AB v Director of Public Prosecutions for Western Australia
[2025] WASCA 93
•19 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AB -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2025] WASCA 93
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 7 FEBRUARY 2025
DELIVERED : 19 JUNE 2025
FILE NO/S: CACR 44 of 2024
BETWEEN: AB
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SEAWARD J
Citation: AB -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 127
File Number : SJA 1007 of 2023
Catchwords:
Criminal law - Appeal from single judge appeal - Where appellant convicted on her plea of guilty of one count of stealing - Where appellant was allegedly in dissociative state at time of offending - Whether offending occurred independently of exercise of appellant's will in accordance with s 23A of Criminal Code (WA) - Application to adduce addendum psychological report as evidence in appeal - Where appellant suffers from complex post‑traumatic stress disorder, anxiety and depression - Whether primary appeal judge erred in finding appellant was fit to plead before magistrate
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 23A, s 27, s 378
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 8, s 9, s 10
Result:
Application to adduce additional evidence refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | R Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
AB v Director of Public Prosecutions [2024] WASC 127
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
JUDGMENT OF THE COURT:
This is an appeal from a decision made by Seaward J on 19 April 2024,[1] in which her Honour dismissed the appellant's appeal against conviction, following her plea of guilty in the Magistrates Court on 11 January 2023, for an offence of stealing clothing valued at $144.97, contrary to s 378 of the Criminal Code (WA) (the Code).
[1] AB v Director of Public Prosecutions [2024] WASC 127.
As in both proceedings below, the appellant represented herself before this court. She relies on two grounds of appeal. Ground 1 alleges, in essence, that Seaward J erred in fact by failing to find that, at the time the appellant entered her plea of guilty in the Magistrates Court, she was unfit to plead in that the appellant did not understand the nature of the charge or the effect of the plea of guilty. Ground 2 alleges, in essence, that Seaward J erred in finding that, on the evidence presented before her, the appellant had no reasonably arguable defence, under s 23A of the Code, to the charged offence. Section 23A(2) provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will. In support of this ground, the appellant also seeks leave to adduce additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA); namely, an addendum dated 18 April 2024 to the report of a consultant psychologist, Mr Ian Mackinnon.
For the reasons that follow, neither of the appellant's grounds of appeal have been made out. We would refuse leave to appeal on each ground, with the consequence that the appeal is taken to be dismissed.
The proceedings in the Magistrates Court
The appellant was charged, by a prosecution notice filed in the Magistrates Court at Perth, that, on 26 January 2022, she 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, contrary to s 378 of the Code.
The matter was allocated a number of trial dates. For various reasons, the trial did not proceed. On 24 October 2022, the matter was allocated a new trial listing date, being 11 January 2023. A notation was made on the prosecution notice to the effect that the appellant had been told the matter would proceed to trial on 11 January 2023 whether she was represented or not and that, in the event that she did not appear on that date, the matter would be dealt with in her absence under s 55 and s 60(7) of the Criminal Procedure Act 2004 (WA) (the CPA).[2]
[2] Record of court proceedings, BGAB 53.
On 11 January 2023, the matter was called on before Magistrate Dias at about 10.55 am. In the presence of the appellant, Magistrate Dias asked the prosecutor, Senior Constable Depetro, 'What's happening today?' He said that he had spoken to the appellant by telephone the previous week, and she told him that she had encountered 'some issues obtaining some legal advice'. Senior Constable Depetro also told the magistrate that he had spoken to the appellant that morning. He said that, as a result of that conversation, he now understood that the appellant would be entering a plea of guilty to the charge. He said that the offence was 'a very low‑end offence'; that the stolen property had been recovered; and that, if a plea of guilty were entered that day, it would be at 'the earliest opportunity'. Senior Constable Depetro said, in effect, that he would submit that a 'very minimal fine' was appropriate and he would not oppose the making of a spent conviction order. The prosecutor acknowledged that her Honour was not bound by any of the comments that he had made and said that he was 'trying to do my best to resolve this matter at this opportunity'.[3]
[3] Magistrates Court, 11 January 2023, ts 2 ‑ 3.
In response to what she had been told by the prosecutor, Magistrate Dias expressed the preliminary view that she would not be inclined to grant a spent conviction order. She then asked the appellant how she wished to plead.
The following exchange then took place between Magistrate Dias and the appellant:[4]
[4] Magistrates Court, 11 January 2023, ts 3 ‑ 4.
HER HONOUR: All right. Well, all I will say is - I mean, at the facts, even if I go on the prosecution record - I mean, I will hear from [the appellant], but, on the face of it, I wouldn't be inclined to grant the spent conviction order, but, anyway, I will just deal with you, [the appellant]. Yes. How do you wish to - please, stand. How do you wish to deal with the charge: plead guilty or not guilty or - it's listed for trial, isn't it?
DEPETRO, MR: Yes, your Honour.
HER HONOUR: Okay. So how do you wish to deal with it: plead guilty today?
[THE APPELLANT]: 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.
[THE APPELLANT]: 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.
[THE APPELLANT]: But if I change it, then we won't have to go to trial?
HER HONOUR: Yes, that's right.
[THE APPELLANT]: 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?
[THE APPELLANT]: So sorry.
HER HONOUR: All right. Do you want to speak to a lawyer who can then enter your plea for you?
[THE APPELLANT]: (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.
A short time later, the matter was recalled. Magistrate Dias asked the appellant whether she wished to plead guilty or maintain her plea of not guilty. The appellant responded, 'I'm going to plead guilty, your Honour'. The magistrate then took the appellant's plea as follows:[5]
HER HONOUR: It'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?
[THE APPELLANT]: Guilty, your Honour.
We note that the transcript does not record any verbal acknowledgement by the appellant of her Honour's first question, 'Do you understand the charge?' But, given that her Honour proceeded to ask the second question ('And how do you plead?'), we infer that her Honour was satisfied that the appellant had acknowledged she understood the charge.
[5] Magistrates Court, 11 January 2023, ts 4.
Senior Constable Depetro then read aloud the following statement of material facts:[6]
1.42 pm, Wednesday, 26 January 2022, [the appellant] was at Costco Wholesale situated at 142 Dunreath Drive, Perth Airport. [The appellant] 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 [sic]. [The appellant] concealed the items in her handbag before leaving the store via the entrance door, making no attempt to pay for the items. [The appellant] was challenged outside the store by a witness, being a loss‑prevention officer employed by Costco Wholesale.
[The appellant] returned inside the store and returned the items as directed by the loss‑prevention officer. [The appellant] 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 appellant]. This was captured on closed‑circuit television. 21 February 2022, [the appellant] was arrested, interviewed by police. She made no admissions to the stealing. This was captured on audio‑visual recording. She was summonsed. Present charge preferred. There is no explanation, your Honour. Those are the facts.
[6] Magistrates Court, 11 January 2023, ts 4 - 5.
When asked by Magistrate Dias whether she accepted the facts that had just been read out by the prosecutor, the appellant responded, 'Yes'.[7]
[7] Magistrates Court, 11 January 2023, ts 5.
When invited to provide an explanation for the offence, the appellant began by informing her Honour that she had 'been experiencing mental health [sic] for a long time, and I didn't know what I was doing that day'.[8]
[8] Magistrates Court, 11 January 2023, ts 5.
Magistrate Dias immediately interjected by asking, 'But you accept that you did the - you committed the offence, and so you know that you did that?' The appellant replied, 'I wasn't in control, that day, of my actions, but I, today, am willing to accept … that I did something wrong'.[9]
[9] Magistrates Court, 11 January 2023, ts 5.
The appellant proceeded to tell her Honour (contrary to the facts just stated by the prosecutor) that she had never left the Costco store with the stolen clothing and 'actually was inside [the store] the whole time'.[10]
[10] Magistrates Court, 11 January 2023, ts 5.
The appellant told Magistrate Dias that she had struggled to come to terms with 'it' (her offending), and that 'this was the earliest chance that I've had, basically' to enter a plea to the charge.[11]
[11] Magistrates Court, 11 January 2023, ts 5.
In response to questions put to her by Magistrate Dias, the appellant said that she was 'seeing a psychologist regularly' and that she had previously worked as an accountant, having studied at university. Although she was not employed at present, she told her Honour that she intended to work again once she got better.
The appellant handed up a psychological report, dated 23 March 2022, by Ms B.[12] We will say more about this report later in these reasons.
[12] Ms B was not named in the primary judgment.
After reading the report, her Honour asked the appellant whether she accepted 'responsibility for the offence'. The appellant replied:[13]
Well, I'm - no. On the day, I was not of sound mind, no.
[13] Magistrates Court, 11 January 2023, ts 6.
Her Honour, at this point, told the appellant that this gave rise to an issue of 'whether I accept your plea of guilty or whether you, otherwise, have a defence'.[14] Her Honour observed that the psychological report was written after the alleged offence and that, while it 'reinforce[d] the mental health issue', rather than providing a defence to the charge, its contents were relevant only to mitigation.
[14] Magistrates Court, 11 January 2023, ts 5.
Magistrate Dias proceeded to impose a fine of $500 and ordered that the appellant pay costs in the sum of $259.30.
Her Honour then considered whether to make a spent conviction order but, ultimately, declined to do so.[15]
[15] Magistrates Court, 11 January 2023, ts 6 - 7.
The appeal to Seaward J
Pursuant to pt 2 div 2 of the Criminal Appeals Act, the appellant appealed against her conviction to a single judge of the Supreme Court. She did so on what Seaward J took to be two grounds.[16] Ground 1 alleged that, on 11 January 2023, the appellant was pressured by the police prosecutor into changing her plea to guilty. Ground 2 alleged that the learned magistrate erred in accepting the appellant's plea of guilty in circumstances where the appellant was unfit for trial and had provided documents from her psychologist to that effect, which the learned magistrate had failed to take into account.
[16] AB [18].
In the proceedings before Seaward J, the appellant sought, and was given, leave under s 40(1)(e) of the Criminal Appeals Act to adduce additional evidence in the appeal that was not before the magistrate; being two affidavits, sworn by the appellant on 19 May 2023 and 19 June 2023, respectively.
The respondent also sought, and was given, leave to adduce additional evidence in the appeal; being an affidavit of Senior Constable Depetro, sworn 1 August 2023.
The appellant's affidavit of 19 May 2023 is short, and its contents were set out, in full, in the reasons of Seaward J.[17] The affidavit's contents were to the effect that Senior Constable Depetro had contacted the appellant a couple of days before the trial listed for 11 January 2023, and he had spoken to her again on the morning of the scheduled trial. The appellant asserted that Senior Constable Depetro 'was trying to get me to change my plea [to guilty]'. She said that she had sought advice from an officer of the Legal Aid Commission, but they were unable to assist her. She said that, when she entered the courtroom that day, she felt intimidated, overwhelmed, and in a state of 'extreme panic'. She also said that she felt harassed by, and scared of, Senior Constable Depetro; and she was further scared by the fact that, outside the courtroom, sat about 10 other police officers (it was not suggested that these officers were involved in the appellant's case). The appellant also deposed, in her affidavit of 19 May 2023, that she changed her plea to guilty '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'.
[17] See AB [30].
The second affidavit of the appellant, sworn 19 June 2023, attached a report by a consultant psychologist, Mr Ian Mackinnon, dated 14 June 2023.[18] The contents of this report were also summarised, in detail, in Seaward J's reasons.[19] For present purposes, we note the following:
[18] No objection was taken by the respondent nor by Seaward J to Mr Mackinnon's qualifications to give the opinion evidence contained within his report: see AB [60].
[19] AB [60] - [75].
(a)Mr Mackinnon psychologically assessed the appellant via video-link from his Melbourne office on 1 June 2023.
(b)He had been supplied with various documents relating to the appellant's proceedings in the Magistrates Court and the appeal to a single judge of the Supreme Court.
(c)He assessed the appellant as suffering from symptoms that met the clinical criteria for complex post‑traumatic stress disorder (CPTSD), manifesting at a 'moderate level'.
(d)He also assessed the appellant's functional intelligence and general cognitive functioning as within the normal adult range.
(e)In Mr Mackinnon's opinion, the appellant was 'a highly psychologically damaged individual, suffering with chronic CPTSD, struggling with high levels of anxiety and depression, unresolved grief and other issues'.
(f)At the time of his assessment of the appellant, he was satisfied that she understood the ordinary meaning of 'right and wrong', and that she was able to 'process and competently negotiate her legal matters'.
(g)Mr Mackinnon considered that the appellant's CPTSD was one of the primary contributors to her offending, in that it 'significantly degraded her ability to apply good reasoning and make sound judgement, made her more impulsive and diminished her ability to maintain her normal standards of behaviour and personal responsibilities'.
(h)The appellant struggled to explain her offending behaviour, but reported to Mr Mackinnon that she recalled becoming highly anxious and fearful once she became aware that someone was following her inside the store, and that this had led to her leaving the store 'in a panic' with the unpaid items.
(i)Mr Mackinnon further hypothesised that the appellant's offending may well have been driven by kleptomaniacal impulses that were, in part, a transient or occasional consequence of the appellant's chronic CPTSD; associated high levels of anxiety and depression; unresolved grief; and other unmet emotional needs.
(j)Mr Mackinnon said that, in his opinion, the appellant's poor state of mental health also impacted on her ability to deal with the legal proceedings and her decision to enter a plea of guilty, to the extent that she was 'probably not well enough to apply good reasoning and sound judgement to these matters'. He noted the appellant had told him that she was so intensely anxious when dealing with police and prosecutors in relation to the stealing offence that she acquiesced and entered a plea of guilty, despite 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.[20]
[20] Mr Mackinnon's report, 14 June 2023, 7.
In the proceedings before Seaward J, the appellant identified a number of documents that she claimed were handed up to Magistrate Dias on 11 January 2023. These documents were marked by Seaward J as exhibits 6 to 10; whilst one further document, which the appellant was unsure whether she had handed up to Magistrate Dias, was marked as exhibit 5. Seaward J noted that exhibit 9 was the psychological report, dated 23 March 2022, which was provided by the appellant to Magistrate Dias at the sentencing hearing, as captured by the transcript of proceedings on 11 January 2023. In general terms, exhibits 5 and 6 were medical certificates from a general practitioner, and exhibits 7 to 10 were a series of reports from the appellant's counselling psychologist to her general practitioner. The contents of those documents are summarised in her Honour's reasons.[21] It is unnecessary to do so again here.
[21] See AB [79] - [83].
The contents of Senior Constable Depetro's affidavit were also described in detail in Seaward J's reasons.[22] For present purposes, it is sufficient to note that Senior Constable Depetro:
(a)deposed, in detail, as to his interactions with the appellant on 4 and 11 January 2023; and
(b)denied trying to persuade the appellant to change her plea from not guilty to guilty.
[22] See AB [43] ‑ [51].
The appellant, Mr Mackinnon, and Senior Constable Depetro each gave oral evidence in the proceedings before Seaward J. The appellant told Seaward J that on 11 January 2023:[23]
I was not fit enough to know what the consequences were if I changed my plea from guilty to not guilty [sic] … 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. … 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.
[23] Single judge appeal, 1 November 2023, ts 41 - 42.
The appellant also told Seaward J that:[24]
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.
… Sometimes my anxiety and panic can be so overwhelming that I can't even explain why I do something. It has been hard. … 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.
[24] Single judge appeal, 1 November 2023, ts 44 - 45.
In cross‑examination, when asked by counsel for the respondent what she thought she was doing when she pleaded guilty, the appellant's answer was, 'Escaping'.[25]
[25] Single judge appeal, 1 November 2023, ts 52.
It is unnecessary to summarise the answers that were given by Senior Constable Depetro in cross‑examination.
In Mr Mackinnon's oral evidence, when asked by Seaward J to identify any amendments or corrections he wished to make to his report of 14 June 2023, he changed only the part of his report in which he said that the appellant 'was able to process and competently negotiate her legal matters' to, instead, state that 'I have some doubts about her ability to process and competently negotiate her legal matters on her own'.[26]
[26] Single judge appeal, 1 November 2023, ts 31.
Seaward J's decision
Seaward J found that ground 1 had no reasonable prospect of success. Her Honour found that, in his interactions with the appellant, Senior Constable Depetro said nothing which constituted 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.[27]
[27] AB [112].
Her Honour observed that it was not an uncommon experience for an accused person to find the court process stressful and difficult. However, the stress commonly encountered by an accused is not, of itself, sufficient to constitute harassment or intimidation such that it leads to the plea of guilty not being voluntary. Her Honour found that 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.[28]
[28] AB [116].
It is unnecessary to describe in any greater detail Seaward J's reasons in respect of ground 1. This is because, in this appeal, the appellant does not challenge Seaward J's findings, nor her Honour's conclusion, in respect of ground 1.
As to ground 2, Seaward J found that the appellant had not established that she was unfit to plead on 11 January 2023, nor that she did not understand the nature of the charge or the effect of the plea of guilty. Her Honour's reasons for this conclusion were expressed as follows:[29]
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 [sic] 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 [the] 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. 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. (footnotes omitted)
[29] AB [143] ‑ [147].
Her Honour then made two further observations in respect of ground 2. First, she did not consider that the fact the appellant was unrepresented in the proceedings before Magistrate Dias, either alone or in combination with the other matters relied upon by the appellant, established that the appellant did not understand the nature of the charge or the effect of the plea of guilty. Secondly, Seaward J addressed the appellant's submission that she had a defence to the charge. Her Honour noted (correctly) that the mere fact that an accused person has a defence available to them does not, of itself, mean that there has been a miscarriage of justice by the court's acceptance of their guilty plea. Her Honour acknowledged the authorities establish that a person may enter a valid plea of guilty even if they do not have an honest belief that they committed the offence. Seaward J observed that the appellant had not given evidence that she was unaware, on 11 January 2023, that she may have a defence. Even if she had been unaware, there was no evidence that she would have changed her plea to not guilty, had she learned about the availability of any defence. Seaward J pointed out that the appellant's case proceeded before her on the basis that the appellant was indeed aware, on 11 January 2023, that she had a defence and that the magistrate would have understood this.
Further, Seaward J found that, on the admitted facts (that is, the facts as read aloud to Magistrate Dias, which the appellant acknowledged that she had previously accepted, on 11 January 2023, as true), the appellant could, as a matter of law, be found guilty of stealing, contrary to s 378 of the Code.
Seaward J acknowledged that, in the course of the sentencing proceedings before Magistrate Dias on 11 January 2023, the appellant asserted that she did not leave the store. However, her Honour held that, as a matter of law, this did not mean that the appellant could not be found guilty of the offence. Seaward J noted that, according to the statement of material facts, the appellant had concealed the allegedly stolen items in her handbag, upon which fact a magistrate could properly infer the requisite intention to permanently deprive the owner of the goods, even if the appellant had not physically left the store.[30]
[30] AB [152].
Her Honour also considered that there was nothing in the medical reports, particularly the psychological report of 23 March 2022, capable of giving rise to a defence under s 23A or, for that matter, s 27 of the Code.[31]
[31] AB [153] - [158].
The appeal to this court - appellant's application to adduce additional evidence
In the appeal to this court, the appellant sought to adduce, by an application filed 2 July 2024, additional evidence in the form of an addendum report prepared by Mr Mackinnon, dated 18 April 2024. In the addendum report, Mr Mackinnon sought to 'enlarge' upon the following opinion given in his initial report dated 14 June 2023:
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, and at the time she entered a guilty plea. (original emphasis)
In the addendum report dated 18 April 2024, Mr Mackinnon stated:
Enlarging upon that last sentence, based on the information available to me, in my opinion, at the time [the appellant] entered a guilty plea (11/01/23), she was suffering with chronic Complex Post Traumatic Stress Disorder (CPTSD), that had been exacerbated by workplace bullying and a WorkCover claim process, and was further exacerbated by the stressful circumstances that involved her attending court (on 11/01/23), representing herself, dealing with male figures of authority (including police and lawyers), and having to make decisions about her plea.
The addendum report by Mr Mackinnon is unsigned. The respondent did not consent to the admission of the additional evidence.
The appellant's submissions
The appellant's written submissions are brief. As to ground 1, the appellant submits that Seaward J erred, at [142] of her Honour's reasons, in concluding that the appellant failed to establish that she was unfit to plead, or that she did not understand the nature of the charge or the effect of the plea of guilty, on 11 January 2023.
The appellant points to Mr Mackinnon's addendum report, which she says confirms that she was not fit to plead on 11 January 2023.
In support of ground 2, the appellant submits, in effect, that there was evidence 'indicating a possible defence under s 23A or s 27 of the Criminal Code'.
The evidence that she says supports this conclusion is the psychological report dated 23 March 2022, referred to at [17] above. This report, which was also tendered in the proceedings before Seaward J and marked as exhibit 9, is the report by a psychologist, Ms B, addressed to the appellant's general practitioner in respect of the appellant's ongoing psychological treatment. It is not a forensic psychological report. In the report, Ms B makes an observation concerning recent events that have occurred to the appellant, including a 'recent shoplifting charge' (which appears to be a reference to the stealing offence the subject of these proceedings). Ms B's observation is expressed in these terms:
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.
In her very brief oral submissions made before this court,[32] the appellant submitted that, in effect, she was not in any state to even appear before the magistrate on 11 January 2023, let alone enter a plea of guilty.
[32] Appeal ts 3.
The respondent's submissions
The respondent submits, in effect, that Seaward J did not err as alleged by the appellant in ground 1. The respondent also submits, in relation to ground 2, that Mr Mackinnon's addendum report provides no basis to support the existence of any possible defence under s 23A of the Code.
Disposition of the grounds of appeal before this court
Before specifically addressing each of the appellant's grounds of appeal, we accept that, at the time of the commission of the alleged offence and at the time the appellant entered her plea of guilty in the Magistrates Court, she was suffering from poor mental health. Based on the evidence of Mr Mackinnon, it may be accepted that the appellant suffers from CPTSD and is 'psychologically damaged'. She experiences high levels of anxiety and depression, unresolved grief, and other issues. However, the appellant possesses functional intelligence and general cognitive functioning within the normal adult range, and understands the ordinary meaning of right and wrong.
It may also be accepted that the appellant's CPTSD was one of the primary contributors to her offending because it significantly degraded her ability to apply good reasoning and make sound judgements. The condition also made the appellant more impulsive and diminished her ability to maintain normal standards of behaviour and personal responsibilities.
It is clear from the transcript of proceedings on 11 January 2023 that the appellant was highly anxious and stressed by the prospect of having to deal with the charge of stealing. This is not, however, an uncommon experience for an accused person, particularly where, as in the present case, the accused is not legally represented and is faced with the prospect of a trial.
Ground 1
The central issue raised by ground 1 is whether Seaward J was correct to conclude that, on the evidence before her Honour, the appellant failed to establish that she was unfit to plead, in that she did not understand the nature of the charge or the effect of the plea of guilty, when she appeared before Magistrate Dias on 11 January 2023.
In our opinion, her Honour's findings, set out at [37] above, were correct.
On 11 January 2023, when the appellant appeared before Magistrate Dias, the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) was in operation. Section 9 of the Act provided, relevantly, that an accused was not mentally fit to stand trial for an offence if the accused, because of 'mental impairment', was 'unable to understand the nature of the charge' (par (a)) or 'unable to understand … the effect of a plea' (par (b)). A 'mental impairment' was defined in s 8 as an 'intellectual disability, mental illness, brain damage or senility'. By s 10, an accused person was presumed to be mentally fit to stand trial unless the contrary was found.
Accepting, as we have, that the appellant was in poor mental health on 11 January 2023, nevertheless, the evidence does not go so far as to establish that the appellant was unfit to plead in that she did not understand the nature of the charge or the effect of the plea of guilty.
As to the appellant's understanding of the nature of the charge, there is nothing in the evidence of Mr Mackinnon, including the addendum report, which is capable of establishing that she did not understand what was meant by the charge of stealing. The appellant possesses normal functional intelligence. She has been convicted of stealing in the past and, in the transcript of proceedings before Magistrate Dias (and before Seaward J), the appellant gives no indication that she did not appreciate the elements of the offence; in particular, the element of intention to permanently deprive. Indeed, the appellant appeared to appreciate that she may have had a defence to the charge, either on the basis that the taking of the items was an unwilled act or that she had not physically taken the items outside of the store.
Similarly, as to the appellant's understanding of the effect of her plea of guilty, there is nothing in the evidence of Mr Mackinnon, including the addendum report, which is capable of establishing that she did not understand the effect of her plea of guilty. The appellant possesses normal functional intelligence. She has previously been convicted and consequently has some familiarity with the criminal justice system. The transcript of proceedings before Magistrate Dias (and before Seaward J) does not indicate that the appellant did not understand the effect of her plea of guilty. Indeed, the manner in which the appellant engaged with Magistrate Dias indicates that she did understanding the effect of her plea of guilty. See [8] ‑ [9] above.
As to the appellant's fitness to plead generally, although she was in a highly anxious state on 11 January 2023, this does not mean that she was unfit to plead.
The addendum report of Mr Mackinnon does not advance the appellant's case any further on this ground. Mr Mackinnon's addendum report does not, in any material sense, add to the evidence that was before Seaward J, much less undermine her Honour's conclusion.
Ground 2
As framed, ground 2 is as follows:
2.At point 156 [Justice] Seaward states that carrying out shoplifting in a dissociative state is not sufficient to reach the threshold of indicating a possible defence under s 23a [sic] of the Criminal Code.
a)Ian Mackinnon's report dated 14/06/23 does not specifically deal with this question. As part of this appeal I would like the addendum provided by Mr Ian Mackinnon dated 18 April 2024 be considered for this point.
The appellant's encapsulation of [156] of Seaward J's reasons is not accurate. At [156] of the reasons, her Honour said:[33]
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.
[33] AB [156].
The document being referred to in [156] of Seaward J's reasons is Ms B's report of 23 March 2022, referred to at [48] above.
Her Honour's finding at [156] is, for the reasons she gives, correct. Ms B does not express a concluded opinion that the appellant committed the alleged offence in a dissociative state. Moreover, the factual basis upon which the statement was made is unclear and is, for the purpose of determining whether there is any evidential basis for a defence under s 23A of the Code, completely insufficient.
In any event, even if the appellant did have a possible defence under s 23A of the Code, this would not now justify the setting aside of the conviction. As explained by Dawson J in Meissner v The Queen,[34] an accused person may enter a plea of guilty for reasons other than a belief as to their guilt. A court will act on an accused's plea of guilty when the plea is entered in open court by a person who is an adult and appears to be of sound mind and understanding, provided the plea is entered in the exercise of a free choice in the accused's interests. There is no miscarriage of justice if the court does act on such a plea, even if the accused is not in fact guilty of the offence. See Meissner (141). In the present case, the appellant appears to have entered her plea of guilty to avoid the stress of a trial. This motive does not render the plea of guilty invalid. Seaward J rightly concluded that the evidence did not establish that the plea of guilty was entered in circumstances which constituted a miscarriage of justice.
[34] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157.
Seaward J was correct in finding (for the reasons her Honour gave) that the appellant did not have a possible defence under s 23A or s 27 of the Code.
Conclusion
Neither ground of appeal has been made out. Seaward J's reasons were correct. The additional evidence sought to be adduced by the appellant does not call into question the correctness of her Honour's reasons, nor her Honour's conclusions. Leave to appeal must be refused and the appeal must be taken to be dismissed.
The orders that we would make are as follows:
1.The application to adduce additional evidence is refused.
2.Leave to appeal is refused on grounds 1 and 2.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
19 JUNE 2025
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