Piccinin v Legal Practice Board of WA - [2025] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PICCININ -v- LEGAL PRACTICE BOARD OF WA [2025] WASC 300
CORAM:   FORRESTER J
HEARD:   23 APRIL 2025, 18 JUNE 2025 & 30 JULY 2025
DELIVERED          :   8 AUGUST 2025
FILE NO/S:   SJA 1010 of 2024
BETWEEN:   NILLO PICCININ
Appellant

AND

LEGAL PRACTICE BOARD OF WA
Respondent

ON APPEAL FROM:
For File No:   SJA 1010 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MAUGHAN
File Number            :   PE 34802 of 2022, PE 34803 of 2022 PE 34804 of 2022 and PE 34805 of 2022

Catchwords:

Criminal Law - Single judge appeal - Appeal against convictions and sentence - Whether Magistrate erred in entering plea of guilty in the absence of the appellant - Whether there was a miscarriage of justice

Legislation:

Legal Profession Act 2008 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Appeals Act 2004 (WA)

Result:

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

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	SR Pack

Solicitors:

Appellant	:	In Person
Respondent	:	Legal Practice Board of WA

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

Nil

FORRESTER J:

Introduction

On 19 July 2022, the appellant was charged with offences that, in 2021, he, being a person who was not an Australian legal practitioner:
(a)engaged in legal practice by undertaking legal work, contrary to s 12(2) of the Legal Profession Act 2008 (WA) (LPA); and
(b)represented on three separate occasions that he had an entitlement to engage in legal practice, which representations were contrary to s 13(1) of the LPA.
As a result of a series of somewhat unfortunate events, the appellant was convicted in his absence and sentenced to a global fine of $5,000 and was ordered to pay costs in the sum of $4,500.
For the reasons which follow, there has been a miscarriage of justice. Leave to appeal should be granted, the appellant's appeal allowed, and the convictions, sentence and costs order set aside.

Proceedings in the Magistrates Court

It is unnecessary to descend into details of the factual allegations of the case against the appellant. The determination of the matter turns on its procedural history only. I will refer only to the relevant appearances in the court below.
The appellant appeared in the Magistrates Court on 7 October 2022. He represented himself. It quickly became apparent that the appellant was an adherent of at least some aspects of pseudolaw. He raised an issue with the jurisdiction of the court to deal with the charges, without specifying what that issue was, and sought to raise a 'constitutional matter', again without providing detail.
The learned magistrate, unsurprisingly, sought to limit the appellant's submissions at that stage and indicated that if the appellant wished to dispute the jurisdiction of the court, he should enter a plea to that effect and the matter would be set down for hearing. The appellant sought an assurance that he would be able to argue the issue of jurisdiction at the hearing and was given that assurance.
The appellant then declined to provide further information as to the factual issues (if any) he wished to raise, and the learned magistrate said the following:
Now I'm going to set it down for a trial. I will record your plea, that you are disputing the jurisdiction of the court; that can be determined as a preliminary issue. In the event that you are saying that you are not guilty of the factual elements of the allegations, I will record a plea of not guilty and we will have the trial… [i]f the court decides it has jurisdiction.
His Honour then asked the appellant if he was maintaining his denial of the factual elements of the charge, and the following exchange took place:
ACCUSED: I don't wish to address those until I know that I can make that plea in a court that has got the right to hear it.
HIS HONOUR: I will record your plea of not guilty under the provisions of the Criminal Procedure Act.
ACCUSED: I wish the record to show that I haven't assented to that.
HIS HONOUR: You've refused to enter a plea when invited by the court to do so. Under the provisions of the Criminal Procedure Act, I'm going to record your plea. I'm not going to have two trials.
The appellant continued to object, and the learned magistrate said:
Well, you haven't entered the plea, I've done it on your behalf.
His Honour then listed the matter on 30 January 2023 for a trial hearing in relation to the jurisdictional issue and, if the jurisdictional question was decided against him, whether the appellant was guilty or not guilty of the offences.
The prosecution notice for 7 October 2022 recorded the following:
Adjourned Magistrates Court Perth 30/01/2023 9:30AM Trial Hearing Orders: Accused entered plea of "no jurisdiction". Court entered plea of not guilty--not appropriate to have separate hearing. Pros to F&S submissions on jurisdictional issue within days. Within the furter period of 7 days the accused to file responsive submission (if any above those already served) Trial to proceed on jurisdiction issue first--if finding court has jurisdiction then substantive trial to be conducted immeadiately following determination--anticipate same day. Any adj of trial by accused to be supported by detailed medical report setting out diagnosis, prognosis and stating unfitness to attend COURT
Guilty, Guilty, Guilty, Guilty plea entered.
(reproduced as appears on prosecution notice, emphasis added)
Clearly, the record of the proceedings, insofar as it indicated the appellant had entered guilty pleas, was incorrect.
The prosecution notice records that on 11 January 2023, there was an appearance in which an application was granted for a witness to appear by video.
The appellant next appeared in the Magistrates Court on 30 January 2023, before the Deputy Chief Magistrate. Counsel appearing for the prosecution was not the same counsel who had appeared on 7 October 2022. The appellant again represented himself.
On that occasion, the appellant had submitted a medical certificate and made an application for an adjournment. He did, however, appear in court. When he did, the following exchange took place between the learned Deputy Chief Magistrate and the appellant.
HER HONOUR:   So, Mr Piccinin, there's already guilty pleas been entered to these charges. Yes?
ACCUSED:        There's one, as I'm aware.
HER HONOUR:   Sorry?
ACCUSED:        As far as I'm aware, the previous magistrate ordered the prosecution to answer my documents in question of jurisdiction, which they failed to do.
HER HONOUR:   The court has got jurisdiction, Mr Piccinin. That's not an issue.
ACCUSED:        The issue is they were asked to enter a response.
HER HONOUR:   Mr Piccinin, there is no issue as to jurisdiction, either of this court or the Legal Practice Board.
ACCUSED:        Have you considered - - -
HER HONOUR:   So we will be moving on. Thank you.
ACCUSED:        Have you considered the evidence?
HER HONOUR:   I don't get the evidence, Mr Piccinin, but there is no issue as to - -
ACCUSED:        I have evidence here to rebut your presumption, and it's – and it needs to be addressed, as it was promised by the previous magistrate that it - -
HER HONOUR:   Well, it has been addressed. I've addressed it.
The appellant attempted to argue the jurisdictional point further with her Honour. The appellant submitted that her Honour was 'prejudicing my case without having regard to it and without me being heard.' The exchange continued:
HER HONOUR:   You have already been found guilty. So just have a seat. We will hear the facts, and we will proceed from there.
ACCUSED:        The facts of what?
HER HONOUR:   Mr Nash. Have a seat.
ACCUSED:        The facts of what, your Honour?
HER HONOUR:   The charges that you have been convicted of. Thank you.
ACCUSED:        I was told this would be a hearing on jurisdiction. Am I being denied that?
HER HONOUR:   It's not a hearing on jurisdiction. The court has jurisdiction. The Legal Practice Board has jurisdiction to prosecute.
ACCUSED:        So now the court is going back on its word to consider jurisdiction.
HER HONOUR:   No. The court is not going back on its word. You've already been convicted.
…
NASH, MR:         Your Honour, our understanding is that Mr Piccinin entered a plea of no jurisdiction, but hasn't entered a plea of guilty.
HER HONOUR:   No. And the court has entered a plea of guilty in this matter.
NASH, MR:        May it please the court.
HER HONOUR:   For the record, that was 7 October.
NASH, MR:        Thank you, your Honour. Well, I should take, then, the court to the facts.
The facts relating to the charges were then read. When her Honour asked the appellant if he wanted to say anything, he said, in effect, he had been ill, which had compromised his ability to mount a defence, and he had believed he would be dealing with the issue of jurisdiction, so he was at a disadvantage.
After a further exchange in which the appellant continued to protest the court's jurisdiction, her Honour adjourned the matter to 27 February 2023 to enable the appellant to prepare for his sentencing and told the appellant that he would receive a notice in relation to that. His bail was extended.
The learned Deputy Chief Magistrate recorded the following, which appears in the prosecution notice:
Adjourned Magistrates Court Perth 27/02/2023 9:00AM
Sentence Orders: Notice of Adjournment-jurisdiction issue without merit-papers submitted to court guilty/conviction previously entered by court. Has serious medical condition and adj for sentence.
For reasons which are not apparent, the matter was adjourned from 27 February 2023 to 27 March 2023, and then again to 15 May 2023. On that day, despite the fact that the sentencing was part‑heard before a different magistrate, the matter came before the learned magistrate who had dealt with the matter on 7 October 2022.
The notices provided to the appellant on 30 January 2023, 27 February 2023 and 27 March 2023 were all notices pursuant to s 75 of the Criminal Procedure Act 2004 (WA) (CPA), which did not apply in relation to an accused who had been convicted and was awaiting sentence.
On 15 May 2023, the prosecution was represented by counsel, but not the same counsel who had appeared on either of the earlier occasions referred to above. The appellant did not appear.
Counsel for the prosecution informed the learned magistrate that he understood that a conviction had been entered under s 55 (presumably, s 55 of the CPA) 'way back in October'. The proceeding continued:
HIS HONOUR:     I'm not sure that that, I think that's recorded in ICMS, but I'm not sure that he was ever convicted.
PACK, MR:        Yes, and that's one matter which has caused a little bit of confusion to date, your Honour.
HIS HONOUR:     Right.
PACK, MR:        However, given that Mr Piccinin has not attended today, I would seek to proceed under section 55 today, if a conviction has not already been recorded.
HIS HONOUR:     Yes. Do we have a proof of service, please? I think I've got it here. Yes, it is. Yes, I'm satisfied that he has received an approved notice requiring him to appear today at 9.30, requiring him to appear at 9 am. It's now 11 am, so I will record conviction under section 55 today.
The matter then proceeded to sentence.

Grounds of Appeal

There are ten grounds of appeal. It is unnecessary to set them out in full. While none of the grounds directly assert that a miscarriage of justice was occasioned by the entry of convictions in the absence of the appellant, the appellant does assert by his grounds of appeal that he was 'confused' as to the proceeding as a result of his medical condition, and that he was denied the opportunity to be heard in relation to the matter.

Application for extension of time

The appeal notice was filed on 5 February 2024, almost eight months out of time. By affidavits dated 3 February 2024 and 26 June 2025, the applicant has provided some reasons for the delay in filing his notice of appeal. Largely, he claims that his medical conditions prevented him from properly engaging in the matter, and he did not understand what had happened in the proceedings until he received a copy of the prosecution notice.
The delay is significant, and I am not satisfied that it is fully explained by the appellant's affidavit. The application, therefore, depends on the merit of the appeal itself.

Disposition

I have regard to the fact that the appellant is self‑represented and should be granted some latitude in relation to his grounds of appeal.
I also have regard to the fact that, at the time the Notice of Appeal was filed, the appellant had not had the benefit of the transcripts of the proceedings. It was the transcripts, which the appellant lodged on 17 June 2025 in accordance with orders made on 23 April 2025, which revealed the significant defects with the proceedings in the court below.
Once a copy of the transcripts were lodged with the court, the apparent issue with the proceedings against the appellant in the court below was obvious. The respondent agreed to consider the matter prior to further orders being made for the appellant to lodge written submissions or to amend his grounds of appeal.
Once the respondent had had the opportunity to consider the matter, it filed written submissions conceding the appeal on the basis that there had been a miscarriage of justice. The respondent is to be commended for taking a proactive and sensible approach to the resolution of this matter.
The delay in the progress of this appeal has been a result of the appellant's ill health, and the appellant's failure, until recently, to file all relevant transcripts. The appellant has now indicated that his driver's licence has been suspended in light of his failure to pay the fine imposed at sentence, and has submitted that there is some urgency in the appeal being determined.
In light of the matters revealed by the transcript, and the respondent's concession, I determined that, in order to deal with the matter expeditiously, I would consider the matter on the papers without the need for a hearing, pursuant to r 60 of the Criminal Procedure Rules 2005. Accordingly, I have not required the appellant to amend his grounds of appeal.
It is clear that the entry made on 7 October 2022, indicating pleas of guilty to the charges, was made in error. Other parts of the record for that date made the position clearer. However, it is unsurprising that, in a list that was no doubt a full one, the learned Deputy Chief Magistrate, before whom the appellant appeared on 30 January 2023, read the court record only as indicating that the appellant had entered pleas of guilty.
From that point onwards, the appellant was given to understand, in clear terms, that he had been convicted and was simply awaiting sentence. Accordingly, regardless of what was stated by the notices issued to him pursuant to s 75 of the CPA, the appellant could not reasonably have been expected to understand that he was in jeopardy of being convicted of the charges if he failed to appear on 15 May 2023.
It is unfortunate that, when the matter came before the court on 15 May 2023, the matter still did not come to light. Again, it was unsurprising that the learned magistrate did not realise what had gone before, although there were some clues to be found in the prosecution notice had it been interrogated more closely.
In particular, however, his Honour could not have known that the appellant had been told that he had been convicted, or that sentencing proceedings were already part‑heard, because ordinarily, part‑heard sentencing proceedings would be listed before the magistrate who had already part‑heard the matter.
The issue was compounded by the fact that counsel for the prosecution had changed on each occasion. While counsel on 30 January 2023 had attempted to clarify the position, it is plain that the learned Deputy Chief Magistrate had been misled as to the true position by the error on the court record, and counsel was clearly not sufficiently certain of the prosecution's position to press harder than he did.
The problem was further obscured because the appellant was, apparently, fixated on furthering a groundless jurisdictional point, and either failed to appreciate, or simply failed to say, that he had not been convicted of the offence and maintained a plea of not guilty.
In the circumstances, it is my view that, while the learned magistrate who presided on 15 May 2023 was not in a position to know the true facts, it was nonetheless a miscarriage of justice for the appellant to have been convicted in his absence. The appellant could not have reasonably been aware, despite being sent the s 75 CPA notices, that he was in jeopardy of conviction if he failed to appear. Further, it was clear, at all material times, that he had intended to defend the charges if given the opportunity to do so.

Application of proviso

In the absence of a plea of guilty, the appellant was entitled to have the charge against him proved beyond reasonable doubt. As no evidence was adduced at first instance, it is not possible for the court to find that no substantial miscarriage of justice has occurred. Further, and in any event, I am satisfied that there was such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.
Accordingly, there is no room for the application of s 14(2) of the Criminal Appeals Act 2004 (WA).

Should there be a retrial?

The respondent does not seek for the matter to be remitted to the Magistrates Court for it to be dealt with according to law. This is having regard to the time which has elapsed since the alleged conduct forming the basis for the charges, and the state of the appellant's health, as revealed by his affidavits.
I accept the respondent's concession in this regard. The appellant was convicted in May 2023. He played no real part in the errors which resulted in his wrongful conviction and sentence. It was unfortunate, but necessary, that he was required to obtain the transcripts of the proceeding, which can be expensive and difficult to obtain, in order for him to demonstrate the error. By reason of the delays in his doing so, and the fine remaining outstanding, he has apparently had his licence suspended. Conversely, no evidence has been put before me, or submission made, that there is a public interest in the charges proceeding again in the Magistrates Court.

Orders

The application for an extension of time is granted, leave to appeal is granted, and the appeal is allowed. The convictions and sentence are ordered to be set aside. The order for the prosecution's costs at first instance to be paid by the appellant is also set aside. I decline to order remittal of the charges to the Magistrates Court.
I will hear from the appellant as to reimbursement of his expenses.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Forrester
8 AUGUST 2025