Citation: REGINA v DAVISON (aka Eckerman) [2003] NSWCCA 95
Court: Court of Criminal Appeal, New South Wales
Date: 14 March 2003
Judge(s): Meagher JA, Dowd J, Barr J
Background
The appellant pleaded guilty in the Local Court to two counts of aggravated armed robbery under s 97(2) of the Crimes Act 1900, arising from incidents at petrol stations in Coffs Harbour and Woolgoolga in late November 2001. In both offences, the appellant used a large serrated kitchen knife, which he himself described as a "bread knife." He was committed for sentence to the District Court, where Freeman DCJ imposed concurrent six-year terms of imprisonment with a three-and-a-half-year non-parole period.
The appellant initially sought leave to appeal against sentence, but later sought an extension of time to appeal against his convictions. His ground of appeal was that the evidence did not support the aggravated form of the offence to which he had pleaded guilty.
Legal Issues
- Whether a serrated kitchen knife qualified as a "dangerous weapon" within the meaning of s 97(2) of the Crimes Act 1900, as defined by reference to the Firearms Act 1996 and the Weapons Prohibition Act 1998
- Whether the Court of Criminal Appeal had power under s 7(2) of the Criminal Appeal Act 1912 to substitute a verdict of guilty of the lesser offence under s 97(1) where the conviction arose from a guilty plea rather than a jury verdict
- Whether a miscarriage of justice had occurred, and if so, what remedy was available under s 8A(1) of the Criminal Appeal Act 1912
Decision
The court found that the knife used by the appellant fell outside the statutory definition of "dangerous weapon" in s 4 of the Crimes Act 1900. That definition is confined to firearms (within the meaning of the Firearms Act 1996), spear guns, and prohibited weapons (within the meaning of the Weapons Prohibition Act 1998). A kitchen knife, however large or serrated, does not satisfy any of those categories. The Crown did not contest this point.
The court accepted there was plainly sufficient evidence to sustain a conviction for the lesser offence under s 97(1), which requires only that the offender was "armed with an offensive weapon." However, s 7(2) of the Criminal Appeal Act 1912, which empowers the court to substitute a lesser verdict, applies only where a conviction was returned by a jury. It has no application where the conviction arose from a guilty plea. The Court of Criminal Appeal had previously confirmed this limitation in R v Wilkes [2001] NSWCCA 383.
With no power to substitute a verdict, the only available remedy was an order under s 8A(1) of the Criminal Appeal Act 1912. That provision allows the court to direct that proceedings before the justice at which the appellant pleaded guilty be continued before the Local Court, where it is satisfied that a miscarriage of justice has occurred and that this course is the most adequate remedy. The court was satisfied both conditions were met and made orders accordingly.
Dowd J observed that the legislature may wish to consider whether to confer on the Court of Criminal Appeal a power to substitute verdicts in guilty plea cases, mirroring the power that already exists for jury trial convictions under s 7(2).
Orders Made
- Time for giving notice of appeal extended
- Appeal against conviction allowed
- Conviction recorded in the District Court quashed
- Proceedings to be continued before the Local Court at Coffs Harbour on the first convenient date
Key Takeaways
- A "dangerous weapon" under s 97(2) of the Crimes Act 1900 is confined by statute to firearms, spear guns, and prohibited weapons; a kitchen knife does not satisfy the definition regardless of its size or characteristics.
- Under s 7(2) of the Criminal Appeal Act 1912, the Court of Criminal Appeal can substitute a lesser verdict only where a jury returned the original conviction; the power does not extend to convictions following guilty pleas.
- A miscarriage of justice arising from a guilty plea to a charge lacking an evidentiary foundation can be remedied under s 8A(1) of the Criminal Appeal Act 1912, which allows the Court of Criminal Appeal to remit proceedings to the Local Court for continuation.
- The decision confirms the approach taken in R v Wilkes [2001] NSWCCA 383, reinforcing the boundary between the two remedial provisions.
- Dowd J identified a legislative gap: there is no equivalent of s 7(2) enabling substitution of verdicts in guilty plea appeals, a matter his Honour suggested the legislature might consider addressing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 4, 97(1), 97(2)
- Criminal Appeal Act 1912 (NSW), ss 7(2), 8A(1)
- Firearms Act 1996 (NSW)
- Justices Act 1902 (NSW), s 51A
- Weapons Prohibition Act 1998 (NSW)
Cases:
- R v Wilkes [2001] NSWCCA 383