Squance v WA Police - [2023] WASC 479

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SQUANCE -v- WA POLICE [2023] WASC 479
CORAM:   HOWARD J
HEARD:   5 DECEMBER 2023
DELIVERED          :   21 DECEMBER 2023
FILE NO/S:   SJA 1056 of 2023
BETWEEN:   BRETT JOHN SQUANCE
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   FR 6887/2021; FR 7851 - 7855/2021; AR 4952/2022

Catchwords:

Criminal law - Single judge appeal - Appeal against decision that the accused is mentally unfit to stand trial under s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) where accused wished to plead guilty to charges - Whether the accused was able to understand the effects of a plea - Meaning of 'trial' - Appeal allowed - Matter remitted to a different magistrate

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Magistrates Court Act 2004 (WA)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Mental Health Act 2014 (WA)

Result:

Appeal allowed
Learned Magistrate's dismissal of charges set aside

Category: B

Representation:

Counsel:

Appellant	:	L R Nicholls
Respondent	:	D Van Nellestijn

Solicitors:

Appellant	:	James Woodford Barrister & Solicitor
Respondent	:	State Solicitor's Office

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

Arkeveld v DPP (WA) [2023] WASC 264
Dodd v DPP (WA) [2022] WASC 116
Eastman v R (2000) 203 CLR 1
Houghton v State of Western Australia [2022] WASCA 7
Kesavarajah v R (1994) 181 CLR 330
Little v R [2013] NSWCCA 288
Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180
Meissner v R (1995) 184 CLR 132
Mohammadi v Bethune [2018] WASCA 98
Ngatayi v R (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Presser [1958] VR 45
R v Pritchard (1836) 7 C & P 303, 173 ER 135
Samuels v State of Western Australia (2005) 30 WAR 473
SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v O'Meara [2018] WASC 121
The State of Western Australia v Tekle [No 2] [2017] WASC 351
Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58

HOWARD J:

Background

On 27 October 2020 the appellant became an involuntary patient at Fremantle Hospital: that lasted for 7 months and 19 days.[1]
[1] JW 6 at page 22 [31] to the Woodford Affidavit 23 August 2023 (filed in CIV 1898 of 2023).
During the appellant's time in hospital, he allegedly committed the following four offences:
1.criminal damage on 24 April 2021;
2.assault of a public officer on 11 May 2021;
3.criminal damage on 12 May 2021; and
4.assault of a public officer on 20 May 2021.
After the appellant was discharged from hospital, he committed a further offence of assault occasioning bodily harm on 22 September 2021. Following this assault, the appellant was remanded in custody at Hakea Prison on 23 September 2021.[2]
[2] Plaintiff's submissions for CIV 1898/2023 [98]; JW 2 at page 20 to the Woodford Affidavit 23.08.2023 (filed in CIV 1898 of 2023).
The appellant was referred to the Frankland Centre on a hospital order on 12 October 2021. However, he was discharged and returned to Hakea Prison after a few days[3] to allow room for an incoming hospital order.[4]
[3] According to the psychiatric report of Dr Dharjinder Rooprai [32] dated 21 March 2022 he was at Frankland for four days.
[4] JW 6 at page 40 to the Woodford Affidavit 23 August 2023 (filed in CIV 1898 of 2023).
In November 2021, the appellant was formally charged with the first four offences above.[5]
[5] JW 2 at page 9 to the Woodford Affidavit 22 August 2023 (filed in SJA 1056 of 2023).
Questions arose in January 2022 before a different magistrate in the Start Court[6] as to the appellant's fitness to stand trial for the offences.
[6] 3 February 2023 ts 3.
Psychiatric reports were ordered by the court below.
Whilst the appellant was remanded in custody at Hakea Prison, the appellant allegedly committed a further offence of assault of a public officer on 26 February 2022.
The following reports were prepared:
1.by Dr Dharjinder Rooprai on 21 March 2022 pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996 (WA).[7] A recommendation from this report was for the appellant to be reviewed in three months and transferred to the Frankland Centre 'to stabilise his mental state, enabling him fit to stand trial';[8]
2.an updated psychiatric fitness to stand trial report was provided by Dr Rooprai on 17 June 2022. The recommendations in this report reiterated the consideration to transfer the appellant to the Frankland Centre. Dr Rooprai noted that there was no improvement in his mental state since the last report;[9]
3.an addendum psychiatric report prepared by Dr Rooprai was provided on 24 July 2022. The views in the report were similar to the views expressed in the previous reports;
4.a psychiatric report prepared by Dr Rachael Griffiths was produced on 24 August 2022. She stated there were fluctuations in the appellant's mental state but that there were 'occasional discrete periods where he could be considered fit to stand trial';[10] and
5.a second psychiatric report prepared by Dr Griffiths was dated 14 September 2022, which expressed similar views to those in her first report.
[7] Unless otherwise indicated all statutory references, or references to the 'Act', from here are to this Act.
[8] Psychiatric report of Dr Dharjinder Rooprai 21 March 2022 [32].
[9] Psychiatric report of Dr Dharjinder Rooprai 17 June 2022 [24], [26].
[10] Psychiatric report of Dr Rachael Griffiths 24 August 2022 [8.3].
On 5 September 2022 the appellant was placed under the Mental Health Act2014 (WA) for transfer to the Frankland Centre. However, he was not transferred as there were no available beds at the Frankland Centre.
The determination of the appellant's fitness to stand trial occurred before Magistrate O'Donnell on 31 October 2022[11] and 12 December 2022.[12] At the first of these, the appellant's counsel said the appellant wished to plead guilty to the charges and be sentenced.[13] The proposed pleas were not accepted by the magistrate as her view was that the inquiries into the appellant's fitness to stand trial were already underway.[14]
[11] 31 October 2023 ts 14.
[12] 12 December 2022 ts 125.
[13] 31 October 2022 ts 2.
[14] 31 October 2022 ts 13 - 14; 3 February 2023 ts 5.
The magistrate delivered oral reasons on 3 February 2023 where:
1.the appellant was found unfit for trial;
2.her Honour dismissed the charges; and
3.it was ordered that the appellant be kept in custody in accordance with Pt 5 of the Act.[15]
[15] 3 February 2023 ts 12.
On 10 February 2023, a first hearing before the Mentally Impaired Accused Review Board ('Board') occurred.[16]
[16] Attachment JW 20 at page 191 of Woodford Affidavit 23 August 2023 (filed in CIV 1898/2023).
The Board was informed that the appellant had still not been transferred to the Frankland Centre as there were no beds available and it was submitted that the appellant was therefore being unlawfully held in Hakea Prison.[17]
[17] Attachment JW 20 at page 191 of Woodford Affidavit 23 August 2023 (filed in CIV 1898/2023) [2].
The Board considered the appellant's case on 24 March 2023 and the first statutory report was produced on 5 May 2023. The Board stated that 'Mr Squance [is] to be placed at the Frankland Centre without further delay'.[18]
[18] Attachment JW 23 at page 203 of Woodford Affidavit 23 August 2023 (filed in CIV 1898/2023) [46.2].
The Board again considered the appellant's case and heard from the appellant's lawyer on 9 June 2023.
The appeal notice in this appeal was filed on 12 July 2023.
An originating motion was filed on behalf of the appellant on 11 July 2023, in CIV 1898 of 2023, to review the magistrate's decision under the Magistrates Court Act 2004 (WA).
On 11 September 2023 an ex parte originating motion was filed for habeus corpus, CIV 2031 of 2023, and to transfer the appellant to the Frankland Centre. However, this application was discontinued on 5 October 2023 as the appellant was transferred to the Frankland Centre on 20 September 2023.

Magistrate's reasons

It was not in dispute below, nor in this Court, that at all material times the appellant had a 'mental impairment' within the meaning of ss 8 and 9.
The parties agreed that the learned magistrate approached the question of whether the appellant was fit to stand trial for the six offences on the basis that she was assessing the appellant's fitness within s 9 based on there being a defended trial.
I think, with respect, that is the correct reading of the reasons.
The appellant says in overview (by his Ground 1) that in approaching the question of fitness in this way, the learned magistrate misconstrued the task she was required to undertake under s 9. Rather, the appellant says the learned magistrate was required to assess the accused's fitness on and from 31 October 2022 on the basis that he wished to enter pleas of guilty to the six charges. The appellant submits that 'trial' used in ss 8 and 9 means a trial at which the appellant has entered pleas of guilty.
The respondent submits the learned magistrate correctly understood the task required under s 9.
Relevantly, ss 8 and 9 provide:
8. trial means all court proceedings for an offence other than -
(a)proceedings in relation to bail; and
(b)sentencing proceedings.
9.Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
Ultimately, the learned magistrate concluded that the appellant was unable to:
1.(truly) understand the effect of a plea[19] - a finding as to s 9(b);
2.understand the course of a trial[20] - a finding under s 9(e); and
3.properly defend the charges[21] - a finding under s 9(g).
[19] 3 February 2023 ts 10.
[20] 3 February 2023 ts 10.
[21] 3 February 2023 ts 10.
I think a fair reading of the magistrate's decision is that the appellant was able, in the sense that he was not unable, to perform the functions in ss 9(a), (c) and (f). There was no challenge to those findings.
The parties were agreed that s 9 should be construed disjunctively to the effect that if an accused was unable in any of the seven ways provided for by ss 9(a) - (g), then the accused would not be mentally fit to stand trial.
Where the parties essentially differed as to Ground 1 was whether the 'trial' which the magistrate was to consider was a trial in which the appellant pleaded guilty or was a 'full' undefended trial.
I was told that the issue has not been decided. That is consistent with my own research. The relevant cases which have considered fitness have gone to defended trials or were headed towards 'full' defended trials.
Having said that, the New South Wales Court of Criminal Appeal,[22] in a sentencing appeal, noted without comment that a Judge on the one day had accepted pleas of guilty in respect of some offences, while finding the same person not fit to stand trial on other offences following pleas of not guilty. The relevant legislation[23] was worded differently from the Act here. However, it was not expressly worded to allow such an outcome. Rather, the legislation and court appear to have assumed the application of the general law via the relevant statutory provisions.
[22] Little v R [2013] NSWCCA 288.
[23] Mental Health (Forensic Provisions) Act 1990 (NSW).

Grounds of appeal

1.In deciding that the Appellant was not mentally fit to stand trial under section 12 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA), the learned Magistrate:
a.erred in law and/or occasioned a miscarriage of justice by failing to consider whether the Appellant was mentally fit to participate in the proceedings contemplated by the Appellant, namely the entering of guilty pleas, and instead determined the Appellant's fitness to participate in a hypothetical trial; and
b.should have found that the Appellant was mentally fit to plead guilty and accepted pleas accordingly.

2.Alternatively, in deciding that the Appellant was not mentally fit to stand trial under section 12 of the Criminal Law (Mentally Impaired Accused) Ac 1996 (WA), the learned Magistrate erred in law and/or occasioned a miscarriage of justice by misconstruing the requirements of section 9, namely by:
a.failing to have sufficient regard to important common law principles applicable to determining fitness to stand trial under section 9;
b.failing to consider the low complexity of the proceedings and the bearing that would have on the Appellant's ability to follow the course of the trial and properly defend the charges;
c.failing to consider that the Appellant's mental fitness needed to be assessed for each charge with potentially six different trials and instead determining his fitness for all six charges at one trial;
d.failing to consider whether any steps could be taken prior to or during the trial to assist the Appellant to be fit for trial and the bearing those steps would have on his ability to follow the course of the trial and properly defend the charges;
e.failing to have sufficient regard to the fact that the Appellant would be represented by counsel at trial and the bearing that would have on his ability to follow the course of the trial and properly defend the charges;
f.misconstruing the threshold of 'unable' in section 9(a)-(g), instead construing it as a more onerous threshold which was unfavourable to the Appellant;
g.finding that the Appellant's delusional beliefs meant he would be unable to follow the course of the trial or properly defend the charges, contrary to authority which states that such delusions, without more, do not render an Appellant unfit to stand trial; and/or
h.during the delivery of the Court's reasons for decision:
i.adopting a wrong formulation of what it means to understand the effect of a plea; and
ii.finding that the Appellant did not understand that formulation despite never providing him the opportunity to demonstrate understanding, therefore denying him procedural fairness.

As noted, appeal Ground 1 is essentially to the effect that the learned magistrate misunderstood the task in s 9.
The appellant accepted at the hearing that Ground 1(b) was not a separate ground of appeal but was, in effect, a consequence of the appellant succeeding in Ground 1(a).
Ground 2 is an alternative ground if the appellant is unsuccessful in contending (via Ground 1) that the learned magistrate applied the wrong test. Ground 2 proceeds on the basis that the learned magistrate correctly understood the task but there was a miscarriage in her carrying out the task which demonstrated an error of law and, or, occasioned a miscarriage of justice.

Statutory provisions relevant to the appeal

The appellant also requires leave to appeal out of time.
Section 12(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) provides:
The prosecution or an accused may appeal against a judicial officer's decision that the accused is not mentally fit to stand trial.
This is an 'any other written law' within s 7(5) of the Criminal Appeals Act 2004 (WA).[24]
[24] Dodd v DPP (WA) [2022] WASC 116 [24] (McGrath J).
The appellant seek to appeal pursuant to ss 8(1)(a)(i) and (b) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of his appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[25]
[25] Samuels v State of Western Australia (2005) 30 WAR 473 [56].

General Principles of Statutory Interpretation

In my view, Ground 1 requires the constructional choice identified in [20] and [22] above to be resolved.
The general principles of statutory interpretation are well‑established.[26] The principles were summarised by this Court in Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza & Beech JJA) and do not need to be re-stated in full here.
[26] See eg Waite v Hennah [2021] WASCA 69; (2021) 96 MVR 58 [84] (Mazza, Beech & Vaughan JJA); and Lowe Pty Ltd v Belgravia Nominees Pty Ltd [2020] WASCA 180 [174] (Quinlan CJ, Mitchell & Beech JJA).
There are three principles, however, which are particularly relevant, in my view, to the resolution of this matter.
The first is the emphasis placed on context: Mohammadi v Bethune [31]. The Court of Appeal cited the judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936 [14]:
Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (emphasis added)
The second concerns the text and structure of the subject legislation: the Court of Appeal in Mohammadi v Bethune [33] said:
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. (emphasis added)
The third is that the primary object is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. That is, if possible, as part of a coherent whole: [32], [35].
The Court of Appeal in Mohammadi v Bethune stated:
[34]Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from a 'range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. (citations omitted)

Application of principles

As will be seen, I consider these three principles or considerations are not completely independent in this case. They point, in my view, to the magistrate having been required to undertake the s 9 assessment by reference to the particular facts before her, including that the appellant wished to plead guilty.
The first matter of context which is significant in my judgment to the construction of s 9 is the history of fitness to plead at general law.
At general law, the test is commonly said to have derived from R v Pritchard.[27] A more modern formulation was given by Smith J in R v Presser;[28] which was approved by the High Court in Ngatayi v R.[29]
[27] R v Pritchard (1836) 7 C & P 303, 173 ER 135 (Alderson B); Kesavarajah v R (1994) 181 CLR 330, 245 (Mason CJ, Toohey & Gaudron JJ).
[28] R v Presser[1958] VR 45, 48.
[29] Ngatayi v R (1980) 147 CLR 1, 8 (Gibbs, Mason & Wilson JJ); see also Eastman v R (2000) 203 CLR 1 [58] (Gaudron J), [98] (McHugh J) [298] (Hayne J).

Miller J (as he then was) in R v Dunne [2001] WASC 263 [10] said that the tests in s 9 were 'clearly based' on the formulation by Smith J in Presser.
The High Court has said that the formulation from Presser is to be applied 'in a reasonable and common-sense fashion': Ngatayi,[30] and Kesavarajah v R (1994) 181 CLR 330.[31]
[30] (1980) 147 CLR 1, 8 (Gibbs, Mason & Wilson JJ).
[31] (1994) 181 CLR 230, 245 (Mason CJ, Toohey & Gaudron JJ).
A matter of the text and structure which seems of immediate significance is that s 9 applies to courts of summary jurisdiction as well as to courts hearing matters on indictment: see ss 11(1) (a) and (b).
On a plain reading, I consider that an accused pleading guilty and a court accepting that plea is a 'court proceeding for an offence'. By the definition in s 8 of a 'trial', in my view, the pleading guilty would be a 'trial' and to 'stand trial' in s 9 would be read accordingly.
The legislature has not enacted a different s 9 for courts of summary jurisdiction on the one hand, and for courts hearing matters on indictment on the other. The presence of s 9(d) indicates, at the least, as a matter of structure that the task in s 9 for a trial in the Magistrates Court is not to be approached on the basis of some hypothetical, defended trial in a court hearing the charge on indictment.
I consider that a court of summary jurisdiction making an assessment of an accused's fitness, is to consider that fitness for a trial in a court of summary jurisdiction (rather than a trial on indictment). For example, I consider that a magistrate considering an accused's fitness to stand trial in a court of summary jurisdiction is not required to consider the criterion of s 9(d). It is not that the magistrate selectively applies the legislation: rather, the criterion in s 9(d) does not arise in a court of summary jurisdiction.
I consider it is consistent with the text; in particular the combination of the references to 'the charge' in ss 9(a) and (b) and 'trial for an offence' in the chapeau to s 9 and in the definition of 'trial' in s 8. That is, the magistrate is to consider the fitness of the accused to stand trial for the particular charge being heard summarily.
That is a reasonable and common-sense application of the criteria. Further it is consistent with the approach to the Presser criteria approved of by the High Court.
There is a flexibility in the Act as to when the question of fitness may be raised: s 11(1). Significantly, it may be raised more than once: s 11(3).
In the case of a defended trial (whether heard summarily or on indictment) where the question of fitness arises some way into the evidence then it is difficult to imagine the legislative purpose in requiring the magistrate or judge to consider the criteria in s 9(a), (b) or (d).
This was the approach taken in Kesavarajah where the question (relevantly under discussion) arose when the Judge's charge to the jury was almost complete. Mason CJ, Toohey & Gaudron JJ (at 247) said:
Certainly, some of the minimum standards stated by Smith J in Presser were no longer relevant to the stage which the trial had reached. But it was still necessary that the appellant should understand the nature of the charges and the proceedings, understand the substantial effect of the evidence and follow the course of the rest of the proceedings.
It is also analogous to the consideration given in decided cases on these criteria in this State as to:
1.the length of trial;[32]
2.what adjustments might be made;[33] and
3.whether the accused is represented.[34]
[32] The State of Western Australia v Mack [2012] WASC 127 [43] (McKechnie J).
[33] The State of Western Australia v Mack [2012] WASC 127 [42], [43], [47] (McKechnie J); The State of Western Australia v O'Meara [2018] WASC 121 [87], [96], [98], [102], [120] (Jenkins J)
[34] R v Dunne [2001] WASC 263 [40], [41], [43] (Miller J); The State of Western Australia v Tekle [No 2] [2017] WASC 351 [60.4] (Fiannaca J); The State of Western Australia v O'Meara [2018] WASC 121 [88], [119].
The three principles bear on the meaning of 'to stand trial' in s 9, given the statutory definition in s 8 of 'trial'. That is, the statutory definition of 'trial' and its use in s 9 may be thought to be not entirely consistent with their ordinary meaning within the criminal law.
It is difficult to immediately see why the criteria in ss 9(e), (f) and (g) should be taken into account in deciding whether - effectively - the appellant was mentally fit to enter pleas of guilty.
That would also be a 'reasonable and common sense' reading and application of the statutory criteria derived from Presser.
In my view, the statutory intention apparent from the wording of the definition of 'trial' in s 8 and the wording of s 9 point to an enquiry in which the relevant criteria in s 9 are shaped by the trial which is likely to occur before the magistrate on the particular charge.
My view is that the learned magistrate on 31 October 2022 was obliged under the legislation to assess whether the appellant was fit to stand trial where he wished to enter pleas of guilty on the basis that the 'trial' was limited to, or finished with, the taking of the pleas.
That, in my view, required the learned magistrate to be satisfied of ss 9(a) and (b). In relation to s 9(c), the trial which the magistrate ought to have considered was a trial in which the appellant pleaded guilty on 31 October 2022.
In my view, as the matter was proceeding summarily, the learned magistrate did not have to consider whether the appellant satisfied s 9(d).
In considering s 9(e), as with s 9(c), the trial which the learned magistrate was to consider was one in which the appellant was entering guilty pleas. In this case, that would not, in my view, have led to any different considerations, in effect, than were raised under ss 9(a) and (b).
The magistrate would not have needed to consider ss 9(f) or (g) as, on the pleas of guilty, there was not going to be evidence presented in the trial (which was to accept the pleas of guilty) and, obviously enough, the appellant was not seeking to defend the charge and so no separate consideration would arise under s 9(g).
In my view, the question that presented for the magistrate's decision on 31 October - and on which she gave her reasons on 3 February 2023 - was whether the appellant was mentally fit to stand trial in circumstances where he wished to enter pleas of guilty.
It follows that, in my judgment, the magistrate answered the question on a wrong interpretation of s 9.

Unable to understand the effect of a plea: s 9(b)

Her Honour held that the appellant understood the requirement under s 9(b) to plead to the charges.[35] That finding is not challenged.
[35] 3 February 2023 ts 8.
If I am correct and the learned magistrate erred in considering s 9 against a full defended trial, the question remains as to whether her Honour erred in her conclusion that the appellant was unable to understand the effect of a plea: s 9(b).
I do not consider, with respect to the appellant's submissions to the contrary, that her Honour's reasoning on s 9(b) is 'infected' by the error (identified in Ground 1) simply because she, if I am correct, misunderstood the statutory task she was (otherwise) to perform under s 9.
The learned magistrate quoted from Dr Griffiths' report dated 14 September 2022[36] at [7.2]:
[the appellant] understood a guilty plea meant he committed the offence and it would mean 'doing time'. He understood that a 'not guilty' plea meant he 'didn't do it' and his matters would go to trial (emphasis in the original report).
[36] 3 February 2023 ts 9.
Her Honour's conclusion was clear:
As it is, I have found that in spite of Dr Griffiths' conclusions the accused does not truly understand the effect of a plea.[37]
[37] 3 February 2023 ts 10.
Her Honour appears to have had three reasons as to why the accused did 'not truly understand the effect of a plea'; they were:
1.the appellant did not accept the essential facts and elements of the offence were established, but was pleading to preclude the possibility of a custody order;[38]
2.her Honour did not accept the appellant understood that he could put the prosecution to proof regardless of whether there was any viable defence;[39] and
3.the appellant had raised with Dr Griffiths, as she reported in her report of 24 August 2022:
a.justifications for his behaviour in at least one assault charge; and
b.in relation to the criminal damage charges had said they had been duplicated.
And, if the appellant truly understood the effect of a plea he would plead not guilty to those charges and put the prosecution to proof.
[38] 3 February 2023 ts 9.
[39] 18 February 2023 ts 9.
There are some other findings made which are also relevant to the learned magistrate's reasoning.
The learned magistrate identified that the prosecution cases for all six charges were very strong. She said:
In the hospital and custodial setting there would be no issue as to identity. In respect of most of the charges, he was immediately restrained at the scene. In the case of the charge of assault occasioning bodily harm, he was arrested at the scene. In addition, that entire incident was captured on CCTV.[40]
[40] 3 February 2023 ts 11.
The learned magistrate also said, with respect entirely correctly, that:
It is entirely possible for an accused person to plead guilty to a charge, not because he or she accepts that they are genuinely guilty, but rather for convenience or practical purposes. The accused could plead guilty to the assault occasioning bodily harm for such purposes even though he personally thinks he was acting in defence of another and might therefore not be criminally responsible, provided he fully understands that in doing so he is accepting all the facts and elements of the offence.[41]
[41] 3 February 2023 ts 9.
In this respect, her Honour was effectively citing (correctly) the often-cited principles from Meissner v R (1995) 184 CLR 132, 141 (Brennan, Toohey & McHugh JJ), 157 (Dawson J).
At the hearing on 31 October 2022, counsel for the appellant (who was not counsel on this appeal) told the learned magistrate:
I spent about between 10 and 15 hours with Mr Squance,[42] between late September when the grant of aid was made and last Friday afternoon. It takes some time to get instructions from Mr Squance. The discussions proceed in an unstructured way, and I wait for the opportunity to ask a question that would provide the instruction …
… But in any event, there would be no point in proceeding to trial, because as a result of the discussions with him, there isn't and there never was any forensically viable way of challenging the evidence that would be brought against him.
The facts in these cases are very simple and with respect, they are pretty much impossible to cross-examine. In fact, if one did cross‑examine them, all one would end up having is a reiteration of the evidence given in chief …[43]
[42] As counsel indicated the psychiatric reports were prepared before his engagement by the appellant: 31 October 2022 ts 5.
[43] 31 October 2022 ts 5 - 6.
In addition to that, counsel had already indicated that the appellant wished to plead guilty so as to avoid the prospect of a custody order.[44]
[44] 31 October 2023 ts 3, 4.
While her Honour correctly, with respect, said in argument on 31 October 2022 that she had to decide, firstly, if the appellant could enter a plea, her Honour then unfortunately said:
We're not here for you to circumvent that [determination] by saying, well, we want to avoid the possibility of a custody order by getting him to plead guilty.[45]
That had not been counsel's submission, nor the effect of any submission made.
[45] 31 October 2022 ts 4, 5.
What is left unexplained in the magistrate's reasons is why she thought it entirely possible for an accused to plead guilty for convenience or practical purposes and still 'understand the effects of a plea', but that if an accused wished to plead guilty so as to avoid a custody order that was not a plea for convenience or practical purposes.[46]
[46] See Arkeveld v DPP (WA) [2023] WASC 264 (Lundberg J) where such purposes were held allowably to include the facilitating of a bail application: [29], [30], [47], [48].
It seems to me that the appellant's motivation, which I think in fairness could only partly be ascribed to wishing to avoid a custody order (when one takes into account the instructions the appellant had given to his counsel which were relayed to the Court on 31 October 2022 as quoted above), the question remains whether the appellant understood the effect of a plea.
I consider that the question for the learned magistrate was whether the appellant was able to understand that he was admitting all of the elements of the offence.[47] That is, in my view, quite different from the appellant holding a belief as to his guilt of the charges.
[47] Houghton v State of Western Australia [2022] WASCA 7 [217].
With respect, I think the learned magistrate, applied an incorrect test in her determination under s 9(b).
If it is acceptable for an accused to plead guilty for convenience (without full throated acceptance of the facts put against them) it is not apparent, with respect, why this appellant was required, as per the magistrate's view, to accept (as in hold some belief as to their correctness) the essential facts and elements of the charges.
In my view, the 'effect of a plea' in s 9(b) is more aptly described as a requirement that the accused understands that their plea admits the elements of the offences; will end the proceeding against him (subject to sentencing, etc); and removes their ability to subsequently challenge the proof of the elements of the charge to which they have pleaded guilty.
I think, with respect, the magistrate misunderstood what s 9(b) was directed to, and consequently erred as a matter of law.
In those circumstances, I consider that the three matters relied on by the learned magistrate for the conclusion that the appellant did not understand the effect of his plea were in error and cannot sustain the magistrate's finding.

Disposition of Ground 1

I would grant the appellant leave to appeal on Ground 1 and uphold the appeal on that Ground.
As discussed with the respondent's counsel at the hearing, in the light of my reasons, the respondent did not contend that a substantial miscarriage of justice had not occurred.

Ground 2

Given the view I have reached as to Ground 1, I do not need, strictly, to consider the alternative in Ground 2. Accordingly, I have set out my conclusions in short form only on this Ground.
For the reasons I gave above, I consider that the learned magistrate erred in her construction of s 9(b).
If I am correct about that, then even if I was otherwise wrong about Ground 1, that error would 'carry across' to this part of Ground 2.
However, the other two criteria in respect of which the magistrate found the appellant was unable - (the findings under ss 9(e) and 9(g)) would, in my judgment, stand.
In short, I do not consider that there was any viable challenge to the learned magistrate's reasoning in relation to those two criteria: namely ss 9(e) and (g).
The findings made by the learned magistrate were to the effect that the appellant was 'unable' to understand the course of the trial and properly defend the charges on a full disputed trial. I consider those findings were open to her Honour, with respect.
It is unfortunate that her Honour said by way of a conclusion that, '[w]hat is clear to me from [Dr Griffith's] evidence is that the accused cannot be coddled or cajoled into being well'.[48] The appellant was, it was common ground, unwell. The expression of her Honour's conclusion in that way was not of assistance to the task to be undertaken by s 9 (on either of the constructional choices presented).
[48] 3 February 2023 ts 4.
Consequently, if the magistrate correctly approached the task under s 9 (contrary to my broad finding in Ground 1), then, in my view, the appellant would not succeed in relation to Ground 2.

Disposition of Ground 2

In those circumstances, I would grant the appellant leave to appeal in relation to Ground 2 but, if I am wrong about Ground 1, I would dismiss Ground 2.

Overall disposition

For the above reasons, I would set aside the learned magistrate's dismissal of the six charges.
A considerable period of time has passed since the appellant was assessed as being unfit to stand trial on 3 February 2023. And, as I understand it, he has been receiving treatment for a considerable period of time since then. I consider that his fitness to stand trial needs to be reconsidered by a different magistrate.
If the appellant again enters pleas of guilty, then, in accordance with my reasons on Ground 1 as to the proper approach to s 9, that is a matter which the magistrate can judge at the appropriate time.
As I understand it, the appellant continues to have a mental impairment within the meaning of s 8. The question arises as to what, if any, order I should make under the Act pending the matter being before a different magistrate.
I will hear the parties as to the appropriate form of the orders to be made and as to whether an award of costs can or should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
21 DECEMBER 2023