Court of Appeal (WA)|2001-10-04|Before: Mr J, Templeman J, Smith J

Glover v Reyne [2001] WASCA 305 (4 October 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GLOVER -v- REYNE [2001] WASCA 305

Criminal law - Appeal against conviction under Justices Act 1902 (WA) - Possession of firearms without a licence - Pleas of guilty - Defendant unaware of possible defence - Exemption for family members of primary producer where firearm used for destruction of vermin - Whether miscarriage of justice

Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995

Liberti v The Queen (1991) 55 A Crim R 120

Pilkington v The Queen (1955) Tas R 144

Smith v Hope [2001] WASCA 287

Tihanyi v The Queen (1999) 21 WAR 377

1 ROBERTS-SMITH J: On 15 August 2000 the appellant pleaded guilty in the Geraldton Court of Petty Sessions to two offences of being in possession of firearms without a licence contrary to s 19(1)(c) of the Firearms Act 1973 (WA).

2 On each, he was convicted and fined $250 and ordered to pay costs of $38.

3 For a further offence of failing to store the firearms in a proper safe cabinet, he was fined $200 with costs of $38.

4 By application dated 30 March 2001, the appellant sought an extension of time in which to appeal and leave to appeal.

5 Both of those applications were granted by Templeman J on 1 June 2001. The grounds upon which leave was granted to appeal and upon which the appeal is now brought are:

"(a) The applicant pleaded guilty pursuant to a mistake of law, namely, that he did not have a defence to the charges.

(b) In fact he does have a defence to the charges, namely, that he was exempted by section 8(1)(i) of the Firearms Act in that he was at the material time a family member of a primary producer and he possessed the firearms for the purpose of destroying vermin and stock required by that primary producer to be destroyed on land used by him for the purpose of primary production and each firearm belonged to and was licensed by that primary producer.

(c) The learned Magistrate should not have accepted the plea of guilty given the prosecutor's allegations of fact and the applicant's plea in mitigation which alleged facts inconsistent with guilt."

6 The application was supported by an affidavit of the applicant sworn 25 May 2001. That of course was admitted on and for the purposes of the application for leave to appeal and the extension of time, but was not admissible on the appeal itself unless leave to rely upon it was granted.

7 On the hearing of the appeal, Mr Williamson, counsel for the appellant, sought leave to read three further affidavits, they being the affidavit of the applicant's father, Thomas Owen Glover, the affidavit of his brother, Malcolm Thomas Glover and a further affidavit of the applicant himself, all sworn 26 September 2001. Counsel for the respondent, Mr O'Sullivan, sought leave to read the affidavit of Constable Matthew Stephen John Power sworn 24 September 2001. Objection was taken by each party to the affidavit sought to be relied upon by the other and after hearing argument, I received the affidavits subject to objection. I will return to that later in these reasons.

8 At this point it is necessary to set out the precise terms of the charges to which the appellant pleaded guilty. They are set out on the certified copy of the complaints at AB 7 and 8 as follows:

being in possession of, .44 calibre rifle lever repeater, namely, Marlin s/n 11121125 whilst not being the holder of a licence or permit under the Firearms Act, entitling you (sic) to do so and not being exempted by Section 8 or 19(1aa) of the Firearms Act.

Section 19(1)(c) of the Firearms Act."

9 The transcript of proceedings before the learned Magistrate on 15 June 2000 reveals what transpired in relation to the firearms charges (AB 10-11):

"HIS WORSHIP: All right. Okay. And the firearms matters to be dealt with now.

MR PRIOR: To be dealt with. Yes, sir.

HIS WORSHIP: And they're now pleas of guilty, are they?

MR PRIOR: Yes, sir.

HIS WORSHIP: Change of plea. All right. I'll note that through you, Mr Prior. Plea of guilty. And the facts on those, sergeant?

PROSECUTOR: Yes, sir. On Saturday the 30th of October 99 police attended at location 10870 Garibaldi, Willis Road, Coorow to serve a firearms infringement upon the accused. Police observed through a window of a secured shed two unsecured firearms on a couch and what appeared to be another firearm in a gun case next to them. At this time no person was present nor could be located. Due to the circumstances the officer ... (indistinct) ... safety the premises were opened and three firearms seized without warrant. One of the firearms was licensed to the accused but was not stored in accordance with section 23(9)(d)(i) of the Firearms Regulations. The other two firearms were licensed to persons who do not reside at the property. The accused and his brother are the only persons who have access to the shed. At the time the accused, being in possession of the firearm, was not the holder of a licence or permit entitling him to do so. Not being exempted under the Firearms Act, the present charges preferred, sir. Costs of $38 in each instance. There is no prior similar antecedents, sir. Demerit point suspension.

MR PRIOR: Sir, the facts are admitted. The premises is actually on a farm some 60 kilometres from the nearest town. He had phoned the police sometime earlier an told them where the guns were because he hadn't paid his renewal licence and after he'd informed the police he'd actually forgotten to get around to paying it.

The police came and then seized the guns. They had to break two locks to get into the house. The house was locked. However, they weren't - - the guns weren't stored in an approved storage case. He just moved into the farm - just bought it. He's ordered a gun safe and expects that that will be arriving shortly. The two other rifles were licensed to his brother and his father, your Worship. And he - - I notice there's no request to retain the rifle. We'd seek to have - -

PROSECUTOR: Mr Glover actually came and saw me this morning. He's been given a card to get in contact with Senior Constable Stewart who's the firearms inquiry officer, sir, so that arrangements can be made there.

MR PRIOR: And Mr Glover apologises for the inconvenience to the court, your Worship, for this - what's happened here, and his tardiness is really a result of him not getting his licence renewed. He certainly had no intent to keep the firearm in an unapproved storage place, your Worship.

HIS WORSHIP: Yes, all right. Mr Glover, for the possession of the firearms which were not licensed to you, each of those offences, you're fined $250, ordered to pay costs of $38, and on the charge of failing to store those firearms in a proper safe cabinet, you're fined $200 with costs of $38."

10 At the hearing before the learned Magistrate the appellant was represented by duty counsel.

11 Before turning to the submissions advanced on the appeal, it is necessary to refer to the affidavits.

12 In his affidavit sworn 25 May 2001, the appellant deposed that at the time he was charged with the various firearms offences, he was also charged with possession of cannabis and cultivating cannabis with intent to sell or supply. He sought legal advice from Mr W Harris, a solicitor in Perth about the cannabis charges. He was very worried about them and was keen to find out how to defend them. He had only one meeting with Mr Harris. At that meeting he did not ask for, nor obtain, advice about the firearms charges. Mr Harris did not ask him for what purpose he was in possession of the firearms, nor about his relationship with the owners of them.

13 He deposed that he knew he did not have a licence for the rifles - he thought that the charge was just that, namely that he had possession of them without a licence. He stated that he did not know that there was an exemption from the requirement to have a licence for people who were related to primary producers and that his why he pleaded guilty. In his affidavit he stated that he was represented in the Geraldton Court of Petty Sessions by the Legal Aid duty lawyer who he met for the first time that day. The appellant did not ask the duty lawyer for advice about the firearm charges and it was not given. The duty lawyer did not tell him that there was an exemption from licensing requirements for family members of primary producers. He stated that he did tell the duty lawyer who the owners of the firearms were.

14 The appellant deposed that in about August 1998 his brother, Scott Glover, and he became owners of the property on which the police found the firearms on 30 October 1999. He stated that from about the end of 1998 his father, his brother Malcolm and he were in partnership, running 80 sheep on the property. His father owned the sheep, but it was agreed that half of the progeny would go to Scott and the appellant and the other half would go to the appellant's father and his brother Malcolm. He states that his father did sheep work there in connection with those sheep.

15 In par [5] of his affidavit, the appellant deposed:

"About one month before the police found the firearms I had run out of ammunition for my rifle which is chambered in .22 magnum calibre. So I took the .22 rifle, which belonged to my father, who had a licence for it, to that property (and ammunition) for the purpose of controlling vermin such as foxes and rabbits on the property. I had my father's permission. The .22 calibre lacks power and range. So about two weeks before the police found the firearms I brought on to the property, for the same purpose, the .44 calibre rifle, which has greater range, and which belonged to my brother, Malcolm Thomas Glover, who then had a licence for it. I had his permission."

16 At par [8] of his affidavit, the appellant noted that he was eventually tried in the District Court on the cannabis charges and was acquitted on 22 February 2001. The balance of his affidavit goes to his explanation for the delay in applying for leave to appeal.

17 Some days prior to the hearing, the respondent's outline of submissions in the affidavit on Constable Power sworn 24 September 2001, were served on the appellant's solicitor. Amongst the respondent's submissions foreshadowed in that outline was the observation that "it is telling" that the appellant had not provided affidavits from his father and brother to support his account of the circumstances in which he came to be in possession of their firearms. It was further said for the respondent that there was no evidence before the court that the appellant's father and brother were aware of the purpose for which he had possession of the firearms nor that they had expressly authorised him to possess them for the purpose of controlling vermin.

18 Constable Power was one of the officers based at Carnamah Police Station who attended the appellant's property on 30 October 1999 to serve a firearm infringement notice upon him, at which time the firearms were located in a secured shed on the property.

19 Constable Power deposes that in the course of the investigation into the appellant's possession of the firearms, he interviewed and obtained signed statements from Malcolm Glover and Thomas Glover. Those statements dated 7 January and 11 March 2000 respectively, are annexed to his affidavit.

20 The content of the two statements annexed to Constable Power's affidavit is clearly hearsay coming from him. Mr O'Sullivan sought to justify its admissibility on the basis that it would be his submission that there were inconsistencies between what was said in those statements and what the appellant, his father and brother have said on affidavit. He suggested that the statements were admissible not as to the truth of what is contained in them, but for the fact that it was said. This, he says, goes to the credit of the appellant and his father and brother.

21 In my view those statements are not admissible. As hearsay statements they could not be relied upon as impugning the credit of the appellant in his affidavit. Nor is it open to the respondent to rely upon those statements as contradicting or being inconsistent with the affidavits of the father and brother when they have not been sought to be cross-examined on their affidavits. I do not receive into evidence therefore, those portions of Constable Power's affidavit which go to the statements of Malcolm Glover and Thomas Glover.

22 The three affidavits handed up by Mr Williamson on 27 September were each quite brief.

"In about October 1999 I asked my father if I could use his .22 rifle for my dog which had fallen off my ute and which I feared would have to be put down. A few days or a week before then, more than once, I had told him that I had run out of ammunition for my .22 magnum and that I needed to borrow one of his firearms for foxes especially which were attacking weaner lambs. He said 'OK'. When I said I needed his .22 for the dog, my father said 'You had better shoot some of those foxes you have got there'. I said 'yeah' and took the rifle."

24 Having described himself as "farmer", all Thomas Glover deposed to in his affidavit was that:

"1. In October 1999 my son Ian Neil Glover came to my property and said that his dog had fallen off his ute and he wanted my .22 to put him down if necessary.

2. Before the occasion, more than once, he had told me that he had run out of ammunition for his .22 magnum and that he needed to borrow one of my firearms, for foxes especially which were attacking weaner lambs. I said 'OK'.

3. When he said he needed my .22 for the dog, I said 'You had better shoot some of those foxes you have got there'. He said 'yeah' and took the rifle. I always thought that he would use the .22 for vermin control on the

4. (sic) property on Garibaldi-Willis Road, West Coorow. He would have no other use for it."

25 Malcolm Glover described himself as "metal fabricator" and all he deposed to was:

"1. In about mid October 1999 my brother Ian Neil Glover came to my property to go shooting kangaroos. When he left he said 'Can I use your .44 - I need it for rabbits and foxes at my place' or words to that effect. I said 'OK' or words to that effect. Ian then took the rifle. I always thought that he would use the .44 for vermin control on the property on Garibaldi-Willis Road, West Coorow. He would have no other use for it."

26 Clearly enough the sentence "He would have no other use for it" appearing at the end of the affidavits of Thomas and Malcolm Glover is entirely speculative and objectionable.

27 Mr O'Sullivan argued that none of these affidavits should be received and nor should I receive those parts of the appellant's affidavit sworn 25 May 2001 which go to his claimed defence to the charges. In substance the objection is that none of this is "new" or "fresh" evidence; it is all evidence that was clearly available at the time of trial and which the appellant then made no effort to obtain and put before the learned Magistrate, but now wishes to adduce on the appeal.

28 On the other hand Mr Williamson argues that this is not a case of fresh evidence at all - indeed the submission is put on the basis that the evidence shows there was a triable issue available to the appellant at the time of the hearing. That fact can only be established by evidence of the kind sought to be put before me.

29 In McKenzie v Edmonson, unreported; SCt of WA (Scott J); Library No 960228; 3 May 1996, the appellant sought to adduce affidavit evidence on the appeal in support of grounds to the effect that he did not know the case against him before the hearing of the complaint or was wholly mistaken about the nature of it and was therefore unable to instruct his counsel what his response to it was and that further, if he had known the case against him, or if he had been advised to do so, he would have called witnesses who, if believed, would have proven that he was innocent. As Scott J pointed out (at 14) the appellant there did not suggest that the evidence was unavailable at the time of trial, nor that he could not, with reasonable diligence, have ascertained it; his complaint was that because he misunderstood the nature of the charge against him he did not realise the necessity of putting such evidence before the Magistrate.

30 The point was apparently argued before his Honour on the basis that the evidence concerned was "new" as distinct from "fresh", although that was a distinction which his Honour regarded as not always being clear (16). In any event, his Honour concluded that if it be the case that the appellant did misunderstand the nature of the case against him, and therefore the significance of other evidence that could have been called, then in his opinion, such evidence could properly be described as "fresh evidence" as that term was used by Barwick CJ in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517 in the following passage:

"Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interests he could have had available at his trial and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial."

31 Scott J went on to say that having reviewed the evidence, he had come to the conclusion that the appellant had not sought to take his chance with the evidence available to him before the Magistrate and then only because he was unsuccessful, sought to obtain a new trial so that further evidence could be called in circumstances where that evidence could have been readily available to him at the first trial, citing R v Risteviski (1989) 39 A Crim R 11 per Hunt J (with whom Allen and Studdert JJ agreed at 14). His Honour said (at 18) that:

"This is one of those rare occasions where in the light of the evidence placed before me in affidavit form there is a reasonable possibility that had the new evidence been placed before the trial court a different verdict may have been reached."

(See Gallagher v The Queen [1986] HCA 26; (1985-1986) 160 CLR 392 at 399 per Gibbs CJ).

32 It has to be borne in mind that this is an appeal under the Justices Act 1902 (WA). The grounds upon which an appeal may be made are set out in s 186 of that Act. It is not suggested here that the learned Magistrate made an error of law or fact or both or acted without or in excess of jurisdiction. The appeal is put upon s 186(1)(b), namely that there is some other reason that is sufficient to justify a review of the decision.

33 Section 196(1) of the Justices Act states that the court shall determine an appeal on the material that was brought before the Justices and on such further evidence, either oral or by affidavit, as the court thinks fit to receive. That provision gives the court a wide discretion and in my view does not confine its exercise to the reception only of what would fall within the ordinary rules relating to "fresh evidence".

34 A similar situation arose in Price v Davies [2001] WASCA 81 in which the appellant had made an unequivocal plea of guilty before the Magistrate and subsequently sought to have his conviction set aside because his plea had been made in the belief that the statutory presumption of intent to sell or supply cannabis was irrebutable, when in fact, there had been evidence available to him to rebut the presumption. Evidence was admitted on the appeal to show the circumstances surrounding the decision of the appellant to enter the unequivocal plea of guilty, including the existence of facts upon which he could have raised a defence.

35 It seemed to me that in that case, as it does in the present, the evidence sought to be raised is not "fresh evidence" in the sense in which that term is used in the authorities, but is rather, evidence going to the circumstances of the plea, the appellant's state of mind when making it, and the question whether or not there was a miscarriage of justice because of the existence of facts at the time of the plea which may have afforded the defendant a defence to the charge. In other words there must be evidence that there was a triable issue for the appellant to show there was, or may have been, a miscarriage of justice.

36 I will accordingly receive the affidavits sought to be relied upon by the appellant subject to the striking out of the sentence "He would have no other use for it" in the affidavits of Thomas and Malcolm Glover.

37 That brings me to the principles generally applicable to appeals following a conviction on a plea of guilty.

38 The respondent submits that the onus is on the appellant to satisfy the court beyond reasonable doubt that the plea of guilty was not a proper plea. That submission is based on the decision of the Court of Criminal Appeal in this State in Nutall v The Queen, unreported; CCA SCt of WA; Library No 920090; 26 February 1992. It is then submitted that a very strong case and exceptional circumstances are required before a court will interfere with a conviction following a plea of guilty and that such an appeal would be allowed only where it is necessary to prevent a miscarriage of justice. The respondent concedes there is no closed list of circumstances which may be relevant to that question, but submits it will certainly be necessary to demonstrate there is a triable issue masked by the plea of guilty and that there was some reason to suppose that the plea was not a true plea. This statement of the principle comes from the judgment of Murray J in Horsman v Bishop [2000] WASCA 316 at [5] and I do, with respect, adopt it as a general proposition.

39 The principles were further elaborated by Miller J in a summary of relevant authorities in Minear v Rudrum [2001] WASCA 10 at [9] - [11]:

"9 Reliance is placed upon the decision of Walsh J in Egerton v Taylor, unreported; SCt of WA; Library No 960700; 28 November 1996 where his Honour said:

'It has long been held that a plea of guilty which is not in plain, unambiguous and unmistakable terms must be treated as a plea of not guilty and that where a plea of guilty is accompanied by a statement indicating innocence, a plea of not guilty should be entered, otherwise the conviction may be a nullity.

For a plea to be equivocal the defendant must add to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. Where upon a plea of guilty the defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to have been pleading not guilty.

In Mason v Strudwick, unreported; SCt of WA; Library Number 920703, 3 December 1992 Murray J further expanded on the general principles to which I have referred and in doing so stated at 6-7:

"It may, of course, be the case that the appeal against conviction will be allowed after a plea of guilty in a variety of circumstances despite the effect ordinarily accorded to the plea made in unequivocal terms, and despite the circumspection with which an appellate court will ordinarily approach the suggestion that the conviction should be overturned in such circumstances. Reference may be made to such matters as the lack of representation for the defendant where there is some reason to doubt that the defendant proceeded upon a proper understanding of the factors affecting guilt or innocence; where the offence is of a technical nature and so might more readily lead to an inference of material misapprehension; where there was no intention to admit guilt; where the plea is no plea at all because of its equivocal nature; or where on the admitted or incontrovertible facts, the defendant could not in law be convicted. Those matters should not be regarded as a closed roll-call of the possible grounds upon which such an appeal may succeed: Wills v Williams (1971) WALR 29 at 33, Murray v Northcott (1990) WALR 219 at 233".'

10 There are decisions of this Court which make it clear that before an appellate court will set aside a conviction based on a plea of guilty the appellant must show that there has been a miscarriage of justice. In Duffield v The Queen, unreported; CCA SCt of WA; Library No 950065; 14 February 1995 Kennedy J said (at 18 - 19):

'An appeal against conviction recorded on a plea of guilty will only be allowed in exceptional circumstances. In a passage which has frequently been cited, Avory J in R v Forde [1923] 2 KB 400 at 403 said:

"A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the applicant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged."

That may, however, be expressing the position too narrowly. If an appellate court is satisfied that an applicant has been the victim of a miscarriage of justice in any other way, it will set aside the conviction - see R v Murphy [1965] VicRp 26; [1965] VR 187 per Herring CJ and Adam J at 187 -188 and per Sholl J at 190, Ansell v The Queen [1966] Tas SR 8 per Gibson J at 9; R v Vella (1984) 14 A Crim R 90; Attorney General v Kitchen (1989) 51 SASR 54; R v Kardogeros [1991] VicRp 19; (1990) 49 A Crim R 352 and Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993.'

Reference might also be made to Meissner v R [1995] HCA 41; (1995) 184 CLR 132 where (at 157) Dawson J said:

'It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his built. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and 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. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud'."

40 In the present case the submission is that the conviction was the result of a plea brought about by a misapprehension or misunderstanding but for which it would not have been made and a miscarriage of justice has resulted. That was the same submission upon which the appellant relied in Price v Davies, supra, to which I have already referred. The authorities suggest that where the circumstances of the plea are such that it might fairly be said the appellant has been deprived of the opportunity to put to the court matters which would demonstrate that his plea is equivocal or indeed, that he has a positive defence, then he will have been denied his right to stand trial on the merits and that would constitute a miscarriage of justice for the purposes of s 196 of the Justices Act. That will often raise related questions as to whether the facts would have afforded the appellant an arguable defence or whether a defence sought to be relied upon on appeal is the subject of recent invention (see Lamb v Clews (1989) 10 MVR 465 per Franklyn J at 472-473; Lutter v Davis (1992) 7 WAR 72. In Price v Davies, I summarised the position (at [57]):

"... in my opinion the same principle must apply in the present case if it be established that the plea of guilty, although not equivocal, was only made on a wrong understanding by the appellant that he had no arguable defence. In that circumstance (if it be shown) I consider the appellant would have been denied the opportunity to have his trial on the merits (although not due to any error on the part of the Magistrate) and that would constitute a miscarriage of justice."

41 The respondent relies upon what was said by Malcolm CJ (with whom Seaman and Wallwork JJ agreed) in Nutall v The Queen as to the onus of proof where an appellant seeks to have a conviction following a plea of guilty set aside. I set out below what his Honour said as to that and in the paragraph immediately preceding that observation (at 12):

"When the conviction follows a plea of guilty, the Court will not generally entertain an appeal against conviction, unless the plea was due to a mistake. In Pilkington v The Queen (1955) Tas 144 it was held that it required a very strong case and exceptional circumstances before the Court will interfere with a conviction on a plea of guilty. See also R v Lucas (1908) 1 Crim App R 61. In R v Stewart (1960) VR it was held that an appeal against conviction on a plea of guilty can only be entertained if it appears either that the applicant for leave did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged; see also R v Murphy [1965] VicRp 26; (1965) VR 187; Udy v Police (1961) NZLR 235; and Ansell v R (1966) Tas SR 8.

The onus lies on the applicant to satisfy the Court beyond a reasonable doubt that the plea of guilty was not a proper plea: R v Grevell (1977) 6 A Crim R 78 and R v Kelly (Junior) (1980) 6 A Crim R 111."

42 It is worth noting that Nutall was an appeal to the Court of Criminal Appeal and observations in that and similar cases made about fresh evidence on appeal in those circumstances may not necessarily be applicable to appeals to a single Judge under the Justices Act. However, in the present case it is not necessary for me to consider that further.

43 The first case which his Honour cited in support of the proposition that the onus is on the appellant to satisfy the court beyond reasonable doubt that the plea of guilty was not a proper plea, was that of R v Grevell (1977) 6 A Crim R 78. In that case the applicant had been convicted on his plea of guilty on a charge of stealing $5. The main ground of his application for leave to appeal was that he was improperly induced by a police sergeant to plead guilty when in fact he had at all times protested his innocence. Evidence was called by both parties to the application for leave to appeal. The applicant claimed that he had been told by the sergeant at the police station that he could pay $20 or $30 and get the whole thing over and done with or he could be committed to the District Court and incur high legal fees. Three police officers denied that they had prevailed upon him to plead guilty. There was a complete conflict of evidence as to what took place at the police station. The proposition that the applicant bore the onus of proving beyond reasonable doubt that his plea of guilty was procured by improper means, was articulated only by Dunn J in very short reasons for judgment and without any reference to authority. D M Campbell J said (at 79):

"It cannot be too strongly emphasised that it is not our function, sitting as an appellate court, to determine the question of guilt or innocence, and we should not be regarded as doing so. Our inquiry is limited in this case to the question whether the accused was induced to plead guilty by something said to him at the police station. It is on him to satisfy us that his plea was not a proper plea."

44 His Honour concluded that he was not convinced that the plea was wrongly entered and acted on and for that reason the application for leave to appeal had to be refused. Hoare J agreed with D M Campbell J. Neither he nor D M Campbell J mentioned the degree of satisfaction required.

45 In R v Kelly (Junior) (1980) 6 A Crim R 111, the judgment was given by Lucas SPJ (with whom D M Campbell and Kneipp JJ concurred). The court did hold the standard was proof beyond reasonable doubt but did so by reference to an earlier case of Hallahan v Campbell; Ex parte Campbell (No 2) [1964] Qd R 337 where at 342 Stanley J observed that in order to secure the issue of a writ of certiorari on the ground that a plea of guilty had been obtained by fraud, it rested upon the appellant to establish the proposition beyond a reasonable doubt. As to that, Lucas SPJ said (at 112):

"That of course was a case in the Full Court in which a writ of certiorari was sought. This, on the other hand, is an appeal under section 673 of the Criminal Code. But I see no reason why a similar standard should not apply in an appeal of this nature."

46 In Hallahan the appellant had pleaded guilty to the offence of being a vagrant in that on the relevant date he had insufficient lawful means. Following the plea, the police prosecutor read out a statement prepared by the respondent and handed up a record of the appellant's criminal convictions. The Magistrate convicted him and sentenced him to 6 months imprisonment. The appellant applied to the Full Court for remedy by way of order to review. The court held that the appellant had not proved beyond reasonable doubt that he had been induced to plead guilty, but as it was satisfied the prepared statement submitted to the Magistrate amounted to fraud on the court, a writ of certiorari should issue instanter to quash the conviction.

47 On the issue of the standard of proof, Stanley J stated (at 342):

"Ground (a) of the appeal is that the conviction and order were obtained by fraud and duress. This opens up the question whether on an order to show cause the court can quash a conviction on these grounds without ordering a writ of certiorari to issue: that the obiter in Reg v Kinsman and others, Ex parte Tucker (1962) Qd R 38 suggests that an order to show cause under s 209 of The Justices Acts, 1886 to 1949 cannot be used in this way. The matter, however, may be of little importance because it seems to me that the standard of persuasion required should be as high as the standard of persuasion required to cause a writ of certiorari to issue. It is clearly established that on certiorari the burden lies upon the appellant to satisfy the court beyond a reasonable doubt that there was fraud or duress. I refer to Reg v Kinsman and Others, Ex parte Tucker (supra), R v The Stipendiary Magistrate at Cloncurry and Corbett, Ex parte Page (1959) Qd R 75. In this latter case the Court held that the onus on the appellant is a very heavy one and where there is a conflict of evidence the cases when the Court will act by certiorari after plea of guilty in open Court must be indeed rare.

Having had the opportunity to observe the demeanour of the appellant in the witness box and to study carefully the transcript of his evidence I am not satisfied that his evidence is sufficient to discharge the onus of establishing his allegations beyond reasonable doubt. Nevertheless there are certain matters that cause one grave concern." (My underlining).

"The first ground upon which it is argued that the conviction and order should be set aside is that they were obtained by fraud and duress. This at once raises a procedural difficulty. It is clear that certiorari will lie to quash a conviction obtained by fraud or duress provided that the appellate court is satisfied beyond a reasonable doubt that the conviction was so obtained. R v The Stipendiary Magistrate at Cloncurry and Corbett, Ex parte Page (1959) Qd R 75. In this case, therefore, provided that the Court was satisfied in the manner mentioned there would be no difficulty in granting certiorari if the application before the Court were an application for the issue of that writ. But it is not." (My underlining).

49 What was before the court was the return of an order to review under s 209 of the Justices Acts 1886 to 1960 (Qld). They enabled the court to make the order on review only if satisfied that a prima facie case of error or mistake in law or fact on the part of the Magistrate, or that the Magistrate had acted without jurisdiction or exceeded his jurisdiction was made out. In the case before the court, no such ground had been established. As his Honour explained (at 355):

"The magistrate, subject to a consideration which I shall mention later, here made no error or mistake; the plea of guilty was entered; a conviction was recorded and a lawful punishment was imposed. If, as was argued, there was a collusive arrangement between the appellant and the respondent that the appellant would plead guilty to a lesser charge on condition that he was not proceeded against on a greater upon false evidence, this caused the magistrate to fall into no error or mistake. If to anticipate the other argument advanced on the part of the appellant the facts were presented to the magistrate in a grossly misleading way, and if, had the true facts been presented, there might or would have been no conviction, once again that does not, in my opinion, indicate any error or mistake upon the part of the Magistrate."

50 However, reference was then made to s 213 of the Justices Act which conferred on the court all of the powers or jurisdiction which it might exercise upon certiorari, mandamus, prohibition or habeas corpus. Nonetheless, even there Lucas AJ was of the view that those powers were merely attached to the other specific powers given on the order to review, that is to say for the purpose of enforcing its order under the order to review those things the court might do on certiorari and the other prerogative writs. It was still necessary to show error or mistake on the part of the Magistrate or absence or excess of jurisdiction.

51 Ultimately, however, his Honour recognised that the court had a residual power to grant certiorari and to issue that writ instanter to quash the conviction and order. Having examined the facts, his Honour concluded that was the appropriate course, it having been established that the facts had been stated to the Magistrate in an inaccurate, misleading and inflammatory manner such that what was done amounted to a fraud on the court.

52 Proof beyond reasonable doubt is the standard reserved for proof of offences under the criminal law. The civil standard of proof on the balance of probabilities applies otherwise, even (at its highest) in the criminal law where a statutory burden is imposed upon a defendant or accused to establish a specific offence or exception (insanity is an obvious example). It therefore seems fundamentally anomalous for the common law to impose upon an appellant claiming their plea of guilty was not a proper plea, the obligation to prove that fact beyond reasonable doubt. In the context of an appeal under the Justices Act 1902 (WA) it is also incongruent with the statutory criteria governing such appeals as contained in s 186.

53 In the present case the relevant question is whether I am satisfied that miscarriage of justice may have occurred (see eg Horsman, supra at [8]). It would be to my mind quite inconsistent with the substance and intent of s 187 to require an appellant to prove beyond reasonable doubt that a miscarriage of justice did occur (or that any of the circumstances in that section had been established to that degree of satisfaction).

54 Whilst what was said about that in Nutall must be given considerable weight, it is obiter and so not binding upon me. That is because the decision in that case ultimately turned on the court being positively satisfied that the applicant was an undischarged bankrupt at all relevant times and was well aware of that fact. The defence he had sought to raise was that he was not undischarged bankrupt at the relevant times.

55 In Price v Davies, supra, I came to the conclusion at ([114]) that:

"Although the appellant's plea of guilty was unequivocal, it was not a properly informed plea and indeed was founded on a mistaken view that the facts as he wished to put them before the court, would afford him no defence as a matter of law. That went to the root of his plea and as a result the appellant was denied (albeit not by any error on the part of the Magistrate) the right and opportunity to present his defence and have it considered by the court."

56 I was satisfied there on the evidence before me that the arguable defence relied upon was not the subject of recent invention.

57 It can readily be said that the onus of showing there has been a miscarriage of justice must be on the appellant, simply on the principle they who assert must prove. To come then to an appeal such as the present where it is claimed a plea of guilty was made in circumstances which call for it now to be set aside, I consider it is necessary for the appellant to establish those circumstances on the balance of probabilities. It is not to say the appeal court would have to be so satisfied that, for example, a particular defence would have been made out; it would be sufficient (in that regard) to establish facts which show there was an arguable defence - see eg Williams v Beverly (1998) 103 A Crim R 326 per Parker J at 329 and 332. Of course the court would still then have to be persuaded that in the circumstances there was a miscarriage of justice by reason of the defence not being advanced through mistake or inadvertence or some other good reason.

58 I accept the proposition urged upon me by the respondent that a court will approach an appeal following a conviction on a plea of guilty, with caution bordering on circumspection.

59 The rationale for this was explained by Wheeler J in Green v The Queen [2001] WASCA 162 at [100]:

"Before allowing a convicted person to withdraw the plea of guilty upon which a conviction is founded, it must appear that a miscarriage of justice has occurred. Withdrawal of a plea will only be permitted in exceptional circumstances. Some of the authorities are collected and discussed in Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993, per Wallwork J. One such circumstance is where the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it. Although the court has both the power and duty to interfere where it appears that there is a miscarriage of justice, courts approach attempts on appeal to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with "caution bordering on circumspection" because of the public interest in the finality of legal proceedings and because of the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission of all of the necessary legal ingredients of the offence: see Liberti v R (1991) 55 A Crim R 120 at 122 per Kirby P."

60 I do not see the authorities in which this proposition is articulated as necessarily purporting to state it as a principle of law, in the sense of a legal requirement or pre-condition, but rather as a statement of practical reality. It must inevitably be the case that because an unequivocal plea of guilty is an admission of all the elements of the offence, and so sufficient of itself to found a conviction, that it would be an exceptional situation where some other consideration could reveal there was, or may have been, a miscarriage of justice despite the plea. I do not understand the authorities as meaning any more than this.

61 Slater v Marshall [1965] WAR 222 was the first case in which the then predecessor to the present s 186(1)(b) and (2) of the Justices Act came before the court. That provision was the then s 197(b) which had been inserted on 2 October 1964. In that case Nevile J held that evidence before him (but which had not been available to the Magistrate) indicated that the plea had not been a reasoned choice of the appellant and disclosed a triable issue which had never been tried and that was a reason sufficient to show that the decision of the Magistrate should be reviewed.

"In considering the first ground of appeal I am content to seek guidance from two recent decisions of this Court in cases in which, before the 1964 amendment to the Justices Act, it was sought to review convictions in the Court of Petty Sessions after a plea of guilty had been tendered and accepted. In Di Camillo v Wilcox [1964] WAR 44, Hale J held that 'Once it is found that the complaint alleges an offence known to the law and within the jurisdiction of petty sessions then a clear and unambiguous plea of guilty is an admission of all the facts essential to that offence and in law the magistrate is justified in convicting on that admission'. The learned judge then went on to observe that the purpose of hearing a statement of the facts of the case after a plea of guilty is to assist at arriving at the appropriate penalty and expressed the view that 'If that statement indicates that the accused might not in truth be guilty it would be proper that he should be invited to withdraw his plea of guilty and instead to plead not guilty'. In a later passage referring to the particular matter then before him, Hale J is quoted as saying: 'It is axiomatic that any right of appeal is entirely the creature of statute and that it must be taken subject to any limitations which the statute sets on the right granted. Now this appeal by way of order to review is given by s 197 of the Justices Act 1902-1962. It is given so far as appeal against conviction is concerned where there has been an error or mistake in law or fact on the part of the justices, or where the justices had no jurisdiction or exceeded their jurisdiction, and in no other case. So far as this present ground is concerned there is no question of want or excess of jurisdiction: the appellant must, therefore, show error or mistake in law or fact on the part of the magistrate; but no such mistake is here alleged: all that is alleged is a mistake on the part of the appellant himself, and that in my opinion is not enough.' In view of the subsequent amendment of s 197 and the reliance of the appellant in this case on the new paragraph (b) inserted by the amendment, it may be as well also to cite one other paragraph from that decision of Hale J which reads as follows: 'Finally, I would commend to those who are concerned with the making and the amendment of the law that consideration be given to enlarging the scope of s 197 of the Justices Act. It is not for me to suggest any particular amendment. But I cannot regard it as satisfactory that where a man is convicted in petty sessions on his plea of guilty and where this Court is persuaded that there is real doubt as to the propriety of that plea (but without error on the part of the magistrate or justices) and where the man merely asks that he be tried in the ordinary way on the charge made against him, that then the Supreme Court is without power to see that he has such a trial'." (Emphasis added).

63 His Honour then referred to Thomason v Martin [1964] WAR 136 in which Hale J said (inter alia):

"It is axiomatic that every court should to the best of its ability see that no man is convicted on a confession of guilt if there appears to be a defence worthy of investigation. On the other hand, where a man of normal faculties bears a charge clearly read, and then pleads guilty, there must be a strong presumption that he has understood the charge and that he is in fact guilty, but I would not readily presume that he would be aware of a special statutory defence to the charge. Clearly no rigid rules can be formulated, and every judge and magistrate must exercise his discretion in each individual case as to whether any inquiry should be made from, or explanation given to, any individual accused, but in the present case I think that something more was called for than the mere acceptance of the plea of guilty. ... It appears to me clear that if justice is to be done and to be seen to be done, then where the offence charged is of a complex nature or where by the terms of the statute creating the offence a special defence is available, and in either case the facts and circumstances under which the charge is brought before the Court are such as to lead a magistrate to conclude that there is a real possibility that the accused person has a triable defence, then, if the accused person is not represented the magistrate is under a duty to satisfy himself that a plea of guilty is not being made through mistake or ignorance. The only criterion which can be applied is the inquiry whether what was said was calculated in the particular case to produce a just result. If it can be seen that what was said does not measure up to this criterion, then in my opinion, the proper conclusion is that the magistrate fell into error. It would probably be properly described as an error of mixed law and fact, but this is immaterial because under s 197 of the Justices Act error of law or fact is sufficient, and between them they cover the field." (Emphasis added).

64 Applying those cases to the circumstances before him in Slater, Nevile J concluded that there had been nothing before the Magistrate to cause him to consider the plea was in any way equivocal and nor was the particular offence charged a complex one, nor one in respect of which a special or unusual defence was available. He concluded that the Magistrate had made no mistake of law or fact in accepting and acting on the plea. It was at that point however, that his Honour turned to the new par (b) of s 197 of the Justices Act and on the psychiatric evidence before him as to the mental condition of the appellant at and following the events giving rise to the charge, held that the plea had not been a reasoned choice of the appellant and the order to review should be made absolute.

65 IN Williams v Beverly, supra, Parker J set aside a conviction which had been recorded ex parte because he was satisfied that the appellant had always genuinely intended to defend the complaint and had taken appropriate steps to that purpose, but had not appeared before the court at the hearing because of error on the part of his lawyer. The consequence was that his defence had never been put to the court and had not been considered on its merits. Those unusual circumstances were sufficient in his Honour's view to justify in the interests of justice pursuant to s 186(1)(b) of the Justices Act the setting aside of the conviction so that the appellant might have an opportunity to present his defence to the complaint.

66 It remains only to note that s 186(2) of the Justices Act expressly states that an application for leave to appeal against a decision may be made notwithstanding that the decision was made following a plea of guilty.

67 Against that background of principle and authority, I come to consider the evidentiary material before me.

68 It is submitted on behalf of the appellant that his pleas of guilty arose from a misapprehension or ignorance of the applicable law. He was not aware that he had a clearly arguable defence under s 8(1)(i)(i) of the Firearms Act. That section relevantly provides that:

"No licence under this Act is required -

...

(1) by a person who is employed or contracted by, or is a family member (as defined in subsection (2)) of a primary producer -

(i) to possess or use for the purpose of destroying vermin, or stock required by that primary producer to be destroyed, on land used by that primary producer for the purposes of primary production, a firearm and ammunition belonging to and held by that primary producer under a licence or permit granted under this Act to the primary producer;

... if the use of the firearm and ammunition by that person is expressly authorised by the primary producer.

(2) In subsection (1) -

'family member', in relation to a person, means -

(a) the spouse or de facto spouse of the person;

(b) a parent, child, brother, or sister, of the person or of the person's spouse or de facto spouse; or

(c) the spouse or de facto spouse of a person referred to in paragraph (b)."

69 This is put on the basis that the .22 rifle was owned by the appellant's father who has a licence for it. The father is a primary producer because he owns the sheep and together with the appellant's brother Malcolm, has an interest in one-half of the progeny. The sheep are on the farm where the appellant possessed the rifle. The appellant possessed (and used) the rifle for the destruction of vermin. He had his father's permission. The situation in respect of the .44 calibre rifle is essentially identical, the only difference being that it belongs to the appellant's brother Malcolm (who has a licence for it). The brother is a primary producer because he and the appellant, in partnership, were running the sheep on the property.

70 The question arose in the course of argument as to whether, for the purposes of s 8(1)(i)(i), it is necessary to establish that the registered owner of the firearm (ie the licence holder) had expressly authorised the appellant to use the firearm for the purpose of destroying vermin on land used by that primary producer for the purposes of primary production. The possible countervailing argument was that it would be sufficient for the primary producer to have expressly authorised the appellant to use the firearm and the appellant had in fact used it for the purpose of destroying vermin on the primary producer's land.

71 In my view the provision does require express authorisation by the primary producer for the appellant to use the firearm for the purpose of destroying vermin on the primary producer's land. I say that because it makes sense grammatically in the context of the section. More importantly though, it is consistent with the public policy behind these licensing provisions. It would be contrary to that policy for possession of the firearm to be given over by the registered owner to some other person for whatever purpose that person may have unknown to the owner - and indeed, that would be an offence (see s 19(2) of the Firearms Act). This construction is reinforced by the requirement that the purpose must be to use the firearm for the destruction of vermin on the property used by its owner for primary production.

72 The facts asserted by the appellant in his affidavits clearly raise the defence that he fell within the statutory exception of s 8 of the Firearms Act. There is further support for that assertion in the affidavits of his father and brother. This is not to say that were the evidence to be called at trial before a Magistrate, that would necessarily lead to findings of not guilty. Mr O'Sullivan raised a number of aspects of the evidence in this regard which he submitted were unsatisfactory. I expressly make no finding in relation to that. It is sufficient for me on this appeal to observe that there was no application for the deponents to be cross-examined on their affidavits and accordingly the evidence is unchallenged. Clearly, it would not be unchallenged on a re-trial, but that is not a matter for me.

73 I am satisfied the defence sought to be raised is not a matter of recent invention - it was common ground before the learned Magistrate that the firearms belonged to the appellant's father and brother respectively, each of whom was the licence holder. The family is obviously a farming family. That of course does not of itself necessarily go any way to demonstrating that the exemption would apply, but it does give rise to the prospect of its being a possibility and requiring further inquiry.

74 That brings me to the appellant's reason for not raising this matter before the learned Magistrate. His explanation was in brief, that he thought the charge was simply that he was in possession of firearms without a licence and was well aware that he was in possession of them and that he did not have a licence. That was why he pleaded guilty. In a sense, his ready acceptance of guilt in the circumstances as he understood them could be regarded as commendable.

75 Mr O'Sullivan submits that the complaints themselves specifically raised by averment, the s 8 exemption. That is true. There is though a real question as to whether the appellant received a copy of the complaints. Given that the onus is on him on this appeal, I am not satisfied that he did not. Even so, a mere reference to s 8(1)(i)(i) would hardly be expected to put the ordinary member of the public on inquiry as to what that exemption was. In my view the reference is somewhat esoteric and would in practical terms be meaningless to the ordinary person. Under the circumstances, I am satisfied with, and accept, the appellant's explanation for pleading guilty. I accept the evidence of the appellant when he says he did not become aware that he had a defence until 7 March 2001 at the earliest, when he first saw Mr Williamson.

76 In conclusion, I should say quite clearly that ground (c) has not been made out. The plea of guilty was an admission of all elements of the offence in each instance. That included the admission that no relevant exemption applied. Contrary to what is asserted in that ground, there was nothing put to the learned Magistrate which should have caused him to regard the plea as equivocal. That was particularly so when the appellant was represented by (duty) counsel.

77 However, I am satisfied that grounds (a) and (b) are made out - with the express qualification so far as (b) is concerned, that I make no finding that the appellant does have the defence asserted - only that on the material before me that is a triable issue which was not put forward and tried before the learned Magistrate because of a mistake on the part of the appellant at the time that he had no arguable defence and that accordingly there was a miscarriage of justice.

78 The appeal must be allowed and the convictions quashed. The complaints should be remitted for retrial.

Glover v Reyne [2001] WASCA 305

At a glance

Court

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Before

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Judgment (117 paragraphs)

Glover v Reyne [2001] WASCA 305 (4 October 2001)

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Legislation Cited (1)

Cases Cited (7)