appellant, the arresting officer said to him, "I don't know why we are charging you. I thought it had all been sorted out."
10 According to the appellant, Constable Marsh gave him the details of the Court appearance and it was agreed that the following Thursday would be the most suitable day for the appellant to appear. Constable Marsh also told him that there may be a duty lawyer from Legal Aid in attendance on the day that he was due in Court. When he arrived at the courthouse on 23 May 2002, he was handed a copy of the Statement of Material Facts. The prosecutor, who was Constable Marsh, told the appellant that this would be read out to the Court. There was no lawyer from Legal Aid in attendance.
11 The appellant admits that he wanted to get the matter over and done with. However, he says he never appreciated the seriousness of the charge and what a conviction would mean. He says he did not recall anyone telling him before the Court appearance that he could have the
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- matter adjourned so that he could obtain legal advice. He says that when he was called before the Court, one of the Justices asked his name and whether he wanted the matter dealt with. He says that he did. The prosecutor then read out the material facts. The Justice asked him if he wanted to say anything. It appears that the proceedings were not recorded and the Justices of the Peace made no notes of what transpired at the hearing. The appellant says that he told the Court that this was a "one-off" incident and that it was "a stupid thing to do and that I was sorry". He says that he wanted to tell the Court what had led up to the incident with the windscreen and how he was feeling about the treatment he had received from the bouncers. When imposing the penalty, the Justice of the Peace said words to the effect that he was a "young man and would learn by the experience". He was then told to stand down.
12 The appellant said that at no time did either of the Justices tell him that he could be remanded to obtain legal advice. It was not indicated to him that he could apply for a spent conviction order. It was not suggested to him by the Justices that he should get legal advice about a spent conviction order. He was not given the opportunity to explain the reasons why he was so angry, which led to the commission of the offence. He did not appreciate that he should bring along references to indicate that he was normally a person of good character. He says his understanding of what was going to happen in Court was that the matter would be "finished" with him making compensation for the damaged windscreen. So far as the cannabis charge was concerned, he understood that a caution could have been issued. He says that he did not have the opportunity to find out whether the sum of $500 awarded for compensation for the broken windscreen was an appropriate sum. It was not until later that he received correspondence from the car rental business, which owned the car, that the actual cost of repair to the windscreen was $195, as evidenced by correspondence exhibited in his affidavit.
13 He does not take issue with the fact that his breaking of the windscreen was "indefensible and a stupid thing to do". He says, however, that he was provoked to some extent and would like to have had that information put before the Court.
14 He said that from the time that he arrived in Margaret River at about 3.30 pm until midnight, when the incident occurred, he had consumed five cans of Jim Beam and two small Cougars and Coke. He had a meal at about 6.30 pm. He says that he does not have an anger problem. This was the first time that he had been charged with an offence and he had no prior criminal record.
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15 There was evidence before the Court from the appellant's solicitor which was placed before the Court, without objection, that the Margaret River Court of Petty Sessions does not have recording facilities and there was no recording of the proceedings relating to the appellant's conviction and sentencing. Furthermore, the Justices did not make any notes of the proceedings. The prosecutor could not recall whether the Justices suggested to the appellant that he be remanded for legal advice. Nor could he recall whether there was any consideration of the making of a spent conviction order.
16 The grounds upon which leave to appeal to the single Judge was sought were:
"(1) The learned Justices erred in law in neither offering nor affording the applicant the opportunity to seek legal advice;
(2) the learned Justices erred in law in not considering a spent conviction order pursuant to s 45 of the Sentencing Act for either complaint; and
(3) the learned Justices erred in law in not providing reasons for decision."
17 So far as the merits were concerned, the appellant did not seek to have the conviction overturned, but contended that a spent conviction order should be made pursuant to s 45 of the Sentencing Act.
18 The learned Judge who heard the application for leave to appeal recited the facts and dealt with the application for leave to appeal as follows at pp 2 – 3 of his reasons:
"[The appellant] seeks leave to appeal on the basis that the Justices erred in law in neither offering or affording the applicant the opportunity to seek legal advice, that they erred in not considering a spent conviction pursuant to s 45 of the Justices Act and that the Justices erred in law in not providing reasons for [their] decision.
The affidavit also reveals that subsequently [the appellant] has received a letter of demand from the owners of the vehicle claiming payment of $195 for the repair to the windows. I am therefore prepared to grant leave to appeal in relation to the compensation order made under s 117 of the Sentencing Act
(Page 9)
- because there is nothing in the material facts as read out which supported the claim for compensation of $500.
As to the other grounds – that is, that the Justices erred in neither offering nor affording the applicant the opportunity to seek legal advice – I have been given no authority for suggesting that that would provide any arguable ground of appeal and I would refuse the application on that basis, it showing no arguable case.
It is suggested that the Justices did not consider a spent conviction order. That argument seems to be based upon a contention that, as he says in his affidavit, 'I did not know that I should bring references to indicate that I am normally a person of good character' and that seems to be tied up with the suggestion that there should have been the opportunity offered to seek legal advice. In my view there is no arguable case revealed in relation to that ground.
In relation to the reasons for decision in the complaint it is clear that the Justices did give some reasons. Unfortunately there is no transcript of the proceedings and the affidavit of Rhonda Margaret Parks, the Solicitor who was the legal representative for the applicant, instructing counsel says that she has spoken to the prosecutor constable who cannot recall whether there was any consideration of a spent conviction. In my view there is not sufficient to show that there is an arguable case that there would have been any spent conviction order made in the circumstances, given the details of the offence which are available to the Court and the lack of any other information that may have warranted a spent conviction order."
19 On 31 October 2002, upon a motion on behalf of the appellant, Miller J ordered that the time within which the appellant had to commence an appeal from the orders of Pullin J on 5 August 2002 be extended to 17 September 2002 and that:
"On a date to be fixed in accordance with order 4 below:
(a) the appeal pursuant to leave granted by Pullin J dated 5 August 2002; and
(b) the appeal from the order of Pullin J refusing leave to appeal dated 5 August 2002 together
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- with any appeal pursuant to leave granted by the Full Court
- be listed for hearing at the same time before the Full Court.
Orders for service of the application for leave to appeal and copies of other relevant documents including the order of Miller J be served by 13 November 2002 and the appeals be entered for hearing by 20 November 2002."
20 Orders were also made for an attendance to fix a date for hearing of the appeals within seven days after they had been entered for hearing within which time the appellant was also required to file and serve the appeal books containing all the material required by the Registrar.
21 The appeal to the Full Court is made on the following grounds:
"(1) The learned Judge erred in law in finding that the applicant had provided insufficient information to justify the granting of a spent conviction [order].
(2) The learned Judge erred in law in determining that the application for a spent conviction [order] had no merit.
(3) The learned Judge erred in law in determining that when dealing with an unrepresented defendant Justices are not required to offer a defendant an opportunity to seek legal advice as to the possibility of the court granting a spent conviction [order]."
22 The appellant sought the following orders, namely:
"(1) Leave be granted to adduce evidence of the appellant's good character and the impediment that a conviction not declared to be spent will be to the applicant's employment prospects.
(2) The compensation order of $500 be set aside and substituted with a compensation order in the amount of $195.
(3) The conviction for each complaint stand but a spent conviction order be made pursuant to s 45 of the Sentencing Act."
(Page 11)
23 The Crown conceded that there was no justification for the compensation order made by the Justices and consented to an order that the compensation order for the sum of $500 be set aside and substituted with a compensation order in the amount of $195.
24 On the face of it, the Justices do not appear to have given any reasons when sentencing the appellant beyond making the statement to the effect that he was a "young man and would learn by the experience". Prior to the convictions, the appellant did not have a criminal record. It was not suggested to him by the Justices, or anyone else, that it would be to his advantage to put evidence of good character before the Court. Such evidence was readily available as appears from the affidavit of Ms Parks to which I have already referred. This material was relied upon before the Full Court without objection. This comprised of references from some seven persons. One friend who had known him from his school days for some seven years described the appellant as representing the responsible side to their group of friends as he showed maturity and leadership.
25 Although such evidence was not led or sought to have been led before the Justices, provision for such evidence to be admitted on an appeal under the Justices Act is made in s 196(1) which provides that:
"The Court shall determine the appeal –
(a) on the material that was before the justices; and
(b) on such further evidence either oral or by affidavit as the Court thinks fit to receive."
"I begin by noting that by s 196 of the Justices Act 1902 the court shall determine the appeal on the material before the court below. There is power to receive further evidence as the court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put
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- before the court below in regard to a sentencing issue. Rowlands v Caporn [2001] WASCA 66. In such a case a court must be astute to ensure that it has been given reliable information. R v Gallagher (1991) 23 NSWLR 220."
27 In my opinion, the evidence on which the appellant sought to rely in relation to his appeal against sentence was both relevant and admissible on the appeal. In the interests of saving both court time and costs, given the relevant information now before this Court, the evidence should be admitted on the appeal.
28 There is nothing in the materials to suggest that the Justices gave any consideration to the making of a spent conviction order or the imposition of no sentence in relation to either of the two offences. The Spent Convictions Act 1988 (WA) makes provision for a conviction to become "spent" after the lapse of a substantial period of time. Upon the conviction becoming spent, the Act provides for a significant degree of relief from the consequences of conviction. As Burchett AUJ (with whom Wallwork and Wheeler JJ agreed) pointed out in Brewer v Bayens [2002] WASCA 271 at [9]:
"Upon a conviction becoming spent, the Act provides the convicted person with a real measure of relief against its consequences; in particular, there are provisions offering protection against discrimination in respect of employment on the ground of a spent conviction, and s 25 to s 28 (inclusive) shield a convicted person against having to disclose a spent conviction and, to some extent, against enquiry into it. For present purposes, it is important to note that, by virtue of s 3(1), the definition of "spent conviction", the Act has been extended to bring within its reach a conviction the subject of a spent conviction order made under s 39 of the Sentencing Act 1995."
29 There is nothing in any of the materials before this Court to suggest that the Justices in this case gave any consideration to the sentencing options in s 39 of the Sentencing Act. That section sets out the sentencing options applicable to an offender who is a natural person: s 39(1). The options set out in s 39(2) are:
"(2) Subject to sections 41 to 45, a court sentencing an offender may ¾
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- (a) with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender;
(b) with or without making a spent conviction order, 7 impose a CRO and order the release of the offender;
(c) with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made);
(d) with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender;
(e) under Part 10 impose an ISO and order the release of the offender;
(f) under Part 11 impose suspended imprisonment and order the release of the offender; or
[(g) deleted]
(h) under Part 13 impose a term of imprisonment."
30 Section 39(3) provides that a court must not use a sentencing option in subsection (2) unless satisfied, having regard to Div 1 of Pt 2, that it is not appropriate to use any of the options listed before that option. Further, a court must not use more than one of the sentencing options in subsection (2) when sentencing an offender except where s 41 or s 42 applies. Section 39(5) provides that a court that imposes no sentence under subsection (2)(a) is nonetheless taken to have sentenced the offender.
31 The making of a spent conviction order is governed by s 45 of the Sentencing Act. Section 45(1) provides that:
"Under s 39(2), a court sentencing an offender is not to make a spent conviction order unless –
(a) it considers that the offender is unlikely to commit such an offence again; and
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- (b) having regard to –
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender."
"It is clear from the terms of s 45, and the cases show that the courts have not overlooked this, that a spent conviction order made at the time of the sentencing of an offender can only be made where the Court is satisfied on three questions. First, it must consider that the offender is unlikely to commit such an offence again; secondly, either the offence must be shown to be trivial, or the offender must be shown to have been of previous good character; and thirdly, the Court must consider the offender should be relieved immediately of the adverse effect that the conviction might have on him or her, in considering which question the Court will have regard to the applicable alternative found in respect of the second question. The terms of the section leave no doubt that the discretion is not at large, but may only be exercised where the prerequisites are satisfied."
33 Section 39(7) of the Sentencing Act provides that a court sentencing an offender may also make a reparation order under par 16, but any such order is not to be taken as being part of the sentence. A compensation order is a reparation order: s 109. Such an order is in addition to and not part of the sentence: s 110(1). Section 110(2) provides that a sentence must not be reduced because of a reparation order being made, but by s 110(3) subs (2) does not prevent the mitigation of a sentence where an offender agrees to make good loss or damage resulting from the offence "or is otherwise contrite", as was the case in respect of this appellant. There is no indication one way or the other in this case whether the Justices turned their minds to either of these issues and, if so, with what result.
34 There is no evidence that the Justices gave any consideration to the making of a spent conviction order under Pt 6 or whether they could
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- impose no sentence and order the release of the appellant under s 39(2)(a) or impose a Conditional Release Order and order the release of the appellant. Likewise, there is no evidence that the Justices considered matters in addition to the imposition of a fine and whether they should order the release of the appellant and make a spent conviction order as contemplated by s 39(2)(c) or any of the other options under s 39(2). Given that the appellant had offered to pay compensation at the time of his arrest and had no prior convictions, this was clearly a case in which consideration should have been given to the options in s 39(2) having regard to s 39(3), which provides that a court must not use a sentencing option in s 39(3) unless satisfied, having regard to Div 1 of Pt 2 of the Act, that it was not appropriate to use any of the options listed before that option. On the face of it, there is no evidence that the Justices properly complied with the requirements of s 39(2) when sentencing the applicant.
35 The approach which the Court should take when an unrepresented person attends at Court and pleads guilty to an offence was considered by the Full Court of the Supreme Court of South Australia in Cooling v Steel (1971) 2 SASR 249 and 250 as follows:
" … the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct forfeiture of property or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath and that he may call witnesses or produce other relevant material for the consideration of the court.
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- Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor, (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed (1970) SASR 374 and R v Maitland (1963) SASR 332, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding."
36 The affidavit evidence on which the appellant sought to rely on before this Court is admissible under s 196(1)(a) and (2) of the Justices Act 1902 (WA) ("Justices Act") insofar as it is evidence of what material was before the Justices. The affidavit evidence which the appellant could have led before the Justices, had he been given an opportunity by the Justices to obtain legal advice which may well have been relevant to mitigation of the sentence which would otherwise have been imposed, may be admitted on such an appeal as this: cfRowlands v Caporn (supra).
37 Section 187 of the Justices Act requires that leave to appeal should be granted unless the appeal is frivolous or vexatious, or that the grounds of appeal do not disclose an arguable case. An arguable case is one that is reasonably capable of being argued in the sense that it is supported by an argument which has some prospect of success: Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262 per Malcolm CJ: cf Republic of Peru v Peruvian Guano Co Ltd (1887) 36 Ch D 489 at 495.
38 It is important that any Court and, in particular, a Court constituted by Justices of the Peace, ensure that a defendant who appears before them
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is apprised not only of his or her rights, but also of his or her duties. Decisions such as Cooling v Steel (supra) at 250 and 251 per Wells J; Salter v Seebohm (1972) 4 SASR 192 at 195 and 196; and Jones v Holmwood [1974] WAR 33 make the position clear. In the latter case, the appellant had sought a remand or adjournment to seek legal advice which was refused. This was held to be a denial of natural justice by Wallace J at 33. His Honour went on to say at 33 – 34:
" … it is timely that justices understood the principles upon which members of the community are entitled to be heard and entitled to have legal representations. It is altogether bound up with the subject of pleas in the lower courts, and that has been well settled but no better prepared than in the judgment of Wells J., of the Supreme Court of South Australia, which is referred to by Walters J., in the decision of Salter v Seebohm, which is cited in (1972), 4 S.A.S.R. 192, and I quote from p. 195."
39 In State of Western Australia v Landers (2000) 22 WAR 278 at 279, Wheeler J said at 279:
"There are many authorities, in this and other jurisdictions, in which appellate courts have emphasised the great importance, in the interests of justice, of ensuring that an accused person brought before justices or a magistrate understands the proceedings and has an adequate opportunity to consider what course he or she may take. The risk that this may not occur arises largely from the huge volume of work with which those courts are faced.
In Cooling v Steel [1971] 2 SASR 249, Wells J noted (at 250) that:
'It is imperative … that courts of summary jurisdiction should follow practices that will avoid the possibility that a party … should feel that he has not been permitted to give a good account of himself because he has been overawed, or he has not been made aware of his rights, or no, or no sufficient, explanation has been made of what is required of him'.
The guidelines for dealing with unrepresented defendants, which his Honour derived from that general expression of
(Page 18)
- principle, have been followed in many jurisdictions, including Western Australia (eg Jones v Holmwood [1974] WAR 33).
The danger that an accused person will not understand proceedings or will, for some other reason, fail to 'give a good account' of him or herself is obviously most pronounced in those cases where the person is unrepresented. However, counsel, and particularly duty counsel, in Courts of Petty Sessions are often faced with inadequate time to consult with clients, and with clients who, because of anxiety about the imminent proceedings, or for other reasons are unable to give instructions with the detail and conciseness that would assist counsel in representing them appropriately."
40 In my opinion, the responsibility of ascertaining whether a defendant is aware of his rights and his duties rests with the Court. It is not appropriate for the Court to leave that to the prosecuting police officer, although it may well be that the officer will provide some advice and assistance to an unrepresented defendant. The officer, however, needs to take care in any discussion with a defendant, whether or not he or she intends to plead guilty, to ensure that nothing is said or done which would give rise to any suspicion that the defendant's plea of guilty is not given freely and voluntarily. Consequently, it has been said to be imprudent for a prosecuting police officer to engage in a conversation with a defendant concerning his or her intended plea and, in particular, the consequences of his plea: Salter v Seebohm (1972) 4 SASR 192 at 195 and 196 per Walters J.
41 In the present case, there is no record of the reasons or sentencing remarks of the Justices. Where there are no recording facilities available, it is important that the Justices ensure that they or an officer of the Court makes a note of the reasons for decision and sentence in any case. It is a fundamental requirement of natural justice that a tribunal of fact, particular one exercising criminal jurisdiction, should ensure that adequate reasons, whether for conviction or for sentence are given at the time the decision is made and properly recorded: cfHasting v Hall (1997) 94 A Crim R 437 at 443 and 444 per Anderson J; and Ladlow v Hayes (1983) 8 A Crim R 377 at 388 and 389 per Walters J.
42 In the present case, there was no evidence put forward by the Crown that the Justices were satisfied, or took any steps to enable themselves to be satisfied, that the appellant understood his rights and was aware of the various matters referred to in Cooling v Steel (supra). It is clear that the
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appellant did not understand the nature and seriousness of the charges against him, in the sense that a conviction could lead him to have a criminal record; that he had a right to legal representation and a right to apply for an adjournment to obtain legal advice or representation; what sentence could be imposed; his entitlement to make submissions on penalty; his right to dispute the statement of material facts; or that he was entitled to make submissions about a spent conviction order having regard to s 6 and s 39 of the Sentencing Act, or obtain further evidence in support of a spent conviction order.
43 In R v Tognini (2000) 22 WAR 291, the Full Court delivered a guideline judgment on the subject of spent conviction orders under ss 39 and 45 of the Sentencing Act and the Spent Convictions Act 1988 (WA) ("Spent Convictions Act"). The Full Court dismissed an appeal by the Crown against the making of the spent conviction orders made against two defendants under ss 39 and 45 of the Sentencing Act. Reference has already been made to these previously. In that case, it was held that in the absence of a spent conviction order made under s 45 of the Sentencing Act, the Spent Convictions Act applies and operates as follows. In the case of a "lesser conviction" within the meaning of the latter Act, the offender may apply to the Commissioner of Police after the expiry of the prescribed period of 10 years for a certificate that the conviction is spent and the certificate must be issued. In the case of a "serious conviction" within the meaning of the Spent Convictions Act, the offender may apply to a District Court Judge for an order declaring that the conviction is spent. In such a case, the making of the order is discretionary. By way of contrast, s 45 of the Sentencing Act confers a discretion on a sentencing Judge to make an order that a conviction become immediately spent. It was held in R v Tognini (supra) that, having regard to the nature of the power and the extent to which it interfered with the ordinary operation of the Spent Convictions Act, power should only be exercised in a clear case where for cogent reasons it was seen to be desirable. If the necessary conditions are met, the court should go on to have regard to the seriousness of the offence, the circumstances of its commission and the personal circumstances of the offender.
44 In order to make a spent conviction order, Murray J said in R v Tognini (supra) at 296- 297 that there should be some particular circumstance to show that it would be desirable, not only from the point of view of the offender, but also, having regard to his or her rehabilitation,
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- from the point of view of the community, why the adverse effect of the conviction should immediately be set aside.
45 In the circumstances of this case, the Justices were bound to consider the various matters to which I referred. Their apparent failure to do so has the inevitable result that there has been a miscarriage of justice. In the circumstances, the appropriate course to adopt was to remit the charges the subject of the two complaints to the Court of Petty Sessions at Margaret River to the extent required to consider the making of a spent conviction order, set aside the order for payment of compensation of $500 and, in lieu thereof, order that there be payment of compensation of $195, and that there be no order for the costs of the application for leave to appeal or of the appeal.
46 MURRAY J: I have had the benefit of reading, in draft, the reasons for decision published by Malcolm CJ. They explain sufficiently for me the reasons why I joined in the final orders made on the hearing of this appeal.
47 ANDERSON J: I have read in draft the reasons of the Chief Justice for joining in the decision to allow the appeal at the conclusion of argument on 13 March 2003. They fully express my reasons for joining in that decision and for making the orders that were made on that day. There is nothing I can usefully add.
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