AB v Director of Public Prosecutions - [2024] WASC 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   AB -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 127
CORAM:   SEAWARD J
HEARD:   1 NOVEMBER 2023
DELIVERED          :   19 APRIL 2024
FILE NO/S:   SJA 1007 of 2023
BETWEEN:   AB
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DIAS
File Number            :   [REDACTED]

Catchwords:

Criminal Law - Appeal against conviction following plea of guilty - Whether any miscarriage of justice - Whether appellant did not understand the consequence of a plea of guilty or did not intend to plead guilty - Whether the plea of guilty has been obtained by inducement, harassment or intimidation - Whether appellant had an arguable defence to the charge of stealing - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA) s 23A, s 27, s 378

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr R Arndt

Solicitors:

Appellant	:	In Person
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

Clarke v The State of Western Australia [2018] WASCA 14
Lawson v The State of Western Australia [2018] WASCA 204
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Tsang v Francis [2021] WASCA 131
Wilhelm v The State of Western Australia [2013] WASCA 188

SEAWARD J:

Introduction

On 11 January 2023, the appellant entered a plea of guilty to a charge of stealing pursuant to s 378 of the Criminal Code (WA). The appellant was convicted on that guilty plea and the learned Magistrate imposed a fine of $500 with costs of $259.30.
The appellant has appealed against her conviction. For the reasons set out below I would dismiss the appeal.

Facts

Charge

The appellant was charged with stealing a Calvin Klein men's jacket, a three pack of Cavin Klein men's trunks and a three pack of Hugo Boss men's boxers with a total value of $144.97 from Costco Wholesale. The statement of material facts read by the prosecutor on 11 January 2023 after the guilty plea was entered provided as follows:
[At] 1.42 pm, Wednesday, 26 January 2022, the accused was at Costco Wholesale situated at 142 Dunreath Drive, Perth Airport. The accused entered the store via the exit door without showing proof of membership, walked to the clothing section, selected a men's Calvin Klein jacket, packet of Calvin Klein men's underwear and a packet of Hugo Boss men's underwear, total value $147.97. The accused concealed the items in her handbag before leaving the store via the entrance door, making no attempt to pay for the items. The accused was challenged outside the store by a witness, being a loss-prevention officer employed by Costco Wholesale.
The accused returned inside the store and returned the items as directed by the loss-prevention officer. The accused was then observed leaving the carpark in a white Mercedes station sedan, being her registered vehicle. It's registered to a business, but it's at the same residential address as the accused. This was captured on closed-circuit television. [On] 21 February 2022, the accused was arrested, interviewed by police. She made no admissions to the stealing. This was captured on audio-visual recording. She was summonsed.

Appearances in the Magistrates Court

The matter was before the Magistrates Court on a total of seven occasions. The appellant represented herself on each occasion.
The prosecution notice records that the first appearance was on 25 March 2022, where the charge was adjourned to 19 April 2022 for the appellant to obtain legal advice. The second appearance was on 19 April 2022 where the appellant entered a plea of not guilty and the matter was given a trial date of 9 August 2022. At the third appearance on 2 August 2022, the appellant applied to vacate the trial date as she was attending a funeral. The trial date was altered to 21 September 2022. The fourth appearance was on 8 September 2022 when orders were made to permit a witness to appear by way of video link. The appellant did not attend this appearance. The fifth appearance was on 21 September 2022 where the trial date was adjourned again to 24 October 2022. The reason recorded on the prosecution notice is as follows:
Trial Allocate Date Reason: Defence not ready to proceed Orders: ½ day. Self rep. Explains m health in background. Trial vacated. Told to go to LAC sooner rather than later.
At the sixth appearance on 24 October 2022, the trial was adjourned again to 11 January 2023. The prosecution notice records as follows:
Trial Hearing Orders: Notice of Adjournment Told will proceed with or without lawyer. Proceed s55/60 (7) if no appearance.

Appearance on 11 January 2023

It is necessary to set out what occurred on 11 January 2023 in some detail. When the matter was called the initial exchanges occurred between the police prosecutor, Senior Constable Depetro, and the learned Magistrate. Senior Constable Depetro explained that he understood that the appellant was going to enter a plea. Senior Constable Depetro then went on to give the prosecution submissions on sentence. Senior Constable Depetro submitted that the matter was a very low‑end offence and the property was recovered; a minimal fine was appropriate; that the prosecution was open to suspension of that fine and that the prosecution was not opposed to a spent conviction order. The appellant's criminal record was also handed up.[1]
[1] ts 11 January 2023, 1-2.
The learned Magistrate then addressed the appellant. It is apparent from the transcript that the appellant was having some difficulty in speaking, so the matter was adjourned to enable the appellant to speak to the duty lawyer:
HER HONOUR: Okay. So how do you wish to deal with it: plead guilty today?
ACCUSED: Sorry. I have trouble talking.
HER HONOUR: Take your time. I'm not in a rush. So when you're ready, how do you wish to enter your plea: guilty or not guilty or maintain your plea of not guilty? Whenever you're ready.
ACCUSED: I'm so sorry.
HER HONOUR: If you're going to change your plea, then you can get a lawyer, a duty lawyer, to represent you for a change of plea.
ACCUSED: But if I change it, then we won't have to go to trial?
HER HONOUR: Yes, that's right.
ACCUSED: So why would I have to then get a lawyer?
HER HONOUR: Well, then you don't have to speak, but now you can speak, so how do you wish to deal with your charge: plead guilty or not guilty? Now, you just spoke, so I gather you can speak, so how do you wish to plead?
ACCUSED: So sorry.
HER HONOUR: All right. Do you want to speak to a lawyer who can then enter your plea for you?
ACCUSED: (indistinct) minute.
HER HONOUR: Do you want to, yes, just have a minute there, then. Is there anything else that's ready to proceed? All right. So we will just stand this matter down, and I will come back to you. Thank you.
When the matter was recalled the appellant proceeded to enter a plea of guilty as follows:
HER HONOUR: Yes. So how do you wish to deal with your charge today: plead guilty or maintain your plea of not guilty?
ACCUSED: I'm going to plead guilty, your Honour.
HER HONOUR: t's alleged that, on 26 January 2022 at Perth Airport, you stole a Calvin Klein men's jacket, a three-pack of Calvin Klein men's trunks and a three-pack of Hugo Boss men's boxers to the total value of $144.97, the property of Costco Wholesale. Do you understand the charge? And how do you plead?
ACCUSED: Guilty, your Honour.
The police prosecutor then read the statement of material facts. The appellant was then asked if she accepted the facts, and the following exchange took place:
HER HONOUR: Thank you very much. Yes. Please, stand. Do you accept the facts? Pardon?
ACCUSED: Yes.
HER HONOUR: And what's your explanation for the offence, and what do I need to take into account for the purposes of sentencing you?
ACCUSED: Your Honour, I've been experiencing mental health for a long time, and I didn't know what I was doing that day. I'm a good person. I just - - -
HER HONOUR: But you accept that you did the – you committed the offence, and so you know that you did that?
ACCUSED: I wasn't in control, that day, of my actions, but I, today, am willing to accept - - -
HER HONOUR: Yes.
ACCUSED: - - - that I did something wrong. I didn't leave the store. I actually was inside the whole time, and I had asked the lady to call a doctor because I suffer from PTSD.
HER HONOUR: Anything else?
ACCUSED: I've just struggled to come to terms with it, and this was the earliest chance that I've had, basically.
HER HONOUR: All right. Is there anything else? Is that - - -
ACCUSED: I'm seeing a psychologist regularly.
HER HONOUR: All right. Do you work?
ACCUSED: Not at the moment, but once I get a bit better, I will.
HER HONOUR: What's your area of employment?
ACCUSED: Accounting.
HER HONOUR: Are you an accountant?
ACCUSED: Yes. I went to uni and studied and – yes.
HER HONOUR: All right. So I adopt the facts into my reasons. The maximum fine is $6000. So there's no evidence before me, medical evidence, to suggest that you - - -
ACCUSED: I've got a letter.
HER HONOUR: Well, do you have – what's your letter? Sorry. Okay. So that's just – yes. That sets out your diagnosis, but, otherwise, on the face of it, I've got no medical evidence in relation to your – you've accepted responsibility for the offence, essentially, so you accept that. Yes? So is that right?
ACCUSED: Well, I'm – no. On the day, I was not of sound mind, no.
HER HONOUR: Well, is there medical evidence to support that?
ACCUSED: If you want to read - - -
HER HONOUR: Because the issue is whether I accept your plea of guilty or whether you, otherwise, have a defence, but – thanks. I've just been handed a letter – report. Okay. Well, yes, I've read that report, 23 March 2022. It doesn't say there that – it was after this incident. Doesn't otherwise – it just reinforces the mental health issue, so rather than – it's mitigation rather than a defence. So on this occasion, I adopt the facts into my reasons. As I said, maximum fine of $6000 – and a plea of guilty on the date of trial, I think it was.
So I would have imposed a fine of $800. Reduced down for your plea of guilty and other personal and mitigating circumstances, there will be a fine today of $500 and costs in the sum of $259.30. The items were returned, as I understand it, and, yes, I've read the information in relation to your mental health diagnosis and the treatment and underlying issues, so (indistinct) impulsive shoplifting and hoarding,…
The learned Magistrate then considered, but declined, to make a spent conviction order.

Statutory framework and legal principles

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). Pursuant to s 8(1) of the CA Act, an appellant may appeal on one or more of the following grounds:
(a) that the court of summary jurisdiction —
(i) made an error of law or fact, or of both law and fact;
(ii) acted without or in excess of jurisdiction;
(iii) imposed a sentence that was inadequate or excessive;
(b) that there has been a miscarriage of justice.
Pursuant to s 8(2) of the CA Act, an appeal may be made against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.
Leave to appeal is required for each ground of appeal.[2] Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]
[2] CA Act s 9(1).
[3] CA Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[5] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[6]
[6] CA Act s 14(2).

Grounds of appeal

The appellant has represented herself at all times in this appeal.
In the appeal notice filed on 24 January 2023, the sole ground of appeal is:
A letter was provided to Magistrate confirming I was unfit, hence would like the matter to be re-heard. I also provided documents from my psychologist which were not even taken into account.
At the original date listed for the hearing of the appeal, it became apparent that the appeal was based on the following two grounds:[7]
(1)that the appellant was pressured into changing her plea to guilty on 11 January 2023 by the police prosecutor; and
(2)that the learned Magistrate erred in accepting the plea of guilty on 11 January 2023, in circumstances where the appellant was unfit for trial and had provided documents from her psychologist which the Magistrate failed to take into account.
[7] ts 15 May 2023, 6.
The respondent did not oppose the appellant being granted leave to amend her appeal notice to add the additional ground of intimidation on the part of the police prosecutor. However, counsel for the respondent appropriately observed that both of the grounds of appeal would require the filing of additional evidence on the part of the appellant, and the opportunity for the respondent to file any evidence in response.[8] When this was explained to the appellant, she accepted and agreed that the additional evidence was required.[9] Programming orders were then made for the filing of additional evidence and the matter was listed for a directions hearing to assess the readiness of the matter for the appeal hearing.
[8] ts 15 May 2023, 7 - 8.
[9] ts 15 May 2023, 8 - 9.
That additional evidence was filed in accordance with those orders (and is discussed below), and at the directions hearing held on 10 August 2023, the appellant confirmed that she wished to appeal on the basis of the two grounds referred to above.[10] The appeal proceeded on that basis. In those circumstances, I grant leave for the appellant to amend the appeal notice filed on 24 January 2023 to specify the two grounds of appeal referred to in [18] above.
[10] ts 10 August 2023, 6.

Legal principles – appeal against conviction where a guilty plea is entered

Section 8(2) of the CA Act permits an appeal against conviction even if the conviction was entered after a plea of guilty was entered. The legal principles concerning an appeal against conviction in circumstances where a guilty plea is entered are well established and are summarised in the decision of the Court of Appeal in Snook v The State of Western Australia [No 2] as follows:[11]
[11] Snook v The State of Western Australia [No 2] [2015] WASCA 29.
102 An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 Dawson J. There are three well recognised grounds for allowing a change of plea:
(1)where the applicant did not understand the charge or did not intend to plead guilty;
(2)where on the admitted facts the applicant could not in law be guilty of the offence; and
(3)where the plea of guilty has been obtained by inducement, fraud or intimidation.
See Borsa v The Queen [2003] WASCA 254 and Webster v The Queen [2015] WASCA 20.
103 These are not however the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice. Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.
104 Attempts to change a plea are approached by the courts with caution bordering on circumspection: Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
…
106 An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].
107 If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.
See also Lawson v The State of Western Australia.[12]
[12] Lawson v The State of Western Australia [2018] WASCA 204 [16] - [20].
That is, the authorities place a high (but not impossibly so) burden on an appellant attempting to set aside a conviction based on a plea of guilty.
The legal principles relevant to when a miscarriage of justice is alleged on the basis of the plea being obtained by inducement, fraud or intimidation were summarised by the Court of Appeal in Tsang v Francis as follows:[13]
[13] Tsang v Francis [2021] WASCA 131.
68Brennan, Toohey and McHugh JJ then referred to the following statement of principle by Lawton LJ in R v Inns:
The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity.
Brennan, Toohey and McHugh JJ said that '[i]t may not be strictly accurate to describe what follows as a nullity, but it is certainly liable to be set aside and a new trial ordered' (142). Their Honours added that if an accused enters a plea of guilty in purported exercise of a free choice to serve the accused's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice and, in such a case, the court is falsely led to dispense with a trial on the faith of a defective plea (142).
69 In Meissner, Brennan, Toohey and McHugh JJ expressed these views about whether particular kinds of conduct will have the tendency improperly to induce an accused to plead guilty or the tendency to interfere with an accused's free choice to plead not guilty (143):
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
Conduct is likely to have the tendency to interfere with a person's free choice to plead not guilty, however, when the conduct consists of a promise or benefit that is offered in consideration of the accused pleading guilty. The difficulty in such cases is to draw the line between offers of assistance that improperly impact on the accused's freedom of choice and offers of assistance that are legitimate inducements. In most cases, that difficulty can be resolved by determining whether, in all the circumstances of the case, the offer could reasonably be regarded as intended to protect or advance the legitimate interests of the accused having regard to the threat to those interests that arises from the institution of the criminal prosecution.

Application for leave to rely on additional evidence

The appellant seeks leave to rely on the following two affidavits containing evidence that was not before the learned Magistrate:
(a)affidavit of the appellant sworn 19 May 2023 (Exhibit 3); and
(b)affidavit of the appellant sworn 19 June 2023, attaching a report of Ian Mackinnon, Consultant Psychologist, dated 14 June 2023 (Exhibit 4).
The respondent seeks leave to rely on the affidavit of Senior Constable Giulio Julius Depetro, sworn 1 August 2023 containing evidence that was not before the learned Magistrate (Exhibit 1).
In accordance with s 39(1) of the CA Act, the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) to 'admit any other evidence' for the purposes of dealing with an appeal.[14] The power to admit further evidence is discretionary and is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved in each appeal will indicate those considerations which are relevant to the exercise of the discretion.[15]
[14] CA Act s 39(3).
[15] Tsang v Francis [2021] WASCA 131 [79] citing Clarke v The State of Western Australia [2018] WASCA 14 [236].
In circumstances where the appeal against conviction follows a plea of guilty, the usual distinction between 'fresh evidence' and 'new evidence', on which the authorities regarding the admission of evidence on an appeal are often based, is not relevant as there has been no trial in the lower court.[16] Rather, it is necessary to consider the relevance of the additional evidence to the issues in the appeal.
[16] Tsang v Francis [2021] WASCA 131 [93].
The evidence was admitted during the appeal and each witness was cross-examined. I was satisfied that the additional evidence sought to be adduced by each party was relevant to the issues in the appeal as the evidence concerned the basis upon which the appellant submitted there had been a miscarriage of justice. Accordingly, leave was granted to the parties to adduce the additional evidence.

Appellant's evidence

The appellant filed an affidavit sworn 19 May 2023 (Exhibit 3) in which she deposes to the facts which underpin both grounds of appeal. The appellant's affidavit is short and provides as follows:
1.Received a phonecall from the prosecutor Mr Depetro a couple of days prior to my trial on 11 January 2023. He was questioning me about my matter and was trying to get me to change my plea. I explained to him that I am suffering from mental illness.
2. On the day of the trial Mr Depetro approached me prior to entering the court room and once again was trying to get me to change my plea. He kept saying that this was low end and that they are not going to agree to adjourn it again.
3. Prior to my case being called up I went down to legal aid to see if they could provide assistance as I was unwell. The officer kept telling me that they couldn't assist, so I went back upstairs to the court room. I was approached again by Mr Depetro. I explained to him that I couldn't get assistance from legal aid. Another representative came up to the courtroom and told me to go back down to legal aid which I did. I waited and then was approached again and told me they couldn't assist. On the day I went up and down to legal aid about 3-4 times. Each time that I went down there I walked past about 10 policeman all sitting outside the courtroom. I was approached once again by Mr Depetro. As I went back into the court room I spoke to the security officer and explained that I am feeling pressured to change my plea. I felt immense overwhelm and was in extreme panick [sic] and was struggling to make a decision as to what to do. I just wanted to get out of there and call my doctor.
4. The number of times that Mr Depetro approached me on the day and prior to the trial calling me on my personal mobile I felt harassed and scared. I merely changed my plea so I could get out of the situation I was currently in. Due to my mental illness I am extremely vulnerable and felt really scared and intimidated.
The appellant also gave oral evidence by way of explanation of her affidavit at the hearing of the appeal on 1 November 2023. The appellant's evidence as to what occurred on 11 January 2023 was:[17]
[APPELLANT]: Your Honour, I don't – I – I wasn't fit on the day of the trial. I was not fit enough to know what the consequences were if I changed my plea from guilty to not guilty. I was under a lot of duress and pressure and I had even told the security guard that I felt pressured to change my plea due to the number of times that the prosecutor had approached me, and I went down to Legal Aid about three or four times and I was given different information every time.
So I was so confused and I just wanted to get out of there. Part of my condition is that I'm always on fight or flight mode. I am a good person, and I just want you to give me the benefit of the doubt. The – the judge that day failed to see that I wasn't fit and she failed to see that the change of plea was actually genuine. She also failed to determine that the reports I handed her for the psychological reports were actually my way of saying that that was my defence.
And she seemed to think that the dates were out, so she said that's when she had determined it was actually a mitigant, but I had actually been seeking psychological treatment prior to the incident.
[17] ts 1 November 2023, 41 - 42.
The appellant then identified the medical documents she says were handed to the learned Magistrate and each were tendered as Exhibits 6 ‑ 10. Exhibit 5 is a medical certificate dated 14 November 2022 which the appellant said was possibly handed to the learned Magistrate on 11 January 2023.[18] I will return to these documents later in these reasons.
[18] ts 1 November 2023, 42.
The appellant's evidence as to what she thought she was doing when she entered the guilty plea is as follows:[19]
[APPELLANT]: I believed I was making everyone happy by just not going to trial and everyone could go home. I felt that that was the prosecutor's main – main reason why he wanted me to change my plea, and that's the reason he kept asking me if we were proceeding to a trial. And that's why he kept telling me that it was on the lower end so they were going to not give me – not give me, like, a – a sentence. It's like he was bribing me. That's how I felt.
…
[APPELLANT]: Sometimes my anxiety and panic can be so overwhelming that I can't even explain why I do something. It has been hard.
…
[APPELLANT]: So my main thing in my head that day was I just wanted to get away. It wasn't that I was trying to get away with anything. And that has been from a young age. I – I have experienced a lot of bullying and harassment in the workplace from men. So even if the prosecutor's intention wasn't what his intentions were, I perceived it in a different way.
[19] ts 1 November 2023, 44 - 45.
The appellant was then cross-examined by counsel for the respondent.
The appellant accepted that she only had one telephone conversation with Senior Constable Depetro prior to 11 January 2023. The appellant accepted that Senior Constable Depetro said that if the appellant pleaded guilty, Senior Constable Depetro would not say anything in opposition to a spent conviction order. The appellant accepted that she had previously been given a spent conviction order but could not recall if that was following a plea of guilty or not guilty.
The appellant also accepted that during the telephone conversation, Senior Constable Depetro said to her that she should get some legal advice. The appellant recalled speaking to Senior Constable Depetro about her mental illness, but couldn't remember if Senior Constable Depetro told her that she would probably need some expert evidence if relying on an issue in relation to her mental health.
Turning to the events on 11 January 2023, when asked if she spoke to Senior Constable Depetro on three occasions, the appellant said that it was at least three, but she thought it was more.
The appellant denied that Senior Constable Depetro told her that she should get legal advice. Rather, the appellant's evidence was that Senior Constable Depetro knew she was going to see Legal Aid and kept asking her what happened at Legal Aid and whether she had any legal advice.
The appellant was then cross-examined on what she told Mr Mackinnon about her previous criminal record. The appellant ultimately accepted that she had only told Mr Mackinnon about one stealing incident which occurred in 2015, but that she or Mr Mackinnon must have got the date in the report of 2005 wrong. The appellant's criminal record was tendered to prove the dates and numbers of the offences (Exhibit 11) and not for the purposes of establishing the bad character of the appellant. The record reveals a total of three stealing offences with offence dates of 7 February 2013, 7 December 2014 and 9 June 2015. In each case the appellant received a spent conviction order and either a fine or a community based order.
The appellant accepted that Senior Constable Depetro did not (on either 4 January 2023 or 11 January 2023) make any threats to the appellant.
The appellant was asked questions about the medical certificate (Exhibit 7). The appellant agreed that she told Senior Constable Depetro about the medical certificate and that it was handed to him by one of the court staff. When asked if this occurred after the appellant had pleaded guilty, the appellant's evidence was that she could not remember when it occurred or when the documents were handed to the learned Magistrate.
The appellant's evidence was that she did not tell Senior Constable Depetro that she was going to plead guilty and that the first time the appellant said she was going to plead guilty was when the learned Magistrate recalled the matter. The following exchange then took place:[20]
[20] ts 1 November 2023, 52 - 53.
Okay. Now, when you pleaded guilty do you agree that you knew that you were admitting committing that offence?---No.
You don't agree with that. What did you think you were doing when you pleaded guilty?---Escaping.
When you had gone to court today did you want to get the trial adjourned?---I – I don't know.
Did you intend to give the magistrate the certificate from Jupiter in support of an application to adjourn the trial?---It – it – it was in black and white. She – I – I – I should have given it at the very beginning but I was telling her that I was struggling to talk.
Yes. And she told you, 'Take your time. We're not in a rush'?---It was very sarcastic. Her tone was very sarcastic. And then when I finally said something she commented that I can talk again. But it was my way of saying I'm not – I wasn't fit enough that day to go ahead with anything.
If you could turn to page 5 of the transcript and just over halfway down you say:
I wasn't in control that day of my actions but I – today I am willing to accept –
her Honour says 'yes' and you continue:
… that I did something wrong.
When you said that, were you saying that you accepted that you were guilty of the offence?---No.

Senior Constable Depetro

The respondent relies on the affidavit of Senior Constable Depetro, who was the police prosecutor on 11 January 2023. Senior Constable Depetro made his affidavit in response to Exhibit 3.
Senior Constable Depetro deposes that he attempted to contact the appellant on 4 January 2023 to enquire as to whether the trial would be proceeding. Senior Constable Depetro deposes that when his call was not answered he sent the appellant an SMS (Exhibit 2) which read as follows:
Hello [appellant] my name is Julius I am a prosecutor working for WAPol I was hoping to speak with you can you please give me a call back on [redacted] when Available thank you
Senior Constable Depetro deposes that at about 10.00 am on 4 January 2023, the appellant called him. Senior Constable Depetro made notes of that conversation which are attached to his affidavit and provide as follows:
phone call from [appellant] regarding prosecution 2157472 - 1 stealing, provided prosecution position advised lower end of the scale for this type of offending would only seek minimums and would not oppose a spent conviction.
advised her position was that she had PTSD and was being followed and didn't have the intent to steal, advised she would need to seek legal advice on that if that was her position. Can only speak from my experience in if she was speaking to some kind of mental incapacity she would likely need a [sic] expert to provide that evidence to the court. Advised to seek legal advice happy to talk further and she can contact me before or the morning of the trial
Senior Constable Depetro also deposes that the appellant raised in that call a potential defence, being that the act was independent of her will.
Senior Constable Depetro deposes that he does not agree with the appellant's statement that he was trying to get her to change her plea and deposes he did not tell the appellant how she should plead.
Senior Constable Depetro deposes that the purpose of his call was to find out whether the appellant would maintain her plea and to see if the facts in issue could be narrowed. By way of explanation, Senior Constable Depetro deposes:
I know from experience the criminal justice system can be hard to navigate. It is my understanding clearly setting out the position of the prosecution may assist an accused person when seeking legal advice and ultimately making informed decisions.
Turning to 11 January 2023, Senior Constable Depetro deposes that the matter was listed in Court 38 of the Central Law Courts in Perth in the call over court where all matters listed for trial that day are listed. Senior Constable Depetro deposes:
The Court determines which matters are proceeding to trial, if there is an excessive number of trials proceeding they may be moved to other courtrooms for trial upon availability. As a result, all Police prosecutors, all accused persons and most witnesses, many of whom are Police wait in and around Court 38 in a public gallery. I am unable to say how many Police officers were present. The appellant's statement there were 'about 10' sitting outside the courtroom is likely correct. Most of those officers will have been witnesses in other matters.
Senior Constable Depetro deposes that a total of eight matters were listed for trial and two proceeded.
Senior Constable Depetro describes his interactions with the appellant on 11 January 2023 as follows:
13.I spoke to the appellant that day. I do not agree I was trying to get her to change her plea. I did ask her several times if she had sought legal advice. I did say to her I considered the offence to be 'low-end.' I told her if she wished to make an application to adjourn the matter I would oppose it on the grounds that charges had been brought in March 2022, and I understood the trial had previously been adjourned, and she may have difficulty convincing the Magistrate to grant another adjournment. I made it clear to her it would be the Magistrate's decision, not mine, as to whether an adjournment was granted.
14. I said this noting this day would be the third trial date set for this matter of which witnesses had appeared in person and made themselves available to the court. I have since reviewed police prosecutions system and noted there had previously been an application to vacate the trial dates, which was granted on 2 August 2022, and the appellant had appeared at a trial on 21 September 2022, when the trial was again vacated when the appellant raised issues about her mental health.
15. A Notice of Adjournment issued on 24 October 2022 stated that the appellant had been advised by the Magistrate that at the next trial date the matter would proceed whether or not the appellant was represented, and if the appellant did not attend the matter would proceed in her absence under section 55 of the Criminal Procedure Act.
16. During my conversations with the appellant on 11 January 2023 she presented well, was articulate and asked appropriate questions of the prosecution. I spoke [to] [the appellant] twice, once outside of court in the public gallery and once inside the court after she had returned from Legal Aid offices and she told me she wished to change her plea.
17.I told her I would make representations on behalf of the prosecution to the presiding magistrate about my understanding of what she had been indicated to me [sic] and she would have an opportunity to both enter her plea and speak directly to the magistrate. I was not privy to the conversations between the appellant and the duty lawyer. However, I know from experience that it is unlikely a duty lawyer will assist accused by representing them at trial the day of trial. It is my understanding they do represent people who have been listed for trial and change their plea to guilty by presenting a plea in mitigation for them.
In his oral evidence in chief, Senior Constable Depetro also said that when he spoke to the appellant prior to entering the court room, the appellant said that she was going to seek an adjournment.
Senior Constable Depetro was cross-examined in relation to his evidence. Senior Constable Depetro was asked about his purpose of calling the appellant prior to the trial, and Senior Constable Depetro maintained that it was to state the prosecution position and denied that he was trying to get the appellant to change her plea. It was put to Senior Constable Depetro by the appellant that he asked her whether they were going to trial when by the very fact that she pleaded not guilty it was evident they were going to trial.[21] In response, Senior Constable Depetro answered: 'If you maintain your plea of not guilty we would go to trial, yes'. Senior Constable Depetro denied that 'he kept on asking' the appellant whether she was maintaining her plea during this telephone conversation.
[21] ts 1 November 2023, 26.
Turning to 11 January 2023, Senior Constable Depetro was asked why he was discussing a spent conviction if the appellant's original plea was not guilty, to which Senior Constable Depetro responded: 'Because people change their mind every day.' The following further exchange took place:
Isn't it correct that you kept saying to me, 'If you change your plea I will ask the magistrate to give you a spent conviction as this is on the lower end'?---No.
Why would you talk about a spent conviction if I had pleaded not guilty?---Some people are unfamiliar with the court process. As a prosecutor when – when dealing with unrepresented accused who may be unfamiliar with the process, I explain as best I can what I understand the process to be. That sometimes assists people who are unfamiliar with the process to make decisions, but that decision ultimately remains with you.
In relation to the appellant's mental illness, the following exchange took place:
So after I told you about my mental illness, you knew that I was in a vulnerable position to change my mind?---No.
So you were trying to change my mind?---No.
On the day of the trial, I did not speak to you at all about an adjournment. All I had said was that I was not well?---That's not true.
I beg to differ. Do you think it – how many times do you think you approached me on the day of 11 January?---From memory, I spoke to you three times.
Do you think that's harassing?---No.
Do you think someone with my mental illness can perceive that as harassing?---It's a matter for you.
Senior Constable Depetro agreed that he was aware that the appellant had not spoken to Legal Aid on 11 January 2023 and so had not received legal advice. Senior Constable Depetro's evidence was that he told the appellant to seek legal advice on many occasions.

In relation to the appellant's medical certificate, the following exchange took place:
Were you also aware that I handed you a medical certificate that day which went to the judge?---I was shown medical certificate. I told you that it's not a matter for me, it's a matter for the judge.
Well, the medical certificate was handed in court so how did you speak to me that day – at that point about that? You couldn't have because I handed it to the security guard?---Our initial meeting in the morning you've told me that you had some medical documents and I told you that's not a matter for me, that's a matter for you, and that that can be for consideration for her Honour.
In re-examination, Senior Constable Depetro clarified that he could not recall looking at a medical certificate signed by a general practitioner. However, he was aware of a certificate when the appellant told him about it at the start of the day and he was aware of it being provided to the court when the appellant was making submissions on penalty.
Senior Constable Depetro clarified that he became aware that the appellant was going to change her plea to guilty after the matter had been stood down by the learned Magistrate and when the appellant returned from Legal Aid and told Senior Constable Depetro of the change.

Ian Mackinnon's evidence

Exhibit 4 attaches the report of Mr Mackinnon. Mr Mackinnon is a Consultant Psychologist who has been in private practice as a Consultant Psychologist since 2003. No objection to the qualifications of Mr Mackinnon was made by the respondent and having regard to Mr Mackinnon's qualifications as detailed in his curriculum vitae attached to Exhibit 4, I am satisfied that he is qualified to give the opinion evidence contained in his report.
Mr Mackinnon has had one consultation with the appellant via video‑link on 1 June 2023, after the appellant self‑referred herself for the purpose of obtaining a report for use in the appeal.
Mr Mackinnon's reports details the information provided to him by the appellant regarding her childhood and her experiences as an adult and the medication the appellant is currently taking. I will not repeat that information here. The report also details that the appellant saw a psychologist for a few years, and now is seeing [redacted] every two to three weeks.
In terms of his assessment of the applicant, Mr Mackinnon concludes that in his opinion at the time he assessed the appellant she was suffering with symptoms that met the clinical criteria for Complex Post-Traumatic Stress Disorder (CPTSD) (being a form of PTSD that often arises in response to multiple traumas, often suffered during formative years, rather than one distinct event) manifested at a moderate level. Mr Mackinnon further concluded that in his opinion the appellant also presents now with unresolved grief and, perhaps, a vulnerability for occasionally experiencing transient kleptomaniacal impulses (more likely to occur when she is suffering with elevated levels of anxiety and general distress).
Mr Mackinnon's report states that at the time he assessed the appellant, in his opinion her functional intelligence and general cognitive functioning fell within the normal adult range; the appellant was correctly orientated to time, place, person and purpose and the appellant did not evince or report any psychotic symptoms.
In Mr Mackinnon's opinion, the likely identifiable antecedents and contributing factors to the appellant's CPTSD were the physical and emotional abuse perpetrated on her by her parents during her formative years; the insecure attachments she has to her parents; bullying she suffered at school; a rape she suffered at age 19; the loss of an unborn baby when she was about 25 years old; and workplace bullying she suffered during 2020 /2021.
In Mr Mackinnon's opinion:
… symptoms associated with [the appellant's] CPTSD that she reported, evinced and may be inferred include: anxiety, depression, psychosexual disturbance, flashbacks, rumination, intrusive thoughts, avoidance behaviour, an insecure sense of self, chronic interpersonal difficulties, sensitivity to environmental cues and triggers, sleep disturbance, nightmares and labile moods.
The report records that the appellant cried persistently throughout the course of the consultation and the appellant's distress over her legal matters and past trauma was 'palpable'.
In Mr Mackinnon's opinion:
[The appellant] is a highly psychologically damaged individual, suffering with chronic CPTSD, struggling with high levels of anxiety and depression, unresolved grief and other issues, and she would be well-advised to maintain her mental health treatment regime (including counselling and psychotropic medication).
In my opinion, [the appellant] does not labour with an inherently antisocial or criminal disposition. [The appellant] has only come before the courts on one previous occasion, c2005, for another matter that involved a theft.
In my opinion, there is nothing in the information available to me that supports the view that the past (c2005) and current (2022) theft matters are manifestations of an antisocial or criminal character. Rather, in my opinion, these two offences were very likely a bizarre manifestation of [the appellant's] poor state of mental health and her unmet emotional needs.
Neither offence involved anything of great value. I note that the 2005 offence involved her theft of a doll, coming not long after she had lost her unborn baby (and the possible symbolism this entailed is profound). The more recent offence occurred in a context where [the appellant] had stopped working because of workplace bullying and found herself idle and spending most of her waking time alone, feeling somewhat 'useless' and unproductive, dwelling on past trauma, suffering a resurgence of anxiety and depression, and going over the many misfortunes and unhappiness she had suffered during her life.
I pause at this point to observe that Mr Mackinnon stated in his report that the appellant reported that she had a minor prior criminal history involving one charge of theft dating from 2005. Mr Mackinnon was cross‑examined by counsel for the respondent on this information and Mr Mackinnon indicated he was only aware of one stealing incident which he thought was in 2005, and he was not aware of any in 2013 and 2014. Mr Mackinnon accepted it was his understanding of the appellant having only one stealing conviction which was the primary basis of his conclusion in the second quoted paragraph above that in his opinion, the appellant does not labour with an inherently antisocial or criminal disposition.
In his report, Mr Mackinnon stated:
In my opinion, at the time I assessed [the appellant], she understood the ordinary meaning of 'right and wrong' and I have some doubts about her ability ~~she was able~~ to process and competently negotiate her legal matters on her own.
The marked changes record the amendments made by Mr Mackinnon to this paragraph at the commencement of his evidence, when given the opportunity by the court to identify any corrections or errors in his report.[22]
[22] ts 1 November 2023, 31.
Mr Mackinnon's report goes on to consider the position of the appellant at the time of the alleged offence, and concludes that in his opinion, at this time the appellant was suffering with symptoms that meet the clinical criterial for CPTSD. Mr Mackinnon's report goes on to provide:
In my opinion, [the appellant's] CPTSD, and associated disruptions to her general psychological integrity, were the primary contributors to her offending in that they significantly degraded her ability to apply good reasoning and make sound judgement, made her more her [sic] impulsive and diminished her ability to maintain her normal standards of behaviour and personal responsibilities.
In this context, [the appellant's] offending appears to have been highly impulsive and irrational and served to benefit her very little in the way of possible financial gain.
At the time I assess [sic] [the appellant], she struggled to explain her actions on 26/01/22, but she recalled that she had become highly anxious and fearful when she became aware that someone was following her inside the store, and this had led her to leave the store 'in a panic' with the unpaid items. [The appellant] added that she has a history of panicking when people 'come up behind' her and appear to be stalking her.
In my opinion, given [the appellant's] CPTSD and associated anxieties and fears, this explanation has some credibility and may be an explanation for her behaviour.
However, in my opinion, [the appellant's] offence may well have been driven by kleptomaniacal impulses that were, themselves, in part a transient / occasional consequence (rather than an entrenched kleptomania disorder) of her chronic CPTSD, associated high levels of anxiety and depression, unresolved chronic grief and other unmet emotional needs.
In my opinion, either explanation suggests that [the appellant's] offending on 26/10/21 [26/01/22] was essentially a consequence of her very poor state of mental health at the time, this being so poor that she behaved in a manner that was not an accurate reflection of her true character.
Mr Mackinnon also expressed his opinion as to the effect of the appellant's mental state on her ability to deal with the legal proceedings, and concluded as follows:
In my opinion, [the appellant's] poor state of mental health also impacted strongly on her ability to deal with being processed by police, legal proceedings and her plea of guilty, to the extent that she was probably not well enough to apply good reasoning and sound judgement to these matters. [The appellant] explained that, ever since (from her perspective) police failed to take her seriously and properly investigate her (alleged) rape (when she was 19 years old), she has become highly anxious whenever dealing with police. [The appellant] noted that her anxieties had become so intense when she was dealing with police and prosecutors over the current offence, that she acquiesced and entered a plea of guilty, not being fully aware of the consequences of this decision and also in an attempt to 'get it all over and done with' so that she could flee the court and return to the safety of her home.
Indeed, I have concerns about the fact that [the appellant] is currently representing herself before the court and I have urged her to consider engaging legal representation.
…
In my opinion, [the appellant's] poor state of mental health adversely affected her ability to apply good reasoning and sound judgement at the time she was processed by police over the offence on 26/01/21 [26/01/22], and at the time she entered a guilty plea.
Mr Mackinnon was cross-examined by counsel for the respondent and agreed that he was not aware of any factor which would have meant the appellant was unable to appreciate that a plea of guilty was an admission of an offence at that basic level.
Mr Mackinnon also accepted that in his opinion, at the appellant's baseline level of function, when not acutely unwell, the appellant would possess the ordinary ability to assess right and wrong, however, indicated that he did not consider the appellant would possess this ability if particularly distressed.

Other documents

The appellant's evidence is that she handed up a bundle of medical documents to the learned Magistrate on 11 January 2023. There is no record from the Magistrates Court of precisely what documents were before the court.
The appellant's evidence is that Exhibits 6 ‑ 10 were handed up, whilst Exhibit 5 was possibly handed up.
The transcript from 11 January 2023 records the appellant stating that she has a letter and also records the learned Magistrate referring to a document dated 23 March 2022 (which is Exhibit 9).
Taking each of the documents in turn, Exhibit 5 consists of a medical certificate issued on 14 November 2022 by a general practitioner. It is short and provides:
[The appellant] has previously been diagnosed with Depression/Anxiety, Borderline Personality Disorder and ADHD. Symptoms reported to start on 28/1/2021 and continue to current date.
Exhibit 6 is a further medical certificate from the same general practitioner issued on 10 January 2023. Again, it is short and provides:
This medical certificate is to advise that [the appellant] will be unfit for her usual work from 10/01/2023 to 15/01/2023 inclusive.
Exhibits 7 - 10 consist of a series of reports from [redacted], Counselling Psychologist, to the appellant's general practitioner, dated 23 November 2021, 2 February 2022, 23 March 2022 and 27 June 2022 respectively. Each report follows an identical format and in large part contains the same background information. Each report:
(a)identifies the number of sessions that she had held with the appellant (being 6, 10, 16 and 21 sessions respectively);
(b)includes an identical paragraph which states that the appellant initially presented with symptoms congruent with depression, anxiety and posttraumatic stress including: sleep issues, fatigue, low motivation, constant tearfulness, low appetite, feeling hopeless, panic attacks (breathless, racing heart, feels like she is going to die), irritability, grief and fear about current and future childlessness, and fear of men;
(c)includes an identical paragraph which states that the appellant's symptoms occurred against a background of having long-term symptoms since childhood, attachment issues, trauma history (abuse, grief, sexual assault, medical, bullying), diagnosis of ADHD, history of alcohol and drug misuse and criminal activity, maladaptive schemas (mistrust/abuse, emotional deprivation, abandonment/instability, defectiveness/shame, dependence, enmeshment) and subsequent maladaptive coping modes;
(d)details [redacted]'s assessment of the appellant against what appear to be three different diagnostic scales and adds updated assessments to each report; and
(e)provides an overview of the appellant's treatment to date and usually requests a review of the appellant's mental health care plan to allow for further Medicare rebated sessions.
Exhibit 9 is the third report from [redacted], dated 23 March 2022. In the section where [redacted] provides an update on the appellant's treatment and progress, the report states that since the last report the appellant has been dealing with both existing and new legal issues (civil case about fence dispute, criminal case related to recent shoplifting charge) which have resulted in the alteration of the appellant's treatment in the following respect:
We have focussed on identifying and strengthening positive internal resources, processing the confusion and grief around a previous relationship breakdown and two previous abortions. These events appear connected to her impulsive shoplifting and hoarding of baby items and more recently mens' [sic] items which she appears to carry out in a dissociative state/
Finally, Exhibit 10 is the fourth report from [redacted], dated 27 June 2022. In the section where [redacted] provides an update on the appellant's treatment and progress, the report states:
Since I last wrote to you, [the appellant] has continued to experiencing [sic] increasing anger and overall distress in the context of ongoing criminal court proceedings related to her recent shoplifting charge and recent contact from, and ongoing rumination about, her expartner [redacted]. I have recommended that [the appellant] reach out to the Mental Health Law Centre for legal support and advice, and have provided her with copies of her GP Mental Health Care Plan review letters, as per Freedom of Information, to aid with this.

Findings of fact

Introductory remarks

As fresh evidence has been admitted in this appeal, and as there are differences in aspects of the evidence between the witnesses, it is necessary for me to make findings of fact in relation to what occurred in the conversations between the appellant and Senior Constable Depetro and also what occurred at court on 11 January 2023.
Having observed each of the witnesses give their evidence, I formed the view that each gave their evidence honestly and each was attempting to recall the events which occurred in January 2023 to the best of their ability. To the extent there were differences between the evidence of the appellant and Senior Constable Depetro, and there were no contemporaneous documents or notes, I have generally preferred the evidence of Senior Constable Depetro as I am satisfied that his memory of the events is better than the appellant's memory. In reaching this conclusion I have had regard to the fact that the appellant was unable to remember or recall a number of matters associated with this charge or her previous criminal charges. I accept that attending court and facing a criminal charge is a stressful and difficult experience, and that this will have contributed to the appellant's inability to remember these facts. However, by way of example, the appellant was unable to remember if Senior Constable Depetro told her in the telephone conversation that she would likely need an expert report; the appellant was unable to remember two out of her three other convictions for stealing, and that she received a spent conviction order for each; and the appellant was unable to remember when (in relation to her plea of guilty) Senior Constable Depetro was handed a copy of Exhibit 7 or when the learned Magistrate was handed a copy of the medical documents.

Telephone conversation

It is not in dispute, and accordingly I find, that Senior Constable Depetro attempted to contact the appellant by telephone on 4 January 2023 in the lead up to the trial listed for 11 January 2023. It is also not in dispute that, upon getting no answer to his call, Senior Constable Depetro sent the appellant an SMS message asking her to call him back, which the appellant then did at around 10.00 am on 4 January 2023. It is also not in dispute that there was only one telephone call between the appellant and Senior Constable Depetro prior to 11 January 2023.
It is also not in dispute, and I find, that during this telephone call:
(a)Senior Constable Depetro asked the appellant if she was going to maintain her plea;
(b)Senior Constable Depetro set out the prosecution's position in relation to the offence, which was that it was at the lower end of the scale, that the prosecution would only seek minimum penalties, and that the prosecution would not oppose a spent conviction order;
(c)the appellant indicated to Senior Constable Depetro that she had a mental illness, namely PTSD, and did not have the intent to steal;
(d)Senior Constable Depetro said to the appellant that she should seek legal advice; and
(e) Senior Constable Depetro did not threaten the appellant during this conversation.
Senior Constable Depetro's evidence was also that he told the appellant that in his experience, if the appellant wanted to refer to a mental incapacity of some sort, that she would likely need an expert report. The appellant does not remember if Senior Constable Depetro told her this or not. I am satisfied that Senior Constable Depetro did tell the appellant this, as it is recorded in his contemporaneous notes of the conversation. Further, the appellant's evidence was not that this part of the conversation did not occur, but rather that she could not remember if it did.
It was put to Senior Constable Depetro in cross-examination that he 'kept asking' the appellant during this telephone conversation if she wanted to change her plea. This was denied by Senior Constable Depetro who said only that 'he asked her'. I accept Senior Constable Depetro's evidence in this regard. The appellant did not give evidence in either her affidavit or oral evidence that Senior Constable Depetro 'kept asking her' during this telephone conversation or how many times this allegedly occurred.

11 January 2023

Turning to 11 January 2023 it is not in dispute, and I find, that Senior Constable Depetro spoke to the appellant prior to the appellant changing her plea to guilty. It is also not in dispute that Senior Constable Depetro told the appellant that he considered the offence to be low end and that he would oppose any application to adjourn the trial. It was also not suggested by the appellant that Senior Constable Depetro threatened the appellant during any conversations on this day.
I am also satisfied that Senior Constable Depetro told the appellant on 11 January 2023 that she should seek legal advice. The appellant does not accept that this occurred, and instead said that Senior Constable Depetro asked her whether she had received legal advice. I am satisfied that it is more likely than not that both of these occurred during the conversations between Senior Constable Depetro and the appellant on 11 January 2023. I am satisfied that a police prosecutor, faced with an unrepresented accused who has indicated she has a mental health issue; a trial which has been adjourned on multiple occasions; and an accused who has been to the Legal Aid offices on more than one occasion, is more likely than not to suggest that the accused seek legal advice (including from the duty lawyer) and then to ask the accused when they return from the Legal Aid offices whether they have seen the lawyer/been able to obtain legal advice.
There is also an inconsistency in the evidence as to how many times Senior Constable Depetro spoke to the appellant on 11 January 2023. Senior Constable Depetro's affidavit states that it was two times (once outside of court in the public gallery and once inside the court after the appellant had returned from the Legal Aid offices and said she was going to change her plea). However, in cross‑examination Senior Constable Depetro said he spoke to the appellant on three occasions. The appellant's affidavit refers to Senior Constable Depetro only speaking to her on two occasions, whilst in cross‑examination the appellant's evidence was that Senior Constable Depetro spoke to her at least three times, and she thought it was more. However, the appellant does not specify the number of times. In all the circumstances, I am satisfied that Senior Constable Depetro spoke to the appellant on three occasions. I have reached that conclusion on the basis of the evidence of both Senior Constable Depetro and the appellant including in cross‑examination, and the absence of any evidence from the appellant of the number of other occasions on which she says Senior Constable Depetro spoke to her.
Whilst it is not in dispute that Senior Constable Depetro indicated that the prosecution position was that he would not oppose a spent conviction order, there is a dispute as to the context and precise words used by Senior Constable Depetro in this regard. The question is whether Senior Constable Depetro told the appellant that the prosecution would not oppose a spent conviction order if the appellant pleaded guilty, or whether Senior Constable Depetro simply indicated that the prosecution would not oppose a spent conviction order (without that being contingent on a plea of guilty).
The appellant does not state in her evidence in chief (in either her affidavit or oral evidence) that Senior Constable Depetro stated that the prosecution would only not oppose a spent conviction order if the appellant pleaded guilty. In cross‑examination, the appellant was asked the following question by counsel for the respondent:
And do you agree that he said that if you pleaded guilty he wouldn't say anything in opposition to a spent conviction order?---Yes.
However, Senior Constable Depetro did not state in his evidence in chief (either his affidavit or oral evidence) that the prosecution would only not oppose a spent conviction order if the plaintiff pleaded guilty. Senior Constable Depetro expressly denied in cross‑examination that he had said, 'If you change your plea I will ask the magistrate to give you a spent conviction as this is on the lower end'. Senior Constable Depetro then went on to explain that he spoke to the appellant about a spent conviction order, despite her not guilty plea, because sometimes people are unfamiliar with the legal process and so he explains, as best he can, what he understands the process to be as this sometimes assists people.
I am satisfied in all the circumstances that Senior Constable Depetro did not tell the appellant that the prosecution would only not oppose a spent conviction order if the appellant pleaded guilty. I have reached this conclusion on the basis of the evidence in chief given by both the appellant and Senior Constable Depetro. Whilst counsel for the respondent did ask the appellant if she agreed that Senior Constable Depetro said that if she pleaded guilty he would not say anything in opposition to a spent conviction order (and the appellant agreed), I accord this exchange little weight, given this was not the evidence in chief of Senior Constable Depetro or the appellant and also Senior Constable Depetro's express denial that he said this in cross‑examination.
Finally, there is a question as to what documents the appellant handed to the learned Magistrate during sentencing on 11 January 2023. The transcript does not make it clear what documents the appellant handed to the learned Magistrate. The appellant has given evidence that Exhibits 6 ‑ 10 were provided to the learned Magistrate (the appellant being unsure as to Exhibit 5). However, the transcript only refers to 'a' letter being handed up and her Honour only refers to the date of one report (being 23 March 2022). In the transcript the learned Magistrate does not refer to any other reports being provided, and the appellant does not expressly refer the learned Magistrate to any other letters or refer to the medical certificate/s.
Senior Constable Depetro's evidence in cross‑examination was that the appellant told him in the initial conversation on 11 January 2023 that she had some medical documents and he indicated that these were a matter for the judge. Senior Constable Depetro clarified in re‑examination that he could not recall looking at a medical certificate signed by a general practitioner, however, he was aware of a certificate when the appellant told him about it at the start of the day and he was aware of it being provided to the court when the appellant was making submissions on penalty. Senior Constable Depetro did not state in his evidence what certificate or document was handed to the learned Magistrate.
In all the circumstances I am not prepared to find that the appellant did hand up Exhibits 5 ‑ 8 and 10 to the learned Magistrate. At most the appellant handed up Exhibit 9 and possibly one other document. If the appellant had handed up more than two documents, I consider the appellant would have been likely to have mentioned the other letters (plural) and the learned Magistrate would have said that she had been handed up a bundle of letters, as opposed to 'a' letter, and to then specify the various dates of those documents, as the learned Magistrate did with Exhibit 9. Further, if the appellant had handed up a medical certificate, I would likewise have expected her Honour to have referred to being handed a medical certificate.

Purpose of Senior Constable Depetro's conversations

Finally, the appellant invites me to draw an inference that the purpose of Senior Constable Depetro contacting the appellant on 4 January 2023, and asking the questions he did during their subsequent telephone conversation; and speaking to the appellant at the court on 11 January 2023, was an attempt to get the appellant to change her plea.
For the following reasons, I am not satisfied on the balance of probabilities that this was the purpose of Senior Constable Depetro making contact with the appellant or the purpose of the subsequent telephone conversation and discussions at court.
First, Senior Constable Depetro denied this allegation both in his affidavit and in cross‑examination.
Secondly, the reasons given by Senior Constable Depetro as to why he contacted the appellant before the trial - being to find out whether the appellant would maintain her plea and to see if the facts in issue could be narrowed - are consistent with appropriate practice for a prosecutor. This is especially so in the present case where the appellant was unrepresented; when the trial had been vacated or adjourned on three previous occasions; and where on the last adjournment the appellant was told that the trial would proceed with or without the appellant having a lawyer and even if the appellant did not appear. The fact that Senior Constable Depetro asked the same questions on 11 January 2023 (seven days later) is also consistent with appropriate practice for a prosecutor.
Thirdly, persons do sometimes change their plea or trials sometimes do not go ahead. Senior Constable Depetro's affidavit includes information regarding the number of matters listed for trial in the callover court on 11 January 2023 (eight) and that only two went ahead to a trial on that day. Whilst the reason/s this occurred in these eight cases is not before the court (and may in any event vary case by case), the fact that this occurred is another reason why the prosecution may contact an accused (especially an unrepresented accused) prior to trial, or speak to them on the morning of the trial, to see if they are still intending to plead guilty and/or to proceed to trial on the listed date.
Fourthly, I do not consider the fact that the Senior Constable Depetro outlined to the appellant what the prosecution case was in relation to the offence being at the lower end of the scale, or that the prosecution would not oppose a spent conviction order, to be an indication that Senior Constable Depetro was attempting to get the appellant to change her plea to guilty. I consider it to be appropriate prosecution practice for a prosecutor to make clear the position of the prosecution in relation to these matters, especially in the case where the accused is unrepresented.
Fifthly, I have found that Senior Constable Depetro did not state to the appellant that he would not oppose a spent conviction order only if the appellant pleaded guilty.

Disposition - ground 1

Parties' submissions

The appellant's case in relation to the first ground of appeal is that Senior Constable Depetro's conduct in speaking to her on multiple occasions was a form of harassment and pressure that lead her to change her plea. The appellant's evidence was that she was feeling pressured and thought she was making everyone happy by just not going to trial.
There is a degree of overlap between the appellant's case in relation to her two grounds of appeal, and the various facts relied on. However, in relation to ground 1, when the appellant's evidence; the cross‑examination of Senior Constable Depetro; and the appellant's submissions are considered as a whole, the various matters which the appellant relies upon as being the conduct which pressured her into changing her plea are:
(a)the number of times Senior Constable Depetro contacted her;
(b)Senior Constable Depetro asking the appellant if she was intending to maintain her plea;
(c)Senior Constable Depetro indicating that the prosecution considered the offence to be at the lower end of the scale and that he would not oppose a spent conviction order if the appellant pleaded guilty;
(d)that Senior Constable Depetro was aware of her mental illness and continued to speak to her/ask questions;
(e)the number of police officers that the appellant had to walk past on 11 January 2023;
(f)that the appellant went up and down to the Legal Aid offices on several occasions, and the 'misinformation' provided to her at the Legal Aid offices; and
(g)that the overall purpose of Senior Constable Depetro contacting the appellant was to attempt to persuade the appellant to change her plea.
The respondent submits that there is no suggestion in this case of fraud or inducement, and there is nothing in the evidence which could objectively be described as intimidation. Rather, the respondent submits that, at its highest, the appellant's evidence is that she was feeling intimidated by the legal process itself and ordinary inquiries being made by the prosecutor.

Disposition

The question raised by this ground of appeal requires consideration of precisely what factors the appellant submits lead her to change her plea to guilty, and then consideration of whether there was anything improper in the circumstances such that the appellant was deprived of the ability to make a free choice as to whether or not to plead guilty. The question is not ultimately whether Senior Constable Depetro did anything improper, but whether the appellant's guilty plea was voluntary.
Turning to the factors relied upon by the appellant, I have already found that the overall purpose of Senior Constable Depetro contacting the appellant and speaking to her was not an attempt to persuade the appellant to change her plea (item (g) above). I have also already found that Senior Constable Depetro did not tell the appellant that he would not oppose a spent conviction order (only) if the appellant pleaded guilty (item (c) above).
In terms of the remaining matters involving Senior Constable Depetro and his interactions with the appellant, I do not consider any can be said to be such as to constitute improper inducement, intimidation or harassment of the appellant, such that the appellant was deprived of the ability to make a free choice as to whether to plead guilty.
In reaching this conclusion I observe that there is no suggestion that Senior Constable Depetro threatened the appellant in any way or at any stage. I also observe that it is relevant to have regard to the background of this matter, including the number of times in which the trial dates had previously been adjourned and the fact that the appellant was un-represented. In these circumstances, I consider it was ordinary and appropriate practice for Senior Constable Depetro, as the police prosecutor, to contact the appellant prior to the trial in order to attempt to find out whether her plea would be maintained; to outline the prosecution's position in relation to the charges and sentencing; and to recommend that the appellant obtain legal advice. I also consider it to be ordinary and appropriate practice for Senior Constable Depetro, as the police prosecutor, to ask these questions again of the appellant on 11 January 2023, and to seek an update from the appellant after she had attempted to speak to a lawyer from Legal Aid (items (a) ‑ (c) above). In these circumstances, I do not consider anything in Senior Constable Depetro's conduct falls into the category of intimidation, harassment or improper inducement such that it could be said that it has led to the plea of guilty not being voluntary.
I have also had regard to the fact that the appellant told Senior Constable Depetro during the telephone conversation on 4 January 2023 that she had CPTSD (item (d) above). This does not alter my above conclusion. Senior Constable Depetro responded to this information by advising the appellant that based on his experience, she would likely need an expert witness if she wished to rely on her mental illness at the trial. There was nothing inappropriate in Senior Constable Depetro doing this. It is also important to observe that there is no evidence that the appellant provided Senior Constable Depetro with any medical reports after that conversation or told Senior Constable Depetro that her mental illness meant that she found his conversations intimidatory or harassing. Senior Constable Depetro's evidence is that on 11 January 2023 the appellant presented well and was articulate and asked appropriate questions. The questions Senior Constable Depetro asked the appellant on 11 January 2023 therefore remained appropriate and proper.
To the extent that the appellant relies on the presence of other police officers outside of court (item (e) above), I do not consider this factor (either alone in combination with the other factors relied upon) is sufficient to rise to the level of harassment. As explained by Senior Constable Depetro in his affidavit evidence, the appellant's matter was listed in the call over court, and there were (accordingly) police witnesses for a number of trials waiting outside court. This is a normal and usual practice.
None of the above means that the appellant did not find the court process stressful and difficult. However, that is not an uncommon experience. That the court process is stressful is not, of itself, sufficient to constitute harassment or intimidation such that it leads to the plea of guilty not being voluntary. A valid plea of guilty may be made on a basis other than a belief as to guilt. A plea of guilty made to avoid the stress and inconvenience of the court process is not, of itself, an invalid plea and will not be set aside unless it can be shown that a miscarriage of justice has occurred.
Finally, the appellant relies on the fact that she attended the Legal Aid offices on several occasions and received what the appellant describes as 'misinformation' (item (f) above). The appellant has not given any evidence as to precisely what that 'misinformation' was, and how it affected her decision to change her plea to guilty. At its highest, there seems to have been some confusion as to whether the duty lawyer was able to assist the appellant on 11 January 2023. Ultimately, the appellant did not speak to a lawyer on 11 January 2023. On the basis of the limited evidence before me of the content of the conversations, I am not satisfied that this fact (either alone or in combination with the other factors relied upon) is sufficient to demonstrate intimidation or harassment such that it can be said that the appellant's plea was not voluntary, and therefore a miscarriage of justice occurred.
In these circumstances I do not consider that ground 1 has reasonable prospects of success, and therefore leave to appeal is not granted and the ground is dismissed.

Disposition - ground 2

Parties' submissions

Ground 2 has three parts. First, the appellant submits that she was unfit on 11 January 2023 and relies on the medical reports filed in the appeal in this regard. The appellant's case is that she was not fit enough to know what the consequences were if she changed her plea to guilty.
Secondly, the appellant submits that the learned Magistrate should have been aware that the appellant was unfit because the appellant handed up a bundle of medical documents and a medical certificate. The appellant's case is that the learned Magistrate did not take all these reports into account and if she had the learned Magistrate would have understood that the appellant was not fit on 11 January 2023.
Thirdly, the appellant submits that if the learned Magistrate had taken all the reports into account, her Honour would have understood that the appellant was also saying that she had a defence to the charge.
The respondent submits that there is nothing in the transcript of 11 January 2023, or the bundle of medical documents which the appellant says were handed to the learned Magistrate, or the report of Mr Mackinnon, which indicates that the appellant did not understand the charge or the effect of a plea of guilty; or did not intend to plead guilty; or was unfit to attend court or to stand trial. The respondent case is that all the medical reports, including that of Mr Mackinnon, go no higher than confirming there are psychological and psychiatric features which have contributed to the commission of the offence, and which need to be taken into account at sentencing. Further, the respondent submits that there is nothing in any of the medical documents which is sufficient to support a defence under s 23A (unwilled acts and omissions) or s 27 (insanity) of the Criminal Code for the offending.

Introductory matters

I have first considered the submissions raised by the appellant in the context of the situation on 11 January 2023, and the information that was before the learned Magistrate. I have then gone on to consider the appellant's submissions in light of the additional evidence adduced in the appeal.
One of the submissions made by the appellant is that the learned Magistrate ought to have understood that the appellant was trying to indicate to the court that she had a defence to the charge. The issue of whether the appellant has a defence to the charge is potentially relevant in the appeal in a number of ways. First, it may be relevant in so far as the appellant is saying that because she has a defence, there has been a miscarriage of justice. Secondly, it may be relevant as to whether it can be said that said that on the admitted facts the appellant could not, in law, be guilty of the offence. I have considered the first of these issues in the course of considering ground 2 of the appeal and the appellant's submissions in this regard. As the second issue is a conceptually different basis for alleging a miscarriage of justice, I have separately considered this issue.

Material before learned Magistrate

When considering this aspect of ground 2 it is necessary to have regard to the transcript of the proceedings as whole and the information that was before the learned Magistrate. When this is done, I do not consider the appellant has established that the learned Magistrate should have been aware that the appellant was not fit on 11 January 2023.
When the appellant initially came before the learned Magistrate, the appellant was asked how she wished to plead and whether she wanted to maintain her not guilty plea or enter a plea of guilty. The appellant was clearly having difficulty speaking and so the appellant was asked if she wished to speak to lawyer to assist her to enter her plea. After the adjournment, the appellant was again asked how she wished to plead, and twice indicated that she wanted to plead guilty. The appellant had earlier asked that if she changed her plea, then 'we wouldn't have to go to trial'. After the statement of material facts was read, the appellant was asked if she accepted the facts and she indicated that she did. Up until this point, there is nothing in the transcript which would indicate that the appellant did not understand the nature of the charge or the difference between the types of pleas or the effect of pleading guilty. The plea of guilty was clear and unequivocal. Whilst the appellant was clearly having difficulty speaking, at no point did the appellant indicate that she was unfit or unwell and the appellant did not request an adjournment of the trial or the appearance to another day. The appellant's difficulty in speaking is, in all the circumstances, explicable as the stress associated with appearing in court. The learned Magistrate appreciated that the appellant was having difficulty, and adjourned the appearance to enable the appellant to speak to the duty lawyer.
After accepting the facts, the appellant was then asked by the learned Magistrate what her explanation was for the offence and what the learned Magistrate should take into account. It is at this point that the appellant first mentions her mental health issues. The appellant states that she has been experiencing mental health for a long time and that the appellant didn't not know what she was doing that day. Her Honour appreciated the potential significance of what the appellant has said, and immediately asked if the appellant accepted that she committed the offence. The appellant replies that:
ACCUSED: I wasn't in control, that day, of my actions, but I, today, am willing to accept - - -
HER HONOUR: Yes.
ACCUSED: - - - that I did something wrong. …
The appellant then continues with her plea in mitigation. I consider this exchange, together with the appellant's earlier clarification that if she pleaded guilty there would not be a trial, indicates that the appellant understood the effect of pleading guilty, in that it involved the appellant accepting that she committed the offence. As the authorities establish, a person can enter a valid plea of guilty to an offence for reasons other than a belief as to their guilt.[23]
[23] See, for example, Wilhelm v The State of Western Australia [2013] WASCA 188 [51] (Mazza JA).
The appellant next references her mental health issues when the appellant indicates that she has a letter, which is then handed to the learned Magistrate. It is not clear from the transcript which letter this is, but the learned Magistrate refers to the letter setting out the appellant's diagnosis. The following exchange then occurs:
… you've accepted responsibility for the offence, essentially, so you accept that. Yes? So is that right?
ACCUSED: Well, I'm – no. On the day, I was not of sound mind, no.
The learned Magistrate then asks if there is medical evidence in support of that statement, observing that the issue is whether her Honour accepts the plea of guilty or whether the appellant has a defence. The learned Magistrate is therefore aware of the need to consider whether the plea of guilty should be accepted. In response, the appellant appears to indicate that her Honour should read a letter that was handed up. It is not clear from the transcript if this is the same letter as was previously handed up, or another letter. The learned Magistrate then refers to a report dated 23 March 2022 and observes that this is after the incident and that it reinforces the mental health issue is a matter of mitigation and not a defence.
The letter/report dated 23 March 2022 is Exhibit 9. Exhibit 9 details the appellant's presenting problem (which includes symptoms congruent with depression, anxiety and posttraumatic stress). It details the appellant's treatment and progress and references [redacted] and the appellant already having had 16 sessions together. Whilst there is a reference to court proceedings, that reference occurs in the context of the court proceedings (together with other matters) being described as 'additional stressors' for the appellant.
There is nothing in Exhibit 9 which indicates (in the context of what had already occurred) that the appellant was not fit on 11 January 2023 to enter her plea; that the appellant did not understand the charge; the effect of a plea; or gives any indication to the learned Magistrate that the appellant's plea should not be accepted.
There is a reference in Exhibit 9 to the appellant's impulsive shoplifting which 'she appears to carry out in a dissociative state'. However, I do not consider that based on this single line, in the context of the rest of Exhibit 9 and other events which occurred on 11 January 2023, the learned Magistrate should have understood that this was the appellant's way of saying that she had a defence and that therefore the appellant did not understand the consequences of the change of plea and did not intend to plead guilty.
In this regard, it is important to observe that the appellant raised her mental health in the context of providing an explanation for what occurred and as something the appellant wished the learned Magistrate to take into account in sentencing after pleading guilty. In pleading guilty, the appellant waived the opportunity to adduce evidence in support of either defence, however these matters were still relevant to sentencing. The transcript reveals that there was no dispute from the prosecutor as to the appellant's mental health issues, or their relevance for sentencing, and that the learned Magistrate did have regard to those issues in imposing the sentence by reducing it to take into account the appellant's personal and mitigating circumstances which, on a fair reading of the transcript, includes the appellant's mental health issues.
I have previously found that I was not satisfied that the appellant handed the learned Magistrate Exhibits 5 ‑ 8 and 10 on 11 January 2023. However, even if I am wrong in this finding, and those documents were before the learned Magistrate, I do not consider there is anything in these documents (in the context of what occurred on 11 January 2023) that indicates that the appellant was not fit on 11 January 2023 to enter her plea; that the appellant did not understand the charge; the effect of a plea; or gives any indication to the learned Magistrate that the appellant's plea should not be accepted.
The remaining reports of [redacted] (Exhibits 7 ‑ 8 and 10) do not go further in any material way to Exhibit 9, in that they do not indicate that the appellant was not fit on 11 January 2023 to enter her plea; that the appellant did not understand the charge; the effect of a plea; or gives any indication to the learned Magistrate that the appellant's plea should not be accepted.
The only difference is that Exhibit 9 is dated 23 March 2022, which is after the date of the offence (26 January 2022). Exhibits 8 and 10 are also dated after the date of the offence, but Exhibit 7 is dated 23 November 2021, which is before the date of the offence. The appellant places significance on Exhibit 7 because it indicates that the appellant was suffering from her mental illness before the date of the offence, which the appellant submits supports her submission that she had a defence to the charge and that the learned Magistrate should have understood that handing up Exhibit 7 was the appellant's way of saying that she had a defence and that therefore that the appellant did not understand the effect of her change of plea. I do not accept this submission. There was no dispute that the appellant was suffering from mental health issues. Even though Exhibit 7 is dated before the date of the offending, there is nothing in Exhibit 7 which indicates that the appellant might have a defence under s 23A or s 27 of the Criminal Code. I have formed the same view in relation to Exhibit 5, being the medical certificate dated 14 November 2022, which states the various diagnoses for the appellant and that the symptoms were reported to have started on 28 January 2021 (being prior to the date of the offence).
In relation Exhibit 6, being the medical certificate dated 10 January 2023, there is no reference in the transcript to the appellant referring to the medical certificate or drawing it to the learned Magistrate's attention. It may be that Exhibit 6 was the letter the learned Magistrate initially referred to. However, the appellant at no time asks for an adjournment of the trial. Even if Exhibit 6 was handed to her Honour, it only provides that the appellant 'will be unfit for her usual work'. There is no explanation as to why or for what reason. There is no indication that the appellant was not fit to attend court or to enter a plea, or that the appellant did not understand the nature of the charge or the plea.
Accordingly, I do not consider the appellant has established (on the basis of the documents and information before the learned Magistrate) her Honour should have been aware that the appellant was unfit on 11 January 2023 or that the appellant did not intend to change her plea.

Materials available on appeal

As the parties were granted leave to adduce further evidence in the appeal, I have now gone on to consider whether this additional evidence (when read with what occurred on 11 January 2023) reveals that there has been a miscarriage of justice on the basis that the appellant did not understand the charge or did not intend to plead guilty.
I have already considered the transcript, the evidence given by the appellant and Senior Constable Depetro and medical certificates and the remaining reports of [redacted].
This leaves Mr Mackinnon's report. For the reasons set out below, I do not consider that the appellant has established that she was not fit to plead on 11 January 2023 or that she did not understand the nature of the charge or the effect of the plea of guilty.
In Exhibit 4, Mr Mackinnon does not express the opinion that on 11 January 2023 the appellant did not understand the nature of the charge or the effect of a guilty plea. Further, in cross‑examination Mr Mackinnon accepted that he was not aware of any factor which would have meant that the appellant was unable to appreciate that a plea of guilty was an admission of an offence.
Mr Mackinnon does state in Exhibit 4 that the appellant was (due to her chronic mental illness) 'probably not well enough to apply good reasoning and sound judgment'. Later in Exhibit 4 Mr Mackinnon states that the appellant's 'poor state of mental health adversely affected her ability to apply good reasoning and sound judgment' when being processed by police and entering a plea.
However, there is a difference between not applying good reasoning or making sound judgments, and not understanding the nature of a charge or the effect of a plea of guilty. A person may understand the nature of a charge and the effect of a plea of guilty but may go on to make a decision in stressful circumstances that, with the benefit of hindsight, they consider not to have been the best choice. That is does not mean that the person did not understand the effect of their decision.
There is also no dispute that the appellant has chronic mental health issues, and that these issues are likely to have contributed to her offending. Mr Mackinnon's report details these matters. Again, there is a difference between a person's mental health issues contributing to offending behaviour, and a person not understanding the effect of their decision.
In all the circumstances, I am of the view that appellant has not discharged her onus of establishing that on 11 January 2023 she did not understand the nature of the charge or the effect of her plea of guilty. In my view the effect of the evidence as a whole (including the transcript; the evidence at the appeal of all the witnesses; and the documentary evidence) is that the appellant, understandably, found the ordinary court process to be stressful and difficult. That experience was undoubtedly contributed to by the appellant's mental illness. In my view, the evidence establishes that on 11 January 2023 the appellant chose to plead guilty to avoid the continued stress of the criminal justice and trial process. As the authorities establish, a person is entitled to plead guilty for that reason, even if they do not believe they are guilty.[24] Whether that decision was a good or sound decision is a different question. It may be that the appellant now regrets that choice and wishes that she had continued to trial on 11 January 2023. However, as the authorities provide, there is a strong public interest in the finality of proceedings.[25]
[24] See, for example, Wilhelm v Western Australia[2013] WASCA 188 [51]; Snook v Western Australia [No 2][2015] WASCA 29 [106].
[25] Snook v Western Australia [No 2][2015] WASCA 29 [104] (Hall J, Buss & Mazza JJ agreeing).
There are two other matters relevant to this aspect of ground 2. First, I accept that the appellant was not legally represented in this case, and that this may be a relevant factor when considering whether there has been a miscarriage of justice. However, the appellant had sufficient time and opportunity (and adjournments of the trial date) to seek legal advice. The appellant did not enter the plea of guilty on her first appearance without any understanding of the charge or the process. Therefore, I do not consider the fact that the appellant was unrepresented (either alone or in combination with the other matters relied upon) establishes that the appellant did not understand the nature of the charge or the effect of the plea of guilty.
Secondly, it is necessary to address the appellant's submission that she has a defence. The fact that the appellant submits that she has a defence does not of itself mean that there has been a miscarriage of justice. As the authorities establish, a person may enter a valid plea of guilty even if they do not have a belief that they committed the offence. The appellant has not given evidence that she was not aware on 11 January 2023 that she may have a defence, or that had she been aware of this that she would not have changed her plea to guilty. On the contrary, the appellant's case proceeds on the basis that she did consider she had a defence on 11 January 2023, and that the learned Magistrate should have understood this. This is consistent with the matters raised by the appellant in the telephone conversation with Senior Constable Depetro. In these circumstances, I do not consider the fact that the appellant considers she has a defence (either alone or in combination with the other matters relied on) is sufficient to establish that there has been a miscarriage of justice.

Could the appellant be guilty of the offence on the admitted facts

Finally, I have considered whether, on the admitted facts, the appellant could not, as a matter of law, be guilty of the offence of stealing contrary to s 378 of the Criminal Code. The elements of the offence of stealing are (relevantly) that a person fraudulently; takes; anything capable of being stolen.
After the statement of material facts was read, the appellant was asked if she accepted the facts and the appellant indicated that she did. On the basis of the facts as detailed in the statement of material facts, I consider that the appellant could, as a matter of law, be guilty of the offence charged.
In the transcript, the appellant later states that she was inside the store the whole time and did not leave the store. However, that of itself is not sufficient to mean that the appellant could not, as a matter of law, be guilty of the offence. The statement of material facts states that the appellant concealed the items in her handbag. Such concealment is a matter from which a magistrate could infer the requisite intention to permanently deprive the owner of the goods, even if the appellant did not leave the store.
The appellant's submission is that she has a defence to the charge, being her mental illness. In this context I have had regard to the various medical reports filed in the appeal. In this regard, I note that none of Exhibits 5 ‑ 8 or 10 contain any information which could support a defence under s 23A or s 27 of the Criminal Code. In this regard, it is not sufficient to state that the appellant has a mental illness, or even that it affects her day‑day life.
Exhibit 9 contains the following reference to the appellant's shoplifting:
These events appear connected to her impulsive shoplifting and hoarding of baby items and more recently mens' items which she appears to carry out in a dissociative state.
The reference to 'these events' is a reference to 'existing and new legal issues (civil case about fence dispute, criminal case related to recent shoplifting charge)'.
I do not consider that this short reference to appearing to carry out shoplifting in a dissociative state is sufficient to reach the threshold of indicating a possible defence under s 23A or s 27 of the Criminal Code. In particular, I observe that [redacted] does not actually express a concluded opinion (rather there is a reference to 'appears') or provide any explanation of this sentence in her report.
In relation to Mr Mackinnon's report, he expresses the opinion that the appellant does not labour with an inherently antisocial or criminal disposition. Further, Mr Mackinnon expresses the opinion that the appellant's CPTSD (and associated effects) were the primary contributors to the appellant's offending, in that they 'significantly degraded her ability to apply good reasoning and make sound judgment' and made the appellant more 'impulsive and diminished her ability to maintain her normal standards of behaviour'. Whilst these matters may be an explanation for the offending behaviour, and would be relevant to sentencing, they do not rise to the level necessary to establish a defence based on s 23A or s 27 of the Criminal Code.

Accordingly, for these reasons I have concluded that on the admitted facts, the appellant could, as a matter of law, have been guilty of the offence and therefore it cannot be said that there has been a miscarriage of justice on this basis.

Conclusion to ground 2

Whilst I would grant the appellant leave to appeal in relation to this ground, for the reasons outlined above, I do not consider that the appellant has established that a miscarriage of justice has occurred, and therefore I would dismiss this ground of appeal.

Conclusion

I will hear further from the parties in relation to orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AA
Associate to the Honourable Justice Seaward
19 APRIL 2024