Rofail v WA

[2019] WASCA 166

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Conviction following plea of guilty
5. › Miscarriage of justice
6. › Whether miscarriage of justice established where benefit particularised in indictment not actually obtained
7. › Whether incorrect particularisation of benefit amounts to element of offence
8. › Criminal Code (WA), s 409(1)(c)
1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Conviction following plea of guilty
5. › Circumstances in which plea of guilty may be set aside
6. › Three established categories of miscarriage of justice
7. › Whether admitted facts show appellant could not in law have been guilty of offence
1. Criminal Law
2. › Fraud
3. › Elements of offence
4. › Obtaining benefit by fraudulent means
5. › Distinction between elements and particulars of offence
6. › Whether statement of benefit in indictment is a particular or element
7. › Criminal Code (WA), s 409(1)(c)
1. Criminal Law
2. › Appeal
3. › Powers of appellate court
4. › Substitution of conviction
5. › Whether power to substitute conviction under s 30(5) Criminal Appeals Act 2004 (WA) engaged where conviction follows plea of guilty

Quick Take

An incorrect particularisation of the benefit obtained in a fraud charge under s 409(1)(c) of the Criminal Code (WA) does not give rise to a miscarriage of justice where the appellant pleaded guilty and effectively accepts guilt of the offence on a different factual basis. The statement of the specific benefit in the indictment is a particular, not an element of the offence. The power under s 30(5) of the Criminal Appeals Act 2004 (WA) to substitute a different conviction is not engaged where the original conviction followed a plea of guilty.