Regina v WILKS [2001] NSWCCA 383

Regina v WILKS [2001] NSWCCA 383

Because the agreed facts, witness statements and appellant's evidence showed entry through an open door and no forced or other breaking, there was no evidence of the breaking element of the offence. The conviction for break enter and steal therefore involved a miscarriage of justice notwithstanding the guilty plea. The Court was not empowered to substitute a verdict under s 7(2) of the Criminal Appeal Act 1912 because the conviction was a deemed conviction on indictment following a guilty plea under s 51A of the Justices Act 1902, so the adequate remedy was to quash the District Court conviction and order the proceedings continued before the Local Court under s 8A(1).

Jurisdiction
Australia
Judgment Date
25 September 2001
Procedural Posture
Criminal Appeal Against Conviction / Application for Extension of Time and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Time extended; appeal against conviction allowed; District Court conviction quashed; proceedings ordered to continue before the Local Court at Scone.
Legal Topics
['break Enter and Steal' 'breaking at Common Law' 'plea of Guilty' 'miscarriage of Justice' 'substituted Verdict' 'extension of Time' 'continuation of Local Court Proceedings']
['criminal Law' 'criminal Procedure' 'appeals'] ['break Enter and Steal' 'breaking at Common Law' 'plea of Guilty' 'miscarriage of Justice' 'substituted Verdict' 'extension of Time' 'continuation of Local Court Proceedings']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Extension of Time and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the appellant's conviction for break enter and steal should be set aside despite his plea of guilty because there was no evidence of breaking." 'Whether the Court could substitute a conviction for stealing in a dwelling under s 7(2) of the Criminal Appeal Act 1912.' 'Whether the proceedings should be continued before the Local Court under s 8A(1) of the Criminal Appeal Act 1912.']

Ratio Decidendi

Because the agreed facts, witness statements and appellant's evidence showed entry through an open door and no forced or other breaking, there was no evidence of the breaking element of the offence. The conviction for break enter and steal therefore involved a miscarriage of justice notwithstanding the guilty plea. The Court was not empowered to substitute a verdict under s 7(2) of the Criminal Appeal Act 1912 because the conviction was a deemed conviction on indictment following a guilty plea under s 51A of the Justices Act 1902, so the adequate remedy was to quash the District Court conviction and order the proceedings continued before the Local Court under s 8A(1).

Court Disposition

Time extended; appeal against conviction allowed; District Court conviction quashed; proceedings ordered to continue before the Local Court at Scone.

Orders

  • ['The time for giving notice of appeal be extended pursuant to s 10(3) of the Criminal Appeal Act 1912.' 'The appeal against conviction be allowed.' 'The conviction recorded in the District Court be quashed.' 'The proceedings be continued before the Local Court at Scone on the first date available that is convenient...