Zobair v Miller
[2017] WASC 241
•14 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ZOBAIR -v- MILLER [2017] WASC 241
CORAM: SMITH AJ
HEARD: 14 AUGUST 2017
DELIVERED : 14 AUGUST 2017
FILE NO/S: SJA 1031 of 2017
BETWEEN: ISMAEL ZOBAIR
Appellant
AND
JIMMY ALBERT MILLER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G R SMITH
File No :PE 6617 of 2016
Catchwords:
Criminal law - appeal against conviction - Appellant convicted of indecent assault - Plea of guilty - Integrity of the plea - Prosecutor gave appellant incorrect advice upon which he relied - Miscarriage of justice conceded - Whether facts read to the Magistrates Court could establish as a matter of law indecency considered
Legislation:
Criminal Appeals Act 2004 (WA), s 8(1)(b), s 39(1), s 40
Criminal Code (WA), s 323, s 324
Result:
Appeal allowed
Conviction set aside
Matter remitted to Magistrates Court
Category: B
Representation:
Counsel:
Appellant: Ms N R Sinton
Respondent: Mr B M Murray
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Drago v The Queen (1992) 8 WAR 488
Gibson v The State of Western Australia [2017] WASCA 141
Hall v Fonceca [1983] WAR 309
Librizzi v Cotton [2006] WASC 152
Murphy v Spencer [2013] WASC 256
Vella v The State of Western Australia [2006] WASCA 129
SMITH AJ:
(This judgment was delivered extemporaneously on 14 August 2017 and has been edited from the transcript).
The appeal
On 13 March 2017, the appellant was convicted on a plea of guilty of an offence, under s 323 of the Criminal Code, that on 16 September 2015, at Gap Ridge, he unlawfully and indecently assaulted the complainant. He was fined $450, ordered to pay costs and a spent conviction order was made.
The appellant seeks leave to appeal against the conviction. The ground of appeal is that there was a miscarriage of justice in that the appellant, who was unrepresented, pleaded guilty to a charge of indecent assault when in all the circumstances his conduct was not indecent.
Whilst there is only one ground of appeal, there are two issues raised by the appellant. The first issue is that he claims his conviction should be set aside on grounds his guilty plea was induced by advice which the prosecutor gave him. The second issue is a contention that the facts alleged by the prosecution could not establish, as a matter of law, indecency.
Leave to appeal to set aside a conviction on a plea of guilty
The appellant also seeks leave to appeal out of time and leave to adduce further evidence on appeal; namely an affidavit sworn by him on 28 April 2017. The respondent does not oppose either of those applications. The respondent concedes that the appellant has established that his conviction ought to be set aside, however the respondent maintains it would be open to a Magistrate to convict the appellant on the facts as outlined by the prosecutor.
Section 8(1)(b) of the Criminal Appeals Act 2004 (WA) (the Act) provides an appeal may be allowed on a ground that there was a miscarriage of justice.
The appellant was unrepresented and had maintained his not guilty plea until the date of the trial. In his affidavit sworn on 28 April 2017, the appellant states:
(1)He spoke to the police prosecutor the day before the trial. He asked her what would happen if he pleaded guilty, and what would happen if he pleaded not guilty.
(2)She told him if he pleaded not guilty and was found guilty he might have a conviction recorded. She also told him if he pleaded guilty he could get a spent conviction and if he got a spent conviction and a fine under $500 he would not lose his security licence.
(3)He decided to plead guilty as he did not want a conviction recorded.
(4)After he pleaded guilty he went to the police licensing services in Cannington to get his licence back and was told because of his conviction he could not get his licence back for five years from the date of his conviction.
The law is clear that the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa v The Queen [2003] WASCA 254 [20], applied in Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P) (Wheeler & Buss JJA agreeing) and more recently in Gibson v The State of Western Australia [2017] WASCA 141 [154] - [155].
The respondent concedes that the conviction should be set aside as a miscarriage of justice based upon the guilty plea in these circumstances and the conviction should be quashed or set aside. In particular, it is conceded that a miscarriage of justice arises because although the prosecutor acted in good faith the advice she gave to the appellant that he would not lose his security licence if he obtained a spent conviction was incorrect and the appellant pleaded guilty in reliance of this advice.
In light of this concession, I am of the opinion leave to appeal should be granted, the appeal allowed, and the conviction be set aside.
Should a verdict of acquittal be entered, or the matter be remitted to the Magistrates Court for rehearing
The remaining question to be determined in this appeal is whether a verdict of acquittal should be entered or the matter be remitted to the Magistrates Court for rehearing.
An appeal to this Court, pursuant to s 39(1) of the Act is by way of a rehearing on the evidence and material before the lower court and is to be determined on that evidence and material, together with any evidence admitted on appeal pursuant to s 40 the Act.
At the time the alleged offence occurred the appellant was on duty as the night security guard at a village mine site where the complainant resides. The facts upon which the appellant was convicted were stated by the prosecutor as follows:
It was about midnight that the accused was having a conversation with a victim and her friends outside the accommodation unit. He was there speaking with the victim and her friends until about 1.30 in the morning. He then offered to come back and wake her at 4 am to assist her - or to wake her at 4.30 - at 4 am when she had to get ready for her shift.
At 4 o'clock that morning, he has knocked on the victim's door. She was already awake. She was preparing to get ready for work. She was in her pyjamas at the time. The victim thanked the accused and it was at this point that he walked into the unit, sat down on a chair - it's a single‑occupancy (indistinct) the accused has then stood up and said that he wanted to ask the victim one question. The victim said, 'Just ask the question and leave.' The victim took hold of - sorry - the accused took hold of both victim's hands and held them and he told her that he had feelings for her.
She felt uncomfortable with his behaviour. She pulled her hands away and she asked him to leave. He refused to leave and asked her for an answer to his question. She then told the accused that she had a partner and she was not interested in any relationship. The accused then asked for a cuddle and, before the victim could reply, he has placed both hands around her and he has given her a hug. He then went to kiss her and kissed her on the neck once. She pushed him away with both hands, telling the accused to leave and that her work colleague would be coming to collect her soon. He left the (indistinct) after that and then the accused [sic] made a complaint to her supervisor about the matter.
… in a video record of interview with the Kensington detectives and, in explanation, he said, 'I may have gone too far on that date.'
In his affidavit sworn on 28 April 2017, the appellant states that he cannot remember the incident well, that he knew he hugged the complainant when he was leaving her room but he is not sure if he kissed her.
The appellant puts two alternative arguments to the court in this appeal.
Principally the appellant argues that he should be acquitted and submits that as explained by the decision of McKechnie J in Librizzi v Cotton [2006] WASC 152; a kiss that is not for sexual gratification cannot as a matter of law be indecent. In that matter, the kiss was on the lips during a struggle between a man and a woman in the bushes.
The appellant in this matter, on the facts presented to the Magistrate by the prosecutor, argues that by telling the complainant he had feelings for her and, after she told him she had had a partner and was not interested, by hugging her and kissing her on the neck could not, as a matter of law, establish indecency.
The respondent disagrees and says that the matter should be remitted to the Magistrates Court for a hearing as to whether the conduct of the appellant constituted an indecent assault. The respondent submits that it would be open to the Magistrate to find that the assault was indecent having regard to the following circumstances:
(1)The incident occurred at 4.00 am in the victim's accommodation.
(2)The victim was wearing pyjamas.
(3)Immediately before kissing the victim the appellant told her that he had feelings for her, asked for a cuddle and proceeded to hug the victim.
Consequently, the respondent argues that it would be open to a Magistrate to conclude that the act of kissing the victim on the neck was an assault of a sexual character in the sense that it was unbecoming or offensive to common propriety. Therefore, it is argued that it would not be appropriate to enter a verdict of acquittal.
The alternative argument put on behalf of the appellant is that the matter should be remitted to the Magistrates Court for hearing on the issue of indecency as the facts before the Magistrates Court as read do not establish that there was a sexual element in the conduct of the appellant.
The appellant and respondent agree that if after hearing on the evidence, when regard is had to the circumstances as outlined by the prosecutor, if no sexual element is established a verdict of acquittal should be entered.
Conclusion
I am of the opinion that the appeal should be allowed and that the conviction should be set aside and the matter remitted to the Magistrates Court for hearing.
Section 323 of the Criminal Code provides that a person who unlawfully and indecently assaults another person is guilty of a crime and is liable to imprisonment for five years. The summary conviction penalty is imprisonment for two years and a fine of $24,000.
The offence of assault in circumstances without consent incorporates an element of intention on the part of the assailant either to use force or to create an apprehension of the use of force in the complainant. The authority for this proposition is well known: Hall v Fonceca [1983] WAR 309, 314 (Smith & Kennedy JJ). Hall v Fonceca was recently applied by Corboy J in Murphy v Spencer [2013] WASC 256 [50] - [52] in an appeal against a conviction of an offence of indecent assault in circumstances of aggravation in respect of an offence under s 324 of the Criminal Code.
In this matter, the acts of the appellant in hugging and kissing the complainant appear on the facts as read to the Magistrates Court could be said to constitute an assault, as it appears there was no consent by the complainant. However, the issue is whether the conduct complained of is capable of constituting an indecent assault.
In Drago v The Queen (1992) 8 WAR 488, the Court held that the offence of indecent dealing was conduct that was unbecoming or offensive to common propriety determined by examining contemporary standards of decency and propriety in the community. Their Honours also found that where the conduct is of a sexual character, the conduct must involve the human body, bodily actions or bodily functions in a sexual way. Whilst those findings were made by the Full Court in relation to the offence of indecent dealing, the test in Drago was applied by Corboy J in Murphy v Spencer.
In my respectful opinion, the decision of McKechnie J in Librizzi that the act of kissing not done for sexual gratification, cannot as a matter of law, be indecent, cannot be construed as authority for the proposition that kissing cannot in any circumstances constitute indecent conduct for the purposes of s 323 of the Criminal Code.
Whether the act of kissing a person without their consent constitutes indecent conduct would turn upon the circumstances of a particular matter. In this matter, in the absence of a plea of guilty to the offence of indecent assault, the acts of the appellant are in my opinion insufficient to prove the conduct of the appellant was indecent.
In Drago, Murray J observed:
In my opinion, whether an act may be described as indecent because it offends against community standards of decency, may depend not only upon the nature or quality of the act in itself, but upon the motive or purpose of the actor. That would be so under the Code in my view, just in the same way as at common law (503).
Whilst this observation was made by his Honour in the context of a charge of indecent dealing, this observation may have application if in circumstances this is a matter relevant to determining whether an offence arises under s 323 of the Criminal Code.
Importantly, in this matter the parties agree that for the conduct of the appellant to constitute an indecent assault a finding must be made that the conduct was in the circumstances of a sexual character.
In this matter, in the absence of a plea of guilty, the purpose or intent of the appellant hugging and kissing the complainant is not apparent on the facts put.
To determine whether the conduct of the appellant in all the circumstances constituted an unlawful indecent assault, regard should be had to the evidence of what was said by the appellant to the complainant and the complainant herself, together with any explanation of how the kiss on the neck occurred. In particular, it is not clear on the facts read to the Magistrates Court whether the complainant moved her body when the appellant went to kiss her. When regard is had to all of these matters, the conduct of the appellant may constitute indecent conduct or it may not.
For these reasons, an order is made:
(1)The time for filing the notice of appeal be extended to 25 May 2017.
(2)The application for leave to adduce further evidence on appeal, namely the affidavit sworn by the appellant on 28 April 2017, is granted.
(3)Leave to appeal is granted.
(4)The appeal is allowed.
(5)The conviction, fine of $450.00, costs of $168.90 and costs of 20 cents in respect of Prosecution Notice Number PE 6617 of 2016 be set aside.
(6)The matter is remitted to the Magistrates Court of Western Australia at Perth.
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