Wright v McMurchy - [2012] WASCA 257

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Justices Act 1902 (WA), (repealed)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
Hall v Collins [2003] WASCA 74
Hogue v The State of Western Australia [2005] WASCA 102
Inglis v Fish [1961] VR 607
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McIvor v Garlick [1972] VR 129
Mikulic v The State of Western Australia [2011] WASCA 14
Neale v Sloan (1997) 27 MVR 246
Noto v The State of Western Australia [2006] WASCA 278
R v Tognini (2000) WAR 291
Riggall v The State of Western Australia [2008] WASCA 69
Stavrianakos v The State of Western Australia [2011] WASCA 130
Vella v The State of Western Australia [2006] WASCA 129
Walker v Crawshaw [1924] NZLR 93
Wimbridge v The State of Western Australia [2009] WASCA 196
Windie v The State of Western Australia [2012] WASCA 61
Wright v McMurchy [2011] WASC 219

PULLIN JA: There are two appeals in this court which concern convictions on two offences and the sentences in relation to those offences.
The two offences were that the appellant:
(a)between 8 and 9 May 2009, at a place unknown, did an indecent act in a public place, contrary to s 203(1)(a) of the Criminal Code (WA);
(b)on 22 January 2011, not being a person exempt under s 10, without lawful excuse, possessed a controlled weapon, contrary to s 7(1) of the Weapons Act 1999 (WA).
The appellant was represented by counsel and he pleaded guilty to both charges. Once he pleaded guilty, the entry of the pleas constituted admissions of all the elements of the offences. A conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred: Vella v The State of Western Australia [2006] WASCA 129 [29].
In accordance with s 129(3) of the Criminal Procedure Act 2004 (WA), the prosecutor stated aloud to the court the material facts of the offences to which the accused pleaded guilty. The appellant did not dispute the facts.
The facts read to the court were as follows:
Sometime between Friday, 8 May and Saturday, 9 May he was on night shift driving a taxi in the Perth area, metropolitan area. Whilst conveying the victim, an unconscious female passenger in the front seat of the taxi, he used his mobile phone to take nine digital images, eight of which are clearly up‑skirt images of her. The images depict the inside of the victim's thighs, the outside of her underwear and general crutch area. In these pictures the victim is extremely intoxicated or asleep and, as a result, is unaware the images are being taken.
The deleted pictures were located on the accused's computer which was seized as a result of a Criminal Investigation Act search warrant executed at his premises on 22 January this year. A subsequent analysis of the accused's external hard drive located approximately 650 video‑recordings of female and male passengers and the video‑recordings were taken by the accused on his mobile phone inside the taxi he was driving, and this is between 2009 and 2011. Also located on the computer are approximately a dozen deleted still, up‑skirt snapshots created from the video‑recordings of four separate female passengers seated on the back seat of his taxi.
In 2011 he voluntarily attended the sexual assault squad and participated in an electronic video in relation to the matter and he admitted using his phone to record his female passengers. He said it was for [his] own personal protection against allegations of a sexual nature. He admitted to downloading these recordings to his personal computer [from] his mobile phone and creating the still snapshots.
When questioned about the digital images of the unconscious female, he refused to comment. In relation to the other matters, sir, when that warrant was executed a small canister of pepper spray was located inside the taxi. It was attached by velcro to the front dash on the right‑hand side of the steering wheel. He admitted ownership and stated it was for his own protection.
Counsel for the appellant made submissions in mitigation. During his submissions, counsel for the appellant said that:
(a)the appellant was 41 years of age with no prior record and had 'ironically' won the Safe Taxi Driver of the Year Award in 2007;
(b)the appellant suffered from psychological conditions including depression and a social anxiety disorder;
(c)the appellant was remorseful and pleaded guilty at the earliest opportunity;
(d)the appellant was unlikely to reoffend;
(e)as a result of the conviction the appellant would not be able to work in the taxi industry again;
(f)in relation to the pepper spray incident, the pepper spray was in the appellant's vehicle for 'his own personal protection'.
The appellant invited the magistrate to make a spent conviction order, saying:
[I]n support of that I have an article here from The West Australian where a businessman in Broome was fined $1200 in the Broome Magistrates Court for secretly filming backpackers showering at his home. That, in my submission, is a far more serious case of an indecent act in public by a recording, a covert recording device in the present, and in that case the presiding magistrate granted a spent conviction to the applicant.
The criteria that the court looks at when determining whether a spent conviction ought to be granted are the seriousness of the offence and it's conceded whether it's a serious offence, and it's not suggested that it's trivial or minor, but that has to be balanced against the prior character of the applicant and in this case Mr Wright's prior character is of the highest order.
Counsel for the appellant then referred again to some of the points made in mitigation and concluded:
He's a person now without work. He has fallen behind in his rent and has been kicked out of his place of residence and he's looking for a job. A conviction of that nature would bring massive alarm bells to a prospective employer and would make him unemployable, I would suggest, in the future. So taking those factors into account, I would ask your Honour to consider granting a spent conviction, and can I just hand up the article that deals with the gentleman in Broome who received a spent conviction for a serious offence?
The magistrate imposed a fine of $2,000 in relation to the indecent act charge and ordered the appellant to pay costs. On the charge relating to the possession of the pepper spray, a fine of $200 was imposed and the appellant was ordered to pay costs.
The magistrate dismissed the application for a spent conviction order for the following reasons:
An application has been made for [there] to be a spent conviction and I think this is probably one of the rare cases where it would be inappropriate to grant a spent conviction because it's important that future employers do know of this propensity that you displayed on this occasion.
I think this case can be clearly distinguished from the one in Broome where the fellow took photos of girls showering in his house, is clearly distinguishable from this, where you're a taxi driver where people all day and all night put themselves in your hands to look after them and take them where they wish to go. Young girls don't get into taxis expecting themselves to be photographed in the manner that these photos were taken.
There will be no spent conviction, as I think is - and as I said, it's probably a situation where one shouldn't be granted.
The convictions were recorded on 30 March 2011 and the sentences imposed on that same day.

The appellant appeals against the indecent act conviction and the magistrate's refusal to make spent conviction orders

By appeal SJA 1045 of 2011, the appellant appealed within the time permitted by s 10(3) of the Criminal Appeals Act 2004 (WA) against:
(a)his conviction in relation to the charge under s 203(1)(a) of the Code (the indecent act conviction); and
(b)the magistrate's decision to refuse to grant spent conviction orders on both charges.
The applications for leave to appeal were heard with the appeal. Commissioner Sleight heard the appeal on 5 August 2011 and on that day, granted leave to appeal but dismissed the appeals. Reasons for this decision appear as Wright v McMurchy [2011] WASC 219.

The appellant appeals against Commissioner Sleight's judgment

On 14 October 2011 the appellant appealed against Commissioner Sleight's judgment dismissing the appeal against the conviction on the indecent act charge and against the refusal to order spent convictions on both charges. That appeal was commenced within the time permitted by s 17(3) of the Criminal Appeals Act.
On 9 May 2011 Mazza JA granted leave to appeal against the indecent act conviction on grounds 1 and 2 which are set out below and referred grounds 3 and 4 to the hearing of the appeal. Mazza JA also referred the application for leave to appeal against sentence on grounds 1, 2 and 3 to the hearing of the appeal.

The appellant's late appeal against the weapon conviction

Much later, on 21 March 2012, the appellant commenced an appeal against the conviction on the charge under s 7(1) of the Weapons Act (the weapon conviction) and applied for an extension of time in which to appeal. The application for an extension of time was necessary because the appeal notice was filed 11 months outside the time prescribed for instituting an appeal. On 3 April 2012, Hall J referred the hearing of the appeal and the application for an extension of time to the Court of Appeal. Leave to appeal was also necessary and on 6 April 2012, Mazza JA made an order that such application be referred to the hearing of the appeal.
This appeal against the weapon conviction was only commenced after a directions hearing held before Mazza JA on 24 February 2012 regarding the appeal against Commissioner Sleight's judgment. At this hearing, his Honour pointed out that the appeal notice to this court against Commissioner Sleight's judgment dismissing the appeal against the indecent act offence and the sentences might be read as suggesting that the appellant was attempting to appeal against the conviction on the controlled weapon charge. Mazza JA pointed out to the appellant that that was not possible because Commissioner Sleight had only considered an appeal against conviction on the indecent act charge. Mazza JA pointed out that if the appellant wished to appeal against the weapon conviction, then he would need to institute a new appeal and apply for an extension of time.
The appellant then did file his appeal notice against the weapon conviction. He did not hurry to do so. He took nearly a further month to file the appeal notice. He filed an affidavit in support of his application for an extension of time. The affidavit refers to the arguments that he now wishes to advance, but provides no explanation for the 11 month delay in instituting the appeal. He merely says:
I apologise to the court for the delay in making this application. It was only recently brought to my attention that I had lawful excuse for possessing the said weapon.
He does not condescend to any particulars and does not depose to what discussion took place with counsel about whether or not he had a defence or the reasons why he chose to plead guilty.

Conviction appeal - indecent act in public - grounds of appeal

The appellant's grounds of appeal are that:
(a)the material facts did not disclose an offence known at law (ground 1);
(b)the acts alleged must occur both in public and in a public place and neither element was satisfied because:
(i)the motor vehicle that the appellant was in control of at the time of the offence did not constitute a 'public place';
(ii)the motor vehicle that the appellant was in control of at the time of the offence was not situated in a 'public place';
(iii)the motor vehicle that the appellant was in control of at the time of the offence was not visible from a 'public place';
(iv)the individual photographed did not see, hear or observe the appellant's act (ground 2);
(c)the indecent act was not carried out in public (ground 3);
(d)the appellant had reasonable grounds for believing he would not be observed (ground 4).

Sentence appeal - appeal against the dismissal of the application for spent conviction orders

The appellant does not specify any error on the part of Commissioner Sleight in his decision to dismiss this appeal. Instead, the appellant's grounds of appeal allege that the magistrate erred because he failed to give proper reasons for his decision not to make a spent conviction order for each offence, erred in the exercise of his discretion when he failed to make a spent conviction order for each offence, and finally that the magistrate erred in not recognising the criteria for a spent conviction order existed and 'there was no evidence to suggest that the awarding of one was not justified'.
The appellant, in effect, substantially repeats the grounds of appeal against sentence considered by Commissioner Sleight and it may therefore be inferred that the appellant contends that his Honour erred in his decision by failing to detect error in the magistrate's exercise of discretion in refusing to make the spent conviction orders in respect of both offences.

Conviction appeal - possession of a controlled weapon - grounds of appeal

The appellant listed five grounds which were, in effect, particulars of a single ground of appeal contending that there had been a miscarriage of justice on the basis that he was not advised by his counsel of the existence of regulations in the Weapons Regulations 1999 (WA) that on the facts of this case would have provided him with a defence to the charge.

Statutory provisions relating to the appeals

The appeal referred by Hall J

This is an appeal from a sentence imposed by a magistrate pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA). Section 7(1) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. This appeal has been referred to the Court of Appeal pursuant to s 13(2) of the Act. Once the order was made under that subsection, s 13(3) operates. It provides that if such an order is made, then pt 2 div 2 of the Act applies with any necessary changes as if:
(a)the appeal had been made to the Court of Appeal; and
(b)unless the context requires otherwise, references to the Supreme Court were to the Court of Appeal.
That means that s 8 applies. Section 8 specifies that an appeal may be made under pt 2 div 2 on one or more of the following grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law or fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Section 8(2) states that an appeal may be made under pt 2 div 2 against a decision, even if the decision was made after a plea of guilty or an admission of the truth of any matter.

The appeal from the judgment of Commissioner Sleight

This appeal is governed by pt 2 div 3. The right of appeal to this court is conferred by s 16(2) on a 'party to an appeal under Division 2 who is aggrieved by a decision made in the appeal by a single judge of the Supreme Court sitting in its General Division that (a) refuses leave to appeal; or (b) dismisses or decides an appeal'. Section 18 then applies certain provisions in div 2. Section 18 states that:
Subject to this Division, Division 2 (other than sections 7, 8, 10 and 13), with any necessary changes, applies to and in respect of an appeal under this Division as if -
(a)the appeal were an appeal under Division 2; and
(b)unless the context requires otherwise, references in Division 2 -
(i)to a court of summary jurisdiction were to the Supreme Court sitting in its General Division; and
(ii)to the Supreme Court were to the Court of Appeal.
If it were not for the words in brackets, the permitted grounds of appeal would be those in s 8. However, the words in brackets mean that s 8 does not apply. This has the result that there is no section specifying what grounds of appeal may be relied on in appeals against a decision made by a single judge.
The right of appeal conferred by s 16, is an appeal by way of rehearing. See r 25 Supreme Court (Court of Appeal) Rules 2005 (WA). The question then is, what grounds of appeal may be entertained by the court in an appeal under pt 2 div 3. That question is answered by ascertaining the legislative intent, a question which is not always 'greatly illuminated by the Delphic utterance that the appeal is by way of rehearing': Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 622 (Mason J).
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]

Disposition of conviction appeal - indecent act in public

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.
Section 203(1)(a) of the Code reads:
Indecent acts in public
(1)A person who does an indecent act -
(a)in a public place or in the sight of any person who is in a public place; or
(b)in a police station or lock up,
is guilty of a crime and is liable to imprisonment for 2 years.
Summary conviction penalty: imprisonment for 9 months and a fine of $9 000.
A public place is defined in s 1 of the Code in the following terms:
The term public place includes -
(a)a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or otherwise; and
(b)a privately owned place to which the public has access with the express or implied approval of, or without interference from, the owner, occupier or person who has the control or management of the place; and
(c)a school, university or other place of education, other than a part of it to which neither students nor the public usually have access.
The appellant contends in his written submissions that the offence did not occur in a 'public place' because the taxi was not on a public road at the time of the offence. His written submissions contend that the vehicle was on private property, namely the victim's driveway, when the indecent act occurred. There was no evidence or material before the magistrate which suggested that the indecent acts were committed when the taxi was on the victim's driveway.
The appellant, who represented himself at this appeal, was informed that the appeal had to be decided on the evidence and material that was before the lower court because of s 39(1) of the Criminal Appeals Act and that although the court had the power under s 40(1)(e) to admit other evidence at the hearing of the appeal, statements in the appellant's submissions did not constitute evidence. It was pointed out that if he wished to have that evidence before the court, it would have to be in the form of an affidavit or sworn testimony. Having been so advised, the appellant said that he would not persist with the contention that the indecent acts occurred in the taxi on a private driveway.
The appellant referred to a number of cases from other jurisdictions which considered whether particular places were public places at common law or under other types of legislation. The cases included: McIvor v Garlick [1972] VR 129, Inglis v Fish [1961] VR 607 and Walker v Crawshaw [1924] NZLR 93. It is true that particular issues may arise on particular facts or circumstances about whether a place is a public place. There is no need to analyse the cases because by reference to the statutory definition of 'public place' in the Code, the interior of the taxi occupied by the taxi driver and the victim did constitute a public place for the reasons given in the next paragraph.
Regulation 13 of the Taxi Regulations 1995 (WA) provides that at any time during which a driver is plying for hire, that driver must accept any hirer and any person accompanying a hirer as a passenger in a taxi he or she is driving unless the person or persons fall within certain exempt classes. One of the exempt classes is that a person appears to be under the influence of alcohol or drugs to such an extent that he or she is likely to soil the taxi or become abusive or aggressive. That exemption did not apply, because there was no evidence of the matters referred to in the exemption and in any event, the appellant accepted the victim as a passenger in the taxi as a result of the appellant plying for hire. Thus, the interior of the taxi was a place which satisfied (a) of the definition of 'public place'. It was a place to which the public, or a section of the public was permitted to have access on payment of a fee. In addition, the interior of the taxi fell within (b) of the definition of 'public place' because it was a privately owned place to which the public had access with the express approval of the person, namely the appellant, who had control or management of the taxi.
In his submissions, the appellant referred to exchanges between counsel and Commissioner Sleight during the course of the hearing as revealing error. Matters explored during the course of a hearing do not form part of the reasons for decision for the purpose of detecting error.
The appellant submitted that the offence was not committed unless it was committed in 'public'. When asked why the appellant made this submission, the appellant referred to the heading to s 203 which reads 'Indecent acts in public'. This was the sole basis of his submission. This submission must be rejected. Section 32(2) of the Interpretation Act 1984 (WA) provides that a heading to a section shall be taken not to be part of the written law.
The appellant also submitted that the indecent act had to be observed by a member of the public before the offence could be made out. That submission must be rejected. Section 203 of the Code provides that an indecent act committed either in a public place or in the sight of any person who is in a public place will constitute an offence. The charge against the appellant alleged that the offence occurred in a public place, not that it occurred in the sight of a person who was in a public place.
The appellant's reliance upon the fact that the victim did not observe his indecent act or that the appellant believed he would not be observed doing the indecent act does not provide him with any defence.
Finally the appellant referred to a slight difference between the transcript which recorded the commissioner's ex tempore reasons for decision and the final edited reasons for decision published by the commissioner. There is a slight difference and one sentence in the transcript does not appear in the published and edited version. The difference between the two versions does not alter the conclusions set out above.

Disposition of conviction appeal - possession of a controlled weapon

The appellant pleaded guilty to this charge. However, he contends that there was a miscarriage of justice because he had a defence to the charge. To understand this submission, it is necessary to set out the relevant legislation. Section 7 of the Weapons Act reads:
(1)Except as provided in section 10, a person who, without a lawful excuse, carries or possesses a controlled weapon commits an offence.
Penalty: imprisonment for 2 years and a fine of $24 000.
(2)Except as provided in section 10, a person who has a lawful excuse to carry or possess a controlled weapon commits an offence if the person carries or possesses it in a manner that could reasonably be expected to cause someone -
(a)to be injured or disabled; or
(b)to fear that someone will be injured or disabled.
Penalty: imprisonment for 2 years and a fine of $24 000.
(3)In this section a lawful excuse to carry or possess a controlled weapon does not include the excuse that the weapon is carried or possessed for defence.
(4)Subsection (3) does not apply to a controlled weapon of a kind prescribed for the purposes of this subsection as long as it is carried or possessed in such circumstances, if any, as the regulations may prescribe.
(5)Regulations under subsection (4) may apply generally or to a particular person or class of persons.
Section 11 of the Weapons Act reads:
In any proceedings against a person for an offence under section 6, 7, 8A or 8 the person has the burden of proving any exception under that section or section 10 or any lawful excuse on which the person seeks to rely.
Regulation 7 of the Weapons Regulations reads:
(1)A spray weapon made or modified to be used to discharge oleoresin capsicum is prescribed for the purposes of section 7(4) of the Act.
(2)Section 7(3) of the Act does not apply to a spray weapon referred to in subregulation (1) if it is carried or possessed by a person for the purpose of being used in lawful defence in circumstances that the person has reasonable grounds to apprehend may arise.
The appellant contends that he had a lawful excuse to carry the pepper spray. He said that as a taxi driver he had reasonable grounds to apprehend that the pepper spray might have to be used in lawful defence. He contended that taxi drivers could be attacked and that having reasonable grounds to apprehend such an attack meant that the pepper spray was carried or possessed for defence. The appellant relied upon reg 7. However, by reason of s 11 of the Weapons Act, the appellant had to prove that he had a lawful excuse to carry the pepper spray on the balance of probabilities. It was not necessary for the prosecutor as part of its case to negative such a defence.
In Hall v Collins [2003] WASCA 74, Wheeler J reviewed the common law background to the Weapons Act and concluded that the Act was intended to alter the law in some respects. Her Honour considered it to be significant that reg 7 did not make any reference to imminent defence or any form of temporal nexus between the possession and possible need for defence. Her Honour also concluded that it was noteworthy that the 'circumstances' which are to be considered under that regulation are not circumstances existing at the time of the possession or carriage; rather, they are circumstances which 'may' arise in future [14]. Her Honour added, however, that this did not mean that such spray can be carried at all times and in all circumstances. It is necessary for the person carrying the spray (the proof of lawful excuse being upon them pursuant to s 11 of the Act) to establish that there is an actual purpose of defence in circumstances which are reasonably anticipated.
There was no evidence put before the magistrate in this case to discharge the burden of proving that the appellant had lawful excuse. The mere assertion by his counsel that he purchased the pepper spray for his own personal protection was not sufficient to enliven the defence. The appellant did not claim that he was given wrong advice by his counsel.
The appellant apparently recognised that more was required. He contended in his written submissions and at the hearing of this appeal that he had 'once been the subject of an attack by a passenger in which he suffered severe bruising and facial injuries', but no particulars were provided. In his affidavit in support of his application for an extension of time, he said 'the appellant had recently been the subject of an attack by a passenger in which he received severe bruising and facial injuries' but did not depose to what he meant by 'recently'. The written submission did not constitute evidence which this court could receive under s 40(1)(e) of the Criminal Appeals Act. The appellant declined to go into evidence in support of this submission.
The respondent was inclined to agree that the appeal against the conviction on the pepper spray charge should be upheld because counsel for the appellant informed the magistrate that he had the pepper spray for personal protection and that the matter should be returned to the Magistrates Court 'pursuant to [s 14(1)(e)] of the Criminal Appeals Act'. The attitude of the respondent is not determinative. It is for this court to decide whether a ground of appeal has been established: see Noto v The State of Western Australia [2006] WASCA 278 [17] ‑ [19].
The law is not that a person may possess pepper spray and defend a charge under s 7 simply by asserting that it is for personal protection. It is necessary to show that there is an actual purpose of defence arising out of circumstances which are reasonably anticipated. No evidence of any reasonable anticipation that the pepper spray would be required as a defence was led at the hearing before the magistrate or before this court.
In the absence of any evidence beyond the mere assertion that he had the spray for 'personal protection', there is no basis for upholding the appeal against the weapon conviction.

Application for an extension of time in which to appeal - the weapon conviction

An application for an extension of time, in circumstances where there has been a lengthy delay, will not be granted by merely showing that there are reasonable prospects of demonstrating that there was a miscarriage of justice. This was explained in Bardsley v The Queen [2004] WASCA 251 [97] ‑ [114]. Wheeler JA said:
if all that were required to demonstrate a miscarriage of justice were that there should be a ground which would have succeeded in a regularly instituted appeal, one wonders what purpose the statutory limit and the existence of a discretion would serve. In practical terms, any person with a meritorious ground of appeal would succeed, whenever the appeal was instituted.
Her Honour added that there would be no practical consequence ever flowing from the failure to appeal within time if that were so. Her Honour added that both principle and authority suggested that the court may require more to be demonstrated than that an appeal ground will be successful should time be extended.
In Wimbridge v The State of Western Australia [2009] WASCA 196 her Honour explained that what 'more' had to be shown could not be defined exhaustively, but her Honour noted that relevant factors could include that the offence in respect of which the appellant wished to appeal had serious consequences and that there was no prejudice to the State. Other factors included the length of the delay, the reasons for the delay, and the strength of the appellant's case. Buss JA observed in the same case that the achievement of justice in a particular case is not confined to justice from the appellant's perspective, and that there is a definite public interest in compliance with the time limit for appealing against a conviction. His Honour also mentioned that there were five principal factors to be considered in determining whether to grant an extension, they being the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merit, the prejudice to the appellant if an extension of time is not granted, and the prejudice, if any, to the State or Crown if an extension of time is granted.
In this case there is a lack of merit in relation to the proposed appeal, there has been a very long delay in instituting the appeal and there has been no satisfactory explanation for the delay. It is not a satisfactory explanation to simply assert, as the appellant does, that he had just found out 'that he had a defence'. These factors justify a refusal of the application for an extension of time even though there was no suggestion of prejudice to the State if an extension were granted.

Appeal regarding the sentences

As to the appeal against sentences in relation to both convictions, the grounds of appeal can be condensed into a single ground that the primary judge erred in upholding the magistrate's exercise of his discretion not to make spent conviction orders. Section 45(1) of the Sentencing Act 1995 (WA) reads:
(1)Under section 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
(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.
The form of the section is important. It is a direction to the court not to make a spent conviction order unless the court considers that the offender is unlikely to commit such an offence again and having regard to one or other of the factors in subpar (b), it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
However, just because a court considers that an offender is unlikely to commit such an offence again and considers that the offender has previous good character, does not mean that it follows that the court is obliged to make a spent conviction order. In other words, s 45 does not require the making of an order once the matters referred to in s 45(1)(a) and (b) have been established. The decision remains one at the discretion of the court and which should be exercised sparingly. Consideration must be given to all the circumstances of the case, of the offender and of the public interest: Riggall v The State of Western Australia [2008] WASCA 69; R v Tognini (2000) WAR 291 [24] ‑ [28]; Neale v Sloan (1997) 27 MVR 246, 247 (Wheeler J).
The commissioner correctly noted that for an appeal against the exercise of a discretionary power to succeed, it is generally necessary to establish that the judicial officer at first instance failed to properly exercise his or her discretion for example, by acting upon a wrong principle, misstating the facts or allowing irrelevant matters to affect the decision: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
The commissioner correctly concluded in relation to the indecent act offence, that the magistrate was 'right to conclude that there was a public interest in potential employers being aware of the appellant's offending behaviour as it was suggestive of a propensity to engage in indecent acts'. This conclusion is sustained by the fact that photographs of a similar kind in relation to four other victims were also discovered by the police.
The appellant relied on a newspaper report that in Broome, a person who had committed an offence involving taking indecent photographs of victims, received a spent conviction order. The appeal cannot succeed just because of a newspaper report that another judicial officer once made a spent conviction order in different circumstances. Finally, the appellant contended, as he had before the commissioner, that the magistrate failed in his duty to give proper reasons and that the commissioner erred in not reaching such a conclusion. The commissioner was correct to hold that the magistrate gave adequate, although brief reasons for his decision. The magistrate did not make express reference to the public interest in the exercise of his discretion, but he made reference to the fact that passengers put themselves into the hands of a taxi driver and that '[y]oung girls don't get into taxis expecting themselves to be photographed in the manner that these photos were taken'. It can therefore be reasonably inferred that the magistrate took into account the public interest and regarded the offence as too serious to make a spent conviction order.

Ground 2 in relation to the sentence appeal alleges that 'the learned magistrate erred in the exercise of his discretion' when he failed to make a spent conviction order for 'each' conviction. However, the appellant's written submissions concerning the sentence appeal only address the alleged failure to make a spent conviction order in relation to the indecent act conviction. In one sentence in the submissions about the conviction of the weapons charge, the appellant concludes:
In the alternative the court is asked to record a spent conviction for this offence, in view of the appellant's otherwise clean record.
The appellant, through counsel before the magistrate, addressed submissions on why a spent conviction order should be made solely in relation to the indecent act charge. As a result, the magistrate's reasons explained why those submissions did not persuade him to make a spent conviction order in relation to that charge.
The commissioner in his reasons for decision said:
Having concluded that a spent conviction order should not be made in relation to the indecent act charge under s 203 of the Code, the magistrate was also entitled to exercise his discretion to refuse to make a spent conviction order in relation to the second charge under the Weapons Act 1999 [38].
A magistrate is not obliged to give reasons for not making a spent conviction order every time a person is sentenced. If no submission is made that a spent conviction order should be made and nothing prompts the magistrate to consider that such an order should be made, then reasons do not have to be given.

There was no error by the magistrate in not making a spent conviction order relating to the weapons charge and in the circumstances he was not obliged to give reasons for not doing so.
Further, no error has been demonstrated in the commissioner's decision to dismiss the appeal against the magistrate's refusal to make a spent conviction order.
As a result, the formal orders should be:
(1)the application for an extension of time to appeal against the weapons conviction should be dismissed;
(2)the application for leave to appeal on grounds 3 and 4 in relation to conviction on the indecent act charge should be refused;
(3)the application for leave to appeal on all grounds in relation to sentence should be refused; and
(4)both appeals should be dismissed.
BUSS JA: I agree with the formal orders proposed by Pullin JA. Subject to the observations which follow, I agree generally with his Honour's reasons.

The statutory framework governing the appeals

A right of appeal is a creature of statute. It is not a common law remedy.
Appeals from decisions of courts of summary jurisdiction are governed by pt 2 of the Criminal Appeals Act 2004 (WA) (the Act).
The Act (other than s 1 and s 2) commenced on 2 May 2005. Section 1 and s 2 commenced on 23 November 2004.
On 1 February 2005, the Court of Appeal was established by the Acts Amendment (Court of Appeal) Act 2004 (WA), which made amendments to the Supreme Court Act 1935 (WA).
Since 1 February 2005, by s 7(1) of the Supreme Court Act, the exercise of the Supreme Court's jurisdiction has been divided between the General Division and the Court of Appeal.
Division 2 of pt 2 of the Act is concerned with appeals from a court of summary jurisdiction to the Supreme Court constituted by a single

judge sitting in its General Division (a Single Judge). Division 2 comprises s 7 ‑ s 15.

By s 7(1), a person who is aggrieved by a decision of a court of summary jurisdiction may appeal against the decision to a Single Judge.
Section 8(1) provides that an appeal may be made under div 2 on one or more of the following grounds:
(a)that the court of summary jurisdiction ‑
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
By s 9(1), the leave of a Single Judge is required for each ground of appeal in an appeal under div 2. Section 9(2) provides that after an appeal is commenced, a Single Judge must not give leave to appeal on a ground of appeal unless satisfied the ground has a reasonable prospect of succeeding. By s 9(3), unless a Single Judge gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
By s 13(1), an appeal under div 2 must be dealt with by a Single Judge, unless an order is made under s 13(2). Section 13(2) provides that, at any time before an appeal is concluded, a Single Judge, on the judge's own initiative or on the application of a party, may order that the appeal be dealt with by the Court of Appeal. Section 13(3) provides that if an order is made under s 13(2), div 2, with any necessary changes, applies as if:
(a)the appeal had been made to the Court of Appeal; and
(b)unless the context requires otherwise, references to the Supreme Court were to the Court of Appeal.
Section 14 enumerates a Single Judge's powers on an appeal. It provides, relevantly:
(1)In deciding an appeal, the Supreme Court may do one or more of the following ‑
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court ‑
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case;
(f)make any order under the Magistrates Court Act 2004 section 36(6);
(g)if the appeal is against a decision to acquit an accused of a charge on account of unsoundness of mind or to make or refuse to make an order under the Criminal Law (Mentally Impaired Accused) Act 1996, exercise any power that the Court of Appeal may exercise under section 32;
(h)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction;
(i)make any other order it thinks fit.
(2)Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
(3)The Supreme Court is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence ‑
(a)in substance support the decision; or
(b)justify the finding,
and the Supreme Court, under subsection (1), may instead either vary the decision or substitute another decision for it.
Division 3 of pt 2 of the Act is concerned with appeals from a Single Judge to the Court of Appeal. Division 3 comprises s 16 ‑ s 19.
By s 16(2), a party to an appeal under div 2 who is aggrieved by a decision made in the appeal by a Single Judge that:
(a)refuses leave to appeal; or
(b)dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
Section 17(1) provides that an appeal under div 3 'must be commenced and conducted in accordance with [div 3] and rules of court'. By s 17(2), an appeal under div 3 'must be commenced by lodging with the Court of Appeal an application for leave to appeal that sets out the grounds of the appeal'.
The terms 'rules of court' and 'Supreme Court' are defined in s 4(2) of the Act. Section 4(2) provides that in the Act, unless the contrary intention appears:
rules of court means rules of court made by the Supreme Court;
…
Supreme Court does not include the Court of Appeal.
The term 'rules of court' appears in numerous provisions of the Act including s 10(1), s 17(1), s 28(1), s 40(1)(c), s 46E(4), s 46(1), s 47(3) and s 50.
Section 50(1) of the Act provides that s 50 is in addition to and does not affect the operation of s 167 of the Supreme Court Act. Section 167 authorises the judges of the Supreme Court to make rules of court under the Supreme Court Act for the purposes set out in s 167. Section 50(2) of the Act empowers the Supreme Court to make rules of court prescribing any matter that is required or permitted by the Act to be prescribed, or that is necessary or convenient to be prescribed for giving effect to the purposes of the Act. By s 50(3)(a) of the Act, without limiting s 50(2), rules of court may regulate the commencement and conduct of proceedings under the Act.
By s 18:
Subject to this Division, Division 2 (other than sections 7, 8, 10 and 13), with any necessary changes, applies to and in respect of an appeal under this Division as if ‑
(a)the appeal were an appeal under Division 2; and
(b)unless the context requires otherwise, references in Division 2 ‑
(i)to a court of summary jurisdiction were to the Supreme Court sitting in its General Division; and
(ii)to the Supreme Court were to the Court of Appeal.
Section 19(1) provides that s 19 does not limit the operation of s 18. By s 19(2):
In deciding an appeal under this Division, the Court of Appeal may, in addition to exercising any of the powers in section 14, do one or more of the following ‑
(a)order the case to be dealt with again by the court of summary jurisdiction, with or without orders to that court ‑
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case;
(b)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
Section 8(1) expressly states the grounds on which an appeal may be made to a Single Judge under div 2 of pt 2 of the Act against the decision of a court of summary jurisdiction.
However, the Act does not expressly state the grounds on which an appeal may be made to the Court of Appeal under div 3 of pt 2 of the Act against the decision of a Single Judge made in an appeal under div 2. Although s 18 makes various provisions of div 2 applicable to appeals from a Single Judge to the Court of Appeal under div 3, s 18 expressly states in effect that s 7, s 8, s 10 and s 13 do not apply to or in respect of appeals under div 3. Section 18 replicates, in part, the substance of s 206A(4) of the Justices Act 1902 (WA) (repealed). Division 3 is based in part on s 189 and s 206A of the Justices Act. Section 206A(4) stated, in effect, that s 186 of the Justices Act did not apply in respect of appeals to the Full Court. Section 8 of the Act replicates, in part, the substance of s 186.
As I have mentioned, s 17(1) of the Act stipulates that an appeal under div 3 must be commenced and conducted in accordance with div 3 and rules of court, and s 17(2) specifies that an appeal under div 3 must be commenced by lodging an application for leave to appeal that set out the grounds of the appeal. The rules of court govern the conduct of appeals under div 3 to the extent the rules provide for the conduct of such appeals and the provision is not inconsistent with the Act.
The Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) commenced on 2 May 2005. The Court of Appeal Rules were not made by the Court of Appeal. They were made by the judges of the Supreme Court of Western Australia as a whole.
Rule 25 of the Court of Appeal Rules provides that an appeal to the Court of Appeal will be by way of a re‑hearing unless another written law provides otherwise. The Act does not provide otherwise. As to the nature of an appeal by way of re‑hearing, in the context of the Act and the Court of Appeal Rules, see Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [4] (Steytler P & McLure JA).
Rule 32 of the Court of Appeal Rules, which applies, relevantly, to an appeal under div 3 of pt 2 of the Act, requires the appellant to file the 'Appellant's case'. By r 32(3), relevantly, a document titled 'Appellant's grounds of appeal' must be attached to the appellant's case. Rule 32(4)(a) specifies that the document titled 'Appellant's grounds of appeal' must contain all of the grounds of appeal on which the appellant intends to rely at the hearing of the appeal. Rule 32(4)(c) requires that the document titled 'Appellant's ground of appeal' state, for each ground, whether it is an error of fact, an error of law or an error of mixed fact and law.
It is apparent from s 17 of the Act, read with r 32(4) of the Court of Appeal Rules, that the grounds of appeal in an appeal under div 3 of pt 2 of the Act must identify an error by the Single Judge whose decision is under appeal. Rule 32(4) is not inconsistent with any provision of the Act applicable to the conduct of an appeal under div 3.
In Avsar v Binning [2009] WASCA 219, Owen JA (Miller & Newnes JJA agreeing) said:
While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks [37].
In the present case, the grounds on which an appeal may be made under div 3 of pt 2 of the Act were not referred to by the appellant or the respondent either in written submissions or at the hearing. The issue was not raised by the court with the parties. It is unnecessary and, in the absence of submissions, undesirable to decide the point exhaustively in this appeal. The appellant and the respondent presented their arguments at the hearing on the implicit basis that it was necessary for the appellant to establish that Commissioner Sleight had made a material error of fact or law or mixed fact and law in dismissing the appellant's appeal against the impugned decisions of Magistrate Heaney. It is sufficient, for present purposes, to record my opinion that the available grounds of appeal in an appeal under div 3 include, at least, a material error of fact or law or mixed fact and law by the Single Judge whose decision is challenged.

The test to be applied by this court in deciding whether to set aside a conviction based on a plea of guilty

An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia [2006] WASCA 129 [26]:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling; unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia [2011] WASCA 14 [23]. See also Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P, Buss & Mazza JJA agreeing).
In the present case, the appellant is not within any of the well‑recognised categories in which appellate courts are prepared to set aside a conviction based on a plea of guilty. The facts, circumstances and

contentions relied on by the appellant do not otherwise establish that a miscarriage of justice has occurred. In particular, generally for the reasons given by Pullin JA, the appellant does not have a reasonably arguable case, and has not shown a triable issue, on the merits in relation to either of the charges on which he was convicted. This is sufficient, in the present case, to require that the application for an extension of time to appeal against the weapons conviction be dismissed, the application for leave to appeal on grounds 3 and 4 in relation to the indecent act conviction be refused and the appeal against the indecent act conviction be dismissed.

MAZZA JA: I agree with the orders proposed by Pullin JA generally for the reasons he gives.