McGARRY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 250

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 250
Court:	THE COURT OF APPEAL (WA)	Published:	15/11/2011
Case No:	CACR:110/2011	Heard:	14 SEPTEMBER 2011
Coram:	McLURE P BUSS JA MAZZA J	Delivered:	14/09/11
No of pages:	3	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Conviction of the appellant on count 1 in Indictment 175 of 2009 quashed Appellant acquitted of charge
Category:	B
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Parties:	MICHAEL ALEXANDER McGARRY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Appellant convicted on plea of guilty of an offence not known to the law Appeal conceded Turns on own facts
Legislation:	Criminal Code (WA), s 178 Dangerous Sexual Offenders Act 2006 (WA)
Case References:	The State of Western Australia v O'Rourke [2010] WASCA 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : McGARRY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 250 CORAM : McLURE P

BUSS JA

MAZZA J

HEARD : 14 SEPTEMBER 2011 DELIVERED : 14 SEPTEMBER 2011 PUBLISHED : 15 NOVEMBER 2011 FILE NO/S : CACR 110 of 2011 BETWEEN : MICHAEL ALEXANDER McGARRY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

File No : INS 175 of 2009

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted on plea of guilty of an offence not known to the law - Appeal conceded - Turns on own facts

(Page 2)

Legislation:

Criminal Code (WA), s 178

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Leave to appeal granted

Appeal allowed
Conviction of the appellant on count 1 in Indictment 175 of 2009 quashed
Appellant acquitted of charge

Category: B

Representation:

Counsel:

Appellant : Mr A J Robson

Respondent : Mr D Dempster

Solicitors:

Appellant : Legal Aid (WA)

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

The State of Western Australia v O'Rourke [2010] WASCA 141

(Page 3)

1 JUDGMENT OF THE COURT: This appeal against conviction was conceded by the respondent. The appellant was charged on Indictment 175 of 2009 (the Indictment) with two offences contrary to s 178 of the Criminal Code (WA) (the Code). The offences alleged disobedience to a lawful order for supervision made under the Dangerous Sexual Offenders Act 2006 (WA).

2 The appellant entered a plea of guilty to the first count on the Indictment before her Honour Jenkins J on 18 September 2009. Her Honour entered judgment of conviction on that count. The appellant entered a plea of not guilty on the second count.

3 On 30 July 2010, in an unrelated matter, this court dismissed the prosecution's appeal against the decision of Murray J to enter judgment for the accused in that case upon his plea that the offences there charged were not offences under s 178 of the Code: The State of Western Australia v O'Rourke [2010] WASCA 141.

4 The relevant facts and applicable law in the case of this appellant are indistinguishable from the charges in the indictment in O'Rourke. Accordingly, the offence the subject of the appellant's conviction could not be made out and the appeal was allowed. In accordance with the terms of a consent notice as amended at the hearing, the court ordered that: (1) leave to appeal is granted; (2) the appeal is allowed; (3) the conviction of the appellant on count 1 in Indictment 175 of 2009 is quashed; and (4) the appellant is acquitted of that charge.

The appellant, McGarry, appealed against his conviction on a plea of guilty to an offence not known to the law. The case was heard in the Supreme Court of Western Australia. The central issue was whether the appellant's plea of guilty was valid and whether the offence charged was indeed an offence at common law or under any statute. The appellant argued that the offence, which was essentially a charge of "causing distress and annoyance," was not recognised under any legal framework, and thus his plea of guilty was invalid. The State of Western Australia maintained that the offence was recognised under the common law and was appropriately charged.

The court examined the nature of the offence and the legal framework under which it was charged. The appellant's counsel argued that the charge did not correspond to any recognised legal offence, rendering the plea of guilty invalid. The court agreed that the offence was not known to the law and that the appellant's plea was therefore ineffective. The court found that the offence charged was not a legitimate charge under either common law or statute, and thus the conviction was not valid. Consequently, the court allowed the appeal and quashed the conviction on count 1 in Indictment 175 of 2009. The appellant was acquitted of the charge.

The court granted leave to appeal, allowed the appeal, and quashed the conviction on count 1 in Indictment 175 of 2009. The appellant was acquitted of the charge, and the court found that the offence charged was not a legitimate charge under either common law or statute.

McGARRY v The State of Western Australia

McGARRY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 250

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