JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WRIGHT -v- McMURCHY [2012] WASCA 257
CORAM: PULLIN JA
BUSS JA
MAZZA JA
HEARD: 11 OCTOBER 2012
DELIVERED : 7 DECEMBER 2012
FILE NO/S: CACR 136 of 2011
CACR 83 of 2012
BETWEEN: SHAUN KEVIN WRIGHT
Appellant
AND
LAURA JANE McMURCHY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER SLEIGHT
Citation :WRIGHT -v- McMURCHY [2011] WASC 219
File No :SJA 1045 of 2011
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P M HEANEY
File No :IND PE 11376 of 2011
Catchwords:
Criminal law - Appeals under pt 2 div 3 of the Criminal Appeals Act 2004 (WA) - Available grounds of appeal
Criminal law - Application to set aside a conviction based on a plea of guilty - Applicable test
Criminal law - Indecent act in a public place - Appeal against conviction after a plea of guilty - Indecent photograph taken of a female passenger - Whether a taxi is a public place
Criminal law - Possession of a controlled weapon - Appeal against conviction after plea of guilty - Where appeal notice was filed 11 months outside the time prescribed for appealing
Spent conviction order - Whether appropriate - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Interpretation Act 1984 (WA)
Justices Act 1902 (WA), (repealed)
Sentencing Act 1995 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Taxi Regulations 1995 (WA)
Weapons Act 1999 (WA)
Weapons Regulations 1999 (WA)
Result:
CACR 136 of 2011
Application for leave to appeal on grounds 3 and 4 in relation to conviction refused
Application for leave to appeal against sentence refused
Appeals dismissed
CACR 83 of 2012
Application for an extension of time to appeal against conviction dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr J A Scholz
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Allesch v Maunz [2000] HCA 40; 2000) 203 CLR 172
Avsar v Binning [2009] WASCA 219
Bardsley v The Queen [2004] WASCA 251
Borsa v The Queen [2003] WASCA 254
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Chowdhury v Kenny [No 2] [2012] WASCA 35
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) WAR 291
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
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- Wright v McMurchy [2012] WASCA 257
- Case
- [2012] WASCA 257
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the appeal could be entertained given the late filing of the appeal notice and whether the taxi could be considered a public place for the purposes of the indecent act offence. The court also had to decide if the appellant's late filing of the appeal notice constituted a ground for appeal and whether a spent conviction order was appropriate. The primary focus was on whether the appellant could demonstrate that a miscarriage of justice had occurred, given his plea of guilty.
The court found that the appeal against the indecent act offence was not valid because the taxi could reasonably be considered a public place. It held that statutory provisions conferring appellate power are to be exercised for the correction of error or curing miscarriages of justice, but the power is contingent upon demonstrating such error or miscarriage. The court also found that the late filing of the appeal notice did not constitute a ground for appeal, as the appellant failed to demonstrate that the additional evidence would have produced a different result if it had been available at the trial. The court further determined that a spent conviction order was not appropriate in the circumstances of this case.
The final orders of the court were that the appeal against the conviction for the indecent act offence was dismissed, the appeal against the conviction for possession of a controlled weapon was dismissed due to the late filing of the notice of appeal, and the application for a spent conviction order was dismissed.
Orders
Orders of the court
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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
That said, statutory provisions conferring appellate power, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error: Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14] (Gleeson CJ, Gaudron & Hayne JJ); CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [111] (McHugh, Gummow & Callinan JJ); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [12] (Kirby J) or curing miscarriages of justice: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [24] (Gleeson CJ, Gummow & Kirby JJ). The powers conferred by s 14(1) and s 19(2) of the Criminal Appeals Act to set aside or vary the decision of the single judge, or to substitute a decision that should have been made, or to order that the case be dealt with again in a court of summary jurisdiction, are all indications that the court has a broad power of review, but they are powers only to be exercised once error (or miscarriage) has been shown: Allesch v Maunz [2000] HCA 40; 2000) 203 CLR 172 [44] (Kirby J). Section 39(1) of the Criminal Appeals Act states that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, under s 40(1)(e), an appeal court has the power to admit 'any other evidence'. There is no express criteria governing the exercise of the court's discretion but, generally speaking, evidence which was available to the appellant at the time the conviction was recorded will not be admitted unless it can be demonstrated that the additional evidence would have produced a different result if it had been available at the trial: de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) WAR 291 [150]; Stavrianakos v The State of Western Australia [2011] WASCA 130 [28] When an appellant pleads guilty, it is not easy for an appellant to persuade the court on appeal to set aside the conviction. There must be a strong case demonstrating that a miscarriage of justice has occurred. There are three well recognised circumstances which may by themselves or in combination demonstrate that there has been a miscarriage of justice. They are:(a)if the appellant did not understand the nature of the charge or did not intend to admit guilt;(b)if on the admitted facts the appellant could not in law have been guilty of the offence; and(c)if the guilty plea had been obtained by improper inducement, fraud or intimidation:Windie v The State of Western Australia [2012] WASCA 61 [31] Mazza JA (McLure P & Newnes JA agreeing); Borsa v The Queen [2003] WASCA 254 [20]; Hogue v The State of Western Australia [2005] WASCA 102 [22]. In relation to the indecent act offence, the appellant relies upon the second of the circumstances set out above. He contends that the appellant could not in law have been guilty of the offence. This is because he contends that the offence was not committed in 'public' or in a 'public place'. To understand this submission, it is necessary to refer to the relevant legislation.