Birch v The State of Western Australia

[2017] WASCA 19

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BIRCH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 19

CORAM:   BUSS P

MAZZA JA
MITCHELL JA

HEARD:   16 MAY 2016

DELIVERED          :   2 FEBRUARY 2017

FILE NO/S:   CACR 131 of 2015

BETWEEN:   ADAM PAUL BIRCH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BOWDEN DCJ

File No  :IND BUN 44 of 2014

Catchwords:

Criminal law - Appeal against conviction - Statutory construction of s 99(5) Criminal Procedure Act 2004 (WA) - Where fast-track guilty plea entered in court of summary jurisdiction - Where accused changes plea to not guilty in superior court - Whether superior court should have entered not guilty plea on behalf of the accused

Legislation:

Criminal Code (WA), s 618 (repealed)
Criminal Investigation Act 2006 (WA), s 115
Criminal Procedure Act 2004 (WA), s 3(1), s 24, s 35, s 41, s 42, s 47, s 95, s 99, s 129
Criminal Property Confiscation Act 2000 (WA), s 8(1)
Interpretation Act 1984 (WA), s 3(1)(b), s 19, s 56(1)
Misuse of Drugs Act 1981 (WA), s 7(1)(a), s 7(2), s 11(b), s 32A

Result:

Leave to appeal granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Ms J G Fordham

Respondent:     Mr L M Fox

Solicitors:

Appellant:     Fordham & Roast

Respondent:     Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Arlotta v The Queen [1979] WAR 84

Beckwith v The Queen (1976) 135 CLR 569

Borsa v The Queen [2003] WASCA 254

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Chowdhury v Kenny [No 2] [2012] WASCA 35

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

City of Kwinana v Lamont [2014] WASCA 112

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Edwards v The Queen (1993) 178 CLR 193

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (Cth) [1971] HCA 12; (1971) 127 CLR 106

Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573

Law v The State of Western Australia [2009] WASCA 193

Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1

Liberti v The Queen (1991) 55 A Crim R 120

Margetson v The Queen [1980] WAR 135

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

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

Mikulic v The State of Western Australia [2011] WASCA 14

Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194

Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Adams (1935) 53 CLR 563

R v Arlotta [1979] WAR 84

R v Hill [1979] VR 311

Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Schugman v Menz [1970] SASR 381

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

Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36

The State of Western Australia v Birch [2015] WADC 23

The State of Western Australia v Walsham [2012] WADC 6

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377

Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105

Turner v The State of Western Australia [2015] WASC 490

Vella v The State of Western Australia [2006] WASCA 129

Windie v The State of Western Australia [2012] WASCA 61

TABLE OF CONTENTS

BUSS P:7

My dissenting opinion
The search of the appellant's property and the appellant's video‑recorded interview with the police
The presumption of intent to sell or supply created by s 11(b) of the MD Act
The making of a drug trafficker declaration under s 32A of the MD Act
The procedural history culminating in the judgment of conviction entered by Bowden DCJ
Relevant provisions of the CP Act
The reasons of Eaton DCJ
The reasons of Bowden DCJ
The consequences for sentencing purposes where an offender is convicted on his or her plea of guilty
The grounds of appeal
The grounds of appeal:  the appellant's submissions
The grounds of appeal:  the State's submissions
The grounds of appeal: the legal and historical context of s 99 of the CP Act
The grounds of appeal:  the relevant legislative history
The grounds of appeal:  the explanatory memorandum to the Criminal Procedure Bill 2004 (WA)
The grounds of appeal: the relevant differences, for present purposes, between proposed amended s 618(3)(a), as recommended in the Murray Report, and s 99(5)(a), as enacted in the CP Act
The grounds of appeal:  the relevant principles of statutory construction
The grounds of appeal: the proper construction of s 99(5)(a) of the CP Act
The grounds of appeal:  their merits

Conclusion

MAZZA JA:39

Background
Proceedings in the Magistrates Court
Appellant's application to the District Court to enter a plea of not guilty
The proceedings before Eaton DCJ
Proceedings before Bowden DCJ
Ground of appeal
Common law principles as to pleas of guilty
Section 618 of the Criminal Code and the Murray Report recommendations
Statutory framework within which s 99 CPA operates
Operation of s 99 CPA
The procedure under s 99 CPA
General principles of statutory construction
Purpose of 'fast‑track' system and context of s 99 CPA
The issues for construction raised in this appeal

Does s 99(5) abrogate common law power to set aside a plea of guilty?
The meaning of the word 'may' in s 99 CPA
The material that may be considered for the purpose of s 99(5)(a)

Resolution of the appeal

MITCHELL JA:  60

Summary
The statutory context in which the issue arises

The court must exercise the power where it exists
The court is confined to considering material specified in s 99(5)(a)
Nature of the material which the court may consider
The power exists irrespective of the plea which the accused seeks to enter
The court's common law power to permit a change of plea to avoid a miscarriage of justice remains

Proper construction of s 99(5)(a) of the CPA
Other matters

Extrinsic material
Statutory purpose
Penal character of the legislation

Authority

Disposition of the appeal

Orders

1. BUSS P:  This is an appeal against conviction.

2. On 25 June 2015, Bowden DCJ entered a judgment of conviction against the appellant in respect of one count in an indictment. 

3. The count alleged that on 5 March 2014, at Augusta, the appellant cultivated a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

4. The appellant allegedly cultivated 27 cannabis plants. The offence charged could not be dealt with summarily because the number of plants exceeded 20. See s 9 read with sch IV of the MD Act. The charge had to be dealt with on indictment.

5. The critical issues in the appeal concern the proper construction of s 99(5)(a) of the Criminal Procedure Act 2004 (WA) (the CP Act) and its application to the facts and circumstances of the present case.

My dissenting opinion

1. I have read the proposed reasons of each of Mazza JA and Mitchell JA. I have a different view from each of their Honours in relation to the critical issues.

2. I would grant leave to appeal, allow the appeal, enter a plea of not guilty on behalf of the appellant to the charge in the indictment, pursuant to s 99(5)(a) of the CP Act, and remit the charge to the District Court for trial according to law.

The search of the appellant's property and the appellant's video‑recorded interview with the police

1. On 5 March 2014, police executed a search warrant at the appellant's property on Bussell Highway, Augusta.

2. The police officers interviewed the appellant as they searched the property.  The questions and answers were video recorded.

3. The appellant showed the police four mature cannabis plants that were growing in a shed on his property.  He admitted cultivating them.  The appellant told the police that they were 'the first lot' he had grown (VROI 26).  He explained that he had cultivated the plants because he used cannabis 'for major back pain, lower back pain' (VROI 26).  The appellant said he did not sell any cannabis.  He told the police that when the cannabis was harvested he would 'put it aside' and, if he needed it, he would use the cannabis for his back complaint instead of taking painkiller medication (VROI 27).

4. After the police officers searched the inside of the house on the appellant's property, they asked the appellant whether there were any more cannabis plants on the property.  The appellant said there were 'none at all' (VROI 28).  His answer was untrue. 

5. The police found 23 more cannabis plants growing in an area of swamp land that had been fenced.  The appellant admitted planting them and building the fence.  He said, in response to questions from the police officers, that he intended to use the cannabis himself.  He did not intend to sell any of it.  The following exchange occurred between the appellant and one of the police officers:

   SGT BLOCK:  Yep.  Okay.  And what was the intention with all of this lot?

   BIRCH:  Uh, just yeah, put in the barrel and, yeah, use it myself if I had to.

   SGT BLOCK:  There might be a little bit too much here, Adam, for that.

   BIRCH:  Well, yeah.

   SGT BLOCK:  It'd take you a long time to get through it.

   BIRCH:  [indistinct] yeah, that [indistinct] once and ‑ ‑ ‑ 

   SGT BLOCK:  Have to do what once?

   BIRCH:  Like, grow it once, and then, and never have to do it again.

   SGT BLOCK:  Does it deteriorate over time?

   BIRCH:  Oh, I couldn't tell you.

   SGT BLOCK:  You'd have to store it somewhere.

   BIRCH:  Yeah.  Probably.

   SGT BLOCK:  You weren't going to sell it to anyone at all?

   BIRCH:  No, not at all (VROI 31).

6. During their search of the appellant's property, the police officers did not locate any items usually associated with drug dealing; for example, mobile telephones, a 'tick' list, electronic scales, clipseal bags, drying facilities for cannabis or large amounts of cash.  Also, the police officers did not locate any objective evidence of the appellant's personal use of cannabis.

The presumption of intent to sell or supply created by s 11(b) of the MD Act

1. Section 7(1)(a) of the MD Act provides, relevantly and in essence, that a person who cultivates a prohibited plant with intent to sell or supply the plant or any prohibited drug obtainable therefrom to another, commits a crime. The elements of the crime comprise cultivation of the prohibited plant with the requisite intention.

2. Section 11(b) of the MD Act provides, relevantly, that, for the purposes of s 7(1)(a), 'a person shall, unless the contrary is proved, be deemed … to cultivate … prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he … cultivates … a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus'.

3. The number of prohibited plants specified in sch VI in relation to cannabis is 10.

4. Once the fact of cultivation of at least the number of prohibited plants specified in s 11(b) read with sch VI of the MD Act is proved beyond reasonable doubt or admitted, the State has no other onus to discharge. The purpose of s 11(b), in such a case, is to impose on the accused the onus of establishing on the balance of probabilities that, on the whole of the evidence, he or she did not intend to sell or supply the prohibited plants or any prohibited drug obtainable therefrom to another. See Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [4] (Steytler P).

5. In the present case, the appellant admitted that he had cultivated the 27 cannabis plants growing on his property.  So, the appellant had the onus of establishing on the balance of probabilities that, on the whole of the evidence, he did not intend to sell or supply the cannabis plants or any cannabis obtainable therefrom to another.

6. Section 7(2) of the MD Act provides, relevantly and in essence, that a person who cultivates a prohibited plant, without an intent to sell or supply, commits a simple offence.

The making of a drug trafficker declaration under s 32A of the MD Act

1. Section 32A(1)(b)(ii) of the MD Act provides, relevantly, that if a person is convicted of a 'serious drug offence' in respect of prohibited plants in a number which is not less than the number specified in sch VIII in relation to the particular species or genus to which those prohibited plants belong, the court convicting the person of the serious drug offence shall, on the application of the Director of Public Prosecutions or a police prosecutor, declare the person to be a drug trafficker.

2. The term 'serious drug offence' is defined in s 32A(3) to mean, relevantly, a crime under s 7(1).

3. The number of prohibited plants specified in sch VIII in relation to cannabis is 20.

4. The court does not have a discretion in relation to the making of a drug trafficker declaration under s 32A. If the conditions specified in the provision are satisfied, the court must make the declaration. See Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [36] (Buss JA, Owen JA agreeing).

5. In the present case, the appellant was charged with a 'serious drug offence', as defined in s 32A(3), namely an offence against s 7(1)(a). If the appellant was convicted, the court convicting him was bound, on the application of the Director of Public Prosecutions or a police prosecutor, to declare the appellant to be a drug trafficker.

6. Although s 32A of the MD Act provides for an application for, and the making of, a drug trafficker declaration, the MD Act does not specify any consequences for the offender arising from the making of the declaration. Those consequences are to be found in the Criminal Property Confiscation Act 2000 (WA). The confiscation of a drug trafficker's property occurs automatically under s 8(1) of the Criminal Property Confiscation Act when he or she is declared to be a drug trafficker under s 32A(1) of the MD Act.

7. A simple offence under s 7(2) of the MD Act is not a 'serious drug offence' as defined in s 32A(3).

The procedural history culminating in the judgment of conviction entered by Bowden DCJ

1. On or about 12 March 2014, the appellant was charged with the offence in question.

2. On 14 April 2014, the appellant appeared in the Magistrates Court at Margaret River. He was represented by defence counsel, Michael Tudori. The prosecutor stated aloud the facts. A plea of guilty was entered to the offence of cultivating a prohibited plant, namely cannabis, with intent to sell or supply cannabis to another, contrary to s 7(1)(a) of the MD Act. The offence was contained in a prosecution notice lodged with the Magistrates Court pursuant to s 24 of the CP Act. As required by s 41(3) of the CP Act, the magistrate, without convicting the appellant, committed the appellant to the District Court for sentencing.

3. On 13 July 2014, the appellant terminated Mr Tudori's services.  The appellant retained another defence counsel.

4. On 27 August 2014, the appellant filed an application in the District Court to change his plea from guilty to not guilty.

5. On 1 September 2014, the State filed the indictment in the District Court.  The offence pleaded in the indictment and the offence to which the appellant pleaded guilty in the Magistrates Court were identical.

6. On or about 2 September 2014, the prosecutor served on the appellant a document entitled 'Brief for fastrack [sic]'.

7. On 10 February 2015, Eaton DCJ heard the appellant's application to change his plea.  The appellant was not arraigned before his Honour.

8. On 12 March 2015, Eaton DCJ dismissed the appellant's application.  The appellant was not sentenced by his Honour.

9. On 25 June 2015, the appellant appeared before Bowden DCJ.  The appellant was arraigned on the count in the indictment.  The appellant said he was '[g]uilty to cultivating but not guilty for sell and supply' (ts 129).  It is not in dispute that the facts stated aloud by the prosecutor before Bowden DCJ were identical to the facts stated aloud in the Magistrates Court.  After hearing from defence counsel and the prosecutor, his Honour said:

   This morning when [the appellant] was arraigned he entered a plea of guilty to cultivation but not guilty to cultivation with intent to sell or supply.  It seems to me in light of the procedure and the fact that the change of plea application was dismissed on 12 March 2015, that the appropriate procedure is for me to do is to record a conviction for the offence of cultivation of a prohibited plant with intent to sell or supply being Margaret River charge 136 of 2014, indictment Bunbury 44 of 2014 (ts 133).

10. Bowden DCJ entered a judgment of conviction against the appellant in respect of the count in the indictment.  Defence counsel informed his Honour that she had instructions to appeal against the conviction to this court.  Bowden DCJ adjourned the sentencing hearing and renewed the appellant's bail pending the determination of the appeal.

Relevant provisions of the CP Act

1. The relevant provisions of the CP Act are as follows.

2. Part 3 of the CP Act is headed 'Prosecutions in courts of summary jurisdiction' and comprises s 18 to s 79.

3. Part 4 of the CP Act is headed 'Prosecutions in superior courts' and comprises s 80 to s 124. The term 'superior court' is defined in s 3(1) to mean the Supreme Court or the District Court.

4. Part 5 of the CP Act is headed 'Provisions applicable to any prosecution' and comprises s 125 to s 172.

5. Section 41 of the CP Act is concerned with charges that are to be tried on indictment. It provides:

   (1)This section applies if ‑ 

   (a)the charge must be tried on indictment; or

   (b)under The Criminal Code section 5 or any other written law, the court has decided that the charge, being an either way charge, is to be tried on indictment.

   (2)The court must ‑ 

   (a)tell the accused that he or she is not required to plead to the charge; and

   (b)give the accused the opportunity to plead to the charge.

   (3)If the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge, and comply with section 47(1).

   (4)If the accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with section 42. (emphasis added)

6. The term 'either way charge' is defined in s 3(1) to mean 'an indictable charge that, by virtue of The Criminal Code section 5, or another written law, may be tried either on indictment or summarily'.

7. Section 47 of the CP Act specifies certain matters which a court of summary jurisdiction must record on the prosecution notice if the court commits an accused to a superior court for sentence or trial on an indictable charge. It provides:

   (1)If a court of summary jurisdiction commits an accused to a superior court for sentence or trial on an indictable charge, whether or not it has convicted the accused of the charge, the court must record on the prosecution notice ‑ 

   (a)the accused's plea before the court; and

   (b)if the court convicted the accused, the fact that it did so; and

   (c)whether the court has ordered a pre‑sentence report in respect of the accused; and

   (d)the date of the committal.

   (2)A copy of a prosecution notice containing the matters recorded under subsection (1) sent to a superior court is, in the absence of evidence to the contrary, evidence of its contents and of any matter recorded on it in under subsection (1).

1. Section 99 of the CP Act is concerned with the procedure to be followed in a superior court when a court of summary jurisdiction commits an unconvicted accused to the superior court for sentence. It provides:

   (1)This section applies if ‑ 

   (a)an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and

   (b)the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and

   (c)the accused is subsequently charged with the charge in an indictment.

   (2)The accused must be required to plead to the charge in the indictment in the same manner as other accused.

   (3)If the accused pleads guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law.

   (4)If the accused does not plead guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must order the prosecutor to state aloud the material facts of the charge and ‑ 

   (a)if it is satisfied that those facts do not differ materially from the material facts disclosed to the accused under section 35 at the time the accused pleaded guilty to the offence charged in the lower court, must enter a plea of guilty on behalf of the accused; or

   (b)if it is not so satisfied, must enter a plea of not guilty on behalf of the accused,

   and deal with the accused according to law.

   (5)Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if ‑ 

   (a)having considered ‑ 

   (i)the material served on the accused under section 35 or 95; and

   (ii)the facts stated by the prosecutor under section 129,

   the court is satisfied that the accused could not have or may not have committed the offence charged; or

   (b)having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.

   (6)If under this section a superior court enters a plea of not guilty on behalf of an accused, the prosecutor must lodge and serve the material referred to in section 95(6) within such period as the court orders.

   (7)A plea entered by a court under this section on behalf of an accused has the same effect as if it had been actually pleaded.  (emphasis added)

2. Section 35 of the CP Act is concerned with the initial disclosure of information by the prosecutor to an accused. Section 35(4) provides:

   When or as soon as practicable after a prosecution notice that contains one or more indictable charges is served on an accused, the prosecutor must serve the accused with the following ‑ 

   (a)a written statement of the material facts of each such charge;

   (b)an approved notice of the existence or non‑existence, as the case may be, of any confessional material of the accused that is relevant to each such charge;

   (c)an approved notice that the accused does or does not have a criminal record, as the case may be;

   (d)any document that is prescribed.

3. No documents have been prescribed pursuant to s 35(4)(d).

4. Section 35(1) states that in s 35, unless the contrary intention appears:

   confessional material of an accused charged with an offence, means ‑ 

   (a)any written statement signed by the accused;

   (b)any written record of interview with the accused (signed or unsigned by the accused);

   (c)any interview (as that term is defined in the Criminal Investigation Act 2006 section 115) that has been electronically recorded,

   that is relevant to the charge and that is in the possession of the organisation that investigated the offence.

5. By s 35(9), the material referred to in s 35 must be served before or at the time of the accused's first appearance in the court in relation to the prosecution notice unless it is impracticable to do so.

6. Section 35(10) provides that if material is not served in accordance with s 35(9) in respect of a charge, the court may adjourn the charge to a new court date that allows a reasonable time for the prosecutor to serve the material; and order the prosecutor to serve the material before that new court date; and if the prosecutor does not obey the order, adjourn the charge again or dismiss it for want of prosecution.

7. Section 35(13) provides:

   If the prosecutor serves the accused with a written statement of the material facts of a charge, the prosecutor may serve the accused with another version of the statement ‑ 

   (a)if the charge ‑ 

   (i)is an either way charge that is to be dealt with summarily; or

   (ii)is of a simple offence,

   at any time before the accused is asked to plead to the charge by a court of summary jurisdiction or, with the court's leave, at any time after a plea of not guilty by the accused; or

   (b)in any other case ‑ at any time before the accused is asked to plead to the charge by the court to which the accused is committed for sentence or trial, irrespective of whether the accused has pleaded before a court of summary jurisdiction.

8. Section 95 of the CP Act is concerned with disclosure by the prosecutor to an accused in the context of prosecutions in superior courts.

9. Section 95(5) provides:

   Within the prescribed period after an accused is committed for sentence on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it ‑ 

   (a)a statement of the material facts of the charge;

   (b)any confessional material of the accused that is relevant to the charge;

   (c)a copy of the accused's criminal record;

   (d)a copy of the certificate given to the officer under section 45;

   (e)any other document that is prescribed.

10. No documents have been prescribed pursuant to s 95(5)(e).

11. Section 95(6) provides:

    Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it ‑ 

    (a)a statement of the material facts of the charge;

    (b)any confessional material of the accused that is relevant to the charge;

    (c)any evidentiary material that is relevant to the charge;

    (d)a copy of the accused's criminal record;

    (e)a copy of the certificate given to the officer under section 45;

    (f)any other document that is prescribed.

12. The term 'confessional material' is defined in s 95(1) to have the meaning given by s 42.

13. Section 42(1) states that in s 42, unless the contrary intention appears:

    confessional material of an accused charged with an offence, means ‑ 

    (a)a copy of any material referred to in the definition of confessional material in section 35; and

    (b)a copy of any electronic recording, other than a recording that is part of the material referred to in paragraph (a), of a conversation between the accused and a person in authority that is relevant to the charge and that is in the possession of the organisation that investigated the offence; and

    (c)if the accused said anything that is relevant to the charge to a person employed in the organisation that investigated the offence and that was not so recorded, a written version of the substance of what was said.

14. The term 'evidentiary material' is defined in s 95(1) to have the meaning given by s 42.

15. Section 42(1) states that in s 42, unless the contrary intention appears:

    evidentiary material relevant to a charge, means ‑ 

    (a)a copy of ‑ 

    (i)every statement that has been made in accordance with Schedule 3 clause 4 by; and

    (ii)every recording that has been made in accordance with Schedule 3 clause 6 of evidence given by; and

    (iii)every recording that has been made under the Evidence Act 1906 of; and

    (iv)every other recorded statement, whether oral or written, by,

    any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence; and

    (b)if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person; and

    (c)a copy of any document or object to which a statement or recording referred to in paragraph (a) refers; and

    (d)a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and

    (e)a copy of every other document or object that may assist the accused's defence,

    that is in the possession of the organisation or person who investigated the offence.

16. Section 129(1) of the CP Act provides that s 129 applies 'if an accused pleads guilty in a court', but does not apply 'if the plea is made in a court of summary jurisdiction to a charge that is to be dealt with on indictment'. The balance of s 129 provides:

    (2)Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless ‑ 

    (a)the accused is represented by a legal practitioner; or

    (b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.

    (3)Before the court sentences the accused, the prosecutor must state aloud to the court the material facts of the offence to which the accused has pleaded guilty.

    (4)If under this Act the accused has been served with one or more written statements of the material facts, the facts stated aloud must be those in the written statement that was last served.

    (5)This section does not affect a court's power to decide the material facts of an offence on the basis of such information as it thinks fit.

The reasons of Eaton DCJ

1. At the hearing before Eaton DCJ, the appellant relied on s 99(5)(a) and s 99(5)(b) of the CP Act. In the alternative, the appellant relied on what he asserted was the District Court's inherent jurisdiction to prevent a miscarriage of justice.

2. Eaton DCJ's reasons for dismissing the appellant's application to change his plea were, in summary, as follows. 

3. Eaton DCJ was of the view that the word 'may' in s 99(5) conferred a discretion on the court [7].

4. As to s 99(5)(a), defence counsel submitted, in effect, that:

   (a)the words 'satisfied that the accused could not have … committed the offence charged', in s 99(5)(a), mean 'satisfied as a matter of law' [11];

   (b)the words 'may not have committed the offence charged', in s 99(5)(a), require the court to examine the merits of the prosecution case, including any exculpatory statements made by the accused to the investigating police officers [12]; and

   (c)a judge of a superior court, dealing with a charge on indictment, may, irrespective of whether the accused does or does not plead guilty to the charge in the indictment, enter a plea of not guilty on behalf of the accused based on any exculpatory statement made by the accused to an investigating police officer, notwithstanding a plea of guilty to that charge in the lower court [8].

5. Eaton DCJ rejected defence counsel's submissions in relation to the proper construction and application of the words 'may not have committed the offence charged', in s 99(5)(a) [9], [10], [13]. In particular, his Honour rejected the submission that, based on the exculpatory statements made by the appellant to the police in his video‑recorded interview, the court should conclude that the appellant 'may not have committed the offence charged', within s 99(5)(a) [7] ‑ [9]. According to his Honour, s 99(5)(a) 'does not contemplate that a judge will arrive at factual conclusions to the effect that the accused could not have or may not have committed the offence charged, but rather that the judge will consider matters of law' [10]. His Honour said that, to interpret the words 'may not have committed the offence charged', in accordance with defence counsel's submission, 'would amount to a significant challenge to the long‑standing principle, so important in the administration of justice, to the effect that upon the entry of a plea of guilty in open court, no further proof of guilt is required' [13]. His Honour referred to Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 ‑ 142 (Brennan, Toohey & McHugh JJ) [13]. His Honour held that s 99(5)(a) does not 'sanction an investigation by a judge into the merits of the prosecution case, other than as to the foundation of the charge brought as a matter of law' [15]. His Honour added:

   It follows … that I may not have regard to [the appellant's] exculpatory statement[s] to the investigating officers in considering his application to change his plea on the basis of s 99(5)(a) [16].

6. As to s 99(5)(b), Eaton DCJ said that s 99(5)(b) contemplates that 'the court will have regard to evidence, whether it be in oral or written form' [14]. His Honour then qualified that proposition:

   Even in that circumstance, the examination of evidence is confined, not to the substance of the alleged offence, but rather to the issue of whether the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings [14].

7. Further, as to s 99(5)(b), Eaton DCJ concluded, after considering all of the evidence before him (including oral evidence given by the appellant and his wife), that he was not satisfied that 'the [appellant's] plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings' [44].

8. Eaton DCJ noted that he had had regard to 'the inherent jurisdiction of the court, assuming for the purposes of this judgment, that s 99(5) of [the CP Act] does not exclude the operation of the inherent jurisdiction when a plea of guilty has been entered in the Magistrates Court' [45]. His Honour was not persuaded that there was anything in the circumstances in which the plea was entered in the Magistrates Court which required the court, in the exercise of its inherent jurisdiction, to permit the appellant to change his plea in order to prevent a miscarriage of justice [45] ‑ [48].

The reasons of Bowden DCJ

1. Bowden DCJ, in deciding to enter a judgment of conviction against the appellant in respect of the count in the indictment, followed in effect the reasoning and conclusions of Eaton DCJ (ts 133).

The consequences for sentencing purposes where an offender is convicted on his or her plea of guilty

1. Where an offender is convicted on his or her plea of guilty, the plea necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence.  See R v Hill [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ). The plea also negatives all defences. See Schugman v Menz [1970] SASR 381, 381 ‑ 382 (Bray CJ). A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Hill (312).  It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence.  See Law v The State of Western Australia [2009] WASCA 193 [27] (Buss JA, McLure & Pullin JJA agreeing).

The grounds of appeal

1. The appellant relies on two grounds of appeal.

2. Ground 1, as amended at the hearing of the appeal, alleges that Bowden DCJ erred in law 'when he held in effect, on the basis of Eaton DCJ's decision, that the phrase "may not have" in s 99(5) of [the CP Act] … did not permit a judge (a) to arrive at factual conclusions as to whether the accused may not have committed the offence, nor (b) to take into account exculpatory material in the brief for prosecution in deciding whether the accused may not have committed the offence'.

3. Ground 2 alleges that the error complained of in ground 1 occasioned a miscarriage of justice.

4. On 8 October 2015, I ordered that the application for leave to appeal be referred to the hearing of the appeal.

The grounds of appeal:  the appellant's submissions

1. Counsel for the appellant repeated, in substance, the submissions as to the proper construction and application of s 99(5)(a) of the CP Act that were made on the appellant's behalf before Eaton DCJ.

The grounds of appeal:  the State's submissions

1. Counsel for the State submitted that s 99(5)(a) of the CP Act permits the court 'to enter a plea of not guilty on the accused's behalf [if the court is satisfied], having regard only to the disclosure material and facts stated by the prosecutor, that the accused may not in law have committed the offence charged' (original emphasis).

The grounds of appeal: the legal and historical context of s 99 of the CP Act

1. At common law (that is, independently of s 19 of the Interpretation Act 1984 (WA)), this court is permitted, in construing a statutory provision, to have regard to the words used by Parliament in their legal and historical context and, if appropriate, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.  The context includes reference to the legislative history of the provision and any relevant reports of law reform bodies which describe the matters requiring legislative reform.  See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113 (McHugh J).

The grounds of appeal:  the relevant legislative history

1. Section 618 (repealed) of the Criminal Code (WA) (the Code) was the legislative precursor to s 99 of the CP Act.

2. Section 618 was examined and criticised by Mr MJ Murray in his report, The Criminal Code A General Review (1983) 393 ‑ 394. Mr Murray said that s 618 was 'oddly worded' and it was clear that 'there [were] a number of deficiencies' in the provision (393). He referred to R v Arlotta [1979] WAR 84 and Margetson v The Queen [1980] WAR 135.

3. Mr Murray recommended that s 618 be amended to read as follows:

   (1)When an unconvicted person has been committed by a Court of Petty Sessions for sentence for an offence, he is to be called upon to plead to the indictment in the same manner as other persons.

   (2)If such an accused person pleads that he is guilty of the offence charged in the indictment, or, with the consent of the Crown, of any other offence of which he might be convicted upon the indictment, he shall be convicted accordingly, unless the Court is satisfied ‑ 

   (a)upon a consideration of the depositions or statements of witnesses and any additional evidence which may be adduced, that the accused person could not in law be convicted of, or may not in fact be guilty of, the offence charged in the indictment or any other offence of which he might be convicted upon the indictment; or

   (b)upon hearing such evidence as the Court thinks fit, that the plea or admission of guilt made by the accused person in the Court of Petty Sessions or before the Court was made under some material misunderstanding as to the nature of the charge or the nature of the plea or admission made;

   whereupon the Court may enter a plea of not guilty for the accused person and direct a trial accordingly.

   (3)If such an accused person pleads that he is not guilty, the Court shall, notwithstanding that plea, convict him of the offence charged in the indictment, unless the Court is satisfied ‑    

   (a)upon a consideration of the depositions or statements of witnesses and any additional evidence which may be adduced, that the accused person could not in law be convicted of, or may not in fact be guilty of, the offence charged in the indictment; or

   (b)upon hearing such evidence as the Court thinks fit, that the plea or admission of guilt made by the accused person in the Court of Petty Sessions was made under some material misunderstanding as to the nature of the charge or the nature of the plea or admission made;

   whereupon the Court may enter the plea of not guilty.  (emphasis added)

1. Mr Murray made these comments about the amendments he recommended to s 618:

   1.It should be made clear that the Section applies only to unconvicted persons who are committed for sentence either after a full preliminary hearing or, after electing not to have a preliminary hearing and pleading Guilty in the Court of Petty Sessions.

   2.The Section should not concern itself with the plea actually made by the accused but should lay down the legal consequences of the plea.  For that reason subsection (1) is framed to merely make it clear that the accused person so committed is to be called upon to plead as in other cases … 

   3.Subsection (2) then concerns itself with a person who maintains a plea of guilty either to the offence charged or to some lesser offence open on the indictment.  Under the subsection the court is directed to convict him accordingly unless the court is satisfied as to the matters enumerated in paragraph (a) or paragraph (b).  It is to be noted that as a safeguard to the plea being too readily interfered with, the Section places an affirmative onus upon the accused to satisfy the court, or the court to satisfy itself, of the matters which would justify a change in the status quo.

   4.Subsection (2)(a) then specifies that the court may change the plea to one of Not Guilty if, on a consideration of the materials before it and any additional evidence which may be adduced, it appears that the accused could not be convicted as a matter of law or, as in Arlotta's Case, that he may not in fact be guilty of the offence charged or any other open offence.  That formulation makes it clear that the court is concerned with a legal impediment to conviction or to finding that the accused maintains a situation which would at least provide him with an arguable defence.

   5.Subsection (2)(b) then looks to the situation where the accused appears to be presently, or to have been before the Court of Petty Sessions, under some misapprehension or misunderstanding as to the nature of the charge or as to the nature of his plea or admission of guilt.  These criteria are designed to parallel the types of circumstance which the courts have held sufficient on appeal to reverse a conviction in a Court of Petty Sessions made upon a plea of guilty which is maintained to have been entered under some misapprehension.

   6.Under Subsection (3) attention is directed to a person who pleads Not Guilty.  That plea is not to be entered so that it has legal consequences unless again the court is brought to an affirmative satisfaction (the burden being upon the accused person) that he could not in law be convicted, has an arguable defence in fact, or that his original plea of guilty or admission of guilt was made under a material misapprehension (394 ‑ 395).  (emphasis added)

The grounds of appeal:  the explanatory memorandum to the Criminal Procedure Bill 2004 (WA)

1. The explanatory memorandum to the Criminal Procedure Bill 2004 (WA), which upon enactment became the CP Act, stated that proposed s 99:

   Sets out the procedure for dealing with an unconvicted accused who has been committed to a superior court for sentence. This provision is based on section 618 of the Criminal Code and addresses in part The Murray Report recommendations in relation to that section.

2. However, neither the explanatory memorandum nor any other extrinsic material explained the particular aspects of Mr Murray's recommendations that were addressed in proposed s 99.

The grounds of appeal: the relevant differences, for present purposes, between proposed amended s 618(3)(a), as recommended in the Murray Report, and s 99(5)(a), as enacted in the CP Act

1. Proposed amended s 618(3)(a), as recommended in the Murray Report (but never enacted), provided, relevantly, that if the accused pleads not guilty to the charge in the indictment, the court shall, notwithstanding that plea, convict the accused of the offence unless the court is satisfied:

   Upon a consideration of the depositions or statements of witnesses and any additional evidence which may be adduced, that the accused … could not in law be convicted of, or may not in fact be guilty of, the offence charged in the indictment,

   whereupon the court may enter a plea of not guilty (emphasis added).

2. Section 99(5)(a) of the CP Act provides, relevantly, that if the accused pleads not guilty to the charge in the indictment, the court may enter a plea of not guilty if:

   [H]aving considered -

   (i)the material served on the accused under section 35 or 95; and

   (ii)the facts stated by the prosecutor under section 129,

   the court is satisfied that the accused could not have or may not have committed the offence charged.  (emphasis added)

3. The relevant differences, for present purposes, between proposed amended s 618(3)(a), on the one hand, and s 99(5)(a), on the other, are that:

   (a)in s 618(3)(a), the material upon which the court's satisfaction is to be based comprises the depositions or statements of witnesses and any additional evidence which may be adduced;

   (b)in s 99(5)(a), the material upon which the court's satisfaction is to be based does not include the depositions or statements of witnesses and the court is not empowered to receive any evidence apart from the information specified in s 99(5)(a);

   (c)in s 618(3)(a), the court must be satisfied, upon a consideration of the depositions or statements of witnesses and any additional evidence which may be adduced, that the accused 'could not in law be convicted of, or may not in fact be guilty of, the offence'; and

   (d)in s 99(5)(a), the court must be satisfied, upon a consideration of the specified information, that the accused 'could not have or may not have committed the offence'.

The grounds of appeal:  the relevant principles of statutory construction

1. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:

   'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].

   See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).

2. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The statutory text is the surest guide to Parliament's intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.  See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).

3. The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.  See CIC Insurance (408); Newcastle City Council (112 ‑ 113).

4. The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

The grounds of appeal: the proper construction of s 99(5)(a) of the CP Act

1. Section 99(5)(a) of the CP Act applies '[i]rrespective of whether the accused does or does not plead guilty to the charge in the indictment'.

2. Section 99(5)(a) provides, relevantly, that the court 'may enter a plea of not guilty on behalf of the accused' if, having considered the specified information, the court is satisfied that 'the accused could not have or may not have committed the offence charged'.

3. In my opinion, the word 'may' in s 99(5)(a) does not confer a discretion on the court. If the court, having considered the specified information, is satisfied that 'the accused could not have or may not have committed the offence charged', the court must enter a plea of not guilty on behalf of the accused. The language of s 99(5)(a), considered in the context of s 99 as a whole, indicates that the word 'may' is used, not to give a discretion, but to confer a power which must be exercised upon the court having considered the specified information and being satisfied of the matters described in the provision. The statutory language points strongly against a construction of the word 'may' that would permit a court, in its discretion, to sentence an accused even though the court, having considered the specified information, was satisfied that the accused could not have or may not have committed the offence charged. See Finance Facilities Pty Ltd v Federal Commissioner of Taxation (Cth) [1971] HCA 12; (1971) 127 CLR 106, 134 ‑ 135 (Windeyer J, Barwick CJ agreeing); Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 [38] (Gummow, Hayne, Heydon & Crennan JJ). The intent or object of s 99(5)(a), as revealed by the subject matter and the language of the provision, is inconsistent with the application of s 56(1) of the Interpretation Act. See s 3(1)(b) of that Act.

4. In my opinion, the expression 'having considered' in s 99(5)(a), in the context of the court 'having considered' the specified information, contemplates that the court will have considered and taken into account the specified information in deciding whether it is satisfied that 'the accused could not have or may not have committed the offence charged'. The court is bound to consider and take into account the specified information. The information comprises:

   (a)the material served on the accused under s 35 or s 95; and

   (b)the facts stated by the prosecutor under s 129.

5. The material required to be served on the accused under s 35 comprises, relevantly:

   (a)a written statement of the material facts of the charge;

   (b)an approved notice of the existence or non‑existence, as the case may be, of any 'confessional material' of the accused that is relevant to the charge;

   (c)an approved notice that the accused does or does not have a criminal record, as the case may be; and

   (d)any document that is prescribed.

   See s 35(4).

6. The term 'confessional material' of an accused charged with an offence is defined, in s 35(1), to mean:

   (a)any written statement signed by the accused;

   (b)any written record of interview with the accused (signed or unsigned by the accused); and

   (c)any interview (as that term is defined in s 115 of the Criminal Investigation Act2006 (WA)) that has been electronically recorded,

   that is relevant to the charge and that is in the possession of the organisation that investigated the offence.

7. The material required to be served on the accused under s 95 comprises, relevantly:

   (a)a statement of the material facts of the charge;

   (b)any 'confessional material' of the accused that is relevant to the charge;

   (c)a copy of the accused's criminal record;

   (d)a copy of the certificate given to the relevant authorised officer under s 45; and

   (e)any other document that is prescribed.

   See s 95(5).

8. The term 'confessional material' is defined in s 95(1) to have the meaning given by s 42.

9. Section 42(1) states, relevantly, that the term 'confessional material' of an accused charged with an offence, means:

   (a)a copy of any material referred to in the definition of confessional material in s 35;

   (b)a copy of any electronic recording, other than a recording that is part of the material referred to in para (a) of a conversation between the accused and a person in authority that is relevant to the charge and that is in the possession of the organisation that investigated the offence; and

   (c)if the accused said anything that is relevant to the charge to a person employed in the organisation that investigated the offence and that was not so recorded, a written version of the substance of what was said.

10. The 'confessional material', as defined in s 95(1), includes, on its proper construction, any exculpatory statements made by an accused in any written statement, written record or interview (referred to in the definition of 'confessional material' in s 35(1)) or in any electronic recording or written version of anything said by the accused (referred to in the definition of 'confessional material' in s 42(1)). It follows that 'the material served on the accused under section 35 or 95', within s 99(5)(a)(i), includes any exculpatory statements made by the accused in that material. So, exculpatory statements made by the accused in the material served on the accused under s 35 or s 95 are part of the specified information in s 99(5)(a), and must be considered and taken into account by the court in deciding whether the court is satisfied, upon a consideration of the whole of the specified information, that the accused 'could not have or may not have committed the offence charged'. The specified information is not confined to the facts alleged by the prosecution in the material served on the accused under s 35 or s 95 and the facts stated by the prosecutor under s 129.

11. However, the specified information in s 99(5)(a) does not include any 'evidentiary material' (as defined in s 42(1) and s 95(1)) that is relevant to the charge. By s 99(6), the prosecutor is not bound to lodge and serve the material referred to in s 95(6), which material includes 'any evidentiary material that is relevant to the charge', unless under s 99 the superior court enters a plea of not guilty on behalf of the accused.

12. In my opinion, the specified information in s 99(5)(a) constitutes the whole of the information which the court is to consider and take into account in deciding whether it is satisfied that the accused could not have or may not have committed the offence charged. The court must consider and take into account the specified information and may not consider or take into account any other information. In that respect, s 99(5)(a) is to be compared to and contrasted with s 99(5)(b). By s 99(5)(b), the court must consider (and, necessarily, take into account) 'any evidence the court decides to admit' in deciding whether the court is satisfied that 'the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings'.

13. In my opinion, the phrase 'the court is satisfied that the accused could not have or may not have committed the offence charged', in s 99(5)(a), comprises two limbs. The first limb refers to the court being satisfied that the accused 'could not have' committed the offence charged. The second limb refers to the court being satisfied that the accused 'may not have' committed the offence charged. The expression 'could not have' is not qualified or conditioned by the words 'in law' or 'in fact' (that is, it does not state that the accused could not 'in law' or 'in fact' have committed the offence charged). Similarly, the expression 'may not have' is not qualified or conditioned by the words 'in law' or 'in fact' (that is, it does not state that the accused may not 'in law' or 'in fact' have committed the offence charged).

14. Plainly, the expressions 'could not have' and 'may not have', in s 99(5)(a), must be construed in context.

15. The relevant context includes:

    (a)the statutory framework of the CP Act in relation to the committal for sentence in a superior court of an unconvicted accused who has pleaded guilty to an indictable charge before a court of summary jurisdiction;

    (b)the subject matter of s 99(5)(a) as an aspect of the statutory regulation of procedures for dealing with alleged offenders who are charged on indictment in superior courts;

    (c)the purpose or object of s 99(5)(a), namely that an unconvicted accused must not be convicted by a superior court, upon committal by a court of summary jurisdiction for sentence by the superior court, if the superior court, having considered the specified information, is satisfied that the accused could not have or may not have committed the offence charged; and

    (d)the nature and character of the specified information which the court is bound to consider and take into account and the absence of a power (of the kind conferred by s 99(5)(b)) for the court to admit any other evidence.

16. The function of the court under s 99(5)(a) involves an evaluation of the specified information, but does not involve any testing of its cogency or probative value. There is no trial of any issues and no cross‑examination of any witnesses. Some of the information may be relied on, for different purposes, by the prosecution and the accused. For example, in relation to exculpatory statements by the accused, the prosecution may allege that the statements are lies which constitute an admission against interest by the accused and, further or alternatively, adversely affect the accused's credit, whereas the accused may assert that the statements are true and undermine the prosecution's case. The court's evaluation of the specified information does not involve the resolution of inconsistent facts or allegations. However, in some circumstances, an allegation may be inherently incredible.

17. The court performs its function under s 99(5)(a) without regard to the circumstances in which the accused pleaded guilty in the court of summary jurisdiction. For example, it is irrelevant, in the application of s 99(5)(a), whether the accused was legally represented or not in the lower court. Also, by way of example, it is irrelevant whether any legal advice the accused received before pleading guilty in the lower court was sound or not.

18. In my opinion, the expression 'could not have', as part of the phrase 'the court is satisfied that the accused could not have … committed the offence charged', in s 99(5)(a), connotes that, upon having considered and taken into account the specified information, the court is satisfied, on the basis of the specified information, that it was impossible for the accused to have committed the offence charged.  Ordinarily, in practice, that standard of satisfaction (namely that it was impossible for the accused to have committed the offence charged) is likely to be reached only where there is a legal impediment to the accused having committed the alleged offence.  However, as I have mentioned, the expression 'could not have' is not relevantly qualified or conditioned.  It must be construed accordingly.  There is no basis in the statutory language or the relevant context for confining the expression 'could not have' by the implication of the words 'in law' or 'in fact'.

19. In my opinion, the expression 'may not have', as part of the phrase 'the court is satisfied that the accused … may not have committed the offence charged', in s 99(5)(a), connotes that, upon having considered and taken into account the specified information, the court is satisfied, on the basis of the specified information, that it is reasonably arguable that the accused did not commit the offence charged.  Ordinarily, in practice, that standard of satisfaction (namely that it is reasonably arguable that the accused did not commit the offence charged) is likely to relate to matters of fact or mixed law and fact revealed by the specified information; in particular, that the facts alleged by the prosecution do not establish each of the elements of the offence charged or that the accused has a reasonably arguable defence.  However, as I have mentioned, the expression 'may not have' is not relevantly qualified or conditioned.  It must be construed accordingly.  There is no basis in the statutory language or the relevant context for confining the expression 'may not have' by the implication of the words 'in law' or 'in fact'.

1. There is no justification for construing s 99(5)(a) (in particular, the phrase 'the court is satisfied that the accused … may not have committed the offence charged') as if it contained additional words or for construing the provision in a manner which has the effect of giving it a decreased operation. See, generally, Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [37] ‑ [40] (French CJ, Crennan & Bell JJ) and my review of the relevant principles in the The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 [124] ‑ [129].

2. In my opinion, after examining s 99(5)(a), in the context of s 99 and the CP Act as a whole, it is not possible to discern the purpose or object of s 99(5)(a) beyond stating that which is apparent from the subject matter and language of the provision, namely that an unconvicted accused must not be convicted by a superior court, upon committal by a court of summary jurisdiction for sentence by the superior court, if the superior court, having considered the specified information, is satisfied that the accused could not have or may not have committed the offence charged. That purpose or object exists in relation to a charge which must be dealt with on indictment. A judgment of conviction can only be entered by a superior court.

3. Section 99 applies, of course, only where an accused pleads guilty to an indictable charge before a court of summary jurisdiction; and the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and the accused is subsequently charged with the charge in an indictment: s 99(1).

4. Section 99(5)(a) does not operate where an accused pleads guilty to a charge in an indictment in other circumstances than those in which s 99 applies including, for example, in proceedings in a superior court after the superior court has entered a plea of not guilty on behalf of the accused pursuant to s 99(5)(a). In those circumstances, s 129 of the CP Act applies. In other words, s 99(5)(a) only operates upon the first occasion on which the unconvicted accused appears in the superior court (in the circumstances specified in s 99(1)) and is required to plead to the charge in the indictment (in accordance with s 99(2)).

5. My construction of s 99(5)(a) does not relevantly deprive an unconvicted accused, who has pleaded guilty in the Magistrates Court and has been committed to a superior court for sentence, of his or her right to plead guilty, upon the first occasion on which the accused appears in the superior court (in the circumstances specified in s 99(1)) and is required to plead to the charge in the indictment (in accordance with s 99(2)), even if he or she has an arguable defence and 'whether or not that person is in truth guilty or not guilty': Meissner (141) (Brennan, Toohey and McHugh JJ).  See also Meissner (157) (Dawson J). If an accused has made exculpatory statements to the investigating police officers which are part of the 'confessional material', as defined in s 35(1) or s 42(1) of the CP Act, the accused may withdraw the exculpatory statements in a written statement signed by him or her which is given to the organisation that investigated the charged offence. A written statement of that kind will constitute 'confessional material', as defined in s 35(1) and s 42(1), and will be part of the specified information for the purposes of s 99(5)(a). A decision by defence counsel or a self‑represented accused to withdraw any exculpatory statements does not require unusual foresight, knowledge or anticipation by defence counsel or a self‑represented accused. If a superior court proposes, on the basis of exculpatory statements, to enter a plea of not guilty on behalf of the accused, pursuant to s 99(5)(a), the court would be obliged, as a matter of procedural fairness, to inform defence counsel or the self‑represented accused why the court was proposing, in effect, to reject the accused's plea of guilty and enter a plea of not guilty on his or her behalf. If defence counsel or the self‑represented accused wishes to withdraw the exculpatory statements then, ordinarily, that course of action could readily be facilitated by the granting of a short adjournment.

6. Further and in any event, as I have mentioned, s 99(5)(a) does not operate where an accused pleads guilty to a charge in an indictment in other circumstances than those in which that provision is engaged.

7. Meissner is authority for the proposition, relevantly, that 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.  In Vella v The State of Western Australia [2006] WASCA 129, Steytler P (Wheeler & Buss JJA agreeing) said:

   It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty.  In such a case, the appellant must show that there has been a miscarriage of justice:  Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling; unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5 [26].

8. Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia [2011] WASCA 14 [23]. See also Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P, Buss & Mazza JJA agreeing).

9. In the present case, the proposition stated in Meissner and the principle enunciated in Vella are plainly distinguishable.  Those cases were concerned with the circumstances in which an appellate court will set aside a conviction based on a plea of guilty. By contrast, s 99(5)(a) is concerned with the circumstances in which a superior court must enter a plea of not guilty on behalf of an unconvicted accused where the accused has pleaded guilty in a court of summary jurisdiction but has not been convicted.

The grounds of appeal:  their merits

1. It will be apparent, from my construction of s 99(5)(a) of the CP Act, that, in my opinion, Eaton DCJ and Bowden DCJ were in error in their construction of s 99(5)(a). In particular, their Honours were in error in holding, in effect, that the expression 'may not have' in s 99(5)(a) did not permit a judge to consider and take into account exculpatory material in the specified information in deciding whether the accused may not have committed the offence charged.

2. Further, it will be apparent, from my construction of s 99(5)(a), that I do not accept counsel for the State's submission that s 99(5)(a) permits the court to enter a plea of not guilty on the accused's behalf only if the court is satisfied, having regard to the specified information, that the accused may not in law have committed the offence charged.

3. As I have mentioned, it was not in dispute that the charge to which the appellant pleaded guilty in the Magistrates Court was identical to the charge in the indictment.

4. Also, as I have mentioned, on or about 2 September 2014 (being after the magistrate committed the appellant to the District Court for sentencing and before the appellant's first appearance in the District Court pursuant to that committal), the prosecutor served on the appellant a document entitled 'Brief for fastrack [sic]'.  The brief comprised:

   (a)the prosecution notice;

   (b)a statement of material facts;

   (c)witness statements of three police officers, being Sergeant Lok, Senior Constable Clarke and Senior Constable Gillam;

   (d)a certificate of an approved botanist, Nicholas Lander, who certified, relevantly, that the plants cultivated by the appellant were cannabis plants (in particular, Cannabis sativa);

   (e)the appellant's video‑recorded interview with the police, including a transcript of the interview; and

   (f)a Western Australia police exhibits log.

5. The documents which the prosecutor was obliged to lodge and serve on the appellant pursuant to s 95(5) of the CP Act included the statement of material facts and the transcript of the appellant's video‑recorded interview with the police, but did not include the other documents contained in the brief. The prosecutor was not obliged to lodge and serve the other documents unless, pursuant to s 99, the court entered a plea of not guilty on behalf of the appellant. See s 99(6) read with s 95(6).

6. On 25 June 2015, when the appellant appeared before Bowden DCJ and did not plead guilty to the charge in the indictment, the prosecutor stated aloud the material facts of the charge as follows:

   At about 1.30 pm on Thursday, 5 March 2014 police attended 13468 Bussell Highway, Augusta in order to execute a Misuse of Drugs Act search warrant.  At the time no persons were located at the address.  The offender was contacted by telephone and advised that police were at the premises.  He arrived a short time later and was informed that police were there in order to search the property.

   When questioned in relation to this matter, the offender took police to a garden shed at the rear of his property, unlocked it and opened the door to reveal four mature cannabis plants approximately 1.5 metres tall and 2 metres across.  The offender was questioned in relation to the plants on a digitally recorded interview and admitted planting, watering and generally looking after the plants for approximately two months.

   When questioned in relation to other cannabis plants growing on the property, the offender took police to a small fenced off patch of swampland that contained another 23 cannabis plants that varied from 1.5 to 2 metres in height.  The offender admitted to fencing off the area surrounding the cannabis plants in order to keep sheep and his small child from accessing them.  He also stated that he had planted them approximately two months prior, around the same time as the four cannabis plants previously shown to police.

   The offender stated he grew all the cannabis plants for his own personal use.  However, during the search by police of the house and property no evidence was located which supported this claim.  As a result of the seizure the offender was advised that he would be charged with the present offence (ts 130).

7. The question which Bowden DCJ was required to address, pursuant to s 99(5)(a), was whether his Honour was satisfied, having considered and taken into account the specified information, namely:

   (a)the statement of material facts served on the appellant on or about 2 September 2014;

   (b)the appellant's video‑recorded interview with the police, including the transcript of the interview; and

   (c)the material facts of the charge in the indictment stated aloud by the prosecutor at the hearing on 25 June 2015,

   that the appellant 'may not have committed the offence charged'; that is, whether it was reasonably arguable that the appellant did not commit the offence charged.

8. That question had to be answered in the context of the elements of the offence created by s 7(1)(a) of the MD Act and the operation of s 11(b) of the MD Act.

9. There was no material difference between the statement of material facts, on the one hand, and the material facts of the charge in the indictment stated aloud by the prosecutor, on the other.

10. In the present case, the specified information in s 99(5)(a) established that the appellant had 'cultivated' 27 cannabis plants. That element of the charge in the indictment was established unequivocally by the statement of material facts and the admissions by the appellant in his video‑recorded interview with the police.

11. The only real issue was whether the appellant intended to sell or supply the cannabis plants or any cannabis obtainable therefrom to another. As I have mentioned, s 11(b) of the MD Act applied and the appellant had the onus of establishing on the balance of probabilities that he did not intend to sell or supply the cannabis plants or any cannabis obtainable therefrom to another.

12. On the issue of intent to sell or supply, the appellant asserted in his video‑recorded interview with the police that the cannabis plants and any cannabis obtainable therefrom were for his own use.  He did not intend to sell or supply any of the cannabis plants or any cannabis obtainable therefrom to another.  He had not previously cultivated cannabis plants.

13. The appellant will be unable to discharge the onus under s 11(b) at trial unless the fact‑finding tribunal accepts his claim that the cannabis plants and any cannabis obtainable therefrom were for his own use and he did not intend to sell or supply the cannabis plants or any cannabis obtainable therefrom to another.

14. The specified information did not include:

    (a)any statement or assertion that the police officers who searched the appellant's property had located any items usually associated with drug dealing; for example, mobile telephones, a 'tick' list, electronic scales, clipseal bags, drying facilities for cannabis or large amounts of cash; or

    (b)any statement or assertion as to the quantity of cannabis likely to have been harvested from the 27 cannabis plants; the market value of the cannabis; the quantity of cannabis that a regular user of the drug would need; whether cannabis deteriorates in quality over time and, if so, relevant particulars; or the likelihood that cannabis plants which are planted in the relevant locality will die or fail to reach maturity.

15. The specified information did include a statement or assertion that the police officers who searched the appellant's property did not locate any objective evidence of the appellant's personal use of cannabis.

16. The video of the appellant's interview with the police reveals that, as asserted in the statement of material facts served on the appellant on or about 2 September 2014 and as asserted by the prosecutor when he stated aloud the material facts on 25 June 2015 before Bowden DCJ, the 27 cannabis plants were mature.  Four were about 1.5 m tall and 2 m across.  The other 23 varied between 1.5 m and 2 m in height.  Those uncontroversial facts are not easy to reconcile with the appellant's claim that he intended to use the cannabis himself and did not intend to sell or supply any of it to another.

17. Also, it is apparent from the video‑recorded interview that the appellant's statement, in answer to a question from one of the police officers who were searching the appellant's property, that there were no cannabis plants on the property apart from the four plants growing in the shed, was untrue.  That untruthful answer raises, at least potentially, doubt as to the veracity of his claim that all of the cannabis was for his own use and he did not intend to sell or supply any of it to another.

18. However, the relevant test under s 99(5)(a) is whether the court is satisfied, having considered and taken into account the specified information, that the accused 'may not have committed the offence charged'; that is, whether it is reasonably arguable that the accused did not commit the offence charged.

1. I am unable to conclude, after having considered and taken into account the specified information, that the appellant has no reasonable prospect of establishing, on the balance of probabilities, that he did not intend to sell or supply any of the cannabis plants or any cannabis obtainable therefrom to another.  His exculpatory statements are not inherently incredible. 

2. I am satisfied, after having considered and taken into account the specified information, that the appellant 'may not have committed the offence charged' within s 99(5)(a). It is reasonably arguable that the appellant did not commit the offence against s 7(1)(a) of the MD Act, as alleged in the indictment, in that he did not intend to sell or supply any of the cannabis plants he was cultivating on his property or any cannabis obtainable therefrom to another.

3. The decision of Bowden DCJ to enter a judgment of conviction against the appellant occasioned a miscarriage of justice.

4. Ground 1 has been made out in part and ground 2 has been made out.

Conclusion

1. I would grant leave to appeal, allow the appeal, enter a plea of not guilty on behalf of the appellant to the charge in the indictment, pursuant to s 99(5)(a) of the CP Act, and remit the charge to the District Court for trial according to law.

2. MAZZA JA: This is an appeal against conviction. The primary issue raised in the appeal concerns the proper construction of s 99(5)(a) of the Criminal Procedure Act2004 (WA) (CPA).

Background

1. At about 1.30 pm on 5 March 2014, police officers executed a search warrant at the appellant's property situated on Bussell Highway, Augusta.  At the time, no‑one was home.  The police contacted the appellant, who arrived at the property a short time later.  He was informed why the police were there.  At various times during the search, the appellant was questioned by police under caution.  The questions asked and the appellant's answers were audio‑visually recorded (the audio‑visual interview).

2. The appellant took the police to a garden shed at the rear of the property and unlocked the door.  Growing inside the shed were four mature cannabis plants approximately 1.5 m tall and 2 m across.  The

appellant admitted that he cultivated them.  He said that they were 'the first lot' he had grown (blue AB 154).  When asked by police, 'What got you into it [the cultivation of cannabis]?' the appellant replied, 'Oh, I could say, well, I take it for major back pain, lower back pain, but, you know' (blue AB 154).  When he was asked if he sold any cannabis, the appellant replied, 'No' (blue AB 154).  After he admitted watering the plants and looking after them, he was asked what he was going to do with the cannabis when it was harvested.  The appellant said, 'Well, I'll just put it aside and if I needed some on a night‑time (indistinct) instead of taking a painkiller for the back (indistinct) I don't know [sic]' (blue AB 155).

1. The police then conducted a search inside the house that was built on the property. Nothing of interest was found (blue AB 156).  At this point, the appellant was asked if there were any more cannabis plants on the property, to which the appellant said, 'No, none at all' (blue AB 156).  This answer was untrue because, by this time, the police had found more cannabis plants growing on the property in a fenced area of swampland.  Once informed of this, the appellant led the police to this area, on which were growing 23 cannabis plants approximately 1.5 m to 2 m in height.  The appellant admitted that he had planted the cannabis plants and that he had fenced them off (blue AB 158).  One of the police officers, Sergeant Lok, questioned the appellant about the plants found in the swampland.  The appellant said that he intended to use the cannabis himself and that he did not intend to sell it to anyone (blue AB 159).  The total number of plants cultivated by the appellant was 27.

Proceedings in the Magistrates Court

1. By a prosecution notice and summons dated 12 March 2014 lodged by a police officer in the Margaret River Magistrates Court, the appellant was charged with cultivating a prohibited plant, namely cannabis, with intent to sell or supply it to another. This is an offence contrary to s 7(1)(a) Misuse of Drugs Act 1981 (WA) (MDA). An offence against s 7(1)(a) MDA is a crime. An offence against s 7(1)(a) is an 'either way' offence, that is, it is an indictable offence which can, in certain circumstances, be dealt with summarily. However, as the alleged offence was said to involve the cultivation of more than 20 cannabis plants (in fact, a total of 27 cannabis plants), it could only be dealt with on indictment in the District Court: s 9 read with sch IV MDA.

1. This leaves the question of whether the test should be read as applying only to matters of law.  The positions of the parties differed on this issue.  The appellant submitted that the test could be applied to matters of fact and law.  The State submitted that the test applied only to matters of law. 

2. The strongest argument in favour of the State's position is the restricted nature of the material upon which the test in s 99(5)(a) is to be applied and the inability of the parties to test it. Against this submission is that there is no warrant in the statutory text for limiting the application of the test purely to matters of law. In my opinion, this is decisive. Had Parliament wished to so limit the test, it could have simply and easily done so. I would not construe the test in s 99(5)(a) as being restricted only to matters of law.

3. In a practical sense, it is likely that when an accused person seeks to invoke s 99(5)(a), the issue will relate to a matter of law. This is because it is likely to be a rare case where the material disclosed to an accused by the prosecution revealed that an accused could not, or may not, as a matter of fact, have committed the offence charged. It may be, as in the present case, an accused points to exculpatory statements made by him or her in the confessional material to which the superior court is permitted to have regard pursuant to s 99(5)(a)(i), to support an argument that he or she could not, or may not, have committed the offence charged. Ordinarily, such an approach would be futile as any exculpatory statements would normally be given little or no weight. This is because the accused entered the plea of guilty in the lower court after being provided with, inter alia, the confessional material and despite any exculpatory statements made in it.

Resolution of the appeal

1. Eaton DCJ's conclusion that a superior court considering whether to enter a plea of not guilty pursuant to s 99(5)(a) was confined to considering matters of law, was, with respect, too narrow. However, his Honour's conclusion that the appellant had failed to establish that he could not have or may not have committed the offence charged was not, in my opinion, erroneous.

2. The appellant admitted that he cultivated 27 cannabis plants not less than 1.5 m high.  The plants in the garden shed were described in the statement of material facts as 'mature' and, although that adjective was not given to the 23 cannabis plants found in the swampland, they were in the same condition as the audio‑visual interview shows.  The interview also shows that the plants in the shed and the swampland were well‑tended and healthy.  Many clearly had developed flowers or 'heads'.

3. The exculpatory statements made by the appellant in the audio‑visual interview have little or no weight in this case, based on the reasoning in [221]. In any event, the statements made by the appellant were, at their highest, vague and completely unconvincing. The appellant did not say how much cannabis he used for pain relief or the frequency with which he used it. The credibility of his exculpatory statements was undermined by the untruthful statement he made to police, discussed at [144]. Although the precise yield from the cannabis plants cannot be ascertained, given the number and state of maturity of the plants, it may reasonably be inferred that the quantity was considerable. It cannot be overlooked that, having regard to the number of plants the appellant cultivated, he bore the onus of proving, on the balance of probabilities, that he did not intend to sell or supply any of the cannabis. The material the court was permitted to take into account was, in my opinion, incapable of negativing to the required standard the element of intention. For these reasons, the exculpatory statements made by the appellant do not permit the conclusion that the appellant could not have or may not have committed the offence charged in the indictment.

4. Finally, it is significant that the appellant entered his plea of guilty having had legal advice from a competent and experienced criminal lawyer. 

5. In my opinion, having regard to all of the relevant material and circumstances, it cannot be said that the appellant could not have committed or may not have committed the offence charged.  Eaton DCJ did not err in arriving at this conclusion.

6. It follows that there was no reason why the court should have entered a plea of not guilty on behalf of the accused pursuant to s 99(5)(a) CPA and that Bowden DCJ was correct to convict the appellant.

1. While I would grant leave to appeal on the grounds relied upon by the appellant, they have not been made out.  The appeal must be dismissed.  The orders I would make are as follows:

   1.Leave to appeal on proposed grounds 1 and 2 is granted.

   2.The appeal is dismissed

   MITCHELL JA: 

Summary

1. On 5 March 2014, police executed a search warrant at the appellant's property in Augusta.  They located four mature cannabis plants in a garden shed at the rear of the property, and 23 mature cannabis plants in a small fenced‑off patch of swampland.  Police did not locate any items, such as large sums of cash, clip-seal bags, scales or drying cannabis, which are commonly associated with commercial drug operations.  Nor did they locate evidence of any personal cannabis use by the appellant.

2. Police made a video record of the search.  On video, the appellant admitted to cultivating the cannabis plants over the previous two months.  The appellant told police that he was cultivating the cannabis for his personal use, as a substitute for painkillers to relieve back pain.

3. The appellant was charged with one count of cultivating a prohibited plant, namely cannabis, with intent to sell or supply to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). Because the charge related to more than 20 cannabis plants, it was required to be dealt with on indictment.[1]  He entered an unequivocal 'fast‑track' plea of guilty before the Magistrates Court on 14 April 2014.  The appellant was committed to the District Court for sentence. 

   [1] Section 9 and sch IV of the MDA.

4. When he appeared before the District Court, the appellant applied to change his plea to not guilty on a number of grounds. His application was refused. The only issue in this appeal is whether the District Court erred in declining to enter a plea of not guilty on the appellant's behalf under s 99(5)(a) of the Criminal Procedure Act 2004 (WA) (CPA). The appellant contends that the District Court ought to have entered a plea of not guilty under s 99(5)(a) on the basis that it was satisfied that the appellant 'may not have committed the offence charged'. The District Court was invited to be satisfied that the appellant may not have committed the offence charged on the basis that his statements to police

that the cannabis was only for his personal use indicated that he may have lacked the relevant intention.

1. The critical issue in this case is whether a court can be satisfied that an accused 'may not have committed the offence charged' for the purposes of s 99(5) of the CPA merely because he or she has made a statement to police which, if accepted as true, would provide a defence to the charge. For the following reasons, the answer to that question is 'no'.

2. The District Court's decision not to enter a plea of not guilty on behalf of the appellant under s 99(5)(a) of the CPA was therefore correct and the appeal must be dismissed.

The statutory context in which the issue arises

1. Mazza JA has summarised the procedural history, referred to the general principles of statutory construction and set out the statutory context in which the critical issue arises for determination.  I gratefully adopt that account. 

2. The following features of the statutory scheme most relevantly inform the resolution of the critical issue.

The court must exercise the power where it exists

1. Both parties correctly accepted that s 99(5) does not confer a discretionary power.

2. Section 99(5) provides that the court 'may' enter a plea of not guilty on behalf of the accused when certain conditions are satisfied. Unless a contrary intention emerges from the terms, object, subject or context of an Act,[2] the use of the term 'may' in conferring a power implies that the power may be exercised, or not, at discretion.[3] 

   [2] Section 3 of the Interpretation Act 1984 (WA).

   [3] Section 56(1) of the Interpretation Act.

3. In an appropriate context, a provision that a court 'may' exercise a power will be construed as conferring a power which is to be exercised upon the court being satisfied of the matters described in the provision.[4] Subject matter and context indicate that s 99(5) confers a power which must be exercised when the court is satisfied of the matters referred to in par (a) or par (b) of that provision. It cannot be contemplated that a court might proceed to sentence an accused when satisfied that he or she could not have committed the charged offence. There is no textual basis for reading the provision as mandating the exercise of the power in such a case, but not where the other limbs of the provision are engaged.

The court is confined to considering material specified in s 99(5)(a)

[4] Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 [38].

1. Section 99(5)(a) refers to the court being 'satisfied that the accused could not have or may not have committed the offence charged', 'having considered' specified material. The nature of the material which the court must consider is dealt with below. By contrast, s 99(5)(b) refers to the court being satisfied that the plea was made under a material misunderstanding, 'having considered any evidence the court decides to admit'. The inference arising from this contrast is that evidence is not admissible for the purposes of the court considering whether it is satisfied of any of the matters referred to in s 99(5)(a) of the CPA.

2. The parties accept that, in deciding whether it is satisfied of the matters referred to in s 99(5)(a), the court is confined to considering the material referred to in that paragraph. I agree with that construction of the provision. To hold otherwise would contemplate the court effectively conducting a trial of the issue as a precursor to determining the plea to be entered.

3. This confinement of the material which the court may consider counts against the power in s 99(5)(a) of the CPA being engaged whenever an accused may have an arguable defence. If the existence of an arguable defence were sufficient, there is no obvious reason for the Act to place those who choose to make exculpatory statements to police in a special position.

Nature of the material which the court may consider

1. The information which the court may consider under s 99(5)(a) is material served under s 35 or s 95 of the CPA and the facts stated by the prosecutor under s 129 of that Act. Putting aside statutory notices, that material is a written statement of the material facts of the charge and 'confessional material'. Apart from 'confessional material', the information which the court may consider is in the nature of allegations by the State. In a case where s 99 applies, the CPA does not require the prosecution to serve evidentiary material, such as depositions, on the accused. Section 99(5)(a) does not provide for the court to consider the evidence, other than 'confessional material', which may be relied upon to prove the facts alleged by the prosecution.

2. The 'confessional material' which must, where it exists, be considered extends to any written statement of, or written or recorded interview with, the accused that is relevant to the charge and in the possession of the police.[5]  It is not confined to statements tending to, in whole or part, inculpate the accused in the commission of the charged offence.  A wholly exculpatory statement to police will still be 'confessional material'.

   [5] Section 35(1) of the CPA.

3. While a court must consider an accused's confessional statements, if any, under s 99(5)(a), in the absence of other evidence relevant to the charge the court generally has no means of assessing the cogency or evidentiary value of the statement. Except in the case of a statement which is inherently implausible, the court has no way of assessing whether the statement provides the accused person with a reasonable ground of defence to the charge. Whether a statement provides a reasonable defence to a charge, or leads to the conclusion that the accused may not have committed the charged offence, may depend on whether there is other evidence showing that the accused committed the offence and the strength of that evidence.

4. Further, the court will not necessarily be in a position to assess whether a statement made by an accused person to police is exculpatory or inculpatory.  A statement asserting a fact which, if accepted, would count against the accused committing the offence may be said by the prosecution to be a lie which adversely affects the accused's credibility and which, in limited circumstances, may operate as an implied admission of guilt.[6] 

   [6] Edwards v The Queen (1993) 178 CLR 193.

5. Therefore, a court deciding whether it is satisfied of the matters referred to in s 99(5)(a) of the CPA will, at least generally, not be in a position to assess whether the statement provides a reasonable ground of defence. The court will, at least generally, be in no position to assess the likelihood of other facts being established, or the manner in which any conflict between those facts and statements in 'confessional material' may be resolved. The nature of the material which a court must consider under s 99(5)(a) strongly suggests that its assessment concerns the adequacy of the facts alleged by the prosecution to establish the charge rather than the prospect of those facts being established in a trial.

The power exists irrespective of the plea which the accused seeks to enter

1. It is particularly significant that s 99(5) of the CPA applies 'irrespective of whether the accused does or does not plead guilty to the charge in the indictment'. In the present case, if the relevant material was sufficient to satisfy the court that the appellant may not have committed the charged offence, the court would have been under a duty to enter a plea of not guilty on the appellant's behalf even if he had sought to enter a plea of guilty to the indictment. In this manner, s 99(5) qualifies the right of an accused person to enter a plea of guilty to a charge contained in an indictment.

2. It is not uncommon for an accused person who has denied one or more elements of an offence in a recorded interview with police to subsequently plead guilty to the offence.  There may be a number of reasons why an accused may seek to adopt this course.  The accused may accept that he or she lied to police, or that other evidence indicates that they were mistaken in what he or she said.  The plea of guilty, if accepted, will constitute an admission to each element of the charged offence.  It would be a curious result if an accused could not have a plea of guilty accepted where statements they had made to police, if true, would provide them with an arguable defence.

3. The appellant's appeal counsel sought to avoid this consequence by submitting that the power conferred by s 99(5) could only be exercised on request or application by the accused. However, there is nothing in the terms of s 99 to suggest that a request or application is required. The contrary is strongly suggested by the fact that the power arises even where the accused pleads guilty to the charge. It is unlikely that an accused person would ask the court to enter a plea of not guilty on his or her behalf at the same time as he or she sought to enter a plea of guilty.

4. An accused who has made exculpatory statements to police, and who wishes to plead guilty, does have an option even on the appellant's construction of s 99 of the CPA. The accused could make a further statement to police withdrawing his or her earlier statement and confessing his or her guilt. The further statement would be 'additional confessional material' which s 95(9) of the CPA would require the prosecutor to serve on the accused. The further statement would then be material which the court could take into account under s 99(5)(a)(i) of the CPA when considering whether it was satisfied that the accused 'may not have committed the offence charged'.

5. On the appellant's construction of s 99(5)(a) of the CPA, this rather circuitous mechanism would need to be engaged in many, if not all, cases where an accused who has made exculpatory statements to police seeks to enter a plea of guilty on a fast-track plea. The mechanism would only be available to an accused who had the prescience to engage it before their first arraignment in the Supreme or District Court.

The court's common law power to permit a change of plea to avoid a miscarriage of justice remains

1. By s 99(7) of the CPA, a plea entered by the court under s 99 has the same effect as if it had actually been pleaded. This gives the plea entered under s 99(4) or s 99(5) of the CPA the same status as a plea entered by an accused person. In the case of both pleas, the court retains its common law power to grant an accused leave to change his or her plea at a point prior to sentence or other final disposition of the matter in order to avoid a miscarriage of justice.

2. Neither party submitted that s 99 of the CPA was a code which operated to exclude the court's common law power to grant leave to an accused person to withdraw his or her plea. That position must be accepted as correct, given the legislative history. Although there are material differences in the terms in which the provisions are expressed, s 99 of the CPA is based on s 618 of the Criminal Code 1913 (WA), which was repealed in 2004.[7]  At the time of enactment of the CPA, the decision of this court in Tihanyi v The Queen established that s 618, in the form in which it existed prior to repeal, did not oust the common law power to permit a change of plea.[8]  There is nothing to suggest that the intention to change that position should be imputed to Parliament. 

   [7] Section 24 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA).

   [8] Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377.

3. The common law power of a court to permit a change of plea prior to sentence or final disposition of a charge extends to cases where it is necessary to do so in order to avoid a miscarriage of justice.  In this regard, in Windie v The State of Western Australia,[9] Mazza JA, with whom McLure P and Newnes JA agreed, observed:

   Turning to the question of miscarriage of justice, it is not easy to persuade a court to set aside a plea of guilty on this basis.  There must be a strong case to do so.  Although cases of miscarriage of justice cannot be exhaustively identified, there are three well-recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty.  They are:

   1.where the appellant did not understand the nature of the charge or did not intend to admit guilt; or

   2.if upon the admitted facts the appellant could not, in law, have been guilty or the offence; or

   3.where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like. (citation omitted) [31].

   [9] Windie v The State of Western Australia [2012] WASCA 61.

4. Windie involved an appeal against conviction on the ground that the primary judge erred in refusing to allow Mr Windie to change his plea.  Murray J adopted similar comments in Tihanyi,[10] where the court held that leave was appropriately refused in very similar factual circumstances to the present case. 

   [10] Tihanyi [47] ‑ [48].

5. This also reflects the approach adopted by Judge Eaton in the present case.  As Mazza JA has noted, there is no challenge to that aspect of Judge Eaton's decision which declined to grant leave to the appellant to change his plea in the exercise of the court's common law power.  In those circumstances, it is unnecessary to consider whether a judge at first instance has a broader power than this court on appeal to grant leave to change an unequivocal plea of guilty.  In particular, it is unnecessary to consider what (if any) are the 'admitted facts' in the present case.

1. The significance of this discussion is that there is no imperative to read the provisions of s 99(5) expansively so as to preserve a court's capacity to prevent miscarriages of justice. That power exists independently of s 99(5) of the CPA and continues even after a court enters a plea of guilty to a charge on behalf of an accused.

Proper construction of s 99(5)(a) of the CPA

1. Having regard to the above features of the legislation, the District Court's task under s 99(5)(a) of the CPA was to consider whether the facts alleged by the State, if proven, would constitute an offence against s 7(1)(a) of the MDA. The focus of the court's attention should be the facts alleged by the prosecution in material served under s 35 or s 95 of the CPA or facts stated by the prosecutor under s 129 of the CPA. By referring to the court being satisfied that 'the accused could not or may not have committed the offence charged', s 99(5)(a) of the CPA reflects a requirement that the facts alleged by the prosecution unequivocally disclose the commission of the charged offence.

2. In some cases, the facts alleged by the prosecution may not constitute the charged offence at all.  An example would be if the facts alleging an offence under s 7 of the MDA described cultivation of a plant species which was not a prohibited plant.  In such a case, the court could be satisfied that the accused could not have committed the offence charged.  In that way, the court's duty to enter a plea of not guilty on behalf of the accused will arise where the facts alleged by the prosecution are inconsistent with the accused having committed the charged offence.

3. In other cases, the facts alleged by the prosecution may not be necessarily inconsistent with the accused having committed the charged offence but fail to unequivocally indicate that he or she has done so.  For example, the facts supporting a charge of indecently dealing with a child under the age of 13 might allege that indecent dealing occurred on an unknown date in a period which began before and ended after the child's 13^th birthday.  In such a case, the court would not be satisfied that the accused 'could not have committed the offence charged' as, consistently with the prosecution material, the indecent dealing may have occurred when the child was under 13 years of age.  However, in such a case where the facts do not unequivocally disclose the commission of the offence, the court would enter a plea of not guilty on behalf of the accused on the basis that it was satisfied that he or she 'may not have committed the charged offence'.

4. Section 99(5)(a) relevantly demands an assessment of the facts alleged by the prosecution. It only requires a court to enter a plea of not guilty on behalf of an accused when it is satisfied that the facts alleged do not unequivocally establish that the accused has committed the charged offence.

5. A court will not be satisfied that an accused 'may not have committed the offence charged' for the purposes of s 99(5)(a) merely because the accused has made a statement to police which, if accepted as true, would provide a defence to the charge. To construe the provision otherwise would be to effectively deprive accused persons of the ability to plead guilty to a charge of an offence which they had denied committing in statements made to police, where the denial had not been withdrawn in a further statement provided to police before the first arraignment. An accused would effectively be denied that ability because the court must exercise the power in s 99(5)(a) in a case where it arises, irrespective of the plea which the accused seeks to enter on arraignment. Further, a court applying s 99(5) will not possess evidence that will place it in a position to form any view as to the veracity of the accused's statements to police.

6. Having regard to all of the above matters, s 99(5)(a) of the CPA does not require the court to conduct an evaluation of the prospects of facts asserted in the specified material being established at trial. Rather, the section requires the court to consider whether a deficiency in the prosecution case is apparent from the allegations of fact contained in that material. It only requires a court to enter a plea of not guilty on behalf of an accused when it is satisfied that the facts alleged do not unequivocally establish that the appellant has committed the charged offence.

Other matters

1. The following matters were raised during the hearing of the appeal but do not, for reasons explained below, resolve the construction of s 99(5)(a) of the CPA.

Extrinsic material

1. The explanatory memorandum to the Criminal Procedure Bill 2004 indicated that s 99 was based on s 618 of the Criminal Code and 'addresses in part The Murray Report recommendations in relation to that section'. The reference to 'The Murray Report' is to the General Review of the Criminal Code undertaken by Mr Michael Murray QC in 1983. The provision recommended by Mr Murray would apply where the court was satisfied:

   upon a consideration of the depositions or statements of witnesses and any additional evidence which may be adduced, that the accused person could not in law be convicted of, or may not in fact be guilty of, the offence charged in the indictment (598-599).

2. Mr Murray's report indicated:

   That formulation makes it clear that the court is concerned with a legal impediment to conviction or to finding that the accused maintain a situation which would at least provide him with an arguable defence (395). (emphasis added)

3. The emphasised words in the last quotation are consistent with the construction advanced by the appellant in the present case. However, neither the passage of Mr Murray's report, nor the reference to that report in the explanatory memorandum, materially assists in the construction of s 99(5) of the CPA. The provision recommended by Mr Murray was in very different terms to s 99(5). In particular, it expressly referred to the court making a finding of fact based on depositions and evidence. The explanatory memorandum is ambiguous in referring to Mr Murray's recommendations being addressed 'in part'. It is not clear whether this aspect of the recommendation was the part which the explanatory memorandum intended to address, and to what extent there was a modification of the recommendation. Reference to ambiguous statements in extrinsic Parliamentary material does not assist the constructional exercise, in which primary attention is to be directed to the statutory text.[11]

Statutory purpose

[11] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39]; Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [61]; City of Kwinana v Lamont [2014] WASCA 112 [47].

1. Both parties rely on an asserted statutory purpose of s 99 of the CPA as supporting their construction of the legislation.

2. The State contends that the legislative purpose is to facilitate the efficient administration of justice, reduce delays in the criminal justice system, give effect to the public interest in the finalisation of legal proceedings and give recognition to the principle that a plea of guilty by a person in possession of all relevant facts is normally to be taken to be an admission as to all the necessary ingredients of the offence. The State contends that s 99(5) is designed to ensure that restrictions are placed on the ability of an accused to resile from a guilty plea entered in the Magistrates Court upon committal, in circumstances where that lower court lacks the jurisdiction to enter a judgment of conviction (as opposed to receiving the plea).

3. The appellant submits that the purpose of s 99(5) is to relieve an accused of the usual finality in criminal proceedings by permitting an accused in certain circumstances to resile from a previously entered plea.

4. The purpose of legislation may assist in construing its provisions.  A construction that would promote the identified purpose of the legislation shall be preferred to a construction that would not do so.[12]  However, the purpose of the legislation must be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions.[13] 

   [12] Section 18 of the Interpretation Act.

   [13] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]; Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21].

5. It is clear from the terms of s 99(3) of the CPA that an accused person who is committed for sentence on a plea of guilty in the Magistrates Court does not have an unfettered right to change his or her plea on arraignment on the same charge in a superior court. It is clear from the terms of s 99(5) that the power conferred by that section qualifies the duty to enter a plea of guilty on behalf of the accused in circumstances to which it applies. Beyond that, the terms of the CPA do not indicate any legislative purpose which materially assists in ascertaining the extent of that qualification. Conclusions about the desirability of permitting an accused to change his or her plea do not assist.

Penal character of the legislation

1. The appellant submits that any ambiguity remaining after invoking the usual rules of statutory construction should be resolved in favour of the accused, as the alternative construction has an enhanced penal effect.  As authority for that proposition, the appellant refers to Beckwith v The Queen.[14]  In an often cited passage in that case, Gibbs J observed:

   The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort. (576) (citations omitted)

   [14] Beckwith v The Queen (1976) 135 CLR 569; see also R v Adams (1935) 53 CLR 563, 567 ‑ 568, to which Gibbs J referred.

2. That principle of statutory construction does not assist the appellant in the present case for two reasons. First, when the language of the CPA is considered as a whole in the context in which it was enacted, the objective meaning of s 99(5) is ascertainable. Secondly, s 99(5) is a procedural provision rather than a provision which defines conduct which attracts criminal sanction. The construction of s 99(5) does not involve any extension of, or refusal to extend, 'the category of criminal offences'.

Authority

1. The proper construction of s 99(5)(a) of the CPA has not previously been determined by this court. The decision in Windie was concerned with s 99(5)(b) of the CPA, in circumstances where it was not argued that s 99(5)(a) applied. I note that the construction which I favour is consistent with that adopted at first instance in The State of Western Australia v Walsham[15] and Turner v The State of Western Australia.[16]

   [15] The State of Western Australia v Walsham [2012] WADC 6.

   [16] Turner v The State of Western Australia [2015] WASC 490.

Disposition of the appeal

1. Judge Eaton did state that s 99(5)(a) does not contemplate the judge arriving at factual conclusions and that the judge is confined to considering matters of law. The distinction between matters of fact and matters of law is not critical in this context. I do not find it necessary to imply additional words into s 99(5)(a) of the CPA, such as 'may not in law have committed the offence charged'.  For reasons explained above, the critical question is whether the prosecution has alleged facts which unequivocally disclose the commission of the charged offence.  If it has not done so, the court will, having considered the relevant material, be satisfied that the accused may not have committed the offence charged.  This is the question which Judge Eaton in substance contemplated, and there was no error in that approach.

2. Judge Eaton's statement that he could not have regard to the appellant's exculpatory statement in considering the application of s 99(5)(a), taken literally, was not strictly correct. The appellant's statements to police were part of the 'confessional material' which the court was directed by s 99(5)(a) to consider. However, in the context of his reasons as a whole, it appears that Judge Eaton was saying that the fact that the appellant had made exculpatory statements did not establish that he 'may not have committed the offence charged' for the purposes of s 99(5)(a) of the CPA. So understood, the statement does not disclose error.

3. If the prosecution proved that the appellant cultivated more than 10 plants, then s 11(b) of the MDA would deem him to have cultivated the plants with intent to sell or supply the plants to another unless the contrary was proved.[17] The statement of material facts in this case expressly alleged possession of a quantity of cannabis plants sufficient to deem the appellant to have intended sale or supply in the absence of proof to the contrary. As such, the statement implicitly alleged that the appellant had that intent. The facts alleged by the State disclosed the commission of the charged offence. The statement of facts and confessional material did not reveal any deficiency in the State's case. Consideration of that material could not have satisfied the court that the appellant may not have committed the offence for the purposes of s 99(5)(a) of the CPA. The appellant's exculpatory statements to police concerning his intention did not require the court to enter a plea of not guilty on his behalf under s 99(5)(a) of the CPA. Rather, the court was required to enter a plea of guilty in circumstances where the requirements of s 99(4) of the CPA were satisfied.

   [17] Schedule VI of the MDA.

Orders

1. I agree with the orders proposed by Mazza JA, granting leave to appeal on both grounds but dismissing the appeal.