Supreme Court of WA|2005-11-03|Before: Burt CJ, Kennedy JJ, McKechnie J

Evans v Pelka [2005] WASC 240 (3 November 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : EVANS -v- PELKA [2005] WASC 240

Appeals - Application for extension of time - Principles - Criminal law and procedure - Sentencing - Whether spent conviction order should be made - Legal practitioners - Duty of counsel - Miscarriage of justice - No error of Magistrate - Principles of parity

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Brewer v Bayens (2002) 26 WAR 510

Gavan v The Queen (1992) 6 WAR 195

Harper v Page [2004] WASCA 267

Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108 (Burt CJ, Wallace and Kennedy JJ); 2 December 1985

Peck v The State of Western Australia [2005] WASCA 20

Pelka v Sundquist [2005] WASC 52

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v McDonald [2000] WASCA 336

Waldock v Taylor [2003] WASCA 43

1 The applicant is the sole director of Parkfurn Pty Ltd ("Parkfurn"). Parkfurn is a Harvey Norman franchisee and has operated a furniture retail franchise at Osborne Park since 1999.

2 On 22 June 2003, a Sunday, many Harvey Norman franchisees in Western Australia, including Parkfurn, opened their shops deliberately courting prosecution under the Retail Trading Hours Act 1987 (WA).

3 In due course both the applicant and Parkfurn were charged. The applicant was charged with having consented to the commission of an offence by Parkfurn contrary to s 25(i)(a) of the Retail Trading Hours Act.

4 On 29 October 2004 after trial, the applicant was convicted of the offence and fined $1500 plus costs. It would appear that there were a large number of franchisees charged with offences and the parties agreed some cases would first proceed as test cases. The applicant's case was one such case. The Magistrate found there was no case to answer in respect of some matters and recorded convictions in respect of others including that of the applicant. The prosecution appealed against the acquittals while the defendants, including the applicant, appealed against the convictions. On 7 April 2005 I handed down a judgment, inter alia, affirming the conviction of the applicant: Pelka v Sundquist [2005] WASC 52.

5 Following that decision, solicitors for the franchisees entered into negotiations with the complainant department as to the further progress of the matter reaching an "in-principle" agreement on 10 May 2005. Around about 17 May 2005 the complainant department indicated that it would not oppose applications by franchisee directors for spent conviction orders.

6 A number of cases were dealt with by the Magistrate on 17 June 2005. In respect of the directors of franchisees he imposed the same fines as had been imposed upon the applicant and others in October 2004, namely a fine of $1500. He granted applications for spent conviction orders for the directors in each case.

7 On 31 August 2005, other cases came before another Magistrate who, on the principle of parity, imposed fines in the same amount and made spent conviction orders.

8 On 13 September 2005, nearly 10 months after the last date for appealing, the applicant lodged an application for extension of time within which to appeal and an application for leave to appeal. These applications were supported by an affidavit of the applicant and an affidavit of his solicitor.

9 The matter came before me on 10 October 2005 but was adjourned until 17 October 2005 so that the applicant could file an affidavit correcting material errors in the affidavit filed in support of the application.

10 On 17 October 2005 counsel for the complainant/respondent indicated that neither the extension of time nor the appeal were opposed. In the course of arguing why an extension of time should be granted for leave to appeal, counsel for the appellant necessarily advanced significant argument as to the merits of the appeal. For this reason, with the agreement of each party, I indicated that I would hear the application for extension of time to appeal and the application for leave to appeal together and treat the argument as argument on the appeal.

11 A right of appeal is a statutory creation, not a common law principle. It is a right limited by time. The Criminal Appeals Act 2004 (WA) provides for 28 days in which the right may be exercised. If not exercised within that time, the right is lost. The Court has power to extend time.

12 The leading case in this jurisdiction is Narkle v The Queen, unreported; CCA SCt of WA; Library No 6108 (Burt CJ, Wallace and Kennedy JJ); 2 December 1985 per Burt CJ. He said:

"(s 695(1)) contains no express criteria controlling the Court's discretion to extend time and in that sense it can be said that the discretion is unfettered. But that is not to say that it will be exercised as of course. It should only be exercised upon facts shown which in the judgment of the court appear positively to call for its exercise and the onus upon an applicant for extension of time will of course increase as the time goes by. A delay of 4½ months, as in this case, can only be described as gross and it would be necessary to show very special circumstances indeed to sustain the exercise of this Court's discretion to extend time to that extent. Those circumstances may explain and excuse the delay or they may relate to the grounds of appeal and indeed the latter consideration may become and will become dominant should it appear that there has been a manifest miscarriage of justice. The discretion has always been exercised by this Court having regard to those two broad considerations ..."

13 This principle has been consistently applied: Gavan v The Queen (1992) 6 WAR 195; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338; Cameron [2004] WASCA 16; (2004) 142 A Crim R 424; Peck v The State of Western Australia [2005] WASCA 20.

14 In Bardsley Wheeler J dissented in the result. In her view what is required is for an applicant "to demonstrate a 'manifest miscarriage of justice' in the context of a case such as the present is more than the mere loss of a chance of acquittal".

15 Wheeler J analysed the authorities on the point including Narkle, Gavan and Cameron. She noted that in R v McDonald [2000] WASCA 336 it was said that in order to justify the extension of time it was necessary to show "that there would be a miscarriage of justice if an extension of time were not granted in this case, a miscarriage so significant as to justify an exercise of the discretion to extend time by some 7½ months". That observation suggests that more may be required than simply a demonstration that the appeal would otherwise have been successful. She noted that Cameron was the only decision she could locate "which appears to rest primarily upon the view that at some stage the length of the delay and the nature of the applicant's conduct giving rise to the delay may justify the refusal of an extension of time, independently of any consideration of the merits of the appeal". She concluded at [114]:

"It is my view that both principle and authority in this State suggest that the Court may require more to be demonstrated than that an appeal ground will be successful, before time is extended."

16 In my respectful opinion, despite the fact that Wheeler J was in dissent on this issue, there is much to commend her reasoning, supported as it is by the decision in McDonald.

17 The applicant relied upon Waldock v Taylor [2003] WASCA 43. In that case the appellant was convicted on 15 October 1999 of a charge of breaching a restraining order. A conviction was recorded and a conditional release order for 6 months and a fine of $200 was imposed. Three and a half years later an application for an extension of time within which to appeal was brought. The applicant had only recently come to realise that he had a conviction on his record and that the existence of the conviction prejudiced his prospects in relation to employment. That case is of little assistance and is distinguishable, in part, because as the appellant was given a good behaviour bond which he thought meant that he was "let off" and did not appreciate that he actually had a conviction recorded. The Judge on appeal, Roberts-Smith J, found that on the facts presented to the Magistrate, and having regard to the disposition by way of good behaviour bond, the jurisdiction had been enlivened. At [67]:

"I do not think that events some years after a conviction, going only to demonstrate the adverse consequences of it, could of themselves in some way demonstrate error on the part of the sentencing court, nor could they be expected to give rise to a reason which would be sufficient to justify a review of the decision. A reason that an offender had not appreciated the consequences of a punishment imposed upon him where that was otherwise an appropriate disposition and within the scope of the proper exercise of the sentencing discretion of the court at first instance would not be a sufficient reason within the meaning of that expression in s 186(1)(b) of the Justices Act. I do not therefore accept the 'floodgates' argument advanced by the respondent."

18 The Judge noted at [73] "The present case is an exceptional one which does demonstrate some quite unique features."

19 I do not regard the present case as an exceptional one with unique features.

The factual circumstances giving rise to this application

20 At the trial in October 2004 the applicant was represented by competent counsel of many years experience. Notwithstanding, following conviction, when asked to make a plea in mitigation, the substance of the plea concerned counsel's view that:

"... in the 21st century [the Retail Trading Hours Act] is an outdated Act with a restrictive and quite uncalled for interference in trade or commerce in this state, and this state, your Worship, is the only state in Australia that carries an offence of trading on a Sunday.

It is an anachronistic piece of legislation. This court has the opportunity to say that taking up court time charging people with trading - - running a business on a Sunday on the scale of offences given the other busy schedules before this court doesn't attract a high penalty."

21 No personal details about the applicant were advanced by way of mitigation. The Magistrate drew counsel's attention to the position of the applicant among others when he asked:

"... what regard if any should I have to what appears to be the case that there was an awareness by the directors of these companies that they were trading contrary to law? It wasn't in effect an accidental breach; it was a deliberate breach."

22 Counsel's submission responded to this question and concluded:

"The evidence before you I think establishes we opened deliberately but as first offenders."

23 Mr R W Cannon, a long time practising criminal lawyer in this State, used to remark "I fight cases not causes". Words of wisdom. More detail and less rhetoric may have been helpful to enable the Magistrate to avoid possible appellable error.

24 In the event the Magistrate was deprived of any assistance as to the impact of a conviction upon the applicant. Counsel specifically made no submission at all regarding the possibility of a spent conviction order under the Sentencing Act 1995 (WA) s 45. There was no assistance given as to whether the applicant satisfied the criteria under s 45(1). Clearly the applicant was of good character but in view of the submissions made about the Retail Trading Hours Act, s 45(1)(a) of the Sentencing Act may have been in issue; that is, whether the offender is unlikely to commit such an offence again.

25 Criminal proceedings are adversarial proceedings. Parties make submissions to courts who decide cases on the issues advanced for decision. There are, of course, basic duties which fall upon all judicial officers who preside over criminal trials and sentence offenders. However, it cannot be emphasised too firmly that it is the principal duty of a party, through counsel, to advance evidence and argument to support the outcome for which they contend. In this case, there was a complete omission to assist the Magistrate to avoid possible appellable error by drawing his attention to the possibility of a spent conviction order.

26 An appeal was taken against the conviction. Obviously, there was the opportunity to take an appeal on the grounds now raised. This was not done. In fact, as becomes clear from the affidavit of the applicant and his solicitor, the applicant only began thinking about a spent conviction order when, on about 19 June 2005, he learned the fate of the other franchisees and the fact that they had been given spent conviction orders. The applicant deposes that he sought advice from his solicitors which he received on 7 July 2005 and phoned the solicitor some 11 days later, then took time to further consider his position and it was not until 26 August 2005 that he gave instructions to apply for an extension of time. He deposes that he was in the Eastern States for several weeks during the period and needed time to consider whether he really wanted to take the matter further. He had been sick during the July/August period and had 7 days off work. The applicant acknowledges that this meant that his appeal was not dealt with as quickly as it might otherwise have been.

27 It appears the applicant was content to accept the penalty given by the Magistrate as appropriate until he found out how others, who pleaded guilty as part of an agreement, were treated. This gives little reason to excite the exercise of a power to restore to the applicant a right to appeal.

28 However, it is necessary to look further both at the applicant's circumstances and at the merits of this appeal. I look at merits because, although I consider that Wheeler J's conclusion in Bardsley is compelling, as a single Judge I am bound by the majority decision in that case. Even if the applicant's delay and conduct does not show there has been a miscarriage of justice, the merits may demonstrate one.

29 The applicant deposes Parkfurn has an annual turnover of around $10 million. It purchases furniture and other stock from Australian and overseas suppliers and operates its own importation business. The applicant travels overseas approximately five times a year, mainly to Malaysia, China, Vietnam and Thailand. In the near future he plans to travel to North America to look at the latest design and market trends. Further, he has hopes of working in Europe in the short to medium term.

30 In his experience the applicant requires a visa for visits to China and Vietnam. He has not been asked to declare the fact of the conviction before visiting China but he is unsure of the position in other countries. Within Australia he is likely to expand his business interests. He deposes in his affidavit dated 12 September 2005:

"17. I am concerned that the Conviction may be an impediment in terms of travelling overseas, and also being involved in new business activities. No problems have arisen as yet, and it is of course possible that I will not encounter any difficulties. However, many businesses in the retail sector require the grant of licenses or permits, and I expect that I will at some time in the next few years be required to declare the Conviction. Further, I also anticipate that I will be travelling more and more extensively, and to more varied destinations, and that I will be asked about criminal convictions for visa and other travel purposes."

31 I am not persuaded that the applicant will suffer material hardship. Clearly there is some potential for difficulties. However, the offence for which he is convicted is not an offence which carries imprisonment. It is a regulatory offence, not one that carries the moral opprobrium of a criminal offence.

"1. The learned Magistrate erred in law and fact in not considering, in the circumstances, the making of a spent conviction order pursuant to Section 44 (sic) of the Sentencing Act 1995 (Spent Conviction Order)

2. The learned Magistrate erred in law and fact in not making a Spent Conviction Order in the circumstances of the Appellant's case."

33 In this case I do not consider there are arguable grounds to say that the Magistrate erred in law and fact in not considering or making a spent conviction order. This was not a clear case such as Waldock where the making of a spent conviction order was obvious. While, in the end, the omissions of counsel cannot always relieve a judicial officer of the obligation to consider every possible sentencing disposition, where a party is represented by experienced counsel who choses, doubtless on instructions, to take a particular stance in sentencing submissions, I do not consider that error can be attributed to the Magistrate.

34 That is not, however, the end of the matter. As I have said, the law requires an analysis of the merits of the appeal. During argument it became apparent that the effective ground of appeal being advanced was one of parity with the other directors of franchisees, even though this ground has not been articulated in the notice of appeal. Clearly this ground has substance. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Dawson and Gaudron JJ at 301 held that:

"... Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'..."

35 Although, for the reasons I have expressed, I do not consider the Magistrate's decision was erroneous, in view of the subsequent decisions to grant other directors of franchisees a spent conviction order, it would be a substantial miscarriage of justice leading to a justifiable sense of grievance if the applicant, by reason of being convicted first in time, was not given the same benefit. Moreover, on the basis of R v Tognini [2000] WASCA 31; (2000) 22 WAR 291; Brewer v Bayens (2002) 26 WAR 510; Harper v Page [2004] WASCA 267 a spent conviction order is appropriate. Finally, the respondent does not oppose the making of a spent conviction order. It is this fact that allows me to deal with the application as argued notwithstanding that the result is that the appeal succeeds on a ground not articulated.

2. The application for leave to appeal and the appeal having been heard together, the appeal is allowed.

3. A spent conviction order is made in respect of the conviction on 29 October 2004 but in all other respects the Magistrate's decision is confirmed.

4. As conceded and agreed by the applicant, the applicant to pay the costs of the respondent to be taxed if not agreed.

Trading Hours Act 1987

Evans v Pelka [2005] WASC 240

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Judgment (64 paragraphs)

Evans v Pelka [2005] WASC 240 (3 November 2005)

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