Criminal law - Application for leave to appeal against conviction - Circumstances in which a court will set aside a plea of guilty - Turns on own facts

Borsa v The Queen [2003] WASCA 254

Windie v The State of Western Australia [2012] WASCA 61

1 McLURE P: The appellant seeks an extension of time within which to appeal and leave to appeal against his conviction on 1 November 2010 of one count of aggravated armed robbery. The appeal notice was filed on 18 July 2012, approximately one year and eight months after the conviction. The delay in commencing the appeal is gross. The affidavit in support of the application for an extension of time does not adequately explain the reasons for the delay.

2 The offence, to which the appellant entered a fast-track plea of guilty, was in terms that:

On 12 May 2010 at Cooloongup, Ashley James Glossop and Ross Mervyn Medlen stole from Viet Xuan Tran, with threats of violence, a Toshiba laptop, the property of Viet Xuan Tran trading as Grange Deli.

3 There were two circumstances of aggravation, being that the appellant was armed with an offensive weapon (a knife) and was in company.

4 The appellant and Medlen both pleaded guilty to the offence and were sentenced by Murray J on 1 November 2010. Both the appellant and Medlen were legally represented on that day. The prosecutor read out the material facts of the offending. The appellant's counsel informed the court, in the presence of the appellant, that 'Mr Glossop accepts the statement of material facts as read' (ts 11). Medlen, by his counsel, also accepted the accuracy of the material facts.

5 The facts reads out by the prosecutor were only consistent with the appellant's guilt. The material facts are also consistent with admissions made by the appellant to police in a video-recorded interview conducted on 26 July 2010.

6 The appellant, who is not legally represented in the appeal, seeks to challenge the veracity of evidence in the prosecution brief, including a statement which the appellant now denies signing. The grounds of appeal are not supported by sworn evidence.

7 The case law demonstrates that it is difficult to persuade a court to set aside a plea of guilty. There are three recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:

(1) if the appellant did not understand the nature of the charge or did not intend to admit guilt; or

(2) if upon the admitted facts the appellant could not, in law, have been guilty of the offence; or

(3) where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like. See Borsa v The Queen [2003] WASCA 254 [20]; Windie v The State of Western Australia [2012] WASCA 61.

8 The appellant has had significant experience in the criminal justice system. He was legally represented when he entered his plea of guilty and expressly admitted, through his counsel, the material facts of the offence. The plea of guilty was consistent with the appellant's admissions to police. Even if the allegations in the grounds of appeal were supported by sworn evidence, they fall well short of providing a proper basis upon which to set aside the appellant's plea of guilty.

9 None of the grounds of appeal have a reasonable prospect of succeeding and the explanation for the gross delay in commencing the appeal is inadequate. In those circumstances, an extension of time to appeal should be refused and the appeal dismissed.