Douglas v Director of Public Prosecutions
[2025] WASCA 11
•16 JANUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DOUGLAS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASCA 11
CORAM: BUSS P
HALL JA
VANDONGEN JA
HEARD: 6 AUGUST 2024
DELIVERED : 16 JANUARY 2025
FILE NO/S: CACR 113 of 2023
BETWEEN: JOEL ALEXANDER DOUGLAS
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SEAWARD J
File Number : SJA 1087 of 2022
Catchwords:
Criminal law - Appeal against conviction - Where appellant entered a plea of guilty - Whether appellant's plea of guilty was unequivocal - Whether acceptance of the plea occasioned a miscarriage of justice - Distinction between an equivocal plea and the discretion to permit a change of plea
Legislation:
Criminal Procedure Act 2004 (WA), s 59(2)(a), s 59(2)(b), s 129(2)(b)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | E Zillessen |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Borsa v The Queen [2003] WASCA 254
Douglas v Director of Public Prosecutions for Western Australia [2023] WASC 302
Egerton v Taylor (1996) 90 A Crim R 186
Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496
Henning v Khaw [2013] WASC 270
HKSAR v Lincoln [2018] HKCFA 64; (2018) HKCFAR 588
Kadmos v Nesina [2013] WASC 253
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Minear v Rudrum [2001] WASCA 10; (2001) 33 MVR 119
Ottobrino v Espinoza (1995) 14 WAR 373
P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751; (1978) 67 Cr App R 305
Smith v Ellis (Unreported, WASC (Heenan J), Library No 970107, 18 March 1997)
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Townsend v Mott (Unreported, WASC (Burt CJ), Library No 4213.2, 24 July 1981)
Vella v The State of Western Australia [2006] WASCA 129
Webster v The Queen [2015] WASCA 20
Wilhelm v The State of Western Australia [2013] WASCA 188
JUDGMENT OF THE COURT:
On 26 June 2020, the appellant was convicted in the Magistrates Court on his plea of guilty to a charge of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply that drug to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The quantity of methylamphetamine was 3.2 g.
After many delays the appellant was sentenced on 6 July 2022 to a Community Based Order (CBO) of 12-months' duration with program and supervision requirements. An order for destruction of the drugs was also made. After the appeal period expired the drugs were destroyed.
On 16 December 2022, the appellant filed a notice of appeal in the General Division of this court seeking leave to appeal against his conviction. That appeal was filed out of time and an extension was required. The ground of appeal was that the magistrate before whom the appellant entered his plea of guilty in 2020, erred in law by accepting that plea. In essence, the contention was that the plea of guilty was equivocal and did not constitute a valid plea.
The primary judge granted an extension of time and leave to appeal but dismissed the appeal. Her Honour concluded that the plea was a valid plea of guilty, and it had not been established that the appellant did not understand the charge or his plea and its consequences.
The appellant now seeks leave to appeal to this court from the primary judge's decision. There are three grounds of appeal. The first ground contends that the primary judge erred in law by finding that the magistrate did not make an error in accepting the appellant's plea of guilty. The second ground contends that the primary judge erred in law and fact, by finding that the magistrate did not fail to satisfy himself of matters necessary for the exercise of his discretion to accept the plea of guilty. The third ground contends that in the event that the magistrate did err in law by accepting the guilty plea, the primary judge erred by finding that there was no substantial miscarriage of justice. Ground 3 only arises for consideration if either of grounds 1 or 2 are successful.
The respondent, by way of a notice of contention, submits that the primary judge should have dismissed the appeal on an alternative basis. The respondent contends that having regard to the delay in bringing the initial appeal, and the prejudice to the respondent arising from the destruction of the drugs, the primary judge should not have granted an extension of time.
For the reasons that follow, we would refuse leave to appeal on each of the grounds raised by the appellant and dismiss the appeal. Although in those circumstances it is strictly unnecessary to determine the notice of contention, in our view the contention raised has been made out and the primary judge should have refused an extension of time.
The factual background
On 30 May 2020, the appellant was observed by police walking away from a car that was parked in Morley Drive in Dianella. The police stopped and spoke to the appellant and the driver of the vehicle. On searching the vehicle, a small green bumbag was located on the passenger seat. The appellant claimed ownership of the bumbag.[1]
[1] BGAB 240.
The bumbag was found to contain 3.2 g of white crystals, a large quantity of new clip seal bags, a glass pipe, electronic scales, and $535 in cash. The appellant claimed that the white crystals were salt. A preliminary field test was undertaken and the result was consistent with the crystals being methylamphetamine.[2]
[2] BGAB 240.
The appellant was charged with possession of a prohibited drug with intent to sell or supply that drug, contrary to s 6(1)(a) of the Misuse of Drugs Act (charge number PE 26326/2020). He was also charged with unlawful possession of drug paraphernalia, being the electronic scales and the glass pipe (charge number PE 26325/2020), and possession of property reasonably suspected of being stolen or unlawfully obtained, being the $535 in cash (charge number PE 26324/2020).
The appellant was bailed to appear in the Perth Magistrates Court on 26 June 2020. On that day, he appeared unrepresented and entered pleas of guilty to the charges of possessing the methylamphetamine and the drug paraphernalia, and not guilty to possession of the cash. The relevant transcript of that appearance is as follows:[3]
[3] BGAB 131 - 132.
HIS HONOUR: Mr Douglas. Are you Joel Alexander?
ACCUSED: Yes, your Honour.
HIS HONOUR: Do you wish to enter pleas of guilty today, or do you need some time to get some advice?
ACCUSED: Guilty to a couple of them, but the one - - -
HIS HONOUR: Sorry?
ACCUSED: Guilty to a couple of them, but the one - unlawfully obtained property - or stolen property - I would be - not agree with, because I had my Centrelink payment four days prior to having money on me, and they said that it was unlawfully obtained money.
HIS HONOUR: Okay. So that - that's a not guilty plea?
ACCUSED: Yes, to one of the things. And the other one would be - - -
HIS HONOUR: Okay. I will - I will deal with the two ones you're going to plead guilty to. Mr Douglas, the possession of drug paraphernalia - 30 May in Dianella. You possessed drug paraphernalia, being some scales and a glass pipe in which there was a prohibited drug, namely, methylamphetamine. Do you understand that charge?
ACCUSED: Yes, your Honour.
HIS HONOUR: And how do you plead?
ACCUSED: Guilty.
HIS HONOUR: And the second one, on 30 May, in Dianella, with intent to sell or supply to another, you had in your possession a prohibited drug, namely, some methylamphetamine. The weight less than is set out in the schedule 3 to the Act, which means it doesn't have to go up to a higher court. Do you understand that charge?
ACCUSED: Yes, your Honour.
HIS HONOUR: And is that a guilty plea?
ACCUSED: Has that been sent off to the lab or something? One of the cops said it would be sent off to a lab, because it was, as far as I was aware, was salt. But they said if there was a - if you have a kilo of salt, and there was any trace of meth in there, you would be charged with a kilo of - - -
HIS HONOUR: Okay. I just need to know, are you pleading guilty to that charge or not?
ACCUSED: Yes.
HIS HONOUR: Because if you're pleading guilty to it, you're admitting that you had - looks like a small quantity of methylamphetamine. Is that a guilty plea?
ACCUSED: Yes. Yes (indistinct)
HIS HONOUR: And the possession of some cash. That's a not guilty plea?
ACCUSED: (indistinct)
…..
HIS HONOUR: And I'm - what I'm doing, just to - if you're wondering what I'm up to - I've entered a not guilty plea to that first charge, and sending that off to a trial hearing for 5 October. Your bail is renewed through to that date, and at the conclusion of that trial hearing, the sentencing can occur for the other two matters to which you've pleaded guilty. Okay. Thank you. So your bail is renewed, and come back 5 October.
ACCUSED: Cool. Thank you.
The two charges to which the appellant had pleaded guilty were also adjourned to 5 October 2020. He was not sentenced for the possession of drugs that day. Indeed, he was not sentenced on that charge until 6 July 2022. The reason for that, at least initially, was that the hearing for the possession of cash charge was delayed. However, as time passed, other issues intervened to cause further delays. One of those issues was that the appellant raised the possibility of applying to change his plea to the possession of drugs charge.
Procedural history
As an annexure to her reasons, the primary judge set out details of the various appearances that occurred between the date of the plea of guilty, 26 June 2020, and the sentencing, 6 July 2022. The primary judge admitted the transcripts of those other appearances only for the purpose of determining whether there had been a miscarriage of justice, or in the application of the proviso. That is, her Honour did not admit those transcripts for the purposes of determining what the appellant's state of mind was on the day he entered his plea.
In summary, the hearing on the possession of cash charge did not proceed on 5 October 2020 because the appellant needed time to gather evidence relating to his defence to that charge. There were further adjournments for the same reason on 16 October 2020 and 30 October 2020. On 27 November 2020, the appellant indicated that he wanted to change his plea to the possession of cash charge to guilty, as he had been unable to locate bank documents necessary for his defence. The magistrate adjourned the matter to enable the appellant to speak to a Legal Aid duty lawyer. On 1 December 2020, a further adjournment was allowed because the appellant had not yet spoken to a lawyer. On 11 January 2021, duty counsel appeared for the appellant and advised that he wished to change his plea to the possession of cash charge. A plea of guilty was entered to that charge and the matter was adjourned so a pre‑sentence report could be obtained.[4]
[4] BGAB 134 - 168.
On 24 February 2021, duty counsel appeared for the appellant and advised that she had taken instructions from him regarding sentencing on all of the charges. Duty counsel said that in the course of taking instructions, the appellant had raised defences to the possession of drugs charge. In these circumstances it was necessary for the appellant to obtain independent legal advice and therefore the matter was adjourned again. A further adjournment for the same reason was allowed on 24 March 2021. On 21 April 2021, a lawyer who appeared for the appellant advised that the appellant would be seeking to set aside his pleas of guilty to the possession of drugs and possession of cash charges. The magistrate said that a written application supported by an affidavit was required. This required an extension to the grant of legal aid and the matter was then adjourned to allow that extension to be sought. A further adjournment for the same reason was granted on 19 May 2021.[5]
[5] BGAB 169 - 177.
On 2 June 2021, the appellant appeared unrepresented. He said that his application for an extension of legal aid had been refused. When asked whether he had pleaded guilty the appellant said 'I have pleaded guilty, but I – that's why I want to set aside my plea'. He said that he needed more time to complete the paperwork. A further adjournment was granted. The appellant failed to appear on 14 July 2021 and an arrest warrant was issued. After his arrest on these and other charges, he appeared on 15 July 2021 and 12 August 2021. Further adjournments were granted on each of those occasions.[6]
[6] BGAB 178 - 189.
On 19 August 2021, the appellant appeared represented by duty counsel who requested a further adjournment for legal advice. The magistrate noted the delay and asked whether an application to set aside the pleas of guilty was still likely. The appellant responded by saying 'yes, there is. Yes'. On 1 September 2021, the appellant was brought before the court for a breach of a bail condition. He again said that he was seeking to set aside the guilty pleas. On 16 September 2021, the appellant appeared again and was granted a further adjournment to obtain legal advice. The appellant was unwell and did not appear on 14 October 2021. Further appearances occurred on 13 November 2021 and 18 November 2021. On the latter occasion, counsel for the appellant advised that the issue regarding funding for the change of plea application had still not been resolved.[7]
[7] BGAB 190 - 219.
On 13 January 2022, the appellant appeared unrepresented and said that it remained his intention to file an application to set aside his guilty pleas. He said that he had difficulties because the Legal Aid lawyer assigned to him had moved to another firm. Further adjournments occurred on 10 February 2022 and 8 March 2022. The appellant failed to appear on 22 March 2022 and an arrest warrant was issued.[8]
[8] BGAB 220 - 232.
Finally on 6 July 2022, the appellant was sentenced. The appellant was unrepresented and said that lawyers were of 'no use for [him]'. The magistrate went through the charges and the appellant acknowledged that he had previously pleaded guilty to the possession of drugs and possession of cash charges, and said that 'they were the ones I was trying to get my pleas changed, but…'. He then said that he had not done the paperwork necessary to apply for the pleas of guilty to be set aside. The facts were read, and the appellant responded by saying that he disagreed because 'I'm not guilty of sell and supply. I'm a drug user'. He denied being a drug dealer and said that the cash was from a Centrelink payment. He then said 'But obviously I've already pled guilty' and that his lawyer had moved to another firm and he had been left to deal with it himself. There was a discussion about the timing of the pleas and the appellant said 'Yes, I entered pleas to [sic] guilty for that straight away'. He said he had wanted to change his pleas 'because I wasn't actually guilty'. The magistrate then sentenced the appellant. In respect of the offence of possessing drugs with intent to sell or supply, the appellant was sentenced to a 12‑month CBO with program and supervision conditions.[9]
[9] BGAB 233 - 254.
Additional evidence before the primary judge
Additional evidence was adduced by the respondent in the proceedings before the primary judge. That evidence consisted of the affidavit of Senior Constable Raymond Wright, who was the arresting officer. In his affidavit, Senior Constable Wright deposes that on 30 May 2020, he conducted a search of a vehicle that resulted in the arrest of the appellant. Body‑worn camera footage depicts the arrest and the testing of a substance found during the search of the vehicle using a TruNarc machine.[10]
[10] Affidavit of SC Wright affirmed on 30 March 2023 [3], [6] - [9].
Prior to releasing the appellant on bail, Senior Constable Wright served him with a copy of the prosecution notices and the statement of material facts for the three charges. On 16 July 2020, Senior Constable Wright also posted a copy of the prosecution brief to the appellant at his home address. On 20 August 2020, Senior Constable Wright interviewed the appellant regarding some unrelated charges. That interview transcript was provided solely for the purpose of verifying the appellant's address.[11]
[11] Affidavit of SC Wright affirmed on 30 March 2023 [15], [17] - [19].
Senior Constable Wright also deposes that the substance seized from the appellant on 30 May 2020 was not sent for formal drug analysis. He explained that this was because where the quantity of drugs is over the presumptive amount for an intention to sell or supply, but under the jurisdictional threshold for the District Court (as it was in this case), it is police practice to only send those drugs for analysis if there is a plea of not guilty to the relevant charge. Senior Constable Wright further states that he had been advised by the Drug Receival Unit that the drugs were destroyed on 20 October 2022. He does not recall having received any contact from the appellant or any lawyer acting for the appellant prior to the date of destruction. Had he received such contact, he would have taken steps to have the drugs preserved.[12]
[12] Affidavit of SC Wright affirmed on 30 March 2023 [21] - [23].
The appellant did not seek to adduce any additional evidence, either before the primary judge or on this appeal.
Grounds of appeal
The grounds of appeal are as follows:[13]
[13] WAB 9.
1.The learned Justice erred in law by finding the learned [m]agistrate made no error of law by accepting the appellant's plea of guilt[y] and entering a judgment of conviction in circumstances where the learned Justice accepted that statements the appellant made at the time he entered his plea were open to interpretation inconsistent with guilt: Douglas v The Director of Public Prosecutions [2023] WASC 302 [75‑76].
2.The learned Justice erred in law and fact by finding the learned [m]agistrate did not fail to satisfy himself of matters necessary for the exercise of his discretion to accept the plea of guilty under s 129(2)(b) of the Criminal Procedure Act 2004 (WA) ('the Act') that the accused understood the plea and its consequences in circumstances where the learned Justice found:
i)[c]ommunications from the appellant to the learned [m]agistrate were capable of being interpreted as both consistent with guilt and not consistent with guilt: Douglas v The Direct[or] of Public Prosecutions [2023] WASC 302 [75‑76];
ii)this was the appellant's first appearance on the charge;
iii)the appellant did not have legal advice and the charge was serious and could lead to a term of imprisonment; [and]
iv)it is not clear from the transcript that the appellant was aware that the charge could lead to a term of imprisonment: Douglas v The Director of Public Prosecutions [2023] WASC 302 [108].
3.The learned Justice erred by finding no substantial miscarriage of justice was occasioned if the learned [m]agistrate did err in law by accepting the guilty plea of the appellant.
It is convenient to deal with the grounds together. Ground 2 is in essence, a particular of ground 1. Ground 3 only arises for consideration if either of grounds 1 or 2 are made out.
Relevant legal principles
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.[14]
[14] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).
The principles relating to when a change of plea is permissible, and the principles relating to establishing on appeal that there has been a miscarriage of justice arising from a plea of guilty, are analogous. There are three well recognised grounds for allowing a change of plea. The grounds are: [15]
1.where the appellant did not understand the charge or did not intend to plead guilty;
2.where on the admitted facts the appellant could not in law be guilty of the offence; and
3.where the plea of guilty has been obtained by inducement, fraud or intimidation.
[15] Borsa v The Queen [2003] WASCA 254 [20]; Webster v The Queen [2015] WASCA 20 [57]; Vella v The State of Western Australia [2006] WASCA 129 [26]; Snook v The State of Western Australia[No 2] [2015] WASCA 29 [102].
Putting aside the second category referred to, the other categories are concerned with ensuring that a plea of guilty is a deliberate and voluntary decision of the accused person. These are not, however, the only circumstances that can result in a miscarriage of justice. A change of plea should be permitted wherever the failure to do so would result in a miscarriage of justice.
It is well recognised that a plea of guilty does not have to be based upon a belief by the accused person that he or she is guilty of the offence charged. An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt.[16]
[16] Meissner 157; See also Wilhelm v The State of Western Australia [2013] WASCA 188 [51] (Mazza JA, McLure P & Buss JA agreeing).
In Meissner v The Queen, Brennan, Toohey and McHugh JJ said:[17]
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. (footnotes omitted)
[17] Meissner 141.
In the same case, Dawson J said:[18]
It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. (footnotes omitted)
[18] Meissner 157.
However, a plea of guilty must be clear and unequivocal. A plea of guilty that is not an admission of guilt cannot be accepted. Where a plea is equivocal, a court is obliged to either clarify the plea or enter a plea of not guilty.[19] An equivocal plea may occur where an accused person adds additional words to their plea which contradict it. A plea of guilty that incorporates a denial or a claim to a complete defence is equivocal. For example, where an accused person says 'guilty but I did not do it' or 'guilty but I was acting in self‑defence'. Such pleas are unacceptable because they purport to simultaneously accept guilt and deny it.
[19] Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.
In Maxwell v The Queen, the appellant entered a plea of guilty to manslaughter when arraigned on a charge of murder. That plea was accepted by the prosecution on the basis that the appellant had diminished responsibility. That was a defence available in New South Wales which had the effect of reducing a homicide from murder to manslaughter. The sentencing judge questioned whether diminished responsibility was available on the evidence of the reports from psychiatrists. The prosecution then sought to withdraw its acceptance of the plea of guilty to manslaughter. The sentencing judge referred questions on this issue to the New South Wales Court of Criminal Appeal. Those questions were; whether the prosecution could withdraw acceptance of the plea, and whether the trial judge had any power to reject the plea. The Court of Criminal Appeal answered both questions in the affirmative.
An appeal to the High Court in Maxwell was allowed. The court held that save for the prevention of an abuse of process, a trial judge has no power to review an election by a prosecutor to accept a plea of guilty to a lesser offence, nor to intervene and reject the plea. Where a prosecutor accepts a plea of guilty to a lesser offence, subject to the judge's duty to ensure an unequivocal plea, the judge must proceed to sentence the accused on the basis of that plea notwithstanding any reservations the judge might entertain. In this context, Dawson and McHugh JJ said:[20]
The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin where the trial judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the judgment of the court was delivered by Owen J, who said:
'It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance'. (footnotes omitted)
[20] Maxwell 511; See also Egerton v Taylor (1996) 90 A Crim R 186; Minear v Rudrum [2001] WASCA 10; (2001) 33 MVR 119; Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496.
In Maxwell, there was no suggestion that the appellant's plea was equivocal or ambiguous. The appellant had entered a clear and unequivocal plea of guilty to manslaughter, a course that was sanctioned by the relevant statute, and the prosecutor had elected to accept that plea. Accordingly, Maxwell was not concerned with whether a miscarriage of justice had been occasioned by reason of the court accepting an equivocal plea of guilty. Nonetheless, the clear import of the passage referred to is that it would be an error for a judge to record a conviction based on an equivocal plea of guilty, and such a conviction would constitute a miscarriage of justice.[21]
[21] See Ottobrino v Espinoza (1995) 14 WAR 373; Smith v Ellis (Unreported, WASC (Heenan J), Library No 970107, 18 March 1997); Kadmos v Nesina [2013] WASC 253; Henning v Khaw [2013] WASC 270; Townsend v Mott (Unreported, WASC (Burt CJ), Library No 4213.2, 24 July 1981).
There is a distinction between a claim that a plea of guilty was equivocal, and a claim that an unequivocal plea should be set aside. An equivocal plea is, in substance, not a plea of guilty at all because it is not a clear and unambiguous acceptance of guilt. If such a plea is made, it should not be accepted. In contrast, there is usually no reason not to accept an unequivocal plea and a miscarriage of justice will only be made out if, for some reason not apparent from the plea itself, it can be established, for example, that the plea was not genuine, or the appellant could not in law be guilty of the offence charged.
One of the cases cited in Maxwell by Dawson and McHugh JJ was P Foster (Haulage)Ltd v Roberts.[22] There, O'Connor J (with whom Widgery CJ & Lloyd J agreed) said:[23]
In my judgment, a clear distinction must be drawn between the duties of a court faced with an equivocal plea at the time it is made and the exercise of the court's jurisdiction to permit a defendant to change an unequivocal plea of guilty at a later stage of the proceedings. A court cannot accept an equivocal plea of guilty: it has no discretion in the matter; faced with an equivocal plea the court must either obtain an unequivocal plea of guilty or enter a plea of not guilty. For a plea to be equivocal the defendant must add to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An example of this type of qualification is found where a man charged with handling a stolen motor car pleads 'guilty to handling but I didn't know it was stolen'. It is not every qualification which makes a plea of guilty equivocal; for example, the burglar charged with stealing spoons, forks and a camera, who pleads 'guilty but I did not take the camera' is making an unequivocal plea to burglary.
Once an unequivocal plea of guilty has been made, then the position is entirely different. From this stage forward until sentence has been passed the court has power to permit the plea of guilty to be changed to one of not guilty, but the exercise of this power is entirely a matter of discretion. This is clearly stated by all of their lordships in S (an infant) v Manchester City Recorder. In that case the appellant, aged 16, had pleaded guilty to attempted rape before a juvenile court; the hearing was adjourned for three weeks for reports and on the adjourned hearing the appellant was legally represented and his solicitor applied to withdraw the plea of guilty on the ground that the youth had made many previous spurious confessions and that his confession of guilt was unsafe. The justices refused the application on the ground that they were functi officio and had no power to grant it. That decision was upheld in the Divisional Court but the House of Lords allowed the appeal. (footnote omitted)
[22] P Foster (Haulage)Ltd v Roberts [1978] 2 All ER 751; (1978) 67 Cr App R 305.
[23] P Foster (Haulage)Ltd 754 ‑ 755.
The distinction between an equivocal plea and an application to change an unequivocal plea was also emphasised by the Hong Kong Court of Final Appeal in HKSAR v Lincoln.[24] Cheung PJ (with whom the other members of the court agreed) said that there is crucial distinction between an equivocal plea and an unequivocal plea of guilty. A plea is equivocal if the defendant adds to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. His Honour said that the distinction is crucial because only an unequivocal plea can be accepted by the court. Cheung PJ went on to say that whether a plea is equivocal must be determined at the time it is made. Claims made subsequently by the defendant do not have the effect of turning an unequivocal plea into an equivocal one. However, the court has a discretion to allow a change of plea that has been properly entered.[25]
[24] HKSAR v Lincoln [2018] HKCFA 64; (2018) HKCFAR 588.
[25] Lincoln [22] - [34].
The following principles can be distilled from these authorities:
1.An accused person is free to plead guilty even if he or she is not, and may do so for many reasons, including to avoid worry, inconvenience or expense, to avoid publicity, to protect family or friends, or in the hope of obtaining a more lenient sentence. It is not a miscarriage of justice for the court to act on an unequivocal, freely made plea of guilty, even if the person is not guilty.
2.Where an accused person who understands the charge and the nature of the plea, insists on pleading guilty, the court cannot interfere. If there is no reason to doubt the nature of the plea or that the accused is aware of what he or she is doing by pleading guilty, the plea must be accepted.
3.If a plea of guilty is equivocal, the court has no discretion to accept the plea. A plea of guilty will be equivocal if it is accompanied by a qualification which, if true, may show that the accused is not guilty of the charged offence. In such circumstances, the court must either obtain an unequivocal plea or enter a plea of not guilty.
4.The time for determining whether a plea is equivocal is the time when the plea is entered. An unequivocal plea does not become equivocal as a result of claims made by the accused on later occasions.
5.The court has a discretion to permit a change of plea at any time prior to sentencing. The discretion only arises in cases where the original plea of guilty was unequivocal.
6.The grounds on which an application to change a plea of guilty may be allowed include: where the accused person did not understand the charge or did not intend to plead guilty; where the accused could not be guilty on the admitted facts; or where the plea was obtained by threats, inducement or fraud. However, these are not the only circumstances in which a change of plea should be allowed. A change of plea should be allowed wherever the failure to do so would result in a miscarriage of justice.
The Criminal Procedure Act 2004 (WA) provides:
59.Initial procedure, pleading
…
(2)Before requiring the accused to plead to the charge, the court must -
(a)be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b)be satisfied the accused understands the charge and the purpose of the proceedings; and
…
129.Plea of guilty, procedure on
…
(2)Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless -
…
(b) if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
The primary judge's reasons
The primary judge noted that the appellant's case was that there was an error of law by the magistrate in accepting the plea of guilty on 26 June 2020 and that the error resulted in a miscarriage of justice. No error in respect of any of the other appearances was alleged. In these circumstances, her Honour said that the transcripts of the later appearances could not assist in determining the appellant's state of mind as at 26 June 2020. Accordingly, she only had regard to the transcripts of the later appearances for the purposes of assessing whether there had been a miscarriage of justice, or a substantial miscarriage of justice.[26]
[26] Douglas v Director of Public Prosecutions for Western Australia [2023] WASC 302 [24] - [29].
The primary judge referred to the additional evidence from Senior Constable Wright and said that this evidence was relevant in several respects. The evidence that the appellant was served with the prosecution notice and the statement of material facts relevant to the charge before being released on bail (and before he entered a plea of guilty) was relevant to whether the appellant had time to consider the charge and seek legal advice, whether the matters in s 59 of the Criminal Procedure Act had been considered, and whether there had been a miscarriage of justice. Other material in the affidavit was also relevant to whether there had been a miscarriage of justice. The destruction of the drugs was relevant to whether an extension of time should be granted. For these reasons, her Honour admitted the additional evidence.[27]
[27] Douglas [44] - [48].
The primary judge noted that the appellant's counsel had clarified that the contention on the appeal was that the appellant did not understand the nature of the charge or did not intend to plead guilty, and that on the admitted facts he could not in law have been guilty of the offence. However, much of the appellant's submissions were concerned with whether the plea was equivocal and should not have been accepted. For that reason, her Honour considered whether the plea was equivocal and whether there was any miscarriage of justice in that regard.[28]
[28] Douglas [53] - [54].
The primary judge then turned to consider the transcript of the proceedings on 26 June 2020. Her Honour noted that the appellant placed particular reliance on the appellant saying 'because it was, as far as [he] was aware, was salt'. After summarising the submissions of the parties, her Honour said:[29]
One interpretation of the appellant referring to the substance being salt and querying whether it had been tested may be that the appellant thought the substance was salt. However, another open interpretation is that the appellant thought that the substance may have been contaminated with salt or that he may have been questioning its purity (without saying that it was not at least partly methylamphetamine). Another open interpretation is that the appellant was merely trying to ascertain if the substance had been tested.
The appellant contends that the query as to whether the substance had been tested, is an indication that the appellant did not understand the charge or the effect of his plea, because he did not understand that the testing would only take place if he pleaded not guilty. There is nothing in the transcript which provides any indication that this was the appellant's understanding. Whilst that may be one interpretation of the transcript, another is simply … that the appellant wanted to know if the substance would be tested and/or what the purity of the substance was. It may go no further than that. It may also have been that the question of purity could be relevant to sentencing.
To the extent it is submitted that the question reveals that the appellant did not understand the effect of his plea, the transcript reveals that the appellant understood the difference between a plea of guilty and not guilty, as he pleaded guilty to two of the charges and not guilty to the third. This does not suggest that the appellant did not understand the effect of pleading guilty.
Therefore, in all the circumstances, I do not consider it can be clearly inferred from the transcript that the appellant did not understand the charge or did not intend to plead guilty or did not understand the effect of his plea. I accept that the appellant was unrepresented at this hearing and it was the appellant's first appearance on this charge. I also accept that there is no evidence in the transcript that the appellant was told that he may be facing a term of imprisonment for this charge. However, the lack of any evidence from the appellant about what he understood at the time or what he intended at the time proves fatal to the appellant's case in this regard as the transcript is not sufficiently clear on its own to reach the conclusions contended for by the appellant.
[29] Douglas [75] ‑ [78].
The primary judge noted that despite being provided with paperwork regarding an application to change his plea, and being advised on how to fill it out, and being given a total of 10 adjournments to make the application, the appellant never made an application to change his plea. On four occasions, the appellant was given a 'last warning', when he was told by presiding magistrates that he had one last chance to make his application to change his plea, otherwise he would be sentenced. The primary judge also noted that a review of the relevant transcripts reveals that on four occasions, the appellant asked to be sentenced on all charges (twice before he indicated his wish to change his plea and twice afterwards). However, on each occasion, the presiding magistrate gave the appellant further time to seek legal advice.[30]
[30] Douglas [87] - [91].
In the proceedings before the primary judge, the appellant did not file any affidavit evidence in support of his appeal. Her Honour said that this did not mean that an error of law could not be established. However, it did mean that there was no evidence from the appellant as to his state of mind at the time he entered the plea, why he later wished to change his plea or any explanation as to why he did not make an application to change his plea at any time prior to sentencing.[31]
[31] Douglas [93].
The primary judge concluded that having considered all of the matters referred to, she was of the view that the appellant had not established that a miscarriage of justice had occurred. Her Honour said that although the plea was entered on a first appearance, the appellant was not sentenced until two years later. When he raised his wish to change his plea of guilty to one of not guilty, he was given 'more than sufficient opportunity to make that application', however, he chose not to do so. Her Honour said that there must be an element of finality to the court process, and the mere fact that the appellant was unrepresented on some occasions does not mean that he must be provided with unlimited opportunities to make applications. Accordingly, her Honour concluded that the sentencing that occurred on 6 July 2022, was the result not only of the plea of guilty, but of the appellant not taking advantage of the numerous opportunities he had to apply to change his plea.[32]
[32] Douglas [94].
As to the claim that the plea was equivocal, the primary judge said:[33]
Having reviewed the transcript, I do not accept the appellant's submission that the plea of guilty is equivocal on its face. The appellant is clear in his desire to plead guilty. The appellant indicates that he is intending to plead guilty to some of the charges but not the charge of unlawful possession of the cash. The charge is then read to the appellant and when the appellant raises what appears to be a question as to the [sic] whether the substance was salt or methylamphetamine and whether it has been tested, the learned [m]agistrate, correctly, raises this with the appellant and explains to the appellant that if he is pleading guilty to the charge, he is admitting that he 'had - looks like a small quantity of methylamphetamine'. The appellant then confirms his guilty plea. The appellant raises no issues regarding the element of an intent to sell or supply the substance. The transcript reveals that the appellant understands the difference between a guilty plea and a not guilty plea, given he pleads guilty to two charges and not guilty to one charge. (footnote omitted)
[33] Douglas [104].
The primary judge noted that in his submissions, the appellant had placed a particular reliance on the use of the word 'had' in the magistrate's questioning of the appellant. The appellant submitted that the use of this word was ambiguous in the circumstances and mixed the concepts of knowledge and possession and therefore, the appellant's response was not a clear admission.[34] Her Honour noted that this submission suffered the disadvantage of not being supported by any evidence from the appellant as to his state of mind:[35]
The appellant puts forward a particular interpretation as to what the word 'had' may mean to a lay person in the appellant's position. However, absent any evidence from the appellant that this is what he understood it to mean, the appellant's submissions are simply one version of what a lay person might understand from that question. Another open interpretation of the transcript is that a lay person would understand the question to mean whether the person knew that the substance in their possession at the time they were arrested was methylamphetamine.
[34] Douglas [105].
[35] Douglas [106].
As regards s 59 and s 129 of the Criminal Procedure Act, the primary judge noted that the appellant submitted that the magistrate had failed to comply with those sections but did not suggest that this resulted in the convictions being void. Rather, the appellant submitted that these were procedural requirements and that the failure to comply with them occasioned a miscarriage of justice. Her Honour noted that there is no requirement for the magistrate to expressly refer to the fact that he or she has considered and taken into account these requirements. Her Honour concluded that it could not be said from the transcript of 26 June 2020 that the appellant did not understand the charge, or the plea, or its consequences. Thus, even if the magistrate failed to satisfy himself of the matters referred to in s 59 and s 129, no miscarriage of justice had resulted.[36]
[36] Douglas [115] - [116], [122] - [123], [129], [131] - [132].
The primary judge then turned to the question of the proviso and concluded that even if she was wrong, and that a miscarriage of justice had occurred, she did not consider that there was a substantial miscarriage of justice. In coming to this conclusion, her Honour took into account; the numerous opportunities that the appellant had to change his plea, the strength of the prosecution case, and the absence of any evidence from the appellant.[37]
[37] Douglas [133] - [138].
In regard to an extension of time, the primary judge referred to an affidavit from the appellant's lawyer, which stated that the appellant was the subject of breach proceedings in respect of the CBO as at the date of the affidavit, 16 December 2022. On 11 October 2022, the appellant was represented by a duty lawyer who appeared in the breach proceedings and referred the appellant for an opinion on the merits of an appeal. Instructions regarding an appeal were taken on 15 November 2022. There was a delay whilst counsel investigated why the appellant did not receive legal aid to assist him in making an application to set aside his plea of guilty. There was no affidavit from the appellant explaining the delay between 6 July 2022 and 11 October 2022.[38]
[38] Douglas [139] - [141].
The primary judge concluded that despite the delay being gross and the lack of detailed evidence in support of an application for an extension of time, the unusual circumstances justified the granting of an extension of time within which to appeal. The unusual circumstances included the fact that on 11 October 2022, when the appellant had appeared for a breach of the CBO, the presiding magistrate had suggested that an appeal against the original conviction was an avenue open to the appellant.[39]
[39] Douglas [144].
The primary judge accepted that the drugs were lawfully destroyed before notification of any appeal to the police and that the delay was a source of prejudice to the respondent. However, her Honour said that this prejudice was not solely due to delay, but also the policy of the police that drugs falling below the jurisdictional threshold where a plea of guilty is entered, are not subject to formal drug analysis (in addition to presumptive testing at the time of seizure). Whilst making no criticism of the police policy, her Honour said that the decision to destroy the drugs was not one over which the appellant had any control.[40]
[40] Douglas [138].
Appellant's submissions
The appellant submits that in saying 'it was, as far as I was aware, was salt' his plea of guilty was equivocal because this was, in substance, a denial that the substance possessed was a prohibited drug, or at least, that he had any knowledge that it was a prohibited drug. The appellant submits that the primary judge's finding that the appellant's words were open to different interpretations was consistent with the plea being equivocal in nature.[41]
[41] WAB 12 - 14.
The appellant submits that when the magistrate asked 'if you're pleading guilty to it, you're admitting that you had - looks like a small quantity of methylamphetamine. Is that a guilty plea?'; there was no distinction drawn between physical possession and knowledge by the use of the word 'had'. The appellant submits that this left open a possibility that the appellant understood this to mean that it was enough if the drugs were methylamphetamine, even if he did not know this to be the case when he was arrested. The appellant contends that the primary judge erred by effectively rejecting this interpretation on the ground that the appellant had not adduced evidence of his understanding.[42]
[42] WAB 14 - 15.
As to ground 2, the appellant submits that there is nothing on the face of the record to indicate that the magistrate satisfied himself that the appellant had a copy of the prosecution notice and understood the charge, the purpose of the proceedings, the plea of guilty and its consequences. The appellant submits that the exchange with the magistrate suggests that he did not understand the plea of guilty. The appellant also refers to the fact that he was unrepresented, the charge was a serious one and that imprisonment was a possible outcome.[43]
[43] WAB 19 - 20.
The appellant does not submit that non‑compliance with the requirements of s 59 and s 129 of the Criminal Procedure Act renders the conviction void.[44] Rather, it is said that the non‑compliance is 'integral to and causative of the substantive deficiency in the accepted plea of guilt' and caused a miscarriage of justice for that reason.[45] In essence, the appellant relies on the alleged non‑compliance to support a conclusion that he did not understand the charge or intend to plead guilty.
[44] In any event, only s 129 is referred to in ground 2.
[45] WAB 23.
Respondent's submissions
The respondent submits that it is insufficient to merely identify a number of possible interpretations of what was meant by the appellant in his exchange with the magistrate on 26 June 2020. The appellant bore the onus of proving on the balance of probabilities that he had suffered a miscarriage of justice and despite bearing that onus, adduced no evidence as to his relevant state of mind. In any event, the primary judge went on to find that the plea was not equivocal.[46]
[46] WAB 39 - 40.
As to ground 2, the respondent submits that it was not necessary for the magistrate to refer to s 59 and s 129 of the Criminal Procedure Act when taking the plea. More significantly, in the absence of the appellant having established that he did not understand the plea or its consequences, no miscarriage of justice arose. The respondent submits that the primary judge did not err in coming to that conclusion.[47]
[47] WAB 40 - 44.
The merits of the appeal
The grounds of appeal, and the written and oral submissions of the appellant, displayed confusion as to the principles to be applied. The appellant claimed that his plea was equivocal but also sought to rely on the categories of case where a change of plea should be permitted to avoid a miscarriage of justice. This conflated two distinct issues. In reality, there was only one issue, was the plea of guilty equivocal at the time it was made.
No issue regarding the exercise of discretion to change the plea arises because no application to change the plea was ever made. In the absence of any such application the only way that the principles regarding a change of plea could be engaged is if there was some evidence that the appellant did not understand the charge or did not intend to plead guilty. As noted earlier, the appellant has not adduced any additional evidence in that regard, either before the primary judge or on this appeal.
The appellant appeared on 26 June 2020 after being arrested and charged a month earlier on 30 May 2020. He was released on bail on 30 May 2020 and given a copy of the prosecution notice and the statement of material facts. Accordingly, when he appeared on 26 June 2020, he had had an opportunity to read and consider the charges and obtain legal advice if he wished to do so.
The first thing that the magistrate asked was whether the appellant wished to enter pleas or whether he needed time to get some advice. The appellant did not say that he wanted time to get advice. Rather he responded by saying '[g]uilty to a couple of them'. It is clear from this that he understood that there were three charges, and that he had already considered how he wanted to plead to each of them. He explained why he wanted to plead not guilty to the possession of cash charge, namely that the cash was not stolen or unlawfully obtained.[48] Plainly, the two charges that he said from the outset that he wanted to plead guilty to were the other two charges, one of which was the possession of drugs charge.
[48] BGAB 131.
Those other two charges were then read out. When the possession of drugs charge was read, the magistrate also explained that the weight of the drugs meant that the charge did not have to go up to a higher court. When asked whether he understood the charge, the appellant said '[y]es, your Honour'.[49]
[49] BGAB 131.
When asked whether he was pleading guilty to that charge, the appellant responded by saying '[h]as that been sent off to the lab or something? One of the cops said it would be sent off to the lab, because it was, as far as I was aware, was salt. But they said if there was a – if you have a kilo of salt, and there was any trace of meth in there, you would be charged with a kilo of …'.[50] When the whole of this passage is read, it appears that the appellant was querying the purity of the drug. It is not a denial of the offence, nor of any of its elements.
[50] BGAB 131 - 132.
To the extent that the passage is ambiguous and could be interpreted as being a denial of knowledge that the substance was a prohibited drug, that ambiguity did not require that a plea of not guilty be entered. Given the appellant's repeated indications that he wanted to plead guilty to this charge, the obligation of the magistrate was to clarify whether the appellant still wanted to plead guilty, notwithstanding what he had said.
That is what the magistrate did. The magistrate said that he needed to know whether the appellant was pleading guilty to the charge or not. The appellant responded 'yes'. The magistrate then asked '[b]ecause if you're pleading guilty to it, you're admitting that you had – looks like a small quantity of methylamphetamine. Is that a guilty plea?' The appellant responded '[y]es. Yes (indistinct).' If there was anything initially equivocal about the appellant's plea, this response resolved it. The appellant's unambiguous response was made after being told that by pleading guilty, he was admitting that he had a small quantity of methylamphetamine. There was no room for misunderstanding.
The appellant's submission that, the use of the word 'had' in this context left open the possibility that the appellant did not appreciate that by pleading guilty he was admitting that he knew that the substance possessed was methylamphetamine, cannot be accepted. The magistrate's statement was responsive to the appellant's comment about salt. The magistrate was ensuring that the appellant understood that, notwithstanding what he had said about his awareness, he would be admitting to possession of the methylamphetamine by pleading guilty.
The appellant's submissions that the plea was equivocal emphasise the salt comment, without placing that comment into its context. In particular, the appellant fails to properly consider the effect of the exchange that follows that comment. A plea is not equivocal merely because at one point something is said that, on one view, can be interpreted as a qualification or denial of liability. As was made clear in Maxwell, if there is equivocation, the duty of the judicial officer is to obtain an unequivocal plea or enter a plea of not guilty. In this case, the magistrate clarified the appellant's position by obtaining an unequivocal plea of guilty.
The appellant's reliance on the passage in the primary judge's reasons referred to at [44] is misplaced. In saying the appellant's salt comment was open to different interpretations, her Honour was dealing with submissions regarding the appellant's understanding of the charge. Her Honour was not at that point addressing the question of whether, when the exchange was viewed as a whole, the plea was equivocal. When her Honour did turn to that question, she concluded that the plea was not equivocal.
The conclusion of the primary judge, that the plea was not equivocal and that no error had been made by the magistrate in accepting it, was plainly correct. That is sufficient to dispose of the appeal.
To the extent that the appellant is seeking to suggest, in the alternative, that there was a miscarriage of justice because the appellant did not understand the charge or intend to plead guilty, the onus was on him to establish that acceptance of the plea occasioned a miscarriage of justice. There is no evidence from him to the effect that he did not understand the charge, or the plea, or the consequences of it. Nor does the record of proceedings support an inference that the appellant had any such misunderstanding. The magistrate ensured that the appellant understood the charge and the effect of a plea of guilty. On two occasions after entering the plea, the appellant asked to be sentenced. The only reasonable interpretation of the subsequent proceedings is that the appellant later regretted his plea and wished to change it. He did not, however, pursue an application to change the plea.
As to the alleged non‑compliance with s 59 and s 129 of the Criminal Procedure Act, there is no requirement for the magistrate to expressly refer to those provisions. The appellant relies on an inference drawn from the court record that the magistrate could not have been satisfied that the appellant understood the charge, the plea, and its consequences. For the reasons already given, such an inference cannot be drawn. All the indications are to the contrary.
The conclusion of the primary judge, that the appellant did not establish that any miscarriage of justice was occasioned by acceptance of his plea of guilty, was plainly correct.
It is unnecessary to consider ground 3.
It is also unnecessary to consider the respondent's notice of contention however we will do so for the sake of completeness. As the primary judge found, the delay in commencing the original appeal was gross and not adequately explained. In such circumstances, the question of whether an extension of time should be granted depends on the merits of the appeal. Although the primary judge granted leave to appeal, none of the grounds succeeded. In any event, the delay had also occasioned the respondent very clear prejudice. The destruction of the drugs meant that it would be practically impossible to now prove that the drugs were methylamphetamine in the event that the appeal succeeded, and that matter was put in issue. The destruction of the drugs was not due to any policy on the part of the police, it was a consequence of complying with an order of the court. At the time of the destruction, there was no occasion to think that an appeal would be brought.
In all of the circumstances, the extension of time to appeal should have been refused.
Conclusion
There is no merit in any of the grounds of appeal. Leave to appeal should be refused and the appeal dismissed.
Orders
1.Leave to appeal refused.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
16 JANUARY 2025
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