New South Wales Court of Criminal Appeal CITATION : REGINA v DAVISON (aka Eckerman) [2003] NSWCCA 95 HEARING DATE(S) : 14/03/2003 JUDGMENT DATE : 14 March 2003 JUDGMENT OF : Meagher JA at 1; Dowd J at 2; Barr J at 17 DECISION : Time for notice of appeal extended; appeal against conviction allowed; District Court conviction quashed; to proceed before Local Court, Coffs Harbour. CATCHWORDS : Appeal against conviction after plea of guilty - element of offence not made out - no power to correct error - referral back to local court. Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED : Firearms Act 1996 Justices Act 1902 Weapons Prohibition Act 1998 CASES CITED : R v Wilkes (2001) NSWCCA 383 PARTIES : The Crown Joel Davison (aka Andrew William Eckerman) FILE NUMBER(S) : CCA 60037/03 COUNSEL : H K Dhanji (Appellant) DML Woodburne (Crown) SOLICITORS : LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0025 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60037/2003 MEAGHER JA DOWD J BARR J Friday 14 March 2003 REGINA v JOEL DAVISON (aka Andrew William ECKERMAN) Judgment 1 MEAGHER JA: I agree with Dowd J. 2 DOWD J: The appellant, who also is known by the name Andrew William Eckerman, has appealed against his conviction on two charges pursuant to s97 (2) of the Crimes Act 1900 ("the Act") that on 28 November 2001 at Coffs Harbour he did first, rob one Terrence Ablett of forty dollars whilst then being armed with a dangerous weapon, to wit, a large, kitchen style knife; secondly, that on 29 November 2001, at Woolgoolga, he did rob Amber Maher of ninety dollars in cash, the property of a Mobil Service Station, whilst then being armed with a dangerous weapon, to wit, a large kitchen style knife. 3 On 12 February 2002 the appellant was committed for sentence to the District Court under s51A of the Justices Act 1902 where a sentence hearing was conducted by Freeman DCJ on 17 April 2002. On 22 April 2002 his Honour sentenced the appellant on the first count to imprisonment for six years with a non-parole period of three and a half years. An identical term was imposed on the second count, both sentences commencing from the appellant's entry into custody on 29 November 2001. 4 An application was made by the appellant for leave to appeal against the sentences on 11 May 2002. The appellant now seeks an extension of time for leave to appeal against his convictions on the ground that a miscarriage of justice has occurred, on the basis that the evidence does not support the charges to which the appellant pleaded guilty. 5 In the circumstances of this matter I would grant leave to extend a time to bring the appeal. Events Giving Rise to the Charges 6 The facts giving rise to the charges were, on the first charge, that at 10:30pm on the night of 28 November 2001 the operator of the Bogas Service Station in Coffs Harbour closed the service station and went to his vehicle parked at the rear. As he sat in the driver's seat the appellant approached him wearing a balaclava and carrying a large, old, serrated carving knife with a white coloured handle. The appellant demanded money and took forty dollars from the victim's wallet. He checked the contents of the operator's carry bag and, on finding it empty, fled on foot. 7 The second offence was that at about 3:00am on 28 November 2001 the appellant entered the Mobil Service Sation at Woolgoolga wearing gloves and a beanie over his face and pointed a "large thirty centimetre knife with a white handle" at two males at the front door and told them to move back. He then pointed the knife at the female console operator and demanded money which she provided from the cash register into a white, plastic shopping bag he was holding. He then fled from the scene. There was a subsequent police motor vehicle chase but the appellant eluded the police. He was then arrested at 10:00am on 29 November 2001 at his workplace where he made full admissions to both offences to police and then later confirmed both admissions in an ERISP conducted later that afternoon. 8 Section 97 (1) and (2) of the Act are in the following terms: 97. (1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years. (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 9 It can be seen that s97 (2) creates an aggravated form of the s97 (1) offence which has a higher penalty. Section 4 of the Act provides a definition of "dangerous weapon" which includes a firearm within the meaning of the Firearms Act 1996, a spear gun or a prohibited weapon within the meanings of the Weapons Prohibition Act 1998. 10 The weapon used by the appellant was a large, serrated, carving knife with a white coloured handle and in the second offence was described as a large, thirty centimetre knife with a white handle. The appellant described it as a "bread knife". The knife, clearly, did not come within any of the categories. It is not within the Weapons Prohibition Act 1998. 11 It is submitted by the appellant, and not contested by the Crown, that there is no evidence upon which the appellant could properly be convicted of the offence under s97 (2) of the Act, whilst there is clearly sufficient evidence for conviction of an offence under s97 (1) of the Act. 12 Section 7 (2) of the Criminal Appeal Act 1912 is in the following terms: s7(1) … (2) Where an appellant has been convicted of an offence, and the jury could on the indictment have found the appellant guilty of some other offence, and on the finding of the jury it appears to the court that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. 13 It clearly does not apply, although one would have thought that the Legislature may consider conferring a power on the Court of Criminal Appeal to similar effect where there has been a plea of guilty, to compliment that which is conferred by s7 (2) of the Criminal Appeal Act 1912 where there has been a conviction by a jury. 14 In R v Wilkes (2001) NSWCCA 383 this court then held that s7 (2) of the Criminal Appeal Act does not give this court power to substitute a verdict in a similar appeal to this and, therefore, s8A (1) of the Criminal Appeal Act, which is in the following terms: 8A. (1) Where a person deemed to be convicted on indictment under subsection (7) of section 51A of the Justices Act 1902, as amended by subsequent Acts, appeals to the court against the conviction, the court may, either of its own motion, or on the application of the appellant, order that the proceedings before the justice or justices at which the appellant pleaded guilty be continued at a time and place to be specified in the order, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, the miscarriage of justice can be more adequately remedied by an order that those proceedings be so continued than by any other order which the court is empowered to make. can apply to the circumstance where a person appeals against a deemed conviction upon indictment under s51A (7) of the Justices Act . 15 The court may order that the proceedings before the justice at which the appellant pleaded guilty be continued at a time and place to be specified by the order of the court if it considers that a miscarriage of justice has occurred and, having regards to the circumstances, that the miscarriage can more adequately be remedied by an order that the proceedings be continued other than by any other order which the court is empowered to make. 16 Clearly, a miscarriage of justice has occurred and the only remedy available to correct this is an order pursuant to s8A (1) of the Criminal Appeal Act and I therefore propose the following orders: i. That the time for giving notice of this appeal be extended. ii. That the appeal against conviction be allowed. iii. That the conviction recorded in the District Court be quashed. iv. That proceedings be continued before the Local Court in Coffs Harbour, on the first convenient date. 17 BARR J: I agree. 18 MEAGHER JA: The orders of the court will be the orders proposed by Dowd J. ********** Last Modified: 05/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.