Douglas v Director of Public Prosecutions for Western Australia

[2023] WASC 302

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DOUGLAS -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 302

CORAM:   SEAWARD J

HEARD:   3 APRIL 2023

DELIVERED          :   10 AUGUST 2023

FILE NO/S:   SJA 1087 of 2022

BETWEEN:   JOEL ALEXANDER DOUGLAS

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE B GLUESTEIN

File Number            :   PE 26326 OF 2020

Catchwords:

Appeal against conviction after plea of guilty entered - Change of plea - Whether error of law by Magistrate in accepting plea of guilty - Equivocal plea - Miscarriage of justice - Extension of time to appeal - Possession of a prohibited drug with intent to sell or supply - No error of law established

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)

Result:

Application for extension of time to appeal granted
Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	E R Zillessen
Respondent	:	T B L Scutt

Solicitors:

Appellant	:	Legal Aid Perth
Respondent	:	Director of Public Prosecutions for WA

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

Clarke v The State of Western Australia [2018] WASCA 14

Cooling v Steel (1971) 2 SASR 249

Duckworth v The State of Western Australia [No 4] [2018] WASA 2

Jackman v The Director of Public Prosecutions for Western Australia [2023] WASC 63

Kadmos v Nesina [2013] WASC 253

Lancaster v The Queen [1989] WAR 83

Lawson v The State of Western Australia [2018] WASCA 204

Powell v The State of Western Australia [2010] WASC 54

Price v Davies [2001] WASCA 81

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Robertson v The State of Western Australia [2009] WASCA 83

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

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

Strahan v Brennan [2014] WASC 190

Taylor v Rogers [2013] WASC 391

Tsang v Francis [2021] WASCA 131

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

Wood v Marsh (2003) 139 A Crim R 475

SEAWARD J:

Introduction

1. On 26 June 2020, the appellant entered a plea of guilty to a charge of possession of a prohibited drug with intent to sell or supply, that drug being 3.2 grams of methylamphetamine.  On 6 July 2022, the appellant was sentenced on that guilty plea to a community based order for 12 months with programme and supervision requirements.  An order for destruction of the drugs was also made.

2. The appellant filed an appeal notice on 16 December 2022 seeking leave to appeal against his conviction.  On 21 March 2023, I ordered that the amended appeal notice filed 10 March 2023 stand as the appeal notice in this matter.  By that amended appeal notice, the appellant seeks leave to appeal on the following ground:

   The learned Magistrate erred in law by accepting the appellant's plea of guilty.

   Particulars

   The learned Magistrate erred in law by

   i)Failing to satisfy himself that the plea was unequivocal or alternatively failing to confirm that admissions were made by the appellant to the elements of the charge necessary for guilt after admissions were made by the appellant that were inconsistent with guilt prior to the plea being made.

   ii)failing to satisfy himself of matters necessary for the exercise of his discretion to accept the plea of guilty under s 59(2)(a) of the Criminal Procedure Act 2004 WA ('the Act') that the accused had been served with and had the opportunity to consider the prosecution notice and have legal advice about the charge before the plea was entered.

   iii)failing to satisfy himself of matters necessary for the exercise of his discretion to accept the plea of guilty under s 59(2)(b) of the Act that the accused understood the charge.

   iv)failing 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 Act that the accused understood the plea and its consequences.

   and the error of accepting the plea resulted in a miscarriage of justice encompassing the recording of a conviction for the charge and the sentencing proceedings in respect of the charge.

Legal principles - leave to appeal and extension of time

1. The appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). Pursuant to s 8(1) of the CA Act an appellant may appeal on one or more of the following grounds:

   (a) that the court of summary jurisdiction —

   (i) made an error of law or fact, or of both law and fact;

   (ii) acted without or in excess of jurisdiction;

   (iii)imposed a sentence that was inadequate or excessive;

   (b) that there has been a miscarriage of justice.

2. The appellant clarified in oral submissions that the ground of appeal was made solely on the ground that the Magistrate made an error of law in accepting the plea of guilty.[1]

   [1] Appeal transcript 3 - 4.

3. Pursuant to s 8(2) of the CA Act, an appeal may be made against a decision even if the decision was made after a plea of guilty or an admission of the truth of any matter.

4. Leave to appeal is required for each ground of appeal.[2]  Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[3] meaning that the ground is required to have a rational and logical prospect of succeeding.[4]  Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[5]

   [2] CA Act s 9(1).

   [3] CA Act s 9(2).

   [4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

   [5] CA Act s 9(3).

5. Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[6]

   [6] CA Act s 14(2).

6. An appeal against the decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision unless the court orders otherwise.  However, if a person is sentenced on a later date than the date on which the person is convicted of the offence, the time to appeal runs from the date of sentencing.[7]  In the present case, the appellant was sentenced on 6 July 2022, which means that appeal ought to have been commenced by 3 August 2022.  However, the appeal was not commenced until 16 December 2022.

   [7] CA Act s 10(3) and (4).

7. The application for leave to appeal and the application for an extension of time were referred to the hearing of the appeal.[8]  The appellant relies on the affidavit of Emma Ruth Zillessen, sworn 16 December 2022 in support of the application for an extension of time.  In that affidavit, Ms Zillessen deposes that:

   (a)the appellant was convicted on a plea of guilty for the relevant charge on 26 June 2020 and was sentenced just over two years later on 6 July 2022 to a community based order for a period of 12 months;

   (b)as at the date of the affidavit, the appellant was the subject of breach proceedings in relation to that community based order;

   (c)she is informed that on 11 October 2022 the appellant was referred to apply for an appeal merit opinion after a duty lawyer assisted him in relation to a resentencing hearing in relation to the breach of the community based order;

   (d)as at the date of the affidavit, that resentencing had not yet occurred;

   (e)on 15 November 2022, Ms Zillessen spoke with the appellant and took instructions from him; and

   (f)before being satisfied that Legal Aid could assist the appellant in the appeal proceedings, Ms Zillessen needed to investigate why the appellant was not legally assisted to make an application to set aside his guilty plea.  This resulted in a delay in filing the appeal notice.

   [8] Interim orders of Registrar Whitbread made 1 February 2023.

8. There is no affidavit from the appellant explaining the delay between 6 July 2022 (being the date of sentencing) and 11 October 2022 (being the date the appellant was referred to apply for an appeal merit opinion).

9. The respondent opposes the extension of time.[9]  The appellant accepts that the delay is gross.[10]

   [9] Respondent's outline of submissions [49].

   [10] Appellant's outline of submissions [55].

10. An extension of time to appeal will be granted if it is in the interests of justice to do so.[11]  Where there has been a lengthy delay, an extension of time will only be granted where the appellant can establish exceptional circumstances or where there will be a miscarriage of justice if an extension is not granted.[12]  Merely showing that there are reasonable prospects of the appeal succeeding is not sufficient.[13]  Something more has to be shown, otherwise there would be no practical consequences ever flowing from the failure to appeal within time.[14]

    [11] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA) (Wimbridge).

    [12] Wimbridge [19] - [20] (Wheeler JA & Miller JA concurring), [42] (Buss JA); Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ); Robertson v The State of Western Australia [2009] WASCA 83 [9] (Buss JA, Owen & Miller JJA concurring).

    [13] Wimbridge [21] - [22] (Wheeler JA & Miller JA concurring).

    [14] Wimbridge [21] (Wheeler JA and Miller JA concurring).

11. The classes of exceptional circumstances are not closed and will depend upon the facts and circumstances of the particular case.[15]  In considering whether  it is in the interests of justice to grant an extension of time, factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[16]

    [15] Wimbridge [48] (Buss JA).

    [16] Wimbridge [45] (Buss JA); Duckworth v The State of Western Australia [No 4] [2018] WASA 2 [24] ‑ [45].

12. In the present case, having regard to the length of the delay and the inadequate explanation for the delay, the question of whether an extension of time is granted will depend upon the merits of the appeal and the respective prejudice to the appellant and the respondent.  I will, therefore, consider the merits of the application for leave to appeal and return to the question of whether an extension of time should be granted in light of that consideration.

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

1. Section 8(2) of the CA Act permits an appeal against conviction even if the conviction was entered after a plea of guilty was entered. The legal principles concerning an appeal against conviction in circumstances where a guilty plea is entered are well established and, subject to the further discussion regarding particulars (ii), (iii) and (iv) below, are not in dispute here. They are detailed in the decision of the Court of Appeal in Snook v The State of Western Australia [No 2]as follows:[17]

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

   102An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 Dawson J. There are three well recognised grounds for allowing a change of plea:

   (1) where the applicant did not understand the charge or did not intend to plead guilty;

   (2) where on the admitted facts the applicant could not in law be guilty of the offence; and

   (3) where the plea of guilty has been obtained by inducement, fraud or intimidation.

   See Borsa v The Queen [2003] WASCA 254 and Webster v The Queen [2015] WASCA 20.

   103These are not however the only circumstances that might justify a change of plea and such a change should be permitted by a court whenever not to do so would result in a miscarriage of justice.  Where an application is made to change a plea, the onus is on the applicant to show why he or she should be permitted to do so: Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496. This is not an easy thing to do in circumstances where the person had legal representation at the time of entering the plea.

   104Attempts to change a plea are approached by the courts with caution bordering on circumspection: Liberti v The Queen (1991) 55 A Crim R 120. This is because there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence. This is all the more so when the person has had the benefit of legal advice: Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.

   …

   106An accused person may enter a plea of guilty for reasons other than a belief as to his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial.  The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [157] Dawson J, see also Wilhelm v The State of Western Australia [2013] WASCA 188, Mazza JA [51].

   107If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 511.

2. See also Lawson v The State of Western Australia.[18]

   [18] Lawson v The State of Western Australia [2018] WASCA 204 [16] - [20].

3. That is, the authorities place a high (but not impossibly so) burden on an appellant attempting to set aside a conviction based on a plea of guilty.

4. Particulars (ii) ‑ (iv) of the amended appeal notice allege that the learned Magistrate erred in law in failing to satisfy himself of the matters necessary for the exercise of his discretion to accept the plea of guilty under s 59(2)(a), s 59(2)(b) and s 129(2)(b) of the Criminal Procedure Act 2004 (WA) (CP Act).  These sections provide as follows:

   s 59(2)(a) and (b)

   (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

   s 129(2)(b)

   (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.

Background facts

1. The appellant was charged by prosecution notice PE 2632/2020 dated 30 May 2020 and bailed to appear at the Perth Magistrates Court on 26 June 2020.  The appellant was also charged with two further offences, one of unlawful possession of drug paraphernalia (being scales and a glass pipe ‑ PE 263252020), to which the appellant pleaded guilty, and one of unlawful possession of $535 cash (PE 26324/2020), to which the appellant pleaded not guilty. 

2. In relation to the possession with intent to sell or supply charge, the transcript from 26 June 2020 is central to the appellant's case on appeal and the relevant part provides as follows:

   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)

3. The Magistrate then adjourned, the charge of unlawful possession of $535 cash to a hearing on 5 October 2020 and adjourned the two charges to which the appellant had pleaded guilty (including the charge the subject to this appeal) to the same date for sentencing following the trial.

4. Unfortunately, the appellant was not sentenced until 6 July 2022, some two years later.  During that period, the appellant appeared in court on a further 23 occasions (including the sentencing appearance and excluding two non‑appearances).  Some of those appearances concerned the current charge (or one or more of the three charges from that course of conduct), some appearances concerned other charges imposed on other occasions and some concerned breaches of bail.  A summary of the various appearances and the relevant facts which occurred in so far as they concern the present charge are set out in Annexure A to these reasons.  Further details of these appearances are included in the reasons below.

Appeal - preliminary matters

Basis of appeal

1. The appellant appeals pursuant to s 8(1)(a)(i) of the CA Act and alleges that an error of law was made by the learned Magistrate on 26 June 2020, in that the learned Magistrate erred in accepting the plea of guilty to the charge. The appellant does not appeal pursuant to s 8(1)(b) alleging a miscarriage of justice[19] (although I note that a miscarriage of justice is an element of the test as to when an appellate court will allow an appeal against conviction following a plea of guilty).

   [19] Appeal transcript 3 - 4.

2. The appellant also clarified in his written and oral submissions that the appeal does not allege any error of law on any of the other appearances after the first appearance, including at the sentencing itself.  Rather, the appellant's case is that there was an error of law in accepting the guilty plea on 26 June 2020, and that error resulted in a miscarriage of justice which culminated in the appellant being sentenced on 6 July 2022.[20]

Transcripts of appearances

[20] Appeal transcript 4.

1. The transcripts of all appearances made by the appellant from 26 June 2020 to 6 July 2022 were provided.  The parties agree that it is appropriate that I have regard to these additional transcripts, however the parties differ as to the use to which I can put these transcripts.

2. The parties agree that the transcripts of these later appearances are relevant to the question of whether there has been a miscarriage of justice (either as part of the test for when an appeal court will allow an appeal where there has been a plea of guilty or as part of the consideration of whether there has been a substantial miscarriage of justice for the purpose of the proviso in s 14(2) of the CA Act).

3. However, the respondent also relies on the contents of some later transcripts in support of the submission that in the absence of any evidence from the appellant, the inference urged by the appellant as to his state of mind on 26 June 2020 (being that he did not intend to plead guilty or he did not understand the charge) cannot be drawn from the transcript.[21]  The analysis proposed by the respondent in relation to these parts of the transcript involves taking matters said by the accused (or by counsel on his behalf) at a later point in time and using those parts to submit that the inference contended for by the appellant should therefore not be accepted.

   [21] Respondent's submissions [29].

4. Whilst I accept that in some cases that may be a possible line of reasoning and use of the transcript, having reviewed those parts of the transcript relied upon by the respondent, I do not consider that they can be used for the purposes submitted by the respondent in this case.  The parts of the transcript relied on do not expressly refer to the appearance on 26 June 2020; or say anything about what the appellant said on 26 June 2020; or say anything about why the appellant entered the guilty plea on 26 June 2020 or say anything about the appellant's belief or state of mind on that date.  Rather, at best, they indicate the appellant's state of mind at each subsequent appearance.  To the extent in the later appearances the appellant (or the duty lawyer appearing for him) make references to a defence that was not raised on 26 June 2020, I do not consider this assists in interpreting what was in the appellant's mind on 26 June 2020.  It is merely a reflection the appellant's position as at that later date, or a reflection of the instructions provided at that later date.

5. Accordingly, I have only had regard to the additional transcripts for the purposes of assessing whether there has been a miscarriage of justice or a substantial miscarriage of justice.

Application to rely on additional evidence

1. Orders were made by the court on 23 February 2023 requiring each party to file any application for leave to admit additional evidence, together with that proposed evidence, by particular dates.

2. The appellant did not make such application, and instead submits that the question of whether the conviction was an error of law is to be determined by the wording of the transcript on 26 June 2020.

3. The respondent did make an application, seeking an order that the affidavit of Senior Constable Raymond Wright, affirmed 30 March 2023, together with the audio‑visual footage and other annexures be admitted into evidence pursuant to s 40(1)(e) of the CA Act.

4. Senior Constable Wright deposes that he is the investigating and charging officer for charges PE 26324 -26326 of 2020.  By way of overview, in the affidavit SC Wright deposes that on 30 May 2020 he conducted a search of a vehicle that resulted in the arrest of the appellant.[22]  SC Wright then attaches the statement he prepared following the appellant's plea of not guilty to one of the charges.  SC Wright then provides further clarification in relation to a number of aspects of his statement. 

   [22] Affidavit of SC Wright affirmed on 30 March 2023 [3].

5. SC Wright also produces and explains footage from his body‑worn camera from the time of the search of the vehicle, the arrest of the appellant, and SC Wright testing the substance found during that search using the TruNarc machine.[23] 

   [23] Affidavit of SC Wright affirmed on 30 March 2023 [6] - [9].

6. SC Wright goes on to depose that prior to the appellant being released on bail, SC Wright prepared the prosecution notices and statement of material facts for the three charges.  SC Wright explains that is not customary to include references to the TruNarc testing in the statement of material facts and he did not do so on this occasion.  SC Wright deposes that reference to the TruNarc testing was included in the incident report (which was prepared by a different officer in this case).  SC Wright deposes that prior to releasing the appellant on bail, SC Wright served the appellant with a copy of the prosecution notices and statement of material facts for the three charges.  SC Wright then attaches copies of the documents served on the appellant.

7. SC Wright also deposes to the service of the prosecution brief on the appellant by mail to his home address on 16 July 2020.[24]  SC Wright then attaches copies of the documents served on the appellant.

   [24] Affidavit of SC Wright affirmed on 30 March 2023 [17].

8. SC Wright then deposes to an interview with the appellant for unrelated charges on 20 August 2020 and attaches a copy of the audio of that interview.  That interview is referred to and provided solely for the purpose of verifying the appellant's address as at that date.  As no issue was taken by the appellant as to the appellant's address, the respondent did not seek to tender the audio recording of that interview and at the invitation of the parties prior to the hearing, I did not listen to that recording.

9. Finally, SC Wright deposes that the substances seized from the appellant on 30 May 2020 were never sent for formal drug analysis.  SC Wright explains that this is because in a situation where the amount of drugs are over the presumptive amount for intent to sell or supply, but under the jurisdictional threshold for the District Court (such as 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.[25]  SC Wright deposes that he has been advised by the Drug Receival Unit, and verily believes, that the drugs were destroyed on 20 October 2022.[26]  SC Wright deposes that he does not recall having received any contact from the appellant or any lawyer acting for the appellant prior to 20 October 2022.  Had he received such contact, SC Wright deposes that he could have taken steps to have the drugs preserved.[27]

   [25] Affidavit of SC Wright affirmed on 30 March 2023 [21].

   [26] Affidavit of SC Wright affirmed on 30 March 2023 [22].

   [27] Affidavit of SC Wright affirmed on 30 March 2023 [23].

10. The application was supported by an affidavit of Thomas Benjamin Laird Scutt, affirmed 30 March 2023.  In that affidavit, Mr Scutt deposes that the that the evidence of the investigating officer for which leave is sought is relevant to the appeal as follows:

    (a)the appellant's submissions invite the court to draw inferences as to the state of mind of the appellant and of the learned Magistrate on 26 June 2020.  Mr Scutt deposes that the evidence of the investigating officer as to the appellant's arrest and the paperwork served on the appellant prior to the appearance is relevant to that state of mind;

    (b)the evidence as to the appellant being served with the full prosecution disclosure in July 2020 is relevant to the appellant's action or inaction thereafter, which is relevant to the question of whether there has been a miscarriage of justice; and

    (c)the evidence of the destruction of the drugs in question is relevant to the question of whether leave should be granted to extend time in which to appeal.

11. The appellant does not oppose the admission into evidence for the appeal of SC Wright's affidavit or the papers served on the appellant on 30 May 2020.  However, the appellant does oppose the respondent admitting SC Wright's statement, the body‑worn camera footage and the prosecution disclosure.[28]

    [28] Appeal transcript 62 - 63.

12. At the hearing I provisionally admitted the evidence and indicated I would make a final decision on its admissibility in my reasons for decision.

13. In accordance with s 39(1) of the CA Act the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this Court's power as contained in s 40(1)(e) to 'admit any other evidence' for the purposes of dealing with an appeal.[29] The power to admit further evidence is discretionary and is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved in each appeal, will indicate those considerations which are relevant to the exercise of the discretion.[30]

    [29] CA Act s 39(3).

    [30] Tsang v Francis [2021] WASCA 131 [79] citing Clarke v The State of Western Australia [2018] WASCA 14 [236].

14. In circumstances where the appeal against conviction follows a plea of guilty, the usual distinction between 'fresh evidence' and 'new evidence', on which the authorities regarding the admission of evidence on an appeal are often based, are not relevant as there has been no trial in the lower court.[31]

    [31] Tsang v Francis [2021] WASCA 131 [93].

15. In considering whether to admit the evidence proposed by the respondent, it is necessary to have regard to the issues in the appeal. The appellant's case is that the learned Magistrate made an error of law in convicting the appellant in circumstances where a plea of guilty was entered. As outlined above, relevant to that question is whether there has been a miscarriage of justice in recording the conviction. The application of the proviso in s 14 of the CA Act is also relevant to resolving this appeal. The appellant has also raised the extent to which the learned Magistrate satisfied himself of the matters in s 59(2)(a), s 59(2)(b) and s 129(2)(b) of the CP Act and the application for an extension of time to appeal.

16. The information served by the police on the appellant prior to being granted bail (being the prosecution notices and statements of material facts) is relevant to the plea entered on 26 June 2020 as it is relevant to and probative of whether the appellant had a copy of the prosecution notice and whether the appellant has had time consider the prosecution notice and seek legal advice, whether the learned Magistrate satisfied himself of the matters in s 59(2)(a) and s 59(2)(b) of the CP Act, and whether in all the circumstances there has been a miscarriage of justice.

17. I consider that the affidavit of SC Wright, the statement of SC Wright, his body‑worn camera footage and the remainder of the prosecution disclosure is relevant to whether there has been a substantial miscarriage of justice for the purpose of the application of the proviso in s 14 of the CA Act. The prosecution case and the extent to which it addresses all elements of the offence is relevant in this regard. The question of the destruction of the drugs is also relevant in this regard.

18. I also consider that the affidavit of SC Wright is relevant to the question of whether an extension of time to appeal should be granted, especially insofar as it concerns the testing of and destruction of the drugs.

19. Whilst neither of the parties made an application to admit the transcripts of the various other hearings, I will exercise my discretion to admit the transcripts on the basis that they are relevant to the question of whether there has been a miscarriage of justice and a substantial miscarriage of justice.[32]

Consideration of the ground of appeal

[32] For the purposes of both ss 8 (1)(b) and 14(2) CA Act.

1. The amended appeal notice contains one ground of appeal, being that the learned Magistrate erred in law by accepting the appellant's plea of guilty and that resulted in a miscarriage of justice.  However, the appellant has identified four particulars in relation to this ground.

2. In these reasons, I have considered the ground of appeal as advanced in particular (i) and then considered the ground of appeal as advanced in particulars (ii) - (iv) together. Finally, I have considered the application of the proviso in s 14(2) of the CA Act.

Particular (i)

Summary of appellant's submissions

1. The appellant's case, as particularised in the amended appeal notice, is that the learned Magistrate erred in accepting the guilty plea by:

   (a)failing to satisfy himself that the plea was unequivocal; or alternatively

   (b)failing to confirm that admissions were made by the appellant to the elements of the charge necessary for guilt after admissions were made by the appellant that were inconsistent with guilt prior to the plea being made.

2. On the basis of the appellant's written submissions, it was not entirely clear whether, in relation to particular (i), the appellant's case was that one or more of the three well established categories of circumstances where courts are prepared to set aside guilty pleas identified above in Snook [No 2][33] were satisfied, or whether the appellant was submitting that in all the circumstances the plea was equivocal and therefore should not have been accepted by the learned Magistrate (and that this was sufficient to constitute a miscarriage of justice in this case).

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

3. In oral submissions the appellant's counsel confirmed that she was submitting that the first two categories of Snook [No 2][34] are met here:  namely the appellant did not understand the nature of the charge or did not intend to plead guilty, and on the admitted facts the appellant could not in law have been guilty of the offence.[35] I have therefore considered ground 1 - particular (i) in the context of whether the first two categories in Snook [No 2][36]  are met here.

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

   [35] Appeal transcript 7.

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

4. However, the authorities are clear the categories outlined in Snook [No 2] are examples of such circumstances and the categories are not closed.[37]  I also note that that much of the appellant's submissions (both written and oral)[38] concerned whether, in all the circumstances, the plea was equivocal and therefore should not have been accepted by the learned Magistrate.  Therefore, I have also considered whether those circumstances are such that it can be said that a miscarriage of justice has occurred.

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

   [38] See Appellant's submissions from [6] and Appeal transcript 56.

5. The appellant's case as developed in his written and oral submissions is based on the wording of the transcript for the appearance on 26 June 2020.  I have set out above the relevant part of the transcript in full above, however, the appellant relies in particular on the following words spoken by the appellant:

   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.

6. The appellant's case in relation to ground 1 particular (i) is based on the following submissions.

7. First, the plea of guilty was equivocal on its face because the appellant expressly denied an ingredient of the offence necessary for guilt, being that he knew at the time he was arrested that he had methylamphetamine in his bag.[39]

   [39] Appellant's submissions [13] - [14].

8. Secondly, that the appellant asked whether the substance had been sent to the lab for testing is clear 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.[40]

   [40] Appellant's submissions [15].

9. Thirdly, that based on the transcript it is not possible to assert that an accused understands a charge if they deny an express ingredient of it whilst pleading guilty.[41]

   [41] Appellant's submissions [16].

10. Fourthly, it is not clear from the transcript that the appellant understood at the time he entered his plea that he was pleading guilty to a serious charge that ordinarily carries with it a significant risk of imprisonment.[42]

    [42] Appellant's submissions [18].

11. Fifthly, that on the admitted facts the appellant could not be guilty of the offence as the appellant denied the knowledge requisite to found possession in law.[43]  The appellant submits that the appellant's query about the substance being tested in a lab, combined with the denial of knowledge that the substance was a drug, gives rise to an apprehension that the appellant may have pleaded guilty on the assumption that this knowledge about the substance or his understanding of its purity was not relevant to guilt.[44]

    [43] Appellant's submissions [22], [26], [28] - [31]; Appeal transcript 17.

    [44] Appellant's submissions [28].

12. Sixthly, the appellant relies on other elements of the circumstances of the acceptance of the plea, including that the appellant was unrepresented, that this was the first appearance on the charges and the offence was serious with a risk of imprisonment in combination with the wording of the transcript, to lead to the conclusion that the appellant did not understand the nature of the charge and on the admitted facts could not have been guilty of the offence.[45]

    [45] Appeal transcript 5, 8.

13. In light of the above matters, the appellant submits that the plea of guilty was not a sound plea in law and the resulting conviction and invocation of jurisdiction under the Sentencing Act 1995 (WA) is an ongoing miscarriage of justice.[46] The appellant submits that there is nothing in the transcripts of the subsequent hearings which compels an inference of guilt,[47] and instead two triable issues are raised (whether the appellant was in possession and whether he had an intent to sell or supply).[48]  Further, the fact that the appellant sought to change his plea and continued to seek to do this over a period of time, but was required to do so with an application form and an affidavit, is a perpetuation of the miscarriage of justice which arose in accepting the guilty plea on 26 June 2020.[49]

    [46] Appellant's submissions [34].

    [47] Appeal transcript 5 - 6.

    [48] Appeal transcript 12.

    [49] Appeal transcript 24 - 28.

14. Finally, the appellant submits that the fact that that the appellant has not filed any affidavit evidence does not mean that the appellant cannot succeed in the appeal.  The appellant refers to four cases in which a plea of guilty has been set aside because of a miscarriage of justice which is evident from the way the plea was entered on the record, without further evidence being adduced.[50] 

Summary of respondent's submissions

[50] Appellant's submissions [11].

1. The respondent accepts that there may be cases in which an appellant is able to establish that he did not understand the charge or did not intend to plead guilty in order to establish a miscarriage of justice merely by reference to the transcript or what occurred at the time of the plea (although the respondent takes issue with some of the cases relied on by the appellant).[51]

   [51] Respondent's submissions [9] - [12].

2. However, the respondent does not accept that this is such a case.  The respondent submits that in the absence of evidence from the appellant in the appeal to the effect that he did not understand the plea or did not intend to plead guilty (on which he can be cross‑examined), it cannot be inferred that the appellant's belief at the time was that the substance was only salt and that the appellant did not understand that if he did not know the substance was methylamphetamine, he would be not guilty of the offence.  The respondent submits that this inference is not open on the basis of the transcript alone.[52]

   [52] Respondent's submissions [25] - [26].

1. The respondent submits that the competing inference from the transcript is that the substance was methylamphetamine, but that it was contaminated with salt and that the purity of the substance was low, which might be confirmed upon analysis at the lab.[53]

   [53] Respondent's submissions [27].

2. The respondent notes that the appellant does not press on appeal any claim that the appellant did not understand at the time of the plea that the charge alleged  possession with intent to sell or supply, or that he did not intend to plead to that charge.[54]

   [54] Respondent's submissions [31].

3. The respondent disagrees with what constitutes the 'admitted facts' for the purposes of the second category in Snook [No 2].[55]  The respondent's position is that the 'admitted facts' are those contained in the statement of material facts and as read to the court at the sentencing hearing on 6 July 2022 and the fact that the appellant gave an explanation at the time of his arrest that the substance was salt (but not the truth of that explanation).  The respondent submits that this appeal properly turns on the application of the first category in Snook [No 2][56] and not the second.[57]

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

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

   [57] Respondent's submissions [14] - [17].

4. The respondent submits that there is no miscarriage of justice, substantial or otherwise.  The respondent relies on the content of the transcripts for the various other appearances in support of the submission that the appellant was given multiple opportunities to change his plea and he chose not to, the fact that there was no appeal until the appellant faced resentencing following breaching the sentence imposed on 6 July 2022 and the strong public interest in the finality of proceedings.[58]

Disposition

Appellant did not understand nature of the charge / intend to plead guilty

[58] Respondent's submissions [35] - [40].

1. I am not satisfied that the appellant has established that he did not understand the nature of the charge or that he did not intend to plead guilty.

2. Absent any evidence on these matters from the appellant, it is necessary to have regard to the wording of the transcript from 26 June 2020 only.  When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates.  As was pointed out by Martin CJ in Strahan v Brennan,[59] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day.  Accordingly:[60]

   [I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error.  Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated.  That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

   [59] Strahan v Brennan [2014] WASC 190 [89] - [90].

   [60] Strahan v Brennan [2014] WASC 190 [90].

3. In the context of this appeal, I also consider that it is important not to read the transcript with the benefit of hindsight, knowing what is known now about the appellant later indicating that he wished to change his plea.

4. Absent any evidence from the appellant as to what he understood about these matters at the time, or what he meant by his words, on the basis of the wording alone it is not clear to me that the transcript has the meaning and effect contended for by the appellant.

5. 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.

6. 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 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.

7. 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.

8. 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.

9. I am also not satisfied in all the circumstances that there has been a miscarriage of justice.

10. I accept as a general proposition that in some circumstances accepting a guilty plea on a first appearance, where an accused is unrepresented, for an offence which may result in a sentence of imprisonment, may constitute a miscarriage of justice.

11. However, in the present case, the appellant was not sentenced on the day the plea was accepted.  Rather, the appellant was sentenced two years later.  During that two year period, the appellant appeared before the Magistrates Court a further 23 occasions (including the sentencing appearance and excluding 2 non-appearances), although not all of these appearances related to the present charge.

12. On 24 February 2021 (the appellant's eighth appearance before the Magistrates Court), the appellant, through the duty lawyer, raised for the first time his wish to change his plea of guilty to not guilty on the intent to sell or supply charge the subject of this appeal.  The transcript reveals that on the previous appearance (11 January 2021) the appellant changed his plea of not guilty for the unlawful possession of cash charge to guilty and a pre-sentence report was ordered.  The appellant first raised changing his plea after the pre-sentence report was provided.  On 24 February 2021, the appellant was represented by the duty lawyer.  The duty lawyer requested an adjournment because:[61]

    I've taken instructions from him today in relation to all the charges to prepare for sentencing and he's clearly raising defences to the sell or supply charge.  The issue, of course, is that that now presents a conflict for the duty lawyer service.  And so the normal processes is that, if the court is minded to adjourn, that it's adjourned off.  I can organise a voucher for some independent legal advice for Mr Douglas.

    [61] Lower court transcript (24 February 2021) 2.

13. On the appellant's next appearance on 24 March 2021, the appellant was represented by the duty lawyer who requested a further four week adjournment as there had been some sort of delay in getting a referral to a private lawyer.  The details of that delay are not specified in the transcript.

14. The appellant next appeared on 24 April 2021 before the Chief Magistrate.  The appellant was represented at this hearing by a lawyer on this appearance (subject to a grant of legal aid to provide legal advice).  At this appearance the duty lawyer refers to the appellant wishing to change his guilty plea on two charges.  The Chief Magistrate confirms that an application supported by an affidavit is required.

15. On the next appearance on 19 May 2021, the appellant was represented and the lawyer requested a further two week adjournment as he was waiting for Legal Aid to indicate whether they would fund the representation.

16. At the next appearance on 2 June 2021, the appellant was unrepresented and advised the court that Legal Aid funding had been refused.   However, the appellant was still indicating that he wished to change his plea.  The transcript reveals that although he was not represented, he had been provided with the paperwork that he needed to fill out to do this, and the appellant sought some time to complete the paperwork:

    ACCUSED: Well, I was waiting to hear back from Legal Aid about getting a – whether or not they're going to approve the grant for the lawyer.  But they haven't.  It was refused.  So I'm under instruction from the lawyer.  But - - -

    HER HONOUR: You've pleaded guilty.

    ACCUSED: I have pleaded guilty, but I – that's why I want to set aside my plea.  And I've got the paperwork here that's only just about – I just need a bit of time to fill it out because I was only instructed by the lawyer - - -

    HER HONOUR: Okay.

    ACCUSED: - - - about what I need to do.  I've got the affidavit and everything. So I can put forward the application

17. The appellant never made the application to change his guilty plea.  After the appearance on 2 June 2021, the appellant appeared on a further five occasions over a one year period where he expressly indicated he wanted to change his plea on the intent to sell or supply charge and was given further time to do this or to seek further legal advice.[62]  On other occasions the appellant was given further time to seek legal advice generally about his position (which by this point included additional charges).

    [62] 19 August 2021; 1 September 2021; 14 October 2021; 18 November 2021; 13 January 2022.

18. In total, the appellant appeared in the Magistrates Court a total of 23 further occasions (including the sentencing appearance and excluding two non‑appearances).  Of those 23 appearances, the appellant raised the issue of changing his plea on 10 occasions (and there is a reference to it on the sentencing appearance).  However, no written application was ever made to change his plea and no affidavit was filed in support.  The need for such a written application and affidavit was made clear to the appellant at his appearance before the Chief Magistrate on 21 April 2021.  Although the appellant did not end up receiving Legal Aid funding, and often appeared in person without a lawyer (or the duty lawyer), the appellant indicated to the court on 2 June 2021 that he had been provided with the relevant paperwork and information as to how to make an application to change his guilty plea.

19. Despite being provided with this paperwork and being advised as to how to fill it out, and being provided with a total of 10 adjournments to make the application, the appellant never made the application to change his plea.

20. A review of the relevant transcripts also reveals that on four occasions the appellant was given a 'last warning' where he was told by the presiding Magistrates that he had one last chance to make his application to change his plea otherwise he would be sentenced at the next hearing.[63]

    [63] 19 August 2021; 16 September 2021; 13 January 2022; 10 February 2022.

21. A review of the relevant transcripts also reveals that on four occasions the appellant asked to be sentenced on all charges (twice before he indicated his wish to change his plea,[64] and twice afterwards[65]).  However, in each case the presiding Magistrates gave the appellant further time to seek legal advice.

    [64] 5 October 2020 and 27 November 2020.

    [65] 12 August 2021 and 10 February 2022.

22. Finally on 6 July 2022 the appellant was sentenced to all three offences from 30 May 2020 (and some other charges).  During that sentencing the statement of material facts for the present charge was read.  The appellant indicated that he disagreed with the facts in that he was a user and not a dealer.  The original intent to change his plea was raised by the appellant, but the learned Magistrate noted that the appellant had not applied to change his plea.  In sentencing the appellant, the learned Magistrate proceeded on the basis that the charge involved the presumption of the intent to sell or supply, but there was no evidence of commercial dealing.  The appellant was sentenced to a 12 month community based order.  There was no immediate appeal from that sentence.  Rather, the appeal notice was only filed after the appellant breached the community based order.

23. The fact that the appellant has not filed any affidavit evidence in support of his appeal does not mean that an error law cannot be established.  But it does mean that I have no evidence from the appellant to consider in this regard, including his state of mind at the time he entered the plea, why he wished to later change his plea and/or any explanation as to why he did not make an application to change his plea at any time prior to sentencing.

24. Having considered all of the above matters, I am of the view that the appellant has not established that a miscarriage of justice has occurred.  Whilst it is the case that a guilty plea has been accepted to a serious charge on a first appearance from an unrepresented accused, the learned Magistrate clarified with the appellant whether he wanted to get legal advice, and clarified if he was pleading guilty to the charge after the appellant raised a possible issue about the nature of the substance.  Importantly, the appellant was then not sentenced on that date.  When the appellant later raised his wish to change his plea from guilty to not guilty, the appellant was given more than sufficient opportunity to make that application, including speaking to the duty lawyers.  However, the appellant chose not to.  Whilst the appellant was unrepresented on many of those appearances, he was provided with the relevant paperwork to change his plea but did not complete that paperwork and file it.  There must be an element of finality to the court processes, and the mere fact that the appellant was unrepresented, does not mean that he must be provided with unlimited opportunities to make applications.  The sentencing that occurred on 6 July 2022 was therefore the result not only of the plea of guilty, but also the result of the appellant not taking advantage of the numerous opportunities to apply to change his plea.

25. The requirement that the appellant make his application for leave to change his plea in writing and with an accompanying affidavit is in accordance with r 23 of the Criminal Procedure Rules 2005.  The appellant was provided with numerous opportunities to seek legal advice about his change of plea.  Whilst it may have been an option for any of the police prosecutors to suggest (or the magistrates to invite and permit) the appellant to make an oral application, I do not consider this outweighs the numerous opportunities over a lengthy period of time afforded to the appellant to apply to change his plea in circumstances where the appellant was provided with the relevant forms to complete and provided with information as to how to complete the forms.

Appellant could not be guilty of the offence on the admitted facts

1. As part of particular (i) the appellant raises an alternative manner in which he submits a miscarriage of justice has arisen in the acceptance of the guilty plea.  A key issue that arises in relation to this aspect of particular (i) is what constitutes the admitted facts in this case. 

2. The appellant submits that the admitted facts include those facts which in a sentencing hearing on a plea of guilty the prosecution puts which the defence does not contest or which the defence puts.[66]  That is, the appellant says regard should be had to what is in the Statement of Material Facts and what was said in the hearing on 26 June 2020.  In regard to the latter, the appellant relies on the decision of Simmonds J in Taylor v Rogers.[67]

   [66] Appellant's outline of submissions [20].

   [67] Taylor v Rogers [2013] WASC 391 [87].

3. The appellant says that the admitted facts in this matter are therefore:[68]

   i)The appellant was the owner of a bag in which was located 3.2 grams of methylamphetamine, a large quantity of new clipseal bags, electronic scales and $535 in cash.

   ii) When the white crystals were found by police, the appellant said it was salt.

   iii) It was established by the police initial testing equipment called 'TrueNarc' that the white crystals contained methylamphetamine.

   iv) The appellant submitted when he pleaded guilty that as far as he was aware at the time he was arrested the white crystals were salt.

   v) The appellant admitted when he pleaded guilty that the police had informed him at the time he was arrested that 'any trace' of methylamphetamine in the substance would render it being identified as 3.2 grams of methylamphetamine for the purposes of bringing a charge against him.

   [68] Appellant's outline of submissions [22].

4. The respondent, on the other hand, says that the admitted facts are those contained in the Statement of Material Facts.  This was not before the court on 26 June 2020 and was ultimately read to the court at the appellant's sentencing on 6 July 2022.  It (relevantly) provides as follows:

   At about 1.00 am on Saturday the 30^th of May 2020, the accused was observed by Police to be walking away from a Holden Commodore bearing registration 1GUY367 which was stopped in the middle of Morley Drive, Dianella.

   Police stopped and spoke with the accused to check on his welfare.  Police also spoke with the driver of the Commodore.  As a result of the conversation, a search was conducted of the vehicle.  A small green 'bum bag' was located on the front, passenger seat.  The accused claimed ownership of the bag.

   Located inside the 'bum bag' were two clip seal bags which contained a total of 3.2 grams of Methylamphetamine.  Also located in the 'bum bag' was a large quantity of new clip seal bags, electronic scale and $535 in cash. 

   …

   In explanation, the accused stated that the white crystal was salt.

   …

5. The respondent submits that the material facts are only those contained in the Statement of Material Facts, which means that they do not include items (iii) - (v) as put by the appellant.[69]  As the respondent correctly notes, the reference in (ii) is a reference to the accused's explanation and is not, in the statement of facts, an admission that the explanation is true.

   [69] Respondent's outline of submissions [15].

6. In dealing with aspects of particular (i), I consider it appropriate to first consider the Statement of Material Facts and determine whether, on the basis of the facts contained therein, the appellant could be guilty of the offence.  In my view the appellant could be, as facts regarding all essential elements of the offence are included.  In this regard, the present case is different from those where the Statement of Material Facts does not address all essential elements of the charge and therefore the accused could not be guilty.[70]

   [70] See, for example, Kadmos v Nesina [2013] WASC 253 [18].

7. Secondly, in Taylor v Rogers,[71] Simmonds J held that when considering what constitutes the admitted facts, it was appropriate to not only consider what was contained in the Statement of Material Facts, but also what was said by the accused during the sentencing.  I note that in that case, this exchange took place at the sentencing hearing, and therefore it was also open to the prosecution to hear and respond to these matters.  In the present case, there was no sentencing on 26 June 2020.  However, even adopting this approach, the information contained in (iii) of the appellant's list was not referred to at all during the hearing on 26 June 2020.  The matters referred to in items (iv) and (v) are a reference to the exchange between the appellant and the learned Magistrate.  However, they exclude the learned Magistrate questioning the appellant about these matters and informing the appellant that by pleading guilty he was admitting that he had a small quantity of methylamphetamine.  I refer to my reasons above in relation to what inferences can be drawn from the transcript alone as to the meaning of this exchange when read as a whole.  I also refer to my reasons in the below section headed 'Equivocal plea'.  For these reasons, I am not satisfied in all the circumstances that the appellant could not have been found guilty as a matter of law on the Statement of Material Facts and on the basis of the exchange on 26 June 2020.  I consider this case falls more properly to be considered in the context of the other categories identified in Snook [No 2].

Equivocal plea

[71] Taylor v Rogers [2013] WASC 391 [87].

1. As outlined above, the thrust of the appellant's case as particularised in the grounds of appeal and developed in the written submissions, appears to be more that the appellant's plea of guilty was equivocal and therefore it should not have been accepted by the learned Magistrate.  Notwithstanding the appellant clarifying in oral submissions that the appellant was contending that the appellant did not understand the charge or did not intend to plead guilty, or could not be found guilty on the admitted facts, I have, given the substance of the submissions, considered whether the plea of guilty was equivocal and whether that in itself could be a miscarriage of justice.

2. 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 whether the substance was salt or methylamphetamine and whether it has been tested, the learned Magistrate, 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'.[72]  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.

   [72] Lower court transcript (26 June 2020) 3.

3. In oral submissions the appellant also placed considerable emphasis on the use of the word 'had' by the learned Magistrate when questioning the appellant as to his plea.  The appellant submitted that the use of this word is ambiguous in these circumstances, and mixes the concepts of knowledge and possession and therefore is not a clear admission.  The position as put during oral submissions was:[73]

   It's quite possible that the appellant thought, 'Well, I did have it because the police told me I did.  What I had turned out to be methylamphetamine in a meaningful respect so that's what I had.'  This is not the way we think of it legally.  This is the way a person such as the appellant might interpret that.  'Did you have methylamphetamine on your person?'  'Well, turns out I did.  Yes.'  That's a different question.  That's not what you're admitting.

   [73] Appeal transcript 9 - 10.

4. 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.

5. The appellant also relies on the failure of the learned Magistrate to question the appellant as to the element of intent to sell or supply.  I do not consider that the failure of the learned Magistrate to question the appellant about this element is demonstrative of the plea being equivocal on the face of the transcript or that it was inappropriate to accept the plea in those circumstances.  The charge, including this element, was read to the appellant and the appellant did not ask any questions about this element.

6. I accept the fact that this was the appellant's first appearance on the charge, that the appellant did not have legal advice and the charge was serious and could lead to a term of imprisonment.  I also accept that it is not clear from the transcript that the appellant was aware that the charge could lead to a term of imprisonment.  In these circumstances, when the appellant raised the question about testing the substance and that he thought it was salt, and notwithstanding the appellant's answer to the questions of the learned Magistrate that followed, it may have been prudent for the learned Magistrate to suggest to the appellant that the matter be stood down to enable him to seek legal advice (noting that the appellant cannot be compelled to seek legal advice).  With the benefit of hindsight, the learned Magistrate may also have asked further questions of the appellant before accepting the plea of guilty.

7. I accept as a general proposition that in some circumstances accepting a guilty plea on a first appearance, where an accused is unrepresented, for an offence which may result in a sentence of imprisonment, may constitute a miscarriage of justice.

8. In the present case, however, the appellant was not sentenced on that day.  As set out above, the appellant was sentenced two years later, following an extended period of time in which the appellant was given numerous opportunities to apply to change his plea.  I refer to my reasons above in relation to the events which occurred in the period after 26 June 2020.  When all the circumstances are taken into account, I do not consider it can be said that the acceptance of the plea of guilty by the learned Magistrate on 26 June 2020 amounts to a miscarriage of justice.

Conclusion

1. Accordingly, for the reasons outlined above, I do not consider that the appellant has established the error of law in ground 1 – particular (i) of the amended appeal notice.

Particulars (ii) - (iv)

Summary of appellant's submissions

1. Particulars (ii) - (iv) allege an error of law by the learned Magistrate in failing to satisfy himself of the following matters at the time of accepting the guilty plea from the appellant:

   (a)the appellant had a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it (s 59(2)(a) of the CP Act);

   (b) the appellant understands the charge and the purpose of the proceedings (s 59(2)(b) of the CP Act); and

   (c)as the appellant was not represented, that the appellant understands the plea and its consequences (s 129(2)(b) of the CPA Act).

1. The appellant submits that the requirements of s 59(2)(a), s 59(2)(b) and s 129(2)(b) of the CP Act are couched in imperative terms and that it is therefore an error of law for a magistrate accepting a plea of guilty to do so in circumstances where there is non-compliance with these sections.[74]

   [74] Appellant's submissions, [39].

2. The appellant refers to the authority of Project Blue SkyInc v Australian Broadcasting Authority[75] in support of the proposition that the effect of a failure to comply with a legislative provision is a matter of statutory construction. 

   [75] Project Blue SkyInc v Australian Broadcasting Authority(1998) 194 CLR 355.

3. However, the appellant does not, in either written[76] or oral submissions[77] submit that the alleged errors of law necessarily have the effect that the acceptance of the guilty plea on 26 June 2020 was invalid or void. Further, the appellant does not, in written or oral submissions, go on to analyse the CP Act in order to ascertain the effect of a failure to comply with the legislative provisions in question. Finally, the appellant did not refer the court to any cases which have considered this question of construction in the context of these provisions.

   [76] Appellant's submissions [48].

   [77] Appeal transcript 20 - 22.

4. Rather, the appellant's written and oral submissions proceeded on the basis that that the learned Magistrate's alleged failure to satisfy himself of the matters referred to in the various subsections had the effect of the learned Magistrate entering a plea and conviction in circumstances where the appellant did not in fact understand the charge; did not in fact understand the plea or its consequences; the plea was equivocal and a miscarriage of justice occurred.[78]  That is, the appellant's submissions continued to proceed on the basis of the legal framework outlined by the Court of Appeal in Snook [No 2][79] and in particular the requirement for the appellant to establish that there had been a miscarriage of justice.

   [78] Appeal transcript 20 - 22; Appellant's written submissions [50] - [54].

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

5. Following the application to admit the evidence of SC Wright, specifically the evidence establishing that the appellant was provided with the prosecution notice prior to the first appearance, the appellant accepted that a miscarriage of justice could not be established in relation to particular (ii) and that particulars (iii) - (iv) were therefore the relevant particulars for the appeal.[80]

   [80] Appeal transcript 21.

6. The appellant submits that a review of the transcript reveals that the learned Magistrate did not satisfy himself that the appellant understood the charge and the purpose of the proceedings (s 59(2)(b) of the CP Act) and (not being represented) that the appellant understood the plea and its consequences (s 129(2)(b) of the CPA Act) for the following reasons:

   (a)it was the appellant's first appearance in court in relation to the charge;

   (b)the appellant was unrepresented;

   (c)there was no indication the appellant had advice about the charge from anyone other than the police who charged him and there was a positive indication that he required legal advice;

   (d)the discussion that took place between the learned Magistrate and the appellant indicated the appellant did not in fact understand the charge;

   (e)the discussion that took place between the learned Magistrate and the appellant indicated the appellant did not in fact understand the plea;

   (f)the charge is a serious offence and there is no indication the accused understood that his plea of guilt would make him liable to a real risk of imprisonment; and

   (g)the charge was not a simple offence, containing a relatively complex burden of proof in relation to the presumption in s 11 of the Misuse of Drugs Act 1981 (WA) and the fact that the presumption can be rebutted.[81]

Summary of respondent's submissions

[81] Relying on Price v Davies [2001] WASCA 81.

1. The respondent submitted that there is no authority for the proposition that the failure to comply with s 59(2)(b) and/or s 129(2)(b) of the CP Act results in a conviction being voidable. The respondent submitted that the decision of Powell v The State of Western Australia[82] is not authority for that proposition.

   [82] Powell v The State of Western Australia [2010] WASC 54.

2. Rather, the respondent submitted that where there is a failure to comply with s 59(2)(b) and s 129(2)(b) of the CP Act, sufficient to give rise to a miscarriage of justice, the appeal will fall to be decided in accordance with the well‑recognised grounds as set out in Snook [No 2].  In this regard, the respondent relied on the obiter reasons of Derrick J in Jackman v The Director of Public Prosecutions for Western Australia.[83]This case concerned an appeal against the sentence imposed on an accused for one offence of wilful and unlawful damage contrary to s 444(1)(b) of the Criminal Code and one offence of stealing contrary to s 378. The appeal concerned the failure by the learned Magistrate to reduce the sentences in consideration of the pleas of guilty entered by the accused, and to state the fact and extent of the discount. Prior to the hearing, Derrick J requested the parties file additional submissions concerning whether the procedure followed by the learned Magistrate in recording a conviction following a plea of guilty was consistent with the requirements of s 59(2) and s 59(3) of the CP Act. In the context of considering whether the failure of the Magistrate to read the charges to an accused as required by s 59(3) of the CP Act could constitute a miscarriage of justice, Derrick J noted as follows:[84]

   … nothing I have said [regarding a potential failure to comply with s 59 CPA] should be taken as indicating that a failure to adopt such a course can never result in a miscarriage of justice justifying the setting aside of a plea of guilty.  For example, there may be cases in which such a failure will, either by itself or in combination with other circumstances, justify the conclusion that the accused did not understand the charge to which they were asked to plead and therefore did not intend to admit guilt with the result that to allow the plea to stand would constitute a miscarriage of justice.

   [83] Jackman v The Director of Public Prosecutions for Western Australia [2023] WASC 63 [43].

   [84] Jackman v The Director of Public Prosecutions for Western Australia [2023] WASC 63 [43].

3. Further, the respondent submitted that there was no evidentiary basis for suggesting that the learned Magistrate was not satisfied of the matters in s 59 and s 129 of the CP Act.

Disposition

1. Although the appellant's written submissions raised the prospect of a submission that the failure to comply with the requirements of s 59(2)(b) and s 129(2)(b) of the CP Act may result in the conviction recorded being void, the appellant's written and oral submissions did not proceed on this basis.

2. Rather, the appellant's submission proceeded on the basis that the matters referred to in s 59(2)(b) and s 129(2)(b) of the CP Act were procedural matters, and the failure to comply with these procedural matters resulted in a miscarriage of justice. During oral submissions, the appellant submitted that because of that fact, this was not a case where it was necessary to determine what the effect of non‑compliance with these sections would be if there was not such a 'significant result'.[85]

   [85] Appeal transcript 21.

3. The respondent, likewise, did not engage in such an analysis.  Rather, the respondent noted that there are no authorities in support of the proposition that the failure to comply with these sections results in the conviction recorded being void.  In particular, the respondent noted that the Court of Appeal did not consider or adopt this approach in Snook [No 2] and nor did the obiter comments of Derrick J in Jackman.[86]

   [86] Jackman v The Director of Public Prosecutions for Western Australia [2023] WASC 63 [43].

4. The appellant also referred to the decision of Powell.[87] This case concerned an appeal against the sentence imposed on an accused for the offence of assaulting a public officer while she was performing a function of her office, contrary to s 318(1)(d) of the Criminal Code (WA). As in the present case, the accused was unrepresented. One of the grounds of appeal alleged that the learned Magistrate erred in law by neither offering nor affording the accused the opportunity to seek legal advice or representation, in view of the seriousness of the offence and the fact that he was considering imposing a sentence of imprisonment and in view of the accused stating that he was suffering from a mental illness.

   [87] Powell v The State of Western Australia [2010] WASC 54.

5. It was accepted in the appeal that the learned Magistrate had not made any inquiry of the appellant in order to enable him to satisfy himself of the requirements in s 59(2)(a) and s 59(2)(b) of the CP Act. In considering the ground, Simmonds J also referred to the well‑established common law principles concerning how a sentencing court should deal with an unrepresented accused as detailed in Wood v Marsh[88] and Cooling v Steel.[89] Simmonds J held that the presiding Magistrate had erred as alleged when sentencing the accused and subsequently went on to re-sentence the accused. However, there was no discussion in that case of whether a failure to comply with s 59(2)(a) and/or s 59(2)(b) of the CP Act would result in the conviction recorded following the plea of guilty being void. This is unsurprising given the appeal was an appeal against sentence only. Therefore, I do not consider that this case materially advances the appellant's appeal.

   [88] Wood v Marsh (2003) 139 A Crim R 475 [45].

   [89] Cooling v Steel (1971) 2 SASR 249, 250.

6. That there have been no authorities which consider the proposition that a failure to comply with s 59(2)(b) and s 129(2) (b) of the CP Act result in the conviction being void does not, of course, mean that the proposition is not correct. However, given the manner in which the appellant developed his submissions in relation to these particulars, and the lack of any submissions from the parties as to the appropriate construction of the CP Act in the manner which would be required if such a proposition were to be properly considered, I do not consider it appropriate to embark on such a consideration in this appeal.

7. Accordingly, I have considered these particulars in the framework of first, whether it can be said that the learned Magistrate did fail to satisfy himself of the relevant matters in s 59(2)(b) and s 129(2)(b) of the CP Act, and second, whether this (in the context of all of the circumstances) establishes that a miscarriage of justice has occurred for the purposes of the approach in Snook [No 2].  Such an approach appears to be consistent with the approach referred to by Derrick J in Jackman[90] (albeit those reasons are obiter and there was no express discussion of the application of the principles in Project Blue SkyInc v Australian Broadcasting Authority[91]).

   [90] Jackman v The Director of Public Prosecutions for Western Australia [2023] WASC 63.

   [91] Project Blue SkyInc v Australian Broadcasting Authority(1998) 194 CLR 355.

8. Turning to the requirements of s 59(2)(b) and s 129(2)(b) of the CP Act, I first note that there is no requirement that the learned Magistrate expressly refer in his reasons to the fact that he had considered and taken into account these requirements.[92]

   [92] Jackman v The Director of Public Prosecutions for Western Australia [2023] WASC 63 [33].

9. The appellant submits that in all the circumstances it should be inferred that the learned Magistrate did not turn his mind to the following matters as required by s 59(2)(b) and s 129(2)(b):

   (a) that the appellant understood the charge and the purpose of the proceedings; and

   (b)as the appellant was not represented, that the appellant understood the plea and its consequences.

10. The appellant's submissions in this regard were consistent with the submissions in relation to particular (i).  It is not controversial that the appearance on 26 June 2020 was the appellant's first appearance on the relevant charges and that he was unrepresented.  Against this backdrop, the appellant submits that when the transcript is reviewed, and the exchange examined, it is clear that the appellant did not understand the charge or the plea.  For the reasons set out above in relation to particular (i), I do not consider that it can be said from the transcript alone (and in the absence of any affidavit evidence to this effect from the appellant), that the appellant did not understand the charge or the plea and its consequences.

11. Even if I am wrong in relation to whether it can be said that the learned Magistrate erred in not satisfying himself of each of these matters, for the reasons set out above in relation to particular (i), I do not consider that in all the circumstances any such error by the learned Magistrate has resulted in a miscarriage of justice in the circumstances of this case.

Substantial miscarriage of justice - s 14(2)

1. Even if I am wrong in relation to whether the appellant has established that an error of law arose in the learned Magistrate accepting the guilty plea on 26 June 2020, I do not consider that a substantial miscarriage of justice has occurred in the present case and therefore I would, in any event, dismiss the appeal pursuant to s 14(2) of the CA Act. In reaching this conclusion I have had regard to the following matters.

1. First, for the reasons outlined above, even if the learned Magistrate erred in accepting the guilty plea, the appellant was not sentenced on that day, and the appellant had numerous opportunities to apply to change his plea of guilty over the intervening two years, and he did not.

2. Secondly, the prosecution case, as revealed by the Statement of Material Facts and the prosecution brief (including the body‑worn camera footage), reveals a strong case and does not obviously indicate any substantial miscarriage of justice.  In this regard, as there was no trial, I accept that the evidence has not been tested and does not include any evidence that the appellant may have wished to call at trial.  I have therefore reviewed these documents from the perspective of identifying whether it could be said that there are obvious weaknesses or other matters raised in the prosecution case of a type which may found a conclusion that there has been a substantial miscarriage of justice.  I have concluded that they do not, and no specific submissions in this regard have been made.

3. Thirdly, the fact that the appellant has not filed any affidavit evidence in support of the appeal does not mean that I must find that no substantial miscarriage of justice has occurred.  However, the lack of any affidavit evidence from the appellant means that there are no factors which the appellant raises (over and above what the appellant says can be seen from the wording of the transcript) which I can take into account in considering the proviso.

4. Fourthly, the respondent relies on the fact that the substance the subject of these charges has been destroyed in accordance with the orders made on 6 July 2022 as a reason why there is no substantial miscarriage of justice.  The respondent submits that the appellant (or his legal representatives) did not take any steps to ask the police not to destroy the substance, pending an appeal decision.  The respondent submits that responsibility for this lies with the appellant.  The appellant accepts that the police would not have known not to destroy the substance at the time they were destroyed.  However, the appellant says that the appellant was represented by the duty lawyer service on 11 October 2022 which is distinct from the legal service provided by way of a grant of Legal Aid funding, which was provided on 28 October 2022 in this case, being after the date of the destruction of the substance.

5. Ultimately, I do not consider the destruction of the substance is a factor which is determinative to any significant extent as to my conclusion that there is no substantial miscarriage of justice. The substance was lawfully destroyed by the police. However, it is not the destruction alone which the respondent relies upon. Rather, it is the fact that the police did not conduct full laboratory testing of the substance and therefore the prosecution is not able to rely on a certificate issued under s 38 of the Misuse of Drugs Act 1981 (WA). The affidavit evidence of SC Wright explains that this is police policy in a case such as this (being a guilty plea and the matter is below the District Court threshold). The mere fact that there is no certificate does not prevent the police from attempting to prove their case using the TruNarc test results, although I accept that this will be more difficult. However, the policy decision not to test the substance in cases such as this is not one over which the appellant had any control. Whilst I make no criticism of this policy, I am of the view that it is not a factor which can fairly lead to a conclusion that there has not been a substantial miscarriage of justice.

Extension of time

1. Returning to the question of the extension of time, the circumstances of the present appeal are unusual, in that an appeal only appears to have been considered after the court hearing on 11 October 2022 where the appellant came before the Armadale Magistrates Court in relation to an offence which breached the community based order imposed in relation to the offence the subject of this appeal.  During this appearance, the appellant was represented by a Legal Aid lawyer who appeared to propose that the learned Magistrate cancel the community based order and permit an application to withdraw the guilty plea to be made.  However, the learned Magistrate declined to adopt this approach and instead granted the appellant bail so as to enable a decision to be made as to whether an application for leave to appeal the original conviction should be lodged.  The learned Magistrate indicated that he had listened to the tape of the appearance on 26 June 2020 when the guilty plea was made and recommended that Legal Aid obtain a copy of the transcript and review it.  It is fair to say that the learned Magistrate encouraged Legal Aid to review the transcript with a view to considering whether an appeal in relation to the original conviction was appropriate.

2. The appellant submits that the reason an appeal was only lodged after this later appearance is because this is the first time a later Magistrate has reviewed the tapes from the appearance on 26 June 2020 when the guilty plea was entered.  The appellant submits that it is only at this point that someone listened to the recording or reviewed the transcript of the first appearance and an appeal was therefore considered.

3. However, there is no affidavit evidence filed by the appellant himself explaining the delay in relation to the appeal.  The only affidavit evidence is by the lawyer for the appellant and that deals with the steps taken since 11 October 2022.

4. In terms of the merits of the appellant's case, for the reasons outlined above I have ultimately concluded that I do not consider any miscarriage of justice has occurred.

5. I have also considered the question of the destruction of the substance in the context of whether there has been a substantial miscarriage of justice in this case. For the reasons previously detailed, I accept that the substance was lawfully destroyed, and on the basis of the evidence of SC Wright, no warning or notice was given to the police prosecution that the appellant may appeal. Had any such notice been given, SC Wright would have taken steps to ensure the substance was not destroyed. I accept that accordingly, the prosecution may suffer prejudice if the extension of time is granted and the appeal allowed. However, the cause of that prejudice is not merely the delay in appealing, it is also the policy of the Police that substances seized as drugs following a TruNarc test are not subject to formal drug analysis and no certificate issued under s 38 of the Misuse of Drugs Act 1981 (WA) is obtained in a situation where the amount of drugs are over the presumptive amount for intent to sell or supply, but under the jurisdictional threshold for the District Court and a plea of guilty is entered. Accordingly, I accept that if an extension of time is granted, and the appeal were successful, it would be more difficult for the prosecution to prove their case on the basis of the TruNarc results only and therefore the prosecution will suffer prejudice. However, as I outlined earlier in these reasons, whilst making no criticism of the police policy in this regard, it is not a decision over which the appellant had any control.

Conclusion

1. In all the circumstances, despite the delay being gross and the lack of detailed affidavit evidence in support of the application for an extension of time, in light of the unusual circumstances surrounding the appearance in the Armadale Magistrates Court on 11 October 2022, and the various matters raised in the appeal, I will grant the appellant an extension of time within which to appeal, and grant the appellant leave to appeal.  However, for the reasons outlined above, I do not consider that the appellant has established an error of law on any of the bases particularised.  Even if I am wrong in that respect, I am satisfied that there is no substantial miscarriage of justice and I would, in any event, dismiss the appeal.

2. I therefore make the following orders:

   1.The appellant is granted an extension of time within which to appeal.

   2.The appellant is granted leave to appeal.

   3.The appeal is dismissed.

Annexure A

Date	Summary of Relevant Aspects of Appearance	Representation/ Custody	Outcome
26/06/20	First appearance. Appellant pleaded guilty to charges PE 26325/2020 and PE 26326/2020 (possession of drug paraphernalia and possession of a prohibited drug with intent to sell or supply) and not guilty to charge PE 26324/2020 (possession of stolen or unlawfully obtained property)	Unrepresented and on bail	Adjourned to 5/10/20 for trial and sentencing
5/10/20	Trial date for the charge of unlawful possession of property (cash). After an exchange between the Magistrate and the accused about the possibility of the accused pleading guilty to the charge and have all matters dealt with that day, the matters were adjourned to enable the appellant to gather material necessary for his defence.	Unrepresented and in custody for other charges	Adjourned for mention only to 16/10/20
16/10/20	Charges adjourned to enable the appellant to gather material necessary for his defence of the unlawful possession of property (cash) charge.	Unrepresented and in custody for other charges	Adjourned for mention only to 30/10/20
30/10/20	Charges adjourned to enable the appellant to gather material necessary/take steps for his defence of the unlawful possession of property (cash) charge.	Unrepresented and in custody for other charges	Adjourned for mention only to 27/11/20
27/11/20	Appellant indicated he had been unable to progress taking steps necessary for his defence of the unlawful possession of property (cash) charge and indicated that he would like to change his plea to guilty as he had been unable to obtain the paperwork needed from the bank. After an exchange between the appellant and the Magistrate, the Magistrate indicated that she was not comfortable proceeding when he appeared to be not entirely sure what to do.  Adjourned to enable appellant to speak to duty lawyer.	Unrepresented and in custody for other charges	Adjourned for mention only to 1/12/20
1/12/20	Appellant had been unable to speak to duty lawyer.  Appellant indicated that he would find out on that day whether he was going to be granted parole and appellant was hoping to get legal advice once out of prison.  Adjourned to enable appellant to seek legal advice.	Unrepresented and in custody for other charges	Adjourned for mention only to 11/01/21
11/01/21	Duty counsel advised the court that he had taken a legal aid application form from Mr Douglas this morning. Duty counsel indicated the appellant wished to change his plea to guilty for the unlawful possession of property (cash) charge. Matter adjourned to enable a pre-sentence report to be prepared.	A. Wadham (duty counsel)	Adjourned for sentence to 24/02/21
24/02/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: HALLIDAY, MS: Yes. Look, I've seen the pre-sentence report. I appear as duty lawyer, your Honour. I'm only here to request an adjournment on this matter. The situation is Mr Douglas has been represented on various occasions by different duty lawyers and I think, on some occasions, he has represented himself. I've taken instructions from him today in relation to all the charges to prepare for sentencing and he's clearly raising defences to the sell or supply charge. The issue, of course, is that that now presents a conflict for the duty lawyer service. And so the normal processes is that, if the court is minded to adjourn, that it's adjourned off. I can organise a voucher for some independent legal advice for Mr Douglas. So if – we could have four weeks, your Honour. HIS honour:  Yes. Certainly. No.  There's no difficulty.	C Halliday (duty counsel)	Adjourned for mention only to 24/03/21
24/03/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: SIMS, MS: Thank you, your Honour. Ms Sims appearing as duty counsel for Mr Douglas. There has been a bit of a delay as far as he was meant to have a referral for a private prac for some advice regarding his change of plea. I have spoken to the office and – requesting a four-week adjournment so that he can have that advice, your Honour. HER HONOUR: He has pleaded guilty. So he's seeking to change his plea now. SIMS, MS: Yes, your Honour. Possibly, at this stage, he hasn't had the advice that he needs.	M Sims (duty counsel)	Adjourned for sentence to 21/04/21
21/04/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: ....., MR: May it please, yes, I do appear. Your Honour, subject to a grant of legal aid in terms of just providing some advice to Mr Douglas, in the circumstances my understanding is Mr Douglas was seeking to set aside his pleas, because he has entered pleas of guilty in relation to the charges. HIS HONOUR: Yes. ....., MR: And two of the charges being 26324 and 26326, they being the possession with intent to sell or supply and the unlawfully obtained property. HIS HONOUR: Yes. ....., MR: Those are the two charges we would seek to set aside the pleas. So I'm not sure if your Honour requires that application with affidavit? HIS HONOUR: Let's see. So he pleaded guilty on at least some of them back on 11 January when he was represented by duty counsel. Then when he came back for sentence on 24 February, an issue was raised re a possible defence. Duty lawyer then had a conflict and then it's rolled over again for him to get the advice with respect to the change of plea. So it looks like it was identified as a problem when it came back from the pre-sentence report. ....., MR: Yes. HIS HONOUR: But I think then obviously the duty lawyer service had a conflict. ....., MR: Yes. HIS HONOUR: And it has been put off. So obviously there will need to be an application and an affidavit of support. ....., MR: Yes. If your Honour requires the application affidavit, then I would obviously ask that the matter be adjourned so that – because he doesn't have funding, in essence, to do that at this point in time. … HIS HONOUR: I will note it for mention to seek the extension of aid to file application to set aside – to change plea.	Unknown lawyer	Adjourned for mention only to 19/05/21
19/05/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: McGRATH, MR: May it please. Yes, I appear for Mr Douglas, your Honour. On the previous occasion this matter was adjourned because there may be an application set aside – I'm still waiting for Legal Aid to get back to me as to whether or not they will actually fund this. In the circumstances, I just ask for a further adjournment. Perhaps two weeks (indistinct)	McGrath	Adjourned for mention to 2/06/21
2/06/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: ACCUSED: Well, I was waiting to hear back from Legal Aid about getting a – whether or not they're going to approve the grant for the lawyer. But they haven't. It was refused. So I'm under instruction from the lawyer. But - - - HER HONOUR: You've pleaded guilty. ACCUSED: I have pleaded guilty, but I – that's why I want to set aside my plea. And I've got the paperwork here that's only just about – I just need a bit of time to fill it out because I was only instructed by the lawyer - - - HER HONOUR: Okay. ACCUSED: - - - about what I need to do. I've got the affidavit and everything. So I can put forward the application. HER HONOUR: Right. You need to come back on 14 July…	Unrepresented	Adjourned for mention to set 14/07/21
14/07/21	No appearance - arrest warrant to issue	No appearance	Arrest warrant issued
15/07/21	New charges were read to the appellant and the matters were remanded to enable the appellant to obtain legal advice.	Unrepresented	Adjourned for mention to 12/8/21
12/08/21	Adjourned for 1 week to enable the appellant to obtain legal advice from the duty lawyer. Transcript reveals the following exchange in relation to the charge the subject of the appeal: HER HONOUR: Mr Douglas, what are you here for? So you've pleaded guilty for three charges and then you've got a large number of other charges for mention only or legal advice. Why are you here today? ACCUSED: To enter pleas. HER HONOUR: Do you have a lawyer? ACCUSED: No. HER HONOUR: Sergeant, was the possession with intent to sell or supply indictable? O'LEARY, MR: Just checking that amount. ACCUSED: I did have legal representation from Stephen. It was Legal Aid grant, but he was only able to represent me on one – once. He tried to apply for the grant again but he was not back due to - - - HER HONOUR: Funding issues? ACCUSED: Yes. It was – wasn't circumstances of mitigation or something like this. O'LEARY, MR: No. It's not. 3.2 grams. … HER HONOUR: Okay. So you're at risk of imprisonment. Can I make a suggestion that you see the duty lawyer? So you may not be able to get a full grant of aid but the duty lawyer can assist you and I think that's probably in your best interest.	Unrepresented	Adjourned for mention to 19/08/21
19/08/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: HITCHCOCK, MS: May it please the court, Ms Hitchcock. I appear as duty counsel for Mr Douglas. I'm seeking to remand the matter for four weeks so that he can receive legal advice. … HER HONOUR: At – I think that part of the difficulty is that it obviously Mr Douglas was convicted at that time, and, really, under the Sentencing Act, he should have been sentenced well before that. So - - - CUTLER, MR: Yes. HER HONOUR: So I think we need at least an indication. Are the pleas - - - HITCHCOCK, MS: Yes, I do have indicated - - - HER HONOUR: Is there still likely to be an application to set aside those pleas of guilty? ACCUSED: Yes, there is. Yes. HITCHCOCK, MS: Yes (indistinct) ACCUSED: Just because he was only able to represent me once with the – on the grant I got for a lawyer, and he represented me on one matter and then tried to reapply for the grant and was knocked back. So and I'm sort of left - - - … HER HONOUR: All right. So I'm going to remand all matters to 16 September, but I've made a note that if there is to be an application to set aside those three pleas of guilty, that must be lodged prior to that next date or the matters will proceed to sentencing, and the other matters are for pleas on that date.	R Hitchcock (duty counsel)	Adjourned for plea 16/09/21
1/09/21	Appellant brought before court for breach of curfew.  The prosecution opposed bail - which was dismissed. Transcript also reveals the following exchange in relation to the charge the subject of the appeal: HIS HONOUR:  …I assume you're represented on the other charge? ACCUSED: No. I'm not. I've had to make phone calls to get an appointment for legal advice. HIS HONOUR: Right. ACCUSED: Through – that's why I was – last time, I was saying (indistinct) that's what they gave me. And because I'm still waiting to stand aside my plea for the sell and supply charge. HIS HONOUR: Right. Okay. ACCUSED: So there's – I intend to stand aside that plea. HIS HONOUR: Yes. You understand you've got the option to speak to a duty lawyer today? ACCUSED: Yes. But all they did last time was gave me a number to call to book an appointment, to schedule for an appointment. … HIS HONOUR: Okay. Well, I think for today's purposes, it may well be worth your while having a five minute discussion with someone in custody. Bail is opposed in this matter. I'm not prejudging what I would be going to do with your matter, but I think it would be in your interest to have a discussion with the duty lawyer. … LOGAN, MS: Thank you, your Honour. I appear as duty counsel. My understanding is that Mr Douglas appeared earlier in the list and your Honour wished for him to speak to duty counsel; is that correct? … LOGAN, MS: Yes, your Honour. I can indicate that, whilst Mr Douglas has entered a plea of guilty previously to that possession with intent charge, he tells me that on the last occasion he spoke to one of the duty lawyers and they indicated, not only through advice but Mr Douglas' instructions, that it's likely a set-aside application will need to be made. HIS HONOUR: He did mention that. LOGAN, MS: Yes. So he has been provided some details of how to book an appointment with one of our counsel in the office to be able to have that advice. Unfortunately, that hasn't yet occurred yet. But that's essentially one of the reasons why things haven't progressed in those matters. And he tells me that if he were to be having bail reinstated today, he certainly will make that application for an appointment very, very soon.	E Logan (duty lawyer)	N/A
16/09/21	Transcript also reveals the following exchange in relation to the charge the subject of the appeal: HIS HONOUR: Just a moment, I'm just trying to work out why you're here. Okay. So Mr Douglas, there's a fair number of charges and at least one or two of them look to be quite serious, but do you have a lawyer, normally? ACCUSED: No, your Honour. I had a duty lawyer, but they said – last time I was here, they gave me (indistinct) card to get a number on it to call to have a legal advice appointment. HIS HONOUR: Did you do that? ACCUSED: No, I have not. HIS HONOUR: Why not? ACCUSED: I've just been occupied with my son and my partner, sorting stuff out with child protection. HIS HONOUR: All right. Okay. Well, I will give you a little bit more time to do that, because you should get some legal advice and ideally some representation in court - - - ACCUSED: Yes. Yes. HIS HONOUR: - - - Because of the number of, and seriousness of some of these charges. All right. But don't come along next time and tell the court the same thing, otherwise you won't get any understanding, I'm afraid. ACCUSED: I thought it was going to be that way already, today, so I appreciate you - - - HIS HONOUR: 14 October, you've got to be in a position to enter pleas to the charges that you haven't pleaded to.	Unrepresented	Adjourned for mention to 14/10/21
14/10/21	The appellant was represented but unwell and did not attend court.  Transcript reveals the following exchange in relation to the charge the subject of the appeal: McGRATH, MR: Yes, your Honour. In the circumstances – this appears to be a long-running issue. A couple of the charges, which is the reason why I've been assisting him, pursuant to Legal Aid, a grant, is that it's – two of the pleas he has entered may need to be set aside and so I would need to assist him in making that application. Initially Legal Aid knocked it back, and he basically didn't know what to do, if I could say it, and how to proceed in setting aside an application (indistinct) need an affidavit, etcetera. So that's the main issue. Once those matters can be determined then it could be dealt with. … McGRATH, MR: That's the issue there. He has pleaded guilty, and now he's saying, 'Well, actually, I didn't – I didn't really want to.'	McGrath	Adjourned for mention only to 18/11/21
13/11/21	Appellant brought before the court for breach of bail and on two new charges.	C Kilby (duty counsel)	Adjourned for mention only to 18/11/21
18/11/21	Transcript reveals the following exchange in relation to the charge the subject of the appeal: McGRATH, MR: May it please. It's McGrath. I appear – I appear as a friend of the court, really, your Honour. There has been an issue in relation to Legal Aid as to whether or not they will extend to assist him. Mainly in relation to a change of plea application for the possession and intent to sell or supply. It also doesn't press charges. … HER HONOUR: Might – the easiest way to do it might be this. On the charges – there's three charges he has pleaded guilty to and they're the ones that you're looking at wanting to change the plea, are you? McGRATH, MR: Yes. Yes. That's the issue. So the…	McGrath (as friend of the court)	Adjourned for mention only to 13/01/22 (appellant also place on the General Intervention Program)
13/01/22	Transcript reveals the following exchange in relation to the charge the subject of the appeal: HIS HONOUR: What are you going to do with those? ACCUSED: I did have a lawyer representing me. I was approved to Legal Aid, your Honour. But I've just called him and he has said he has been moved to another firm. So I'm not sure what the go is with him representing me. HIS HONOUR: Okay. So who was that? Who was that? ACCUSED: Steven McGrath. HIS HONOUR: Okay. ACCUSED: And I'm meant to be doing an application to stand aside my plea or set aside my plea - - - HIS HONOUR: All right. ACCUSED: - - - for the – the pleas I entered when I first was – went to court over them charges … HIS HONOUR: - - - I guess my question is, if you're going to set aside your pleas of guilty or try to – and that's not an easy thing. ACCUSED: Yes, I know. I did say that to my - - - HIS HONOUR: Were you represented when you pleaded guilty? ACCUSED: No, I wasn't, your Honour. But yes, I did say that to the lawyer, that obviously I don't know what I need to do, so that can take some time. HIS HONOUR: It says Andrew Waddam was here representing you when you pleaded guilty. ACCUSED: I definitely didn't have a lawyer representing me, no. I pleaded guilty. HIS HONOUR: Okay. All right. And you've been talking about – potentially, I think – setting aside these charges - - - ACCUSED: Yes, for quite some time. HIS HONOUR: Yes. … HIS HONOUR: If you're going to set aside the pleas of guilty, you need to do it soon. … HIS HONOUR: You need to enter pleas with respect to the balance and if you don't make your application to set aside by the next date, you will be sentenced. ACCUSED: Yes. Okay, your Honour. Thank you. … HIS HONOUR: …I've made a note that you want to set aside your pleas of guilty. If you don't do that, you will be sentenced on the next occasion. ACCUSED: Yes.	Unrepresented	Adjourned to 10/02/22
10/02/22	Transcript reveals the following exchange in relation to the charge the subject of the appeal: RIMMER, MS: Thank you, your Honour. Appearing as duty counsel for Mr Douglas. He has numerous charges before the court. Previously, he did have a grant of aid to Mr McGrath, and I'm unsure of what – why it wasn't transferred. In any event, what has happened is that the grant of aid has now been cancelled, your Honour. Just asking for a four-week adjournment to revisit the grant of aid. Thank you. I do understand that some of the charges are getting quite old now. HIS HONOUR: Sorry, the four weeks, what's it going to do? RIMMER, MS: The four weeks to look at reopening the grant of aid, your Honour. HIS HONOUR: If that's unsuccessful, what's he going to do? ACCUSED: I don't understand this, your Honour, sorry, I don't understand why it has been cancelled, but obviously, that should have been transferred, but I'm – yes. HIS HONOUR: Put that aside. ACCUSED: Yes. HIS HONOUR: Reinstated or not, what are you going to do about these charges in four weeks' time? ACCUSED: Enter pleas, if – if all else fails. That's what I was intending on today, because I've been told a couple of times by Magistrates that, you know, it need to be – application needs to be set by this date, this next - - - HIS HONOUR: I would only allow a four week adjournment if - - - RIMMER, MS: Thank you. HIS HONOUR: - - - upon your return, you enter plea of guilty or not guilty. ACCUSED: Yes, absolutely. Absolutely, your Honour.	K Rimmer (as duty counsel)	Adjourned to 8/03/22
08/03/22	Matters adjourned to 22 March 2022 and bail corrected	Unrepresented	Adjourned to 22/03/22
22/03/22	No appearance by appellant - arrest warrant issued.	No appearance
6/07/22	Appellant sentenced.  Transcript reveals the following exchange in relation to the charge the subject of the appeal: ACCUSED: There is no lawyer. No, they're useless. There is no use for me. Any duty lawyer just tells me they can't represent me because I'm going to be pleading not guilty to some of the charges and obviously there's a – they are mitigating circumstances. HER HONOUR: Okay. Well, what I'm going to do is go through these charges with you and take pleas to the ones you haven't already entered pleas on, okay? ACCUSED: Cool. HER HONOUR: So you previously entered a plea of not guilty to possess prohibited drug on 12 August 2020, methamphetamine at Northbridge; do you remember that? ACCUSED: Yes. HER HONOUR: Okay. Then you've pled guilty to possess stolen and unlawfully obtained property from 30 March 2020, a drug paraphernalia from 30 March 2020, and the possess prohibited drug with intent to sell or supply from 30 March 2020. ACCUSED: Yes. They were the ones I was trying to get my pleas changed, but - - - HER HONOUR: Well, you obviously haven't turned up to have that. ACCUSED: But I haven't done that paperwork. I don't know how to do that and so I've just – I don't know what to do with that. HER HONOUR:  Okay.  So then you haven't entered pleas for the rest of the charges, so I will now read those charges and take your pleas. … CUTLER, MR: I will start with the possess the methylamphetamine with intent to sell or supply. That's probably the most serious. 1 am on Saturday, 30 May 2020, police observed the accused walking away from a motor vehicle which was stopped in the middle of Morley Drive in Dianella. Police stopped and spoke to the accused to check on his welfare. They also spoke with the driver of the Commodore. As a result of the conversation, a search was conducted of the vehicle. A small green bumbag was located on the front passenger seat. The accused claimed ownership of this bag. Inside that bag were two clipseal bags containing a total of 3.2 grams of methylamphetamine. Also inside were a large quantity of new clipseal bags, electronic scales and $535 in cash. Those items were seized. Explanation at the time, the accused said that the white crystals was salt, which was determined not to be the case. That's that offence, your Honour. That was 26326. In no particular - - - In relation to the submission by the police prosecutor that a term of imprisonment was appropriate the transcript records the following exchange: HER HONOUR:  Okay.  Mr Douglas, what did you want to say about that? ACCUSED: I would disagree with it completely obviously. That's why I was trying to get my plea changed was for them charges because obviously I'm not guilty of sell and supply. I'm a drug user. I'm not someone who goes out dealing (indistinct) you know, and the $535 wasn't stolen or unlawfully obtained. I can prove that. That was a [centrelink] payment that I had coming into my account. But obviously I've already pled guilty, and it has been going on so long the lawyer could only help me so much before he has joined another firm or something and then I was just, sort of, left in the dark to deal with it myself, so I'm – yes. The transcript also records the following sentencing remarks: HER HONOUR: The matters have been on foot – well, most of them have been on foot for quite some time. Some of the offences date back to May 2020, offences in 2021, and it's only the more recent one where you were arrested for breaching your bail, that's 2022. They're not pleas at the earliest opportunity, although you did enter an early plea of guilty to the possess with intent to sell or supply and the possess stolen or unlawfully obtained property. ACCUSED: Yes. I entered pleas to guilty for that straight away and then obviously I was - - - HER HONOUR: And then you wanted to change that plea and so - - - ACCUSED: I want to change because I wasn't actually guilty of that, so – yes. HER HONOUR: Yes. The matters have been on foot for some time while that has been happening. That application hasn't been properly advanced, so, in any event, I would still give you discount under section 9AA of 20 per cent because your pleas make a significant difference to the court in the time spent in trials and things like that, and it shows some remorse. As I said, with the exception of the possess with intent to sell or supply, I'm going to deal with you by way of fines, and I will deal with those first. The sentencing Magistrate then proceeded to sentence the appellant to a 12 month community based order with program and supervision requirements.	Unrepresented	Sentenced
11/10/22	At this hearing, the appellant appeared before the Armadale Magistrates Court on a separate charge of stealing a motor vehicle.  If found guilty, this offence would breach the community based order which the appellant was sentenced to on 6 July 2022.  The Magistrate found there were exceptional circumstances and granted the appellant bail. During this hearing, the Magistrate made the following comments relevant to the charge the subject of the appeal: HUMPHREY, MR: It appears that during that, it was seen as possess with intent to sell/supply. However, during it, denied any sort of sell/supply during the sentence. And the magistrate didn't indicate that there was no indicia of dealing. … HIS HONOUR: Can I say, I listened to the tapes in relation to when the original plea was entered before Magistrate Gluestein. I have to say, without criticism of his Honour, an excellent magistrate, it's a matter where I think if your office hasn't, you probably would be wise to get the transcript. For what it's worth, I turn my mind to where this matter goes. Certainly, my strong provisional view, wishing to be helpful as best I can, I think that a lot has happened since that plea was entered. Unusually, this is where Mr Douglas finds himself in a schedule 2 position, correct? COLGAN, MS: Yes. HIS HONOUR: Can I tell you what I had in mind? I turn my mind – myself to the way to try and deal with this issue. When I listened to the tape originally, I have to say it was, in my view, was concerning in terms of the way in which the matter went. What I had in mind in order to try and desist was how it could be resolved. I don't think there's any way other than an appeal. … HIS HONOUR: The challenge that I have is, and I don't in any way want to prejudice Mr Douglas, but to do it properly, what I thought was the most reasonable approach was to give you a reasonable time to lodge any appeal, at least get him started. I don't propose and I don't, in fairness, particularly informed by lots of noises from counsel. I seem to remember. I can't remember with specific to who it was. There's a lot going on on it. But the certainly repeated mention of – what I had in mind was give you four weeks also or whatever you tell me you need to get. At least get the ball rolling. … HIS HONOUR: I have to say, I don't disagree with Ms Colgan. I think the matters on the transcript from Magistrate Oliver's court were a little concerning in places, I have to say. And in addition, when I listened to the original plea being entered, which I have done, and if you haven't, that's a tape you need. You need the transcript of that. There are also some problems there. On reflection, I am perhaps minded to find exceptional reasons today within that confine. HUMPHREY, MR: Yes.	R Colgan (legal aid)

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CH

Associate to Justice Seaward

10 AUGUST 2023