Granato v. Marsh - (29 Jun 2018)
A conviction based on a plea of guilty may be set aside on basis that, an Appellant satisfies the Court that, he had an arguable defence with a reasonable prospect of success
In the instant case, Mr Granato was charged with importing a firearm accessory into Australia in contravention of Commonwealth law. He appeared before a magistrate and pleaded guilty to that charge and was convicted. Mr Granato now wishes to set aside the conviction on the basis that he received erroneous legal advice that excluded an arguable defence. Mr Granato contends that he had a belief concerning the nature of the item that he imported and that his belief afforded him the defence of mistake of fact under Section 9.2 of the Criminal Code (Cth). However, as a consequence of the legal advice that he received, he understood that the defence was not arguable. Mr Granato in those circumstances says that his conviction has given rise to a miscarriage of justice. The Commonwealth contends that Mr Granato's belief was a mistake of law and that therefore a defence of mistake of fact does not arise.
Section 8(2) of the Criminal Appeals Act, 2004 provides that, an appeal may be commenced against a decision, 'even if the decision was made after a plea of guilty or an admission of the truth of any matter'. An appellate Court will not set aside a conviction from a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. Whilst recognising that the circumstances which will constitute a miscarriage of justice cannot be exhaustively stated, there are three categories in which appellate courts have been prepared to set aside pleas of guilty: (1) Where the Appellant did not understand the nature of the charge or did not intend to admit guilt; (2) If upon the admitted facts the appellant could not, in law, have been guilty of the offence; or (3) Where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like.
As per Section 9.2 of the Criminal Code (Cth), a person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence. The Criminal Code (Cth) expressly provides that, mistake or ignorance of statute law or subordinate legislation does not afford a person a defence. Section 9.3 provides that, a person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence. (2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if the Act is expressly to the contrary effect.
A Court will approach any attempt to set aside a conviction upon a plea of guilty with 'caution bordering on circumspection'. It is not enough for the appellant to demonstrate, on appeal, that he was innocent of the charge to which he pleaded guilty. That is because an accused person may enter a plea of guilty for reasons other than a belief as to their guilt. A person may plead guilty for many reasons, for example, to avoid publicity, to protect family, or to obtain the benefits of a discount at sentencing for a plea of guilty. A conviction based on a plea of guilty may be set aside on the basis that, an Appellant satisfies the Court that, he had an arguable defence with a reasonable prospect of success. Mr Granato says that, he had an arguable defence, being the defence of mistake of fact pursuant to Section 9.2 of the Criminal Code (Cth).
Belief asserted by Mr Granato raises an arguable defence with a reasonable prospect of success under Section 9.2 of the Criminal Code (Cth). Mr Granato pleaded guilty to the charge on the basis of legal advice that erroneously determined the legal significance of Mr Granato's asserted belief regarding the nature of the item imported. That gave rise to a miscarriage of justice. Therefore, the conviction should be set aside and that the matter be remitted to the Magistrates Court for the charge to be dealt with according to law. Accordingly, an extension of time is granted, leave to appeal is granted and the appeal is allowed.
Tags : CONVICTION VALIDITY ARGUABLE DEFENCE