Bacchelli v Merchant

[2015] WASC 205

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   BACCHELLI -v- MERCHANT [2015] WASC 205

CORAM:   BEECH J

HEARD:   27 MAY 2015

DELIVERED          :   9 JUNE 2015

FILE NO/S:   SJA 1015 of 2015

BETWEEN:   ALAN BACCHELLI

Appellant

AND

THOMAS PAUL MERCHANT
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE R G W BAYLY

File No  :PE 56718 of 2013

Catchwords:

Criminal law and procedure - Appeal from conviction following plea of guilty - Possible defence of insanity unknown to accused - Whether conviction should be set aside

Legislation:

Nil

Result:

Appeal against conviction upheld
Order for retrial

Category:    B

Representation:

Counsel:

Appellant:     Ms B Scovell

Respondent:     Ms R Young

Solicitors:

Appellant:     Mental Health Law Centre (WA) Inc

Respondent:     State Solicitor for Western Australia

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

Glover v Reyne [2001] WASCA 305

M v Seidner [2013] WASC 395

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Snook v The State of Western Australia [No 2] [2015] WASCA 29

Wimbridge v The State of Western Australia [2009] WASCA 196

BEECH J: 

Introduction

1. On 4 November 2013, the appellant, Mr Bacchelli, pleaded guilty to a charge of breach of a violence restraining order under s 61 of the Restraining Orders Act 1997 (WA). Mr Bacchelli was legally represented. He pleaded guilty and was fined $500 and ordered to pay costs.

2. He appeals against his conviction on the ground that there was a miscarriage of justice in that when he pleaded guilty he was unaware he had an arguable defence of unsoundness of mind.  He appeals against his sentence on the ground that there was a miscarriage of justice by the failure of the learned magistrate to make a spent conviction order.

3. Both grounds of appeal raise matters which were not raised before the magistrate.  The second ground relates to a spent conviction order.  No application for a spent conviction order was made before the magistrate.

The hearing before the magistrate

1. By 4 November 2013, when he came before the magistrate, Mr Bacchelli faced two charges of breaching a violence restraining order.  By then he was in custody.  The charge the subject of this appeal was the second in time.  That charge had triggered a refusal of bail.[1]

   [1] Bail Act 1982 (WA), sch 1, pt C ,cl 3A and sch 2.

2. At the hearing before the magistrate, Mr Bacchelli was represented by counsel.  Counsel indicated Mr Bacchelli's intention to plead guilty to both breaches of the violence restraining order.  However, as the magistrate observed, only one charge was before him.  Mr Bacchelli pleaded guilty to the charge that on 26 October 2013, having been previously served with a violence restraining order, he breached that order by remaining at the residence in Cottesloe, a place where the protected person lives.[2] 

   [2] ts 4 November 2013, 4.

3. The prosecutor stated the facts as follows:

   (1)A violence restraining order was issued on 19 October 2013.  One part of the order stated that Mr Bacchelli could not remain or loiter around the residence in Cottesloe.

   (2)At 2.15 pm on 26 October 2013, police attended at the residence in Cottesloe as a result of information from the victim.  Police entered the residence and found Mr Bacchelli alone inside the main bedroom.

   (3)The victim was not at the house at that time.  She was at her mother's house.  She became aware that Mr Bacchelli was at the residence and called police to attend.[3] 

   [3] ts 4 November 2013, 5 ‑ 6.

4. Mr Bacchelli's counsel stated that Mr Bacchelli went to the Cottesloe property on 26 October 2013 in order to collect a briefcase and his computer for work.  Counsel explained that Mr Bacchelli had misunderstood the terms of the order and had thought that, because the victim was living in her mother's home in Applecross, he was permitted to go to the Cottesloe property to collect his property, saying that he had no intention to breach the orders.[4]

   [4] ts 4 November 2013, 6.

5. Counsel observed that if Mr Bacchelli had known that the restraining order did not permit him to attend at the premises, he would have gone to the Cottesloe police station and asked police officers to accompany him back to the premises to get his property.[5]

   [5] ts 4 November 2013, 7.

6. Mr Bacchelli's counsel stated that Mr Bacchelli had suffered a bipolar episode or mental health problem 13 years ago in Italy and that there had been treatment for that in Italy.[6]

   [6] ts 4 November 2013, 7.

7. Counsel sought to hand up some Italian medical records.  The magistrate enquired as to whether counsel was trying to persuade him to impose a penalty other than a fine, to which counsel responded, 'no ... of course not'.[7]

   [7] ts 4 November 2013, 8.

8. Just before sentencing, the magistrate observed to Mr Bacchelli that next time he had better get some legal advice.  Mr Bacchelli responded to the effect that he had no money, following which there was a further brief exchange between the magistrate and Mr Bacchelli.[8]

   [8] ts 4 November 2013, 9.

9. The magistrate stated that he took into account that Mr Bacchelli had no record and imposed a fine of $500, having regard to the plea of guilty and the time spent in custody.[9]

   [9] ts 4 November 2013, 9.

Grounds of appeal

1. Mr Bacchelli's substituted grounds of appeal are as follows:

   (1)Mr Bacchelli had an arguable defence at the time he pleaded guilty and was convicted, of which defence he was unaware, and a miscarriage of justice has resulted.

   (2)Alternatively to ground 1, there has been a miscarriage of justice by the failure of the learned magistrate to make a spent conviction order.

Application to adduce new evidence

1. Mr Bacchelli adduces, or seeks leave to adduce, a substantial volume of additional evidence in support of his grounds of appeal.  Leave to adduce some of this additional evidence had already been granted.[10]  Leave to adduce the remainder of the additional evidence was not opposed on the ground, with which I agree, that it is in the interests of justice that all the relevant material be before the court to enable the merits of the appeal grounds to be properly determined.  I made an order granting leave at the hearing on 28 May 2015.

   [10] Orders of the Hon Justice Allanson made 10 April 2015.

The evidence relied on by Mr Bacchelli

1. Mr Bacchelli relies on:

   (1)three affidavits sworn by himself;

   (2)two affidavits of a consultant psychiatrist, Dr Febbo;

   (3)an affidavit of his legal representative at the hearing before the magistrate;

   (4)an affidavit of his wife; and

   (5)an affidavit of his current legal representative partially explaining the delay in the bringing of this application for leave to appeal.

2. The material relied on by Mr Bacchelli may be summarised as follows.

Mr Bacchelli's affidavits

1. Mr Bacchelli's first affidavit sworn 26 March 2015 outlines his personal circumstances, and that he was diagnosed with bipolar disorder in 1999 following a mental health episode.  Another episode occurred when he moved back to Italy in 2001.

2. Following his arrest for breach of the violence restraining order sometime in October 2013, Mr Bacchelli appeared in court on 4 November 2013.[11]  He recalls that his solicitor sought background facts and advised him to plead guilty.  He says that the possibility of not pleading guilty or of applying for a spent conviction order was not discussed.[12]  He states that had he known of the possibility of a spent conviction order he would have instructed his solicitor to apply for a spent conviction order.[13]  He says that he recalls that it 'felt odd to [plead guilty], because I felt I had done nothing wrong'.[14]  Further, he felt that 'the process was all very rushed and … I didn't have much time to think about what was happening'.[15]  He believes that during 2013 and up to February 2014 he was suffering from a severe relapse of episodic bipolar disorder.[16]  He says the events surrounding the conviction were extremely stressful, because he 'did not fully understand what was going on'.[17]

   [11] Affidavit of Alan Bacchelli sworn 26 March 2015 [11] ‑ [12].

   [12] Affidavit of Mr Bacchelli sworn 26 March 2015 [12].

   [13] Affidavit of Mr Bacchelli sworn 26 March 2015 [13].

   [14] Affidavit of Mr Bacchelli sworn 26 March 2015 [14].

   [15] Affidavit of Mr Bacchelli sworn 26 March 2015 [14].

   [16] Affidavit of Mr Bacchelli sworn 26 March 2015 [15].

   [17] Affidavit of Mr Bacchelli sworn 26 March 2015 [16].

3. Paragraphs 18 to 25 of his first affidavit deal with events following on from his release from prison. Generally, these paragraphs describe how Mr Bacchelli was having difficulty coping both emotionally and financially. Specifically, he outlines his seeking of medical treatment, the beneficial effects of medication, consultation with the Mental Health Law Centre and his reconciliation with his wife in around February 2014.

4. In his third affidavit, sworn 6 May 2015, Mr Bacchelli outlines the symptoms that he experienced during the relapse of his bipolar disorder in the period September 2013 to January 2014.  These included:

   (a)extreme mood swings;

   (b)suicidal thoughts;

   (c)inability to cope with stresses;

   (d)limited or entire inability to sleep;

   (e)the onset of religious ideations, such as a belief in the Sun God and a belief that he was a reincarnated Egyptian pharaoh; and

   (f)erratic thought processes and poor decision‑making.

5. He says that during this period he had no insight into the state of his mental health, believing it to be normal, and resisted any intervention.

6. Mr Bacchelli was the only witness cross‑examined on his affidavits.

7. His unchallenged evidence was that when he attended court on 4 November 2013, he was not aware that his mental state was not normal, or, that he was suffering from any mental condition.[18]

   [18] ts 27 May 2015, 12, 17.

8. He told Dr Febbo, and it was the case that after his car accident in November 2013 'the idea something was not right started to sink in'.  He explained that was because, until the accident, he thought that he was invincible.[19]

   [19] ts 27 May 2015, 10 ‑ 11.

9. The car accident occurred sometime in the first half of November, after he appeared in court and was released from custody.[20]

Ms Khoo's affidavit

[20] Affidavit of Mr Bacchelli sworn 26 March 2015 [19].

1. Ms Khoo is Mr Bacchelli's wife.  They have been married since 12 July 2008.

2. Her affidavit outlines Mr Bacchelli's strange behaviour beginning in around September 2013.  She provides examples, such as Mr Bacchelli conducting a sun ritual, not sleeping and experiencing rapid changes of mood.

3. She outlines relevant events including Mr Bacchelli's assault of her on 7 October 2013, which led to the obtaining of the violence restraining order, and the events surrounding Mr Bacchelli's two breaches of the violence restraining order.

4. Ms Khoo outlines how in this period Mr Bacchelli refused to accept any treatment for his mental health.  She says her conduct in pressing charges against him was motivated by her desire to ensure that he got proper medical treatment.[21]  She also stated that his mental health improved dramatically once he got medical help.  They reconciled in late February 2014, and since then their relationship has returned to a strong, positive footing.[22]

Dr Febbo's affidavits

[21] Affidavit of Selena Chiew Guat Khoo sworn 23 April 2015 [19] ‑ [24].

[22] Affidavit of Ms Khoo sworn 23 April 2015 [25] ‑ [26].

1. Dr Febbo's primary affidavit, sworn 18 March 2015, and report relate to the incident the subject of the first breach of the violence restraining order, not the breach the subject of this appeal.

2. In his report, Dr Febbo outlines Mr Bacchelli's history in relation to the assault on 7 October 2013 and the first breach of the violence restraining order on 21 October 2014.  He says that Mr Bacchelli reported to him that: (1) from around August his level of activity increased; (2) from around then he became increasingly less tolerant and more critical of his wife's behaviour; (3) he was subject to financial pressure; and (4) that in mid‑September he developed a fascination with the sun.  This fascination led to the belief that he could derive energy directly from sunlight and that he was a reincarnation of Akhenaton, a Pharaoh of the Eighteenth Dynasty.

3. Mr Bacchelli's behaviour led to incidents with his wife, such as that of 7 October 2013, and he says that he told her to leave 'the matrimonial bed'.  Dr Febbo notes that Mr Bacchelli recalls some form of final altercation, but that his recollection is increasingly unclear.

4. Mr Bacchelli only described the violence restraining order and being arrested in general terms to Dr Febbo.

5. Dr Febbo notes that Mr Bacchelli's descriptions were consistent with a pathological elevation of mood.  As to Mr Bacchelli's past psychiatric history, Dr Febbo says that Mr Bacchelli told him of two prior periods of pathological elevation.  The first was around 15 years ago when he was in the United States.  The second was around 14 years ago when he was in Italy.  In Italy he was hospitalised for a three to four week period and was medicated.  Italian medical records are included as part of Dr Febbo's first affidavit.

6. In Dr Febbo's opinion at the time of the offending, Mr Bacchelli's behaviour was in keeping with a manic syndrome, which was then followed by a major depressive episode.  Further, Dr Febbo states that Mr Bacchelli's history is 'in keeping with a bipolar one disorder'.[23]

   [23] Affidavit of Salvatore Febbo sworn 18 March 2014 SF2, 6.

7. As to Mr Bacchelli's mental state as at the time of the breach of the violence restraining order, and the assault, Dr Febbo expressed the opinion that:

   (1)Mr Bacchelli was more likely than not in a state of mental impairment so as to deprive him of the capacity to control his actions; and

   (2)it is a significant possibility, although the evidence is less clear, that Mr Bacchelli was in such a state of mental impairment so as to deprive him of the capacity to know that he ought not to assault someone or return to his house.

8. Dr Febbo's second affidavit, sworn 1 May 2015, includes an addendum to his first report identifying that the opinion expressed in his earlier report also applies to the second breach by Mr Bacchelli of the violence restraining order, the breach the subject of this appeal.

Affidavit of Mr Bacchelli's counsel before the magistrate

1. The affidavit of Mr Bacchelli's counsel before the magistrate is to the following effect.  He acted for Mr Bacchelli in relation to the second breach of the violence restraining order, for which Mr Bacchelli had been remanded in custody until a bail application was made.  He says that Mr Bacchelli did not seem to be suffering from any mental impairment when he appeared for him.[24]  Further, he says that from his discussions with the prosecution that any application for a spent conviction would be opposed, and that this was explained to Mr Bacchelli.[25]

   [24] Affidavit of Andrew Chelvathurai sworn 31 March 2015 [5].

   [25] Affidavit of Mr Chelvathurai sworn 31 March 2015 [6] ‑ [7].

Application for extension of time

1. Mr Bacchelli requires leave to appeal out of time.[26]

   [26] Criminal Appeals Act 2004 (WA) s 10(3).

2. The principles relevant to whether leave to appeal out of time should be granted are well‑known.  I apply the principles stated by Wheeler JA (Miller JA agreeing) in Wimbridge v The State of Western Australia,[27] and adopt Pritchard J's outline of the principles in M v Seidner.[28]  In summary:

   (a)where there has been a lengthy delay, the appellant must show exceptional circumstances unless it can be shown that there will be a miscarriage of justice if the extension is not granted;

   (b)the relevant factors include the length of the delay, the reasons for the delay, the nature and extent of any prejudice to the respondent, and the strength of the appellant's case; and

   (c)in the end, the question is whether it is in the interests of justice to grant the extension, taking into account the public interest in the finality of litigation.

   [27] Wimbridge v The State of Western Australia [2009] WASCA 196 [19] ‑ [22].

   [28] M v Seidner [2013] WASC 395 [39] ‑ [52].

3. In this case, the delay is substantial.  The appeal was instituted almost 16 months out of time.

4. The delay has been explained in part by Mr Bacchelli's first affidavit, and by the affidavit of Ms Taylor, his current legal representative.  By inference, the first few months of delay are explained on the basis that Mr Bacchelli did not have an understanding of his mental health position.  Once he engaged the Mental Health Law Centre, the initial focus was on gathering evidence to attempt to defend the other charge.  Nevertheless, as a result of the initial interview, an application for legal aid was lodged in respect of an appeal in the current matter.  The process of determination of the legal aid application took a very substantial period of time, in excess of 12 months.  Thereafter, further delays followed.  Those delays were explicable, in part, because of the focus on defending the other charge, and in part due to the stretched and limited resources of the Mental Health Law Centre.  In my view, it is necessary to consider the merits of the proposed appeal in order to determine whether the refusal of the application for an extension of time would give rise to a miscarriage of justice.

Ground 1 - Has a miscarriage of justice occurred by reason of Mr Bacchelli's conviction based on his plea of guilty?

1. Mr Bacchelli seeks to set aside his conviction based on his plea of guilty.  The legal principles relevant to an appeal on such ground were outlined by Hall J (Buss & Mazza JJA agreeing) in Snook v The State of Western Australia [No 2][29] as follows:

   [29] Snook v The State of Western Australia [No 2] [2015] WASCA 29 [102] ‑ [107].

   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.

   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.

   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.

   A distinction must be drawn between argument or advice to a client by a lawyer to plead guilty and improper pressure or harassment.  Reasoned argument or advice from a lawyer does not involve the use of improper means and does not detract from the ability to make a voluntary choice as to whether to plead guilty:  Meissner v The Queen.  The courts must be wary of the possibility that a person who pleads guilty may later regret it and wish to falsely attribute blame for their voluntary plea on bad or inadequate advice or improper pressure. 

   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].

   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.

1. The evidence of Dr Febbo supports a conclusion that Mr Bacchelli may have had an arguable defence under s 27 of the Criminal Code (WA). Mr Bacchelli's evidence establishes that he did not know that that was the case, and did not inform his lawyer of the facts giving rise to that possible defence.

2. Although Mr Bacchelli does not recall the detail of what he and his lawyer discussed on 4 November 2013, I think the inference that there was no discussion of mental impairment as a possible defence is irresistible.  Mr Bacchelli had no insight into his mental impairment, and the lawyer saw no sign of any mental impairment.  So, there was no reason for either of them to raise the topic.

3. The respondent points out, correctly, that Mr Bacchelli's lawyer knew of Mr Bacchelli's mental health history, having brought it to the court's attention.  Counsel for Mr Bacchelli before the magistrate stated that Mr Bacchelli had suffered a bipolar episode or a bit of a mental health problem 13 years earlier and had been treated for it.  The respondent further submits that if counsel was aware of the history of mental health, it could not be assumed he did not consider the availability of a defence in that regard.

4. In my view, there is nothing to suggest that, on the instructions he received, the then counsel for Mr Bacchelli should have considered or raised the availability of a defence of mental impairment.  It is true that someone, possibly Mr Bacchelli's mother or wife, or possibly Mr Bacchelli, instructed his then counsel as to mental health issues he had had in the past, 13 years earlier.  There is no evidence that on 4 November 2013 Mr Bacchelli had any insight into the fact or possibility that he committed the offence the subject of this appeal, while suffering from a mental impairment that deprived him of the capacity to control his actions, or may have deprived him of the capacity to know that he ought not return to the house in Cottesloe.  The evidence is all to the contrary.  Those matters not having been raised by Mr Bacchelli, there was nothing to suggest his counsel ought have done anything more than what he did.

5. Demonstrating that an appellant who pleaded guilty had an arguable defence, or even a strong arguable defence, does not in itself sustain a successful appeal against the conviction resulting from that plea of guilty.  An accused may plead guilty for many different reasons.  It is open to an accused to plead guilty to an offence whether or not the accused is in fact guilty of it.[30]

   [30] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 (Brennan, Toohey & McHugh JJ), 157 (Dawson J).

6. The circumstances of this case do not readily fit within the three well‑recognised grounds for allowing a change of plea set out in the passage in Snook v The State of Western Australia [No 2] set out above.  However, those categories are not exhaustive.  The question is whether failure to set aside the conviction based on the plea of guilty would result in a miscarriage of justice.  For the reasons that follow, I am satisfied that there will be a miscarriage of justice if Mr Bacchelli's conviction is not set aside.

7. Dr Febbo has expressed his opinion about Mr Bacchelli's impaired mental state as at 7 October 2013, 21 October 2013 and 26 October 2013.  He considers that, on each of those dates, Mr Bacchelli had a mental state 'in keeping with the presence of a manic syndrome'.[31]  Mr Bacchelli pleaded guilty and was convicted nine days after 26 October 2013, on 4 November 2013.  Mr Bacchelli's evidence is that, throughout the period September 2013 to January 2014, and in particular on 4 November 2013, he had no insight into his impaired mental state; to the contrary, he believed his mental health to be normal in this period.  That is consistent with, and supported by, Ms Khoo's evidence.

   [31] Affidavit of Salvatore Febbo sworn 18 March 2014 SF2, 6; affidavit of Salvatore Febbo sworn 1 May 2015 SF2.

8. The respondent tendered an affidavit of Dr Cherelle Anne Fitzclarence annexing medical records relating to Mr Bacchelli on 28 October 2013, 31 October 2013, 1 November 2013 and 3 November 2013.  I receive it as an exhibit as I think it is sufficiently relevant to be admissible.  However, for the reasons that follow it does not affect my reasoning.

9. None of the nurses who attended on Mr Bacchelli recorded any concern as to his mental health.  That is consistent with the fact that on 4 November 2013, Mr Bacchelli's lawyer did not notice anything as to Mr Bacchelli's mental health.  That does not detract from Mr Bacchelli's unchallenged evidence that he was unaware on 4 November 2013 that he then had or had recently had any mental impairment.

10. It is true, as the respondent's counsel emphasises, that Dr Febbo has not expressed any opinion as to Mr Bacchelli's mental state on 4 November 2013.  He has not addressed the question of Mr Bacchelli's fitness to plead (and was not asked to do so).  I accept that the material before me does not sustain an inference that Mr Bacchelli was unfit to plead.  More generally, Dr Febbo's report and addendum do not specifically address whether the opinions he has expressed in relation to various dates in October 2013 also apply to the position on 4 November 2013.

11. Nevertheless, given:

    (a)Dr Febbo's opinions as to Mr Bacchelli's mental state on various dates, including 26 October 2013;

    (b)the very small period between 26 October 2013 and 4 November 2013; and

    (c)Mr Bacchelli's evidence that he had no insight into his mental condition on 4 November 2013,

    I am satisfied that in these circumstances, through no fault of his own, Mr Bacchelli had no practical opportunity to raise the possible defence of insanity, or the facts relevant to it, with his lawyer.[32]  That led to Mr Bacchelli entering the plea of guilty, with the consequence that he was convicted.

    [32] Compare Glover v Reyne [2001] WASCA 305 [40] (Roberts‑Smith J).

12. I accept, as the respondent emphasises, that Mr Bacchelli's plea was freely entered, and followed legal advice.  However, because of the circumstances summarised in the preceding paragraph, Mr Bacchelli did not, in any real sense, exercise a choice in pleading guilty without raising the question of whether he had a defence of insanity.

13. It is also true, as the respondent submits, that Mr Bacchelli provided his counsel with a rational explanation for his conduct on 26 October 2013, which counsel conveyed to the court on 4 November 2013, and that Mr Bacchelli engaged rationally in an exchange with the magistrate.  To my mind that does not detract from the fundamental point that on 4 November 2013 when he entered his plea, Mr Bacchelli had an arguable defence but did not know, and had no way of knowing, of that arguable defence.

14. The combination of Mr Bacchelli's mental state at the time of his offending, and his continuing ignorance of that, and of his impaired mental health more generally, meant that his plea was, in a fundamental respect, not an informed one.  In saying that, I do not suggest that a plea that is not fully informed will necessarily always be set aside on that ground.  In this case, the circumstances, nature and subject‑matter of Mr Bacchelli's ignorance of his arguable defence mean that, to my mind, there would be a miscarriage of justice if the conviction were not set aside.

Conclusion

1. For these reasons I would:

   (1)extend time for the appeal;

   (2)grant leave to appeal;

   (3)uphold ground 1 of the appeal;

   (4)set aside the conviction; and

   (5)order a retrial.

2. In these circumstances it is not necessary to deal with ground 2.  However, I would observe that there seems to be considerable merit in Mr Bacchelli's contention that, based on the material before this court, there would be a miscarriage of justice if a spent conviction order were not made.

3. I will hear from the parties as to the precise form of orders, and as to costs.