Appeal against conviction - Offence of reckless driving - Whether driving was wilful, inherently dangerous or dangerous to public or any person - Effect of a plea of guilty to a charge and nature of conviction - Effect of flawed legal advice on plea and available defence - Whether magistrate should accept a guilty plea if facts do not fit the elements of the offence - Whether magistrate is obliged to act upon plea of guilty when a triable defence may be available - Plea of guilty does not amount to a conviction - Miscarriage of justice will result if conviction entered pursuant to inappropriate plea of guilty - Appeal allowed and conviction quashed

Criminal Appeals Act 2004 (WA), s 14, s 78

Criminal Procedure Act 2004 (WA), s 3(2)(a), s 128, s 147, s 148

Road Traffic Act 1974 (WA), s 60

1 The appellant, Pieter Jan Frederik Hondema, has obtained leave to appeal against a conviction for reckless driving contrary to s 60(1) of the Road Traffic Act 1974 (WA). The appeal raises interesting questions as to the effect of a plea of guilty to a charge and the nature of a conviction.

2 In order to resolve the matters in question it is necessary to set out the procedural steps bearing upon the matters in issue with some care.

3 By s 60(1) of the Road Traffic Act every person who wilfully drives a motor vehicle in a manner that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence. It follows from s 73 of the Act that a reference to driving a motor vehicle is to be construed as a reference to the driving of a motor vehicle on a road or in any place to which the public is permitted to have access.

4 It appears from a prosecution notice dated 3 December 2007 that the appellant was charged with reckless driving contrary to s 60(1) of the Road Traffic Act. It was alleged that he wilfully drove the subject motor vehicle on a road, namely, Brookton Highway, Karragullen, in a manner that was 'inherently dangerous/having regard to all the circumstances of the case, dangerous to the public or to a person'.

5 I note in passing that the statutory provision appears to create two categories of offending, being wilfully driving in a manner that is 'inherently dangerous' or that is, in all the circumstances, 'dangerous to the public or to any person'. The prosecution notice, by the use of a 'forward slash' typing symbol in place of the word 'or' does not make it entirely clear whether the prosecution contended that the facts of the case fell within one or both categories.

6 It appears from a transcript of the proceedings that the matter was brought on for hearing in the Magistrates Court at Armadale on Friday, 22 February 2008. The appellant was represented by a legal practitioner who indicated immediately that his client 'intends to plead guilty'.

7 The appellant was then charged by the learned magistrate in the terms of the prosecution notice but, in doing so, it was put to the appellant that he wilfully drove in a manner that was 'inherently dangerous, having regard to all of the circumstances, and [emphasis added] dangerous to the public or to a person'. This suggested that danger to the public or a person was an essential element of the offence.

8 In answer to a question from his Honour the appellant acknowledged in his own voice that he understood 'that charge' and wished to plead guilty.

9 The prosecutor then provided a statement of material facts to the effect that at 5.15 pm on 14 November 2007 the appellant was driving a motor vehicle. He was at the north side truck parking bay on Brookton Highway in Karragullen, while an off-duty police officer was heading east on Brookton Highway. The latter observed a large cloud of dust that was crossing over Brookton Highway and restricting the vision for other road users.

10 It was said further that upon approaching the car park the officer observed the appellant in the parking bay doing 360 degree burnouts and donuts in his vehicle. The police officer counted at least six of these until he could see no more because of the amount of dust coming from the vehicle and the surface.

11 The appellant was stopped upon leaving the parking bay and said that he did not think he was doing anything wrong because he was outside the city. He 'saw the opportunity and did it'.

12 In answer to a question from the bench, the prosecutor said that he did not know how many cars or people were in the car park because he had no further information. He said it was a busy highway.

13 Counsel for the appellant said that on his instructions the parking bay was about 30 or 40 metres away from the main road and it seemed to have been basically a dumping ground for road construction. There were no other cars there. The appellant thought he would try his hand at rally driving and would not be aware that the dust had crept across the road.

14 At this point his Honour intervened to say that he was 'still having some difficulty, but I have to accept his plea of guilty, and it seems from what you are telling me that it is exactly what the Sergeant has said'.

15 Some discussion followed as to the relevant penalties. The appellant was then asked to stand up before the sentence was imposed.

16 His Honour said that he had to accept 'your plea of guilty to the reckless driving charge', but went on to indicate that he had taken the appellant's early plea of guilty into consideration and his acceptance of responsibility for an offence that, in his Honour's view, was 'probably down towards the bottom end of the scale'.

There was nobody else there and I don't know whether the dust going over the road would have been sufficient to amount to the charge of reckless, but I have to accept your plea of guilty which you have entered following your briefing by experienced counsel. What I intend to do is bring the fine down to a lower area. These type of things are generally reserved for enormous burnouts, and further to police chases and the like.

18 He then sentenced the appellant to six months disqualification of his driver's licence and a fine of $200. The appellant was required to pay $110.20 in respect of costs.

19 By a notice dated 19 March 2008 the appellant sought leave to appeal upon three grounds:

(a) The appellant did not properly understand the elements of the charge against him before he entered a plea of guilty and accordingly that plea should be withdrawn.

(b) The appellant's instructions to his counsel indicated that he had a defence to the charge and he was therefore inappropriately advised to plead guilty.

(c) The appellant has a viable defence to the charge and therefore a miscarriage of justice will result if his plea of guilty and conviction are allowed to stand.

20 An affidavit sworn by the appellant on 9 May 2008 was filed in support of the application for leave. The appellant said that he was persuaded to plead guilty by his legal adviser essentially because of the undisputed fact that the appellant was driving the subject vehicle at the place in question. He understood from his adviser that he had no choice but to plead guilty because all the police had to do was to prove that the appellant meant to drive in the manner described in the statement of material facts. Further, a plea of not guilty would probably lead to a worse penalty.

21 The appellant obtained leave to appeal pursuant to orders dated 22 May 2008.

22 The appellant's position, as appears from his grounds of appeal, is that the legal advice underlying his plea of guilty was directed principally to the element of wilful driving and that insufficient attention was paid to the requirement that the driving also had to be inherently dangerous or dangerous to the public or to any person. In fact, as appears from what was said at the hearing, the legal adviser's instructions allowed for the possibility that the driving occurred in an empty parking bay or vacant space with the result that it was arguably not dangerous to the public or to any person.

23 In other words, it is said that a line of defence was available to the appellant which ought to have been put to the court. Moreover, this was apparent to the learned magistrate who spoke of having 'some difficulty' with the facts and matters before him.

24 It was clear, counsel for the appellant contended at the hearing of the appeal, that in the end, the learned magistrate felt obliged to act and did act solely in response to the plea of guilty.

25 A question which arises on the appeal is whether any other course was open to his Honour. In effect, it is said on behalf of the appellant that, having heard submissions about the facts from both sides which gave rise to a perceived difficulty in fitting the facts to the offence charged and the plea of guilty, it was open to the magistrate to have invited the accused person to reconsider his plea, and he erred in failing to follow that course. It is said that a miscarriage of justice will result if the plea of guilty and conviction are allowed to stand in these circumstances.

26 It will now be useful to look at various statutory provisions and legal principles bearing upon the matters in issue on the appeal.

27 It appears from Di Camillo v Wilcox [1964] WAR 44 that once it is found that a complaint alleges an offence known to the law and within the jurisdiction of the court of summary jurisdiction, a clear and unambiguous plea of guilty is an admission of all the facts essential to the offence. Further, the statement of facts then made to the court does not have to cover every essential element of the offence.

28 In that case, which was decided under the Justices Act 1902, it was held that there was no error in law in the magistrate acting on the plea of guilty received, and convicting without further inquiry into the facts of the case, even though it emerged in the course of a detailed analysis by the appellate judge that the appellant might have pleaded guilty under a misapprehension as to exactly what he was being charged with.

29 His Honour Justice Hale observed that any right of appeal is entirely the creature of statute and as to the appeal provisions in question it was necessary to show error or mistake in law or fact on the part of the magistrate. No such mistake had been demonstrated because all that was alleged was a mistake on the part of the appellant himself, which was not enough.

30 However, his Honour went on to say that if the learned magistrate had been aware of the appellant's misapprehension as to what exactly he was being charged with, the magistrate would probably have made further inquiry before convicting, and might have thought it desirable to invite the appellant to change his plea.

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. (49)

32 In Thomason v Martin [1964] WAR 136, which was decided shortly after Di Camillo v Wilcox, Hale J observed at 142 that every judge and magistrate must exercise his discretion in each individual case as to whether something more is called for by way of inquiry than the mere acceptance of a plea of guilty.

33 His Honour said that where the offence is of a complex nature or where a special defence is available, and in either case where there is a real possibility in the circumstances 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 the proper conclusion is that the magistrate fell into error.

34 These principles were approved in the later case of Slater v Marshall [1965] WAR 222. In that case Neville J held that there had been nothing equivocal in the plea of guilty in question which, therefore, constituted an admission of all the facts essential to the offence of stealing. As that was neither a complex offence nor one for which a special statutory offence was available, the magistrate could not be said to have made a mistake of law or of fact in accepting and acting on the plea.

35 However, by then the appeal provisions of the Justices Act had been amended to allow for relief where there were reasons sufficient to show that the decision should be reviewed. Thus, as to the case in hand, where there was evidence now before the court (but not available to the magistrate) which indicated that the plea had not been a reasoned choice of the appellant and disclosed a triable issue which had never been tried, the decision should be reviewed.

36 In recent years, an entirely new statutory regime has been brought into force within which the present appeal must be resolved.

37 By s 7 of the Criminal Appeals Act 2004 (WA) a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. Section 8(1) provides that an appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact or that there has been a miscarriage of justice. By s 8(2) an appeal may be made against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.

38 Section 14 of the Criminal Appeals Act provides that the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

39 It emerges, then, that a court must be careful to ensure that the plea before it is an appropriate plea before the person charged is convicted. I must keep steadily in mind that the provisions of the Justices Act 1902 (WA) have now been replaced by the provisions in the Criminal Appeals Act mentioned earlier including the rule reflected in s 8(2) of the latter Act that an appeal may be made against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter. I must keep in mind also that the appellant in the present case was represented by counsel at the time the plea of guilty was presented. Further, the decided cases mentioned earlier appear to proceed from the premise that the accused person was convicted in response to the plea of guilty in that he was sentenced as a consequence of that plea.

40 These considerations bring me to the question of what constitutes a conviction. This bears upon the question as to when and at what stage of the proceedings it remains open to a magistrate to invite an accused person to reconsider his plea if he wishes to do so, having regard to matters that may have arisen in the course of the hearing.

41 The position at common law is reflected in the reasoning of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 at 507. They said that the question of what amounts to a conviction admits no single, comprehensive answer. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.

42 Their Honours went on to observe that whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court.

43 The formal entry of the plea upon the record may, of course, afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea. It is the disposal of the case which results in the judgment of the court embodying a determination of guilt. A matter may be disposed of otherwise than by sentence, but an adjournment of proceedings or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter.

44 Justice Toohey observed at 522 that the court has the power to allow a plea of guilty to be withdrawn at any time before sentence. A defective plea of guilty may be withdrawn and a conviction set aside on various grounds. This is part of the inherent jurisdiction of courts to see that justice is done. Some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the court, the accused lacked full understanding of the plea or there was some other vitiating factor. To this end, the court may refuse to accept a guilty plea or direct that a not guilty plea be entered.

45 This approach was followed by Justice Heenan in Avins v Honnor (1997) 25 MVR 188. In that case, the defendant pleaded guilty to dangerous driving causing bodily harm but the justices found the defendant guilty of dangerous driving pursuant to a power to convict the defendant of a lesser offence. His Honour held that it was the duty of the justices to convict the defendant of the offence to which he had pleaded guilty.

As the Full Court of the Supreme Court of Victoria stated in R v Tonks and Goss [1963] VicRp 19; [1963] VR 121 at 127, a plea of guilty does not of its own force constitute a conviction: 'It amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused'. Thus, had the prosecutor's statement of facts or some other source of information indicated that the respondent might not have been guilty of dangerous driving causing bodily harm, it would have been proper for the justices to invite the respondent to withdraw his plea of guilty, even if his counsel had not sought leave to do so, and instead to plead either not guilty or guilty to a lesser offence. But in this case there was nothing before the court to raise a doubt as to the correctness of the respondent's admission of guilt. (189)

Criminal Procedure Act 2004 (WA)

47 For the sake of completeness, it is necessary that I look also at certain provisions of the Criminal Procedure Act 2004 which have a bearing upon the common law principles and the issues before me.

48 By s 3(2)(a) of that Act a person is convicted of a charge if a court under s 147(1) enters a judgment of conviction of the offence charged in respect of the person.

49 Section 147(1) provides that if an accused pleads guilty to or is found guilty of a charge, the court, unless it enters judgment under s 128(2), may enter a judgment of conviction of the offence charged in respect of the accused. I note in passing that s 128 deals with pleas to jurisdiction and need not be considered further for present purposes.

50 Section 148 of the Criminal Procedure Act deals with the consequences of conviction. It provides that if a court convicts an accused of an offence, then, subject to s 5 of the Criminal Code, the Sentencing Act 1995 (WA) and the Young Offenders Act 1994 (WA), the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.

51 To my mind, the effect of these provisions is that it is open to a court to enter a judgment of conviction in response to a plea of guilty. However, prior to, or in the absence of a conviction being formally recorded, the position is governed by the common law principles. It follows, having regard to the decided cases, that whilst a plea of guilty is a confession of guilt, and can be taken as an admission of all the facts essential to the offence, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. This is usually evidenced by a disposition of the matter in hand by a sentence but can be evidenced also by a formal entry of the plea upon the record.

52 Let me now return to the circumstances of the present case.

53 It appears from annotations upon the prosecution notice that a plea of guilty was received (for the word 'guilty' on the form is circled) and that in due course the judgment of the court was that of conviction (for the word 'convicted' is circled). However, there is no explicit reference in the transcript as to when exactly the judgment of conviction was recorded.

54 I am satisfied, having regard to the nature of the discussion, that at the time the learned magistrate said that he was 'still having some difficulty' in fitting the details of the charge to the circumstances outlined by counsel a conviction of the appellant had not yet been effected.

55 His Honour had received a plea of guilty, and was thereby, prima facie, at liberty to assume that all the elements of the offence had been admitted. However, I am satisfied that he had not yet taken any step sufficient to constitute a conviction, such as proceeding to sentence the appellant or to make an endorsement on the papers before him that could be regarded as recording a conviction. It remained open to him, at this moment of hesitation, to enquire into the matter a little further and to invite the appellant to reconsider his plea as it could be that there was a triable line of defence available to him of the kind detailed in earlier discussion.

56 It is true that the appellant was represented by counsel, and a magistrate would therefore generally be entitled to assume that the plea of guilty was to be acted upon. In that regard, I pause to say that I have been using the word 'reconsider' advisedly, for there will certainly be cases in which, for various reasons, including differences of opinion as to what constitutes a triable issue, where a plea of guilty might be made by an accused person with access to the best advice, although it might strike an observer or the court itself that a line of defence was available.

57 However, in the present case, it appears from the transcript that his Honour felt that he was obliged to accept and act upon the plea of guilty and that no other course was available to him. The decided cases indicate that this is not so. There is no firm rule but where facts or matters have been referred to which might lead a magistrate to conclude that there is a real possibility that the accused person has a triable defence then, even in the case of a represented person, the magistrate has 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 whether what was said was calculated to produce a just result.

58 To my mind, the learned magistrate in the present case erred in assuming that he had to accept and act upon the plea of guilty in circumstances (as they were described to him) which suggested that the appellant, in effect, denied that his actions were a danger to the public or any person, being a matter which was said to be an element of the offence charged (having regard to the way in which the charge was put to the appellant). A further inquiry would have established whether there was a contested and triable issue in that regard and it is an inquiry which should have been made.

59 This is not to say that the matters the appellant now seeks to rely on would be sufficient to dispose of the charge. The proper outcome will depend upon the nature of the evidence and further debate about the form and elements of the offence, for it can be argued on behalf of the prosecution that driving can be inherently dangerous without other cars or persons being in the immediate vicinity of the subject driver, as in the case of a person who drives at speed on the wrong side of a deserted road. Nonetheless, an inquiry as to the correct plea can be regarded as leading to a just result simply because an accused person, who ought to have been afforded an opportunity to be heard, has been given that opportunity.

60 Put shortly, then, the reasoning in Di Camillo's case, and in the other cases, suggests that in the circumstances of this case it would have been desirable for his Honour to have invited the appellant to reconsider his plea before proceeding to conviction and it is a course that ought to have been followed with a view to ensuring that there was a just result.

61 I noted in earlier discussion that by s 8(2) of the Criminal Appeals Act a party is not precluded from advancing an appeal against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter. This provision appears to be consistent with the reasoning in Di Camillo's case and the views that I have expressed.

62 Accordingly, in my view, there was an error of law on the part of the magistrate. This amounted to a miscarriage of justice in that the accused, in circumstances where his plea of guilty could not in the end be characterised as unequivocal, was deprived of an opportunity of being heard in respect of a triable issue. To my mind, this conclusion is reinforced by the concerns I mentioned earlier about the formulation of the charge. It follows that, in my view, the appeal should be allowed upon the third ground of appeal in that a miscarriage of justice will result if the plea of guilty and conviction are allowed to stand.

63 I will make orders that the appeal be allowed, the decision of the learned magistrate be set aside and I will order that the matter be remitted to the Magistrates Court for trial according to law.