SYO v The State of Western Australia - [2020] WASCA 202

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SYO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 202
CORAM:   BUSS P
MURPHY JA
MAZZA JA

HEARD:   22 JUNE 2020
SUPPLEMENTARY
SUBMISSIONS       :   7 & 20 JULY 2020
DELIVERED          :   4 DECEMBER 2020
FILE NO/S:   CACR 124 of 2019
BETWEEN:   SYO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PETRUSA DCJ
File Number            :   IND 501 of 2019

Catchwords:

Criminal law - Appeal against conviction - Proper construction of s 99(5)(b) of the Criminal Procedure Act 2004 (WA) - Appellant charged with multiple indictable offences - Appellant entered pleas of guilty in the Magistrates Court - The Magistrate, without convicting the appellant, committed the appellant to the District Court for sentence - Appellant entered pleas of guilty upon arraignment in the District Court - The District Court judge recorded judgments of conviction and sentenced the respondent on all of the offences - Appellant not properly advised by his lawyer prior to entering the pleas of guilty in the Magistrates Court that a mandatory minimum sentence of 15 years' imprisonment would apply to one of the offences and a mandatory minimum sentence of 5 years 3 months' imprisonment would apply to another offence - Appellant not properly advised by his lawyer prior to the appellant's arraignment in the District Court that the appellant could apply to change his pleas of guilty to pleas of not guilty - Whether the appellant's lawyer continued to act for and advise the appellant while the lawyer had a conflict of interest - Miscarriage of justice - The interaction between s 7(3)(a) of the Sentencing Act 1995 (WA) and s 294(2) of the Criminal Code (WA) - This court's implied power to impose conditions on an order setting aside a judgment of conviction and on an order that a trial be had

Legislation:

Criminal Appeals Act 2004 (WA), s 30, s 34
Criminal Code (WA), s 1(1), s 294, s 324, s 338A(d), s 378, s 400(1)
Criminal Procedure Act 2004 (WA), s 3(1), s 41(3), s 99(5)
Legal Profession Conduct Rules 2010 (WA), r 6, r 7, r 12, r 15
Interpretation Act 1984 (WA), s 3(1)(b), s 56(1)
Sentencing Act 1995 (WA), s 7(3)

Result:

Leave to appeal refused on ground 1
Leave to appeal granted on ground 2
Appellant's application in the appeal dated 28 November 2019 granted
State's application in the appeal dated 5 February 2020 granted
Appeal allowed
Subject to conditions, judgments of conviction and sentences set aside
Ancillary orders made

Category: A

Representation:

Counsel:

Appellant	:	Mr J Gullaci
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Aboriginal Legal Service - Perth
Respondent	:	Director of Public Prosecutions (WA)

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

Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184
Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454
Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168
Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1
Chowdhury v Kenny [No 2] [2012] WASCA 35
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (Cth) [1971] HCA 12; (1971) 127 CLR 106
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264
KWLD v The State of Western Australia [2020] WASCA 94
Larsen v The State of Western Australia [2019] WASCA 181
Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Margetson v The Queen [1980] WAR 135
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mikulic v The State of Western Australia [2011] WASCA 14
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
R v Arlotta [1979] WAR 84
Thompson v Mikkelsen (unreported, Supreme Court, NSW, 3 October 1974)
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98
Vella v The State of Western Australia [2006] WASCA 129
Wan v McDonald (1992) 33 FCR 491
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

TABLE OF CONTENTS

The proceedings on 12 March 2019 in the Perth Magistrates Court

The amended statement of material facts

The original indictment dated 4 May 2019

The amended indictment dated 25 July 2019

Section 294 and s 324 of the Code

Section 7(3) of the Sentencing Act 1995 (WA)

The interaction between s 7(3)(a) of the Sentencing Act and s 294(2) of the Code

The arraignment of the appellant in the District Court

The sentences imposed by the sentencing judge

The facts and circumstances of the offending as alleged by the State and admitted on the appellant's behalf at the sentencing hearing

The grounds of appeal

Additional evidence sought to be adduced in the appeal

The appellant's affidavit

The appellant's evidence at the hearing of the appeal

Dr Barber's affidavit

Dr Barber's evidence at the hearing of the appeal

Grounds 1 and 2: the appellant's orders wanted

Ground 1: the appellant's submissions

Ground 2: the appellant's submissions

Ground 1: the State's submissions

Ground 2: the State's submissions

Grounds 1 and 2: the relevant provisions of the CP Act

Ground 2: its merits

Ground 1: its merits

The appropriate disposition of the appeal

JUDGMENT OF THE COURT:

This is an appeal against conviction.
The appellant was charged on indictment with five counts.
Count 1 alleged that on 25 December 2018, the appellant, while in the place of DB without her consent, committed the offence of stealing and that:
(a)the appellant was armed with an offensive weapon or instrument, namely a metal scaffold ratchet;
(b)the appellant did bodily harm to PC;
(c)immediately before the commission of the offence the appellant knew or ought to have known that there was another person in the place; and
(d)the place was ordinarily used for human habitation,
contrary to s 401(2)(a) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place, the appellant, with intent to maim, disfigure, disable or do some grievous bodily harm to PC, unlawfully wounded PC, and that the offence was committed in the course of conduct that constituted an aggravated home burglary, contrary to s 294(1) read with s 294(2) of the Code.
Count 3 alleged that on the same date and at the same place, the appellant made a threat with intent to compel DB to do an act she was lawfully to entitled to abstain from doing, contrary to s 338A(d) of the Code.
Count 4 alleged that on the same date and at the same place, the appellant unlawfully and indecently assaulted DB by touching her vagina with his finger and that:
(a)during the commission of the offence, the appellant was armed with an offensive weapon or instrument, namely a metal scaffold ratchet;
(b)immediately before the commission of the offence, the appellant did bodily harm to PC;
(c)immediately before the commission of the offence, the appellant did an act which was likely to seriously and substantially degrade DB, namely demanding that DB show her vagina for inspection;
(d)the appellant was in a family and domestic relationship with DB; and
(e)the offence was committed in the course of conduct that constituted an aggravated home burglary,
contrary to s 324 of the Code.
Count 5 alleged that on the same date and at the same place, the appellant stole a white Samsung mobile telephone the property of DB, contrary to s 378 of the Code.
The maximum penalties for the counts in the indictment were as follows:
(a)count 1: 20 years' imprisonment;
(b)count 2: 20 years' imprisonment;
(c)count 3: 7 years' imprisonment;
(d)count 4: 7 years' imprisonment; and
(e)count 5: 7 years' imprisonment.
On count 2 the appellant was liable to a mandatory minimum sentence of 15 years' imprisonment. See s 294(2) of the Code. On count 4 he was liable to a mandatory minimum sentence of 5 years 3 months' imprisonment. See s 324(3) of the Code.
On 12 March 2019, the appellant entered pleas of guilty in the Perth Magistrates Court to five charged offences. On that date, the magistrate, without convicting the appellant, committed the appellant to the District Court for sentence, as required by s 41(3) of the Criminal Procedure Act 2004 (WA) (the CP Act). The five charged offences, as set out in two prosecution notices, were as follows:
(a)the first charge was, in substance, identical to count 1;
(b)the second charge was, in substance, identical to count 2, with the exception that the charge did not plead that the offence was committed in the course of conduct that constituted an aggravated home burglary;
(c)the third charge was, in substance, identical to count 3;
(d)the fourth charge was, in substance, identical to count 4; and
(e)the fifth charge was, in substance, identical to count 5.
On 30 July 2019, the appellant was arraigned in the District Court before Petrusa DCJ. The appellant entered pleas of guilty to counts 1, 2, 3, 4 and 5. Her Honour recorded judgments of conviction and sentenced the appellant on all of the counts. The individual sentences were ordered to be served concurrently. The total effective sentence was 15 years' imprisonment. A parole eligibility order was made.
The appellant alleges in the appeal, in essence, that he suffered a miscarriage of justice in that:
(a)prior to entering the pleas of guilty in the Perth Magistrates Court on 12 March 2019, the appellant was unaware that mandatory minimum sentences applied or would apply to any of the charged offences;
(b)prior to being arraigned and sentenced in the District Court on 30 July 2019, the appellant was unaware that he could apply to change his pleas from pleas of guilty to pleas of not guilty; and
(c)if the appellant had been aware, prior to being arraigned in the District Court, that he could apply to change his pleas from pleas of guilty to pleas of not guilty, he would have instructed his defence counsel or a different lawyer to make an application under s 99(5) of the CP Act to change his pleas.
In our opinion, subject to the satisfaction of a condition (the first condition), the judgments of conviction on counts 2 and 4 should be set aside and, subject to the satisfaction of another condition (the second condition), a trial should be had on those counts. The first condition is that the appellant files an application in the District Court under s 99(5)(b) of the CP Act to change the pleas he entered in the Perth Magistrates Court in relation to the charged offences which, as subsequently amended, became counts 2 and 4, from guilty to not guilty. The second condition is that a judge of the District Court decides to allow that application and enter pleas of not guilty to counts 2 and 4, on behalf of the appellant, in accordance with s 99(5) of the CP Act.
Further, in our opinion, subject to the satisfaction of the two conditions referred to at [13] above, the sentences imposed by Petrusa DCJ on counts 1, 3 and 5 and the orders for concurrency and parole eligibility made by her Honour should be set aside and the appellant resentenced by a judge of the District Court on those counts and either or both of counts 2 and 4 (or any alternative offences) if the appellant is convicted on either or both of counts 2 and 4 (or any alternative offences) after this court's conditional order setting aside the judgments of conviction on counts 2 and 4 takes effect unconditionally. The resentencing is to be undertaken when any proceedings in the District Court, consequent upon this court's orders, have been finally determined.
Our reasons for arriving at the conclusions expressed at [13] and [14] above are as follows.

The proceedings on 12 March 2019 in the Perth Magistrates Court

On 12 March 2019, the appellant pleaded guilty in the Perth Magistrates Court to five offences as set out in two prosecution notices and the prosecution's 'Brief for Fast‑Track'. The prosecution brief included a statement of material facts. The offences to which the appellant pleaded guilty comprised aggravated home burglary, unlawful wounding with intent to do grievous bodily harm, aggravated indecent assault and two other offences. As we have mentioned, the prosecution notice which included the second charge did not plead that the offence was committed in the course of conduct that constituted an aggravated home burglary. However, it was plain from the prosecution brief that the charged offence of unlawful wounding with intent to do grievous bodily harm (being the second charge) and the charged offence of aggravated indecent assault (being the fourth charge) were asserted to have occurred in the course of the conduct that constituted the alleged aggravated home burglary. As we have mentioned, the magistrate, without convicting the appellant, committed the appellant to the District Court for sentence, as required by s 41(3) of the CP Act.
Initially, the appellant was also charged with two offences of deprivation of liberty. However, those charges were withdrawn before the appellant pleaded guilty in the Perth Magistrates Court on 12 March 2019.

The amended statement of material facts

On 3 May 2019, the State filed an amended statement of material facts which set out the facts upon which the State intended to rely at the sentencing hearing in the District Court. The only relevant amendment was that the offensive weapon or instrument used by the appellant was described as a 'metal scaffold ratchet, approximately 30 cm in length' instead of a 'metal bar, approximately 30 cm in length'.

The original indictment dated 4 May 2019

The State filed an indictment dated 4 May 2019.
The pleading of the charges in the indictment differed from the charges to which the appellant had pleaded guilty in the Perth Magistrates Court on 12 March 2019, as follows:
(a)in count 1, stealing was substituted for wounding with intent as the grounding offence;
(b)in count 1, the aggravating circumstance that the appellant knew or ought to have known that there was another person in the place was added;
(c)in count 1, the nature of the offensive weapon or instrument was particularised by an express reference to a metal scaffold ratchet; and
(d)in count 4, an additional allegation was made that the offence was committed in the course of conduct that constituted an aggravated home burglary.
The indictment did not allege that the charge of unlawful wounding with intent to do grievous bodily harm (count 2) had been committed in the course of conduct that constituted an aggravated home burglary.
The indictment contained an express reference, opposite the pleading of count 2, to s 294(1) of the Code and an express reference, opposite the pleading of count 4, to s 324 of the Code.

The amended indictment dated 25 July 2019

By an application dated 25 July 2019, being five days before the appellant was arraigned in the District Court, the State applied to amend the original indictment by replacing it with an amended indictment dated 25 July 2019.
In the application, the State sought orders permitting:
(a)the amendment of count 2, by the addition of a circumstance of aggravation, namely that the offence was committed in the course of conduct that constituted an aggravated home burglary;
(b)the addition of a reference to s 294(2) of the Code, in addition to the reference to s 294(1) of the Code, opposite the pleading of count 2;
(c)the addition of a reference to s 324(3) of the Code, in addition to the reference to s 324 of the Code, opposite the pleading of count 4; and
(d)the replacement of the original indictment with the amended indictment, which contained those amendments.
On 30 July 2019, Petrusa DCJ granted the application. Counsel for the appellant did not oppose it.

Section 294 and s 324 of the Code

Section 294(1) of the Code creates the offence alleged in count 2 and specifies that the maximum penalty is 20 years' imprisonment.
Section 294(2) provides:
If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1).
Section 324(1) of the Code creates the offence alleged in count 4 and specifies that the maximum penalty is 7 years' imprisonment.
Section 324(3) provides:
If the offence is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in subsection (1) (not being the term specified in the summary conviction penalty in that subsection).
At the material time, the appellant was an 'adult offender' within s 294(2) and s 324(3). See the definition of 'adult offender' in s 1(1) of the Code.
The term 'aggravated home burglary', used in s 294(2) and s 324(3), is defined in s 1(1) of the Code to mean a home burglary committed in circumstances of aggravation (within the meaning given in s 400(1)). In s 400(1) 'circumstances of aggravation' is defined to include, relevantly, circumstances in which, immediately before or during or immediately after the commission of the offence, the offender is or pretends to be armed with a dangerous or offensive weapon or instrument and circumstances in which immediately before the commission of the offence the offender knew or ought to have known that there was another person (other than a co-offender) in the place.

Section 7(3) of the Sentencing Act 1995 (WA)

Section 7(3) of the Sentencing Act 1995 (WA) provides:
If the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then ‑
(a)an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances; and
(b)whether or not the offender was so charged, the existence of those circumstances may be taken into account as aggravating factors.

The interaction between s 7(3)(a) of the Sentencing Act and s 294(2) of the Code

The effect of s 7(3)(a) of the Sentencing Act is that if the statutory penalty for an offence is greater if the offence is committed in certain circumstances than if it is committed without the existence of those circumstances, then an offender is not liable to the greater statutory penalty unless he or she has been charged and convicted of committing the offence in those circumstances.
The effect of s 294(2) of the Code is that if the offence created by s 294(1) is committed by an adult offender in the course of conduct that constitutes an aggravated home burglary, the court sentencing the offender must, notwithstanding any other written law, impose a term of imprisonment of at least 75% of the term specified in s 294(1). The term specified in s 294(1) is 20 years' imprisonment.
Section 294(2) requires a sentencing court to impose a term of at least 15 years' imprisonment on an adult offender who commits the offence created by s 294(1) in the course of conduct that constitutes an aggravated home burglary. The court must impose that mandatory minimum sentence 'notwithstanding any other written law'. The reference to 'any other written law' includes the Sentencing Act. In particular, s 294(2) requires a sentencing court to impose the mandatory minimum sentence, where the offence created by s 294(1) is, in fact, committed by an adult offender in the course of conduct that, in fact, constitutes an aggravated home burglary, notwithstanding s 7(3)(a) of the Sentencing Act.

Consequently, if the offence created by s 294(1) of the Code is, in fact, committed by an adult offender and is, in fact, committed by the adult offender in the course of conduct that constitutes an aggravated home burglary, the sentencing court must impose a sentence of at least 15 years' imprisonment, notwithstanding that the charge of the offence against s 294(1) does not plead, in accordance with s 7(3)(a) of the Sentencing Act, that the offence was committed by the adult offender in the course of conduct that constitutes an aggravated home burglary. Section 294(2) requires the sentencing court to impose the mandatory minimum sentence, notwithstanding any non‑compliance with s 7(3)(a).

The arraignment of the appellant in the District Court

On 30 July 2019, at the commencement of the appellant's sentencing hearing in the District Court, Petrusa DCJ granted the State leave to amend the original indictment in accordance with the State's application dated 25 July 2019. The application to amend was not opposed by the appellant's counsel. The appellant was then arraigned. He pleaded guilty to each of the five counts in the amended indictment. Her Honour entered judgments of conviction.

The sentences imposed by the sentencing judge

On 30 July 2019, the sentencing judge imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 3 years 6 months;
(b)count 2: 15 years;
(c)count 3: 10 months;
(d)count 4: 5 years 4 months; and
(e)count 5: 3 months.
Her Honour ordered that each of the sentences be served concurrently. The total effective sentence was therefore 15 years' imprisonment. The total effective sentence was backdated to 25 December 2018. A parole eligibility order was made.

The facts and circumstances of the offending as alleged by the State and admitted on the appellant's behalf at the sentencing hearing

At the sentencing hearing on 30 July 2019, the appellant was represented by a lawyer, Dr Neville Barber. The prosecutor read aloud the amended statement of material facts. Dr Barber on behalf of the appellant admitted the material facts as read. The material facts are as follows.
At about 2.30 am on 25 December 2018, the appellant, who was then aged 34 years, approached a residential property in Stratton. The appellant's former partner, DB, resided at the property.
The appellant knew that DB resided at the property. He entered the rear yard of the property and found a small brick. The appellant threw the brick at the rear sliding door of the residence, causing significant damage. He then grabbed the sliding door and forced it open. The appellant entered the residence and found a bedroom in which DB and a man, PC, were asleep.
The appellant went into the bedroom and approached PC. The appellant struck PC numerous times on the head, face, arms, body and legs with a metal scaffold ratchet. The ratchet was about 30 cm in length.
PC awoke and the appellant directed him to get out of the bed and move to a corner of the bedroom. PC complied.
Once PC was in the corner, the appellant approached and struck him repeatedly on the legs with the ratchet.
While he was assaulting PC, the appellant alleged that DB and PC had been engaging in sexual behaviour.
PC was treated in hospital for injuries he suffered as a result of the assault. He had a 4 cm laceration to his forehead (above his right eye) and a 5 cm laceration on the top of his head. PC also had bruising to his torso, arms and legs.
After PC was subdued by the assault, the appellant ordered DB to remove her pants. He wanted to inspect her vagina to ascertain whether DB and PC had engaged in sexual behaviour.
DB told the appellant that she did not want to remove her pants. The appellant then slapped her face twice and raised the ratchet in a gesture indicating that he would strike her. DB, fearing for her safety, pulled down her pants.
The appellant visually inspected DB's vagina. He fondled her vagina with his hand by moving her labia majora for about four seconds.
After removing his hand, the appellant told DB, in effect, that she had had sexual intercourse with PC. The appellant again raised the ratchet in a gesture indicating the he would strike her.
DB shouted that she had not had sexual intercourse with PC. The appellant responded by touching DB's labia majora again for about one second.
PC distracted the appellant by talking to him. This gave DB the opportunity to pull up her pants.
The appellant demanded that DB give him her mobile telephone, so that he could inspect it for messages. DB complied. The appellant left the premises with the mobile telephone in his possession. The telephone was a white Samsung valued at about $100.
At about 2.10 pm on 25 December 2018, the appellant was arrested by police at a residential property in Midland. The police searched the property and located a metal scaffold ratchet. The appellant was taken to the Midland police station. He participated in an electronically recorded interview and made partial admissions in relation to the offences in question.

The grounds of appeal

The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that the appellant suffered a miscarriage of justice in that he was not properly advised by Dr Barber:
(a)prior to entering the pleas of guilty in the Perth Magistrates Court on 12 March 2019, that mandatory minimum sentences would apply; and
(b)prior to being sentenced in the District Court on 30 July 2019, that the appellant could apply to change his pleas from pleas of guilty to pleas of not guilty, Dr Barber having advised the appellant on 29 July 2019 that mandatory minimum sentences would apply to counts 2 and 4.
Ground 2 alleges, in essence, that the appellant suffered a miscarriage of justice by entering pleas of guilty in the District Court to the counts on the indictment without receiving advice from a different lawyer as to whether the appellant could and should apply under s 99 of the CP Act to change his pleas from pleas of guilty to pleas of not guilty.
On 1 December 2019, Mazza JA referred the application for leave to appeal on ground 1 to the hearing of the appeal. No order in relation to leave has been made on ground 2.

Additional evidence sought to be adduced in the appeal

Each of the appellant and the State applied for leave to adduce additional evidence in the appeal.
The appellant made an application in the appeal dated 28 November 2019, the relevant evidence being the affidavit of Kathleen Ellen Heath affirmed 22 November 2019, the affidavit of the appellant affirmed 22 November 2019 and the affidavit of Ms Heath affirmed 28 November 2019. Ms Heath is a lawyer employed by the appellant's solicitors in the appeal.
The State made an application in the appeal dated 5 February 2020, the relevant evidence being Dr Barber's affidavit sworn 3 February 2020.
The applications for leave were referred to the hearing of the appeal. We would grant each of the applications.
The appellant and Dr Barber were cross‑examined on their affidavits at the hearing. Ms Heath was not required for cross‑examination.

The appellant's affidavit

In his affidavit, the appellant asserted, relevantly and in effect, as follows:
(a)On 25 December 2018, the appellant was arrested by police at his home in connection with the offences in question.
(b)On 26 December 2018, the appellant appeared in the Magistrates Court. The appellant was refused bail and remanded in custody.
(c)In January 2019, the appellant's mother arranged for Dr Barber to visit him in Hakea prison.
(d)Dr Barber became the appellant's lawyer.
(e)The appellant estimated that Dr Barber visited him five or six times at Hakea prison.
(f)At some of the meetings, Dr Barber was accompanied by a woman who made notes. The appellant does not know her name.
(g)At one of the meetings, the appellant told Dr Barber that he did not want to plead guilty to all of the charges because he did not agree that all of the allegations against him were true. The appellant said words to the effect, 'I don’t agree with everything they're saying against me. I might want to take these charges to trial'.
(h)When the appellant told Dr Barber that he did not want to plead guilty to all of the charges, Dr Barber replied with words to the effect:
(i)'The court doesn’t like time wasting'.
(ii)'You will receive a 25% discount on any sentence if you plead guilty soon, but that discount will reduce if you stretch the matters out'.
(iii)'The evidence is against you, and your partial admissions won't go well for you. The jury will find you guilty'.
(i)At the meeting Dr Barber also said words to the effect:
(i)'If you plead guilty to all charges, I estimate you will receive a sentence of 6 - 8 years'.
(ii)'If the two deprivation of liberty charges are dropped and you plead guilty to the remainder, I estimate you will receive a sentence of 4 - 6 years'.
(iii)'If you go to trial, you will get a longer sentence'.
(j)At the meeting Dr Barber showed the appellant some of the prosecution's witness statements. The appellant asked Dr Barber about evidence, such as DNA evidence. Dr Barber never showed the appellant the DNA evidence.
(k)At the last meeting before the appellant agreed to plead guilty, Dr Barber said to the appellant words to the effect, 'the police have agreed to drop the deprivation of liberty charges if you plead guilty to the remainder'.
(l)The appellant asked Dr Barber, 'do you think I should plead guilty?'.
(m)Dr Barber replied with words to the effect 'Yes. You will get less time if you take the deal'.
(n)The appellant did not believe that he was guilty of all of the charges but, based on Dr Barber's advice, he decided to plead guilty. The appellant did not want to get 6 ‑ 8 years' imprisonment, and Dr Barber had told him that he would get less time if he pleaded guilty.
(o)The appellant agreed to plead guilty because he did not want to get 6 - 8 years imprisonment and because Dr Barber told him that he would be better off.
(p)On his next appearance in the Perth Magistrates Court, the prosecution withdrew the deprivation of liberty charges, and the appellant pleaded guilty to the remaining charges.
(q)Prior to the appellant entering the pleas of guilty in the Perth Magistrates Court, Dr Barber did not advise the appellant that any of the charges carried a mandatory minimum sentence.
(r)The appellant would not have pleaded guilty in the Perth Magistrates Court to all of the remaining charges if he had known that there was a mandatory minimum sentence of 15 years' imprisonment for one of the charges.
(s)On 29 July 2019, being the day before the appellant was arraigned in the District Court before Petrusa DCJ, Dr Barber visited the appellant at Hakea prison.
(t)At that meeting, Dr Barber said words to the effect:
Unfortunately, the sentence will be significantly higher than expected. There is a mandatory minimum sentence of 75% of the maximum sentence, so you will get at least 15 years' imprisonment.
(u)This was the first occasion that Dr Barber had told the appellant anything about a mandatory minimum sentence. The appellant was devastated and dumbfounded.
(v)Dr Barber said words to the effect, 'Sorry about that'.
(w)The appellant asked, 'is there anything I can do?'.
(x)Dr Barber replied with words to the effect, 'no, there is nothing you can do.'
(y)On 30 July 2019, Dr Barber visited the appellant in a non‑contact interview room in the District Court, shortly before the appellant was arraigned before Petrusa DCJ.
(z)The appellant was very angry at that meeting.
(aa)The appellant shouted words to the effect, 'how can you tell me a day before my sentencing that I will get 15 years? When it's too late?'.
(bb)The appellant then asked Dr Barber, 'can I hold back my sentencing?'.
(cc)Dr Barber replied with words to the effect:
Yes, but if we put off the sentencing, all that will happen is that you'll get the same result in a couple of weeks' time. You will be delaying the inevitable.
(dd)The appellant then asked Dr Barber:
Is there anything I can do to take back my plea of guilty? Is there anything I can do?
(ee)Dr Barber replied, 'No'.
(ff)The appellant then asked Dr Barber, 'what would happen if I got a new lawyer?'.
(gg)Dr Barber replied with words to the effect, 'you will get the same result'.
(hh)Dr Barber never informed the appellant that he could apply to the court to withdraw his pleas of guilty. As a result of what Dr Barber had told him, the appellant thought that it was too late to plead not guilty and to have a trial.
(ii)The appellant agreed to plead guilty on arraignment before Petrusa DCJ on 30 July 2019 and to be sentenced on that date because he thought he had 'no other real choice'.
(jj)If he had been advised that he could have applied to change his pleas from guilty to not guilty and to have a trial, the appellant would have done so.

The appellant's evidence at the hearing of the appeal

The appellant gave evidence at the hearing of the appeal, relevantly, as follows.
As to evidence‑in‑chief:
(a)The appellant said that he was guilty of count 1 (aggravated burglary), count 3 (making a threat) and count 5 (stealing a white Samsung mobile telephone) (appeal ts 4 ‑ 5).
(b)The appellant said that he was not guilty of count 2 (aggravated unlawful wounding with intent to do grievous bodily harm) or count 4 (aggravated unlawful and indecent assault) (appeal ts 5).
(c)As to count 2, the appellant admitted that he had entered the property in Stratton through the back door. When he came to the back door the glass panel of the door had already been smashed. The appellant got into the house by 'roughly [pulling] the door open because it was a bit buckled'. The door was 'slightly open, ajar' and he 'just … opened it'. The appellant admitted that after entering the house he went into one of the bedrooms. DB and PC were in the bedroom. At the time the status of his relationship with DB was '[s]ort of on and off again'. The appellant said he did not hit PC with an iron bar or a ratchet or any other weapon. When he entered the house the appellant had a scaffold ratchet in his backpack. However, while he was inside the house he did not take the ratchet out of his backpack. The appellant admitted that he had assaulted PC by punching him. He struck him about three times to the chest and the head. The appellant did not strike PC 'very hard'. When he began assaulting PC the appellant was angry. He 'felt like [PC had] stabbed [him] in the back'. The assault on PC lasted '[a] minute, maybe' (appeal ts 6).
(d)As to count 4, the appellant admitted that while he was inside the house he demanded that DB remove her pants. The appellant said he told DB that if 'she wasn't messing around with me, like, prove that she wasn’t sleeping with [PC]'. The appellant said he had shouted at DB. He was feeling '[p]retty angry'. Ultimately, DB complied with the appellant's demand that she remove her pants. At that point she was naked from the waist down. The appellant said he did not at any time touch her vagina. He did not touch DB sexually while he was inside the house. DB had her pants down for 'only seconds'. The appellant admitted that during the interaction in the house he had slapped DB's face (appeal ts 7).
(e)The appellant said that he had a vague recollection that, while he was in the dock on 30 July 2019 before the sentencing hearing began, Dr Barber asked him whether he 'wanted to go ahead'. The appellant said he replied, 'well, it looks like I have no choice'. The appellant told Dr Barber that he 'would go ahead' (appeal ts 8 ‑ 9).
As to cross‑examination:
(a)The appellant accepted that he did not state in his affidavit affirmed 22 November 2019 that the scaffold ratchet was in his backpack and that while he was inside the house he did not take the ratchet out of his backpack (appeal ts 8).
(b)The appellant also accepted that he did not state in his affidavit that he had not hit PC with the ratchet but had punched him about three times (appeal ts 9).
(c)The appellant also accepted that he did not state in his affidavit that on the occasion in question he did not touch DB sexually (appeal ts 9).
(d)The appellant said that on 24 December 2018 (being the day before the episode in question) he had seen DB at Swan View. When they met at Swan View the appellant had made some accusations against her (appeal ts 9).
(e)The appellant said that when he was in the bedroom on 25 December 2018 he yelled at DB and PC; he kicked the bed; he told PC to shut up and to stand in the corner; he told DB, in effect, to show him her vagina; he made it appear to DB that he was about to hit her; he asked DB for her mobile telephone; he 'actually ended up with [the mobile telephone]'; and he had the mobile telephone in his possession when the police arrested him (appeal ts 10).
(f)The appellant said, initially, he did not see any injuries on PC. However, later, he saw injuries on PC. Those injuries were not caused by the appellant having hit PC. The appellant saw that PC had a cut above his right eye. The cut was red in colour. The cut was 'pretty fresh'. The appellant was 'not certain' whether he was responsible for the cut (appeal ts 10).
(g)The appellant agreed that his electronically recorded interview with the police occurred on 25 December 2018. The appellant accepted that he told the police PC did not, to his knowledge, have any injuries. The appellant also accepted that he told the police that he did not cause any injuries to PC. The appellant admitted that those statements he made to the police were incorrect. The appellant agreed that he told the police that at the time of the incident he had a 'broken heart'. He also told the police that at the time of the incident he was angry (appeal ts 11).
(h)The appellant agreed that upon arraignment in the District Court on 30 July 2019 he pleaded guilty to count 1 and, by his plea of guilty, he accepted responsibility for injuries suffered by PC. The injuries comprised two cuts on PC's head (appeal ts 13).
(i)The appellant asserted that upon arraignment in the District Court on 30 July 2019 he pleaded guilty to each count because he 'felt [he] had no choice' and he 'just accepted it' (appeal ts 13).
(j)The appellant rejected counsel for the State's proposition that the appellant did in fact touch DB's vagina. The appellant accepted, however, that he did not state in his affidavit affirmed 22 November 2019 that he had not touched her vagina. According to the appellant, when he pleaded guilty in the District Court he 'accepted the charges and not the facts' (appeal ts 14).
(k)Prior to being sentenced in the District Court, the appellant wrote a letter to the sentencing judge in which he said, amongst other things:
My heavy drug use and depression are no excuse for what I've done. At the end of the day, it was my fault that I used the drugs and it was my fault I stayed in a toxic relationship. I didn’t mean to go out and hurt anyone and my crimes were entirely out of character. I sincerely apologise once again. And I wasn’t in the right state of mind and I only hope you can understand. I hope you will consider a suspended sentence (appeal ts 19).
(l)The appellant accepted that he had done 'the wrong thing with the burglary and stealing the phone and the common assault' but denied he had otherwise done 'the wrong thing in relation to each of the five charges' (appeal ts 20).
(m)The appellant told the author of a psychiatric report, Dr Harding, that he had feelings of guilt and shame over his actions and that he was glad he had not caused more physical harm to anyone. The appellant spoke to the psychiatrist about the connection between his drug use and what had happened at the Stratton property (appeal ts 21).
(n)The appellant told the author of a psychological report, Ms Zuin, that he had assaulted both DB and PC. His assault upon them was punishment for not being honest with him and for making a fool out of him. The appellant denied that he had admitted to the psychologist that he had touched DB's vagina. The appellant said he told the psychologist he was guilty of the charges because he thought he would be 'better off' (appeal ts 24 ‑ 25).
(o)The appellant rejected the proposition that when he pleaded guilty in the District Court he knew that he 'had done the wrong thing in relation to every one of those five charges on the indictment'. He also rejected the proposition that he knew that he 'had done the wrong thing in relation to everything … that the police had said in the statement of material facts'. He also rejected the proposition that he pleaded guilty in the District Court because he knew that he 'had done the wrong thing' and he 'just wanted to accept responsibility … do the proper thing' (appeal ts 25).
(p)The appellant admitted that while he was in custody on remand he told his mother that he was extremely remorseful for what he had done and that he took responsibility for his actions (appeal ts 27).
(q)The appellant maintained that he did not hit PC in the head with the scaffold ratchet and he did not cause two cuts on PC's head (appeal ts 27).
(r)The appellant admitted that before he pleaded guilty in the Perth Magistrates Court on 12 March 2019 he signed a document headed 'instructions for a plea of guilty' dated 21 February 2019. Dr Barber gave him the document to sign (appeal ts 27 ‑ 28). The document was in a standard typewritten form. Brief details of the offences alleged against the appellant were inserted in the document by hand. The relevant parts of the document are as follows:
(i)The document includes a typewritten statement that the appellant instructed Dr Barber that 'it is [his] intention to plead guilty to each of the following charges'.
(ii)The document then lists in handwriting seven offences including 'aggravated burglary', '[with] intent to do GBH - assault' and '[aggravated] indecent assault'.
(iii)The document includes a typewritten statement that the appellant has been 'advised that a plea of guilty to a charge is a complete admission of each element of the offence charged, and therefore a plea of guilty cannot be changed once a conviction is recorded'.
(s)The appellant said that he did not read the document. He 'just signed it going on [Dr Barber's] advice'. Dr Barber said that the appellant was 'better off signing it' so the appellant signed it (appeal ts 28).
(t)The appellant rejected the suggestion that he had merely told Dr Barber that he did not agree with two things; namely, that he had detained DB and PC and that he had broken the rear sliding door of the Stratton house. The appellant maintained that he had told Dr Barber that he had not used a weapon to assault PC and that he did not touch DB (appeal ts 29). The appellant said that he denied breaking the rear sliding door, occasioning bodily harm to PC and indecently assaulting DB (appeal ts 29 ‑ 30).
(u)The appellant denied having told Dr Barber that he admitted all of the facts set out in the State's amended statement of material facts (appeal ts 30).
(v)The appellant said that he had about five or six meetings with Dr Barber at Hakea prison between 10 January 2019 and 29 July 2019 (appeal ts 30).
(w)The appellant reiterated that before he pleaded guilty in the Perth Magistrates Court on 12 March 2019 Dr Barber had advised him that he would 'get less time if [he took] the deal' (appeal ts 31).
(x)The appellant also reiterated that before he pleaded guilty in the Perth Magistrates Court on 12 March 2019 Dr Barber advised him that the court 'doesn’t like time wasting' (appeal ts 32).
(y)The appellant said that Dr Barber did not advise him, after he pleaded guilty in the Perth Magistrates Court and before Dr Barber told him about the mandatory minimum sentences, that the appellant 'would likely get a very significant jail sentence of 10 years or more' (appeal ts 32).
(z)The appellant accepted that when he was in the dock at the District Court on 30 July 2019 Dr Barber spoke to him and to the prosecutor before the sentencing judge entered the court room and the proceedings began (appeal ts 32).
(aa)The appellant denied that at his meeting with Dr Barber on 29 July 2019 Dr Barber had told him that the appellant could instruct Dr Barber to inform the court that he wanted to try and change his pleas of guilty. The appellant also denied that at that meeting Dr Barber had told him that the appellant could instruct Dr Barber that he wanted a different lawyer to try and get the appellant's pleas of guilty changed.
(bb)The appellant said that at the meeting on 29 July 2019 he asked Dr Barber if he could get a new lawyer. Dr Barber said that he could. The appellant then asked Dr Barber whether it would change anything if he got a new lawyer. Dr Barber replied, 'no' (appeal ts 33).
(cc)The appellant said that at the meeting on 29 July 2019 there was no discussion about a possible adjournment of the sentencing hearing that had been listed for 30 July 2019. Dr Barber did not mention to the appellant that he could get an adjournment for two weeks until the meeting in the non‑contact interview room in the District Court on 30 July 2019 (appeal ts 35).
(dd)The appellant said that at the meeting in the non‑contact interview room in the District Court on 30 July 2019 Dr Barber did not tell him that he was free to instruct Dr Barber to inform the court that he wanted to endeavour to change his pleas of guilty and that he could retain a different lawyer for that purpose (appeal ts 36). The appellant maintained that Dr Barber did not advise him that he could do anything except obtain a two week adjournment. Dr Barber did not tell him that he could get a new lawyer (appeal ts 36).
(ee)The appellant said that he had no recollection of an application being made before the sentencing judge on 30 July 2019 for an amendment to the indictment (appeal ts 37). Dr Barber did not inform him earlier in the meeting in the non-contact interview room in the District Court that an application would be made to amend the indictment (appeal ts 37).
(ff)When he pleaded guilty upon arraignment in the District Court on 30 July 2019 the appellant believed, based on what Dr Barber had told him, that the prosecution had a strong case (appeal ts 38). However, the appellant denied that one of the reasons he had pleaded guilty in the District Court was that he knew that the prosecution had a strong case against him (appeal ts 39). The appellant also denied that one of the reasons he had pleaded guilty in the District Court was that he knew he had done the wrong thing and he wanted to accept responsibility for it (appeal ts 39). According to the appellant, he pleaded guilty only because of Dr Barber's advice (appeal ts 39).

As to re‑examination:
(a)The appellant said that when he participated in the electronically recorded interview with police on 25 December 2018 he was asked whether he had struck PC with an iron bar. He denied having struck PC with an iron bar. Also, during the interview, he was asked whether he had sexually touched DB on the vagina. He denied having sexually touched DB on the vagina (appeal ts 41).
(b)In the meetings he had with Dr Barber between January 2019 and July 2019 the appellant told Dr Barber that some of the allegations being made against him, that were ultimately the subject of the pleas of guilty in July 2019, were incorrect (appeal ts 41).
(c)The appellant said that Dr Barber did not tell him until the meeting on 29 July 2019 that he would receive at least 15 years' imprisonment if he proceeded with the pleas of guilty. Prior to the meeting on 29 July 2019, Dr Barber had advised him that he was likely to receive 6 ‑ 8 years' imprisonment for the five counts. When Dr Barber told him on 29 July 2019 that he would receive at least 15 years' imprisonment the appellant was shocked, upset and crushed. The meeting on 29 July 2019 probably lasted less than five minutes (appeal ts 42).
(d)The appellant said that a statement in the report of the psychiatrist, Dr Harding, to the effect that he told Dr Harding that he did not have any plans to hurt anyone on the day in question was true. Also, a statement in Dr Harding's report to the effect that the appellant had expressed feelings of guilt and shame over his actions and had said that he was glad he did not cause more physical damage to anyone was correct (appeal ts 42 ‑ 43).
(e)The appellant said that a statement in the report of the psychologist, Ms Zuin, to the effect that he told Ms Zuin that he denied some aspects of the offending was true. The appellant explained that the aspects of the offending which he denied were occasionally bodily harm to PC and indecently assaulting DB (appeal ts 43).
(f)The appellant said that a representative of the Aboriginal Legal Service had assisted him in preparing his affidavit affirmed 22 November 2019. The affidavit was prepared by the representative asking him questions and by him giving answers to those questions. The representative did not ask him any questions, when the affidavit was being prepared, about the individual charges against him (appeal ts 44).

Dr Barber's affidavit

In his affidavit, Dr Barber asserted, relevantly and in effect, as follows:
(a)In January 2019, Dr Barber was instructed by Legal Aid (WA) to assist the appellant in relation to criminal charges against him.
(b)Dr Barber represented the appellant up to and including his sentencing in the District Court on 30 July 2019.
(c)Dr Barber visited the appellant on a number of occasions at Hakea prison while Dr Barber was representing him.
(d)Dr Barber accepted that the appellant told him, at least at one of the meetings, that not all of the allegations against him were true. However, Dr Barber understood that the appellant admitted the elements of the offences other than the deprivation of liberty charges.
(e)Dr Barber denied having told the appellant, at one of the meetings at Hakea prison, that 'the court doesn’t like time wasting'. However, Dr Barber accepted that 'one interpretation of [his] advice to the appellant could be' that he told the appellant:
(i)'You will receive a 25% discount on any sentence if you plead guilty soon, but that discount will reduce if you stretch the matters out'.
(ii)'The evidence is against you, and your partial admissions won't go well for you. The jury will find you guilty'.
However, Dr Barber asserted that he would not have used the words set out at [70(e)(ii)] above.
(f)Dr Barber said that he explained to the appellant the potential benefits of pleas of guilty and discussed with the appellant the evidence in the State brief. Dr Barber did not recall the appellant asking him about DNA evidence.
(g)Dr Barber admitted that 'for a considerable time' he did not 'grasp the applicable mandatory imprisonment provisions'. Dr Barber accepted that, initially, he provided the appellant with incorrect advice.
(h)Dr Barber agreed that he said to the appellant, in effect, 'the police will discontinue the deprivation of liberty charges if you plead guilty to the other charges'.
(i)Dr Barber did not specifically recall the appellant asking him, 'do you think I should plead guilty?'. However, according to Dr Barber, his practice is not to say words to the effect, 'you should plead guilty'. Rather, his practice is to discuss the evidence and to allow the accused to decide upon his or her plea.
(j)Dr Barber said that he was satisfied that there was a proper basis for the appellant's decision to enter pleas of guilty in the Perth Magistrates Court.
(k)Dr Barber said that, at some stage, he advised the appellant that he was likely to face a very significant term of imprisonment, namely 10 years or more.
(l)Dr Barber accepted that, prior to the appellant entering his pleas of guilty in the Perth Magistrates Court, Dr Barber did not advise him that any of the charges carried a mandatory minimum sentence.
(m)Dr Barber agreed that at a meeting on 29 July 2019 at Hakea prison Dr Barber informed the appellant, for the first time, about the mandatory minimum sentencing provisions applicable to some of his offences.
(n)Dr Barber said that at the meeting on 29 July 2019 he advised the appellant as to the choices available to him. In particular, Dr Barber advised the appellant that he could:
(i)seek to change his pleas of guilty and that he could 'advise [Dr Barber] to inform the court that he wished to do so and seek alternative legal representation for that purpose';
(ii)instruct him that he wished to proceed to sentence;
(iii)instruct him that he wished to delay his sentencing to further consider his options.
(o)Dr Barber said that at the meeting on 29 July 2019 he emphasised to the appellant that if the appellant wished to change his pleas or seek alternative legal representation, he should do so before 'formally pleading guilty' in the District Court.
(p)Dr Barber said that at the meeting on 29 July 2019 the appellant was upset and did not give him instructions. The matter was left on the basis that the appellant would give further consideration to the issues that had been discussed.
(q)Dr Barber denied that he advised the appellant at the meeting on 29 July 2019 that there was nothing the appellant could do as a result of Dr Barber having informed him of the mandatory minimum sentencing provisions.
(r)Dr Barber agreed that on 30 July 2019, before the appellant was arraigned, Dr Barber visited the appellant in a non‑contact interview room in the District Court. According to Dr Barber, at that meeting he explained to the appellant the options available to him. According to Dr Barber, he advised the appellant that if the appellant did not wish to plead to the charges in the District Court Dr Barber would 'advise the court accordingly and apply for his sentencing to be adjourned, so that he could obtain alternative representation and otherwise further consider his position'. Dr Barber said that at the meeting the appellant remained undecided, but Dr Barber understood that he was inclined to proceed to sentencing.
(s)Dr Barber denied, in essence, that, at the meeting on 30 July 2019:
(i)Dr Barber advised the appellant, in effect, that there was nothing the appellant could do to change his pleas of guilty and that the appellant would 'get the same result' if he retained a new lawyer; and
(ii)Dr Barber did not tell the appellant that he could apply to the court to withdraw his pleas of guilty.
(t)Dr Barber maintained that he had made it 'very clear to the appellant that he had options available to him'.
(u)Dr Barber said that, when the appellant was in the dock before the proceedings began on 30 July 2019, Dr Barber advised the appellant 'firmly' that he could apply to the court to have his sentencing adjourned. According to Dr Barber, he restated the same points that he had made to the appellant at the meeting on 29 July 2019 and at the earlier meeting on 30 July 2019 and 'emphasised that if [the appellant] wished to further consider his position and/or consider changing his pleas, he should do so prior to formally pleading guilty and being sentenced' (original emphasis). After giving the appellant that advice, the appellant instructed Dr Barber that he would plead guilty to the charges that morning.
(v)Dr Barber said that when the court convened on 30 July 2019 the prosecutor applied, in the appellant's presence, to amend the indictment.

Dr Barber's evidence at the hearing of the appeal

Dr Barber gave evidence at the hearing of the appeal, relevantly, as follows.
As to evidence‑in‑chief:
(a)Dr Barber said that in 1984 he was admitted to legal practice in Western Australia. Since that time he has practised extensively in Western Australia in criminal law both as a prosecutor and a defence lawyer (appeal ts 46).
(b)The first time Dr Barber met with the appellant at Hakea prison was on 10 January 2019 and the last time was on 29 July 2019 (appeal ts 47).
(c)At Hakea prison Dr Barber discussed the alleged material facts with the appellant on more than one occasion. The appellant only objected to the alleged deprivation of liberty charges. He made admissions to Dr Barber on or with respect to the other charges (appeal ts 48).
(d)At the first meeting at Hakea prison the appellant told Dr Barber that he intended to plead not guilty because he anticipated that the complainants would not appear at a trial (appeal ts 48).
(e)Dr Barber could not recall whether the appellant took issue with any particular facts alleged in the statement of material facts. However, Dr Barber was aware that in his electronically recorded interview with police, which Dr Barber discussed with him, the appellant denied some aspects including touching DB's vagina. The appellant also said in his electronically recorded interview and repeated to Dr Barber that the rear door at the Stratton property had already been smashed (appeal ts 48).
(f)Dr Barber said that the meeting with the appellant on 29 July 2019 lasted 'in the order of an hour'. The meeting in the non‑contact interview room in the District Court on 30 July 2019 lasted about 15 minutes and the discussion in the dock on that day lasted about 5 minutes (appeal ts 52).
(g)On 30 July 2019, Dr Barber told the prosecutor and the judge's associate, shortly before the court was convened, that he was unsure whether the sentencing would proceed on that date. Dr Barber made that statement to the prosecutor and the judge's associate because it was unclear to Dr Barber whether the appellant 'would proceed with the sentencing or whether he would choose to exercise any of the options that [Dr Barber had given] him' (appeal ts 53).
(h)At the sentencing hearing on 30 July 2019, the prosecutor applied to amend count 2 on the indictment to insert reference to the fact that the offence charged in count 2 (that is, the wounding with intent offence) had occurred in the course of an aggravated burglary. Dr Barber had told the appellant at the meeting on 29 July 2019 that the prosecution would be applying the next day to make that amendment. The primary focus of the meeting on 29 July 2019 was the mandatory minimum sentencing provisions. Dr Barber was unable to recall whether the appellant said anything at that meeting about the prosecution's application to amend count 2 (appeal ts 53).
(i)Dr Barber could not recall whether he discussed with the appellant the contents of the prosecution's amended statement of material facts, but he was confident that he would have spoken to him at Hakea prison about the amended document (appeal ts 54).
(j)Dr Barber thought that he had discussed with the appellant on at least three occasions the facts alleged by the prosecution in support of the charged offences (appeal ts 54).
(k)During his plea in mitigation at the sentencing hearing on 30 July 2019, Dr Barber told the sentencing judge that the appellant admitted the facts stated in the amended statement of material facts. Dr Barber thought that his admission on the appellant's behalf of the amended statement of material facts was based upon 'the visits that [Dr Barber] had with him at Hakea, but [he was] not sure which visits and that's all [Dr Barber could] say really' (appeal ts 55).
(l)Dr Barber said that it was untrue to assert that he had never told the appellant anything about the possible total effective sentence being 10 years or more. Further, Dr Barber asserted that it was untrue that 'all [he] said to [the appellant] in terms of the total effective sentence' was that it would be in the vicinity of 6 ‑ 8 years (appeal ts 59).
(m)Dr Barber said that it was not his recollection that the appellant contested the prosecution's assertions in relation to the deprivation of liberty charges, the rear door having been broken by him and PC having been wounded by him with the ratchet. Further, Dr Barber said that it was not his recollection that the appellant had told him, in effect, that the appellant took issue with the prosecution's assertion that he had touched DB's vagina (appeal ts 59 ‑ 60).
(n)Dr Barber said that it was untrue that the meeting on 29 July 2019 took less than five minutes and it was 'certainly absolutely not true' that at that meeting he told the appellant that he could do nothing about changing his pleas of guilty. Dr Barber said the purpose of the meeting on 29 July 2019 was first, to apologise to the appellant for the lateness of his advice about the mandatory minimum penalties; secondly, to explain to the appellant the mandatory minimum sentencing provisions; and thirdly, to give the appellant his options. It was 'simply untrue' that Dr Barber had left the appellant with the idea that the appellant had no choice but to plead guilty in the District Court (appeal ts 60).
(o)Dr Barber identified a one page typewritten letter from the appellant to the sentencing judge. Dr Barber said that the appellant had given him the letter. In the letter the appellant requested her Honour to give him a suspended sentence of imprisonment. Dr Barber said that he discussed the letter with the appellant when the appellant gave him the letter. Dr Barber advised the appellant that it was not realistic to ask for the imposition of a suspended term of imprisonment. Dr Barber thought that he agreed with the appellant that Dr Barber would not tender the letter at the sentencing hearing. The letter was not in fact tendered (appeal ts 61 ‑ 62).
As to cross‑examination:
(a)Dr Barber accepted that, in his experience as a criminal lawyer practising for 16 years, clients routinely want to know what the maximum penalties are for the charged offences and what sentence they are likely to be given, especially if they are about to plead guilty to significant offending (appeal ts 63 ‑ 64).
(b)Dr Barber confirmed that the appellant had asked him about the likely sentence he would receive if he pleaded guilty (appeal ts 64).
(c)Dr Barber said that when he met with the appellant on 29 July 2019 he was worried about what the appellant might do when he appeared in the District Court the following day. Dr Barber said that he was not concerned about whether he might be subject to a professional complaint or a professional negligence suit (appeal ts 64).
(d)Dr Barber said that in his experience as a criminal lawyer clients sometimes indicate that they wish to plead guilty for reasons other than the fact that they believe they are guilty (appeal ts 65).
(e)Dr Barber denied that it was possible that the appellant had told him that he had a real issue with whether he assaulted PC with an iron bar. Dr Barber also denied that the appellant had told him that he might have punched PC a few times (appeal ts 67).
(f)Dr Barber said that he was 'not sure' whether 'even leading right up to the doorstep of the plea [the appellant] was indicating some resistance to accepting the charges that were against him' (appeal ts 67).
(g)Dr Barber acknowledged that in her report dated 22 April 2019 the psychologist, Ms Zuin, had recorded that the appellant acknowledged responsibility for his offending behaviour 'albeit with a marked degree of justification, minimisation and distortion' and also 'denied some aspects of the offending'. Dr Barber accepted that those statements attributed to the appellant by Ms Zuin were made after the deprivation of liberty charges had been withdrawn and did not relate to the breaking of the rear glass door. Dr Barber accepted that the statements attributed to the appellant by Ms Zuin would have been in relation to the remaining five charges before the court (appeal ts 68).
(h)Dr Barber denied that the appellant had told him, in relation to counts 2 and 4, that he did not accept, either in part or in whole, that he had committed the assault and the indecent assault referred to in those counts (appeal ts 68).
(i)Dr Barber said that he did not recall whether or not he made any notes at the meeting with the appellant on 29 July 2019. He thought that he did not make any notes. Some notes of the meeting were made by his assistant (appeal ts 68 ‑ 69).
(j)The notes of the meeting made by Dr Barber's assistant read:
·    Mandatory provisions for the offences.
·    Had meth 20 hrs before ½ gram.
·    Was using meth every day.
·    On it for 3 days.
·    Went there just to check on her.
·    If that back sliding door wasn’t broken I wouldn’t have gone in there.
·    I didn’t break the back door.
·    I went there to see her that’s all. She uses too.
·    I never done that.
·    That’s the whole reason I went there to check on her.
·    I only admitted to that to get the dep lib charges gone.
(k)Dr Barber acknowledged that there was no mention in the notes made by his assistant of the meeting on 29 July 2019 of any discussion about the appellant possibly changing his pleas of guilty (appeal ts 70).
(l)Dr Barber also acknowledged that in the notes there were references to the appellant raising issues about whether or not he was guilty of some of the offending (appeal ts 70). Dr Barber accepted that on 29 July 2019 the appellant was raising with Dr Barber issues about whether he was guilty of some of the five charged offences (appeal ts 71). Dr Barber said he believed that the appellant was raising these issues as a reaction to his having been told for the first time about the mandatory minimum sentences (appeal ts 71).
(m)Counsel for the appellant put to Dr Barber that in his evidence‑in‑chief Dr Barber had said that it was untrue that he had told the appellant that his total effective sentence would be in the vicinity of 6 ‑ 8 years. Dr Barber acknowledged that in his affidavit (prepared in response to the appellant's affidavit) Dr Barber had accepted that he had told the appellant that he would get 6 ‑ 8 years if the deprivation of liberty of charges remained and that he would get 4 ‑ 6 years if the deprivation of liberty charges were withdrawn (appeal ts 72).
(n)Dr Barber advised the appellant that he would be likely to receive a very significant term of imprisonment, namely 10 years or more, after the appellant had pleaded guilty in the Perth Magistrates Court and was committed to the District Court (appeal ts 72).
(o)Dr Barber denied that he had made up the assertion that he had given the appellant advice that he would be likely to receive a very significant term of imprisonment, namely 10 years or more, 'to try and justify [his] failure about the 15 ‑ year minimum mandatory period' (appeal ts 73).
(p)Dr Barber did not make any notes of his meeting with the appellant on 30 July 2019 in the non‑contact interview room in the District Court or of his discussion with the appellant while the appellant was in the dock later that day (appeal ts 75).
(q)Dr Barber said that he understood 'the way that s 99 [of the CP Act] works' and that 'it can be difficult for an offender, or an accused person, after they've entered a plea in the Magistrates Court to change their plea' (appeal ts 76).
(r)However, Dr Barber denied that, in the present case, Dr Barber believed, when he went to see the appellant on 29 July 2019 and when he dealt with the appellant on 30 July 2019, that he had formed the view that the appellant was very unlikely to be allowed to change his plea (appeal ts 76). Dr Barber elaborated:
I thought … it was definitely an option open to [the appellant] to pursue that, either by changing lawyers and … contesting his plea, or just by adjourning it until he had the benefit of other legal advice (appeal ts 76).
(s)Dr Barber denied that on the morning of 30 July 2019 he told the appellant, in effect, that the appellant could not change his plea or that it was possible the appellant understood from what Dr Barber had said that he would not be allowed to change his plea (appeal ts 76).
(t)Counsel for the appellant asked Dr Barber whether, if he had been aware of the 15 ‑ year mandatory minimum sentence for count 2 before the appellant entered the pleas of guilty in the Perth Magistrates Court, Dr Barber would have 'sought to try and negotiate that charge down'. Dr Barber said that, where possible, for any client that he has, he seeks to negotiate in the client's best interests. However, in the present case, Dr Barber did not raise with the prosecution, at any stage, whether the prosecution might accept a plea 'to something less than' the offence pleaded in count 2 (appeal ts 77 ‑ 78).
(u)Dr Barber denied that, at some stage, the appellant told him that he never hit PC with the ratchet. Dr Barber also denied that, at some stage, the appellant told him that all he did in relation to PC was to punch him two or three times to the head. Dr Barber also denied that, at some stage, the appellant told him that, while he had placed pressure on DB and had made threats compelling her to remove her pants, he had never touched her vagina (appeal ts 78).
(v)Dr Barber denied saying anything to the appellant to the effect of 'the court doesn’t like time wasting'. Dr Barber did not recall the appellant asking him about whether there was any of PC's DNA on the ratchet found in the appellant's bag. Dr Barber recalled the appellant admitting that he had the ratchet, but he did not recall anything else about the ratchet. Dr Barber agreed that he was dismissive as to the relevance of DNA because in the electronically recorded interview with police the appellant had admitted being in the Stratton house. Dr Barber accepted that if the appellant had denied using the ratchet to strike PC, DNA testing of the ratchet may have been of assistance to the appellant's case. However, according to Dr Barber, the appellant admitted to him that he had committed the charged offences even though the appellant had denied in the electronically recorded interview with police that he had committed them (appeal ts 79).
(w)Dr Barber said that the meeting with the appellant on 29 July 2019 was 'quite a long meeting because there was a lot to discuss'. Dr Barber told the appellant about the 15 ‑ year mandatory minimum sentence for count 2. Dr Barber also thought that he spoke to the appellant about the proposed amendment to the indictment. Dr Barber accepted that after he had apologised to the appellant, the appellant asked him whether there was anything he could do. However, Dr Barber denied that at that point he told the appellant there was nothing he could do. Dr Barber insisted that he gave the appellant 'the options' and that he could not have been 'clearer about that'. Dr Barber accepted that the appellant was 'quite upset' in the meeting after being told about the 15 ‑ year mandatory minimum sentence and that the appellant may have left the meeting 'a little bit abruptly at the end' (appeal ts 80 ‑ 81).
(x)Dr Barber agreed that at the meeting on 30 July 2019 in the non‑contact interview room in the District Court the appellant was 'very angry'. Dr Barber reiterated that at that meeting he 'flagged' to the appellant the options that were available to him. Dr Barber agreed that at the meeting the appellant asked him whether he could 'hold back [his] sentencing'. There was discussion about an adjournment. However, Dr Barber denied having told the appellant that if the sentencing was 'put off' all that would happen was that the appellant would 'get the same result in a couple of weeks' time'. Dr Barber also denied that the appellant had asked him specifically what would happen if he retained a new lawyer and Dr Barber had responded that the appellant would 'get the same result'. Dr Barber also denied that he had made that statement to the appellant because he was of the view that the appellant would not be permitted to change the pleas of guilty he had previously entered (appeal ts 81 ‑ 82).

Dr Barber gave this evidence in response to questions from the court:
(a)Dr Barber said that it was usual practice for him to make notes at meetings with clients but, for reasons which were not clear to him, he did not have any notes of his meetings with the appellant (appeal ts 82).
(b)Prior to 12 March 2019, Dr Barber advised the appellant of what Dr Barber then understood was the maximum penalty for each of the charged offences (appeal ts 82).
(c)On or before 29 and 30 July 2019, Dr Barber did not consider whether he should withdraw and cease acting for the appellant, rather than simply leaving it to the appellant to decide whether he wanted another lawyer (appeal ts 83).
(d)Dr Barber did not consider whether he may have had a conflict in continuing to act for and advise the appellant on 29 and 30 July 2019 in circumstances where Dr Barber had made a mistake as to the mandatory minimum sentence for count 2 or whether, in those circumstances, the appellant should receive independent advice from another lawyer about whether the appellant should apply under s 99 of the CP Act to change his pleas of guilty. Dr Barber accepted, however, that it would have been preferable if he had ceased to act for and advise the appellant on 29 and 30 July 2019 and if the appellant had received independent advice from another lawyer (appeal ts 83).
(e)Dr Barber was unsure whether he had any specific instructions from the appellant as to whether the appellant intended to unlawfully wound PC in the context of the charged offence in count 2, namely that the appellant had 'unlawfully wounded [PC] with intent to maim, disfigure, disable or do some grievous bodily harm to [PC]' (appeal ts 83).
As to re‑examination:
(a)Dr Barber said in relation to count 2 and the other counts that he understood the appellant had admitted the elements of the charged offences (appeal ts 84).
(b)Dr Barber believed that he went through the elements of all of the offences with the appellant before the appellant entered pleas of guilty upon arraignment in the District Court (appeal ts 84).
(c)Dr Barber did not have any independent recollection as to 'what were the factual issues' as at the end of the meeting on 29 July 2019 (appeal ts 84).

Grounds 1 and 2: the appellant's orders wanted

Counsel for the appellant submitted that if the appeal against conviction was allowed, the judgments of conviction on counts 2 and 4 should be set aside, but the judgments of conviction on the other counts should not be disturbed.
It was submitted that if the appeal was allowed and the judgments of conviction on counts 2 and 4 were set aside, then:
(a)all of the sentences (including the sentences on counts 1, 3 and 5) should be set aside;
(b)the matter should be remitted to the District Court for the purpose of enabling the appellant to apply to change his pleas in relation to counts 2 and 4 from guilty to not guilty; and
(c)after counts 2 and 4 have been 'finally resolved', the appellant should be resentenced on all of the counts.

Ground 1: the appellant's submissions

Counsel for the appellant submitted that there were 'four evidential hurdles' that the appellant 'had to clear' for his appeal on ground 1 to be made out. First, the appellant was not properly advised about the mandatory minimum sentences for counts 2 and 4 before he entered his pleas in the Perth Magistrates Court. Secondly, Dr Barber advised the appellant that if he entered pleas of guilty in the Perth Magistrates Court, after the deprivation of liberty charges were withdrawn, he would receive a sentence of between 4 and 6 years imprisonment. Thirdly, there remains a 'genuine question about [the appellant's] guilt on counts 2 and 4'. Fourthly, Dr Barber did not inform the appellant that he could apply to change his pleas of guilty on counts 2 and 4 before the appellant was arraigned in the District Court on 30 July 2019.
According to counsel for the appellant the court should not have any difficulty in finding that the appellant has satisfied hurdles one and two.
As to hurdle three, the appellant relied upon:
(a)his oral evidence at the hearing of the appeal;
(b)the content of the psychological and psychiatric reports; and
(c)the notes made by Dr Barber's assistant at the meeting in Hakea prison on 29 July 2019.
It was submitted that the appellant's oral evidence, the content of those reports and the notes of the meeting on 29 July 2019 demonstrate that the appellant's pleas of guilty on counts 2 and 4 were not attributable to a consciousness of guilt and that there was a real issue about his guilt on those counts. Counsel argued that, at the very least, there was a real issue about the appellant's intent on count 2 which may have provided a defence to that charge. Counsel referred to Dr Barber's evidence that he was unable to recall whether he had any specific instructions from the appellant about whether the appellant unlawfully wounded PC with intent to maim, disfigure, disable or do some grievous bodily harm (appeal ts 83).
As to hurdle four, counsel submitted that the court should prefer the evidence of the appellant to the evidence of Dr Barber. Counsel pointed out that none of the notes of the meeting on 29 July 2019 supported Dr Barber's account that he advised the appellant on that occasion that he could apply to change his plea. Given the significance of the observations, and the proximity to his arraignment in the District Court, the absence of a note supporting Dr Barber's account was a critical omission and supported the evidence of the appellant on that point.
Counsel for the appellant accepted that, for a miscarriage of justice to have been occasioned, it was necessary for the court to find that the respondent had reasonable prospects of being permitted to change his pleas from guilty to not guilty if he had been properly advised of that option. The appellant relied principally upon s 99(5)(b) of the CP Act or, alternatively, upon the common law power to set aside a plea of guilty to avoid a miscarriage of justice.
It was submitted that if the appellant 'clears the four hurdles' the court should set aside his convictions on counts 2 and 4 because the pleas of guilty were 'obtained by improper inducement'. It was argued that the alleged improper inducement comprised:
(a)Dr Barber advising the appellant that if he entered pleas of guilty in the Perth Magistrates Court, after the deprivation of liberty charges were withdrawn, he would receive a sentence of between 4 and 6 years' imprisonment; and
(b)Dr Barber's failure to inform the appellant that he could apply to change his pleas (no such application having been made),
in the context of Dr Barber's mistake in having failed to advise the appellant of the mandatory minimum sentences for counts 2 and 4 until the meeting on 29 July 2019.
Counsel argued that if the appellant 'clears the four hurdles', but the facts and circumstances of the case were not within a recognised category in which courts are prepared to set aside a conviction based on a plea of guilty, the facts and circumstances of the present case show that a miscarriage of justice has occurred which requires that the convictions on counts 2 and 4 based on his pleas of guilty should be set aside.

Ground 2: the appellant's submissions

Counsel for the appellant submitted that ground 2 was materially different from ground 1 in that it was not dependent upon this court finding, in the appellant's favour, that Dr Barber failed to advise him that he could apply to change his pleas of guilty on counts 2 and 4 before the appellant was arraigned in the District Court on 30 July 2019.
Counsel noted that s 99(5)(b) of the CP Act, in essence, permits an accused to enter a different plea from the plea he or she entered in the Magistrates Court if the District Court is satisfied that the plea before the lower court was made under a 'material misunderstanding as to the charge'.
Counsel submitted, as his primary contention, that the phrase 'a material misunderstanding as to the charge' includes a material misunderstanding as to the maximum penalty or any mandatory minimum penalty that may apply to a charge. Accordingly, so it was submitted, when the appellant entered the pleas of guilty in relation to counts 2 and 4 in the Perth Magistrates Court he was under a material misunderstanding as to those charges. Counsel argued that if an application had been made in the District Court under s 99(5)(b) of the CP Act, the appellant should have been permitted to change his pleas in relation to counts 2 and 4 from guilty to not guilty.
Next, counsel submitted, in the alternative, that if s 99(5)(b), on its proper construction, does not apply in the present case, then the appellant should have received independent legal advice as to whether he should have applied in the District Court to withdraw the pleas of guilty he had entered in the Perth Magistrates Court, on the basis of the District Court's inherent jurisdiction to set aside a plea of guilty to avoid a miscarriage of justice. Counsel argued that s 99 does not abrogate that aspect of a superior court's jurisdiction.[1]
[1] Counsel referred to Birch v The State of Western Australia [2017] WASCA 19; (2017) 51 WAR 454 [213] (Mazza JA), [253] ‑ [258] (Mitchell JA).
It was argued, in support of the alternative contention, that a miscarriage of justice arose when the appellant was arraigned and pleaded guilty and was sentenced in the District Court on 30 July 2019 because his pleas of guilty in the Perth Magistrates Court were based upon a material misunderstanding as to the mandatory minimum penalties for counts 2 and 4.
Further, it was submitted in relation to the primary contention and the alternative contention that if the appellant's version of events was believed, the appellant did not accept all of the factual elements of the offences pleaded in counts 2 and 4, but decided that he would plead guilty anyway. His principal reason for pleading guilty was that Dr Barber told him he would receive a sentence of between 4 and 6 years' imprisonment.
It was argued that Dr Barber had a conflict of interest in advising the appellant on 29 and 30 July 2019 in that his mistake as to the mandatory minimum sentences for counts 2 and 4 played a material or causative role in the appellant's entry of the pleas of guilty in the Perth Magistrates Court. There was, objectively, a failure to make an application under s 99(5)(b) of the CP Act in the context that Dr Barber, on his version of events, did not give the appellant any advice as to whether he should make the application but left it up to the appellant to decide. Also, Dr Barber was a potential witness on any application under s 99(5)(b).

Ground 1: the State's submissions

Counsel for the State submitted that, prior to entering his pleas of guilty upon arraignment in the District Court on 30 July 2019, it was open to the appellant to apply to the District Court to withdraw the pleas which he had previously entered in the Perth Magistrates Court. It was submitted, however, that any such application would have failed. It was also submitted that even if the legal advice given to the appellant effectively deprived him of the opportunity to make the application, a miscarriage of justice did not occur because any such application would have failed.
Counsel's primary contention was that ground 1 was able to be dealt with by examining what the appellant accepted, on his version of events, he was told by Dr Barber, apart from any question about whether Dr Barber advised the appellant as to changing his pleas of guilty. It was submitted that what the appellant accepted he was told by Dr Barber demonstrated that the appellant understood it was open to him to seek an adjournment of the sentencing hearing on 30 July 2019 and to obtain the opinion of another lawyer. The appellant was not improperly induced to plead guilty. The appellant chose to plead guilty upon arraignment on 30 July 2019 and to proceed with the sentencing, rather than to seek an adjournment and to obtain the opinion of another lawyer, in the knowledge, given to him by Dr Barber at the meetings on 29 and 30 July 2019, that he would be sentenced to at least 15 years' imprisonment.
Counsel submitted, in addition to his primary contention, that in any event Dr Barber's evidence that he advised the appellant at the meetings on 29 and 30 July 2019 that he could seek an adjournment of the sentencing hearing on 30 July 2019 to consider his options, including applying to change his pleas of guilty and obtaining an opinion from another lawyer, should be believed.
First, the appellant has a history of lying in this matter when it suits him. Secondly, the appellant's version of events about the injuries suffered by PC has been inconsistent and demonstrates the appellant's dishonesty. Thirdly, the appellant's credibility is undermined by his more general history of dishonesty. Fourthly, it is improbable that the appellant's denials of two specific and important facts (namely that he did not use the ratchet against PC and he did not touch DB's vagina), are true. Fifthly, it is improbable that the appellant's current version of events that he found DB and PC asleep in the bedroom and that he [only] punched PC 'sort of three times … not very hard' to the 'chest and the head' is true (appeal ts 6). Sixthly, apart from credibility, there is a real question about the reliability of the appellant's memory of the incident (and more generally) because of his illicit drug use since the age of 13.
Counsel submitted that the appellant is unable positively to satisfy the court on the balance of probabilities in relation to important parts of his evidence relating to his dealings with Dr Barber, including that Dr Barber did not advise him that he could apply to change his plea. The new evidence does not establish that any miscarriage of justice has occurred.
Further, it was submitted that if the court were to conclude that the legal advice given to the appellant effectively deprived him of the opportunity to apply to change his plea, a miscarriage of justice did not occur because any such application would have been unsuccessful.
As to s 99(5)(a) of the CP Act, which, in essence, permits an accused to enter a different plea from the plea he or she entered in the Magistrates Court if the District Court is satisfied that the accused 'could not have or may not have committed the offence charged', counsel argued that the appellant had not explained how the sentencing judge could have been satisfied that the appellant could not have, or may not have, committed any of the offences.
As to s 99(5)(b) of the CP Act, which, in essence, permits an accused to enter a different plea from the plea he or she entered in the Magistrates Court if the District Court is satisfied that the plea before the lower court was made under a 'material misunderstanding as to the charge', counsel argued that s 99(5)(b) refers to 'fundamental matters such as the nature of the charge, the plea or the proceedings' and it could not 'be seriously suggested that the appellant did not understand that he was alleged to have committed the wounding and indecent assault offences as part of an aggravated home burglary'. The most that could be said for the appellant was that, when he pleaded guilty in the Perth Magistrates Court, he did not know about the mandatory minimum sentences. It was argued that this was not a misunderstanding of a kind that comes within s 99(5)(b).
Accordingly, so it was submitted, any attempt by the appellant to plead not guilty upon arraignment in the District Court on 30 July 2019 would have been unsuccessful. The sentencing judge would inevitably have entered pleas of guilty and recorded convictions. It follows, so it was submitted, that the appellant has not established that any miscarriage of justice has occurred.
Further, it was submitted that the appellant is unable positively to satisfy this court, on the balance of probabilities, that his pleas of guilty to counts 2 and 4 were not attributable to a consciousness of guilt.
Further, it was submitted that Dr Barber's error in failing to advise the appellant of the mandatory minimum sentences in relation to counts 2 and 4 did not affect issues relevant to whether the appellant was guilty or to the appellant's prospects of avoiding conviction if he went to trial. Counsel argued that there was no material before this court that casts any genuine doubt about the appellant's guilt of the charged offences.
Further, it was submitted that the pleas of guilty were entered in the exercise of a free and voluntary choice.

Ground 2: the State's submissions

Counsel for the State submitted that, in the present case, there was a possibility that Dr Barber might be a witness in relation to any application by the appellant to change his pleas on counts 2 and 4 from guilty to not guilty. The relevant ethical principles and rules were engaged upon Dr Barber appreciating his oversight in failing to have advised the appellant about the mandatory minimum sentences.
Counsel accepted that:
(a)the appellant should have had independent legal advice;
(b)Dr Barber should not have continued to act for the appellant, after Dr Barber appreciated his oversight in failing to have advised the appellant about the mandatory minimum sentences, without advising the appellant to obtain independent advice;
(c)after Dr Barber appreciated his oversight, 'the personal integrity of [Dr Barber] was in issue because his credibility was at stake as a potential witness at a potential change of plea hearing'; and
(d)the fact that Dr Barber's personal integrity was in issue 'may have constituted a personal interest inconsistent with [Dr Barber's] duty to the court or to the appellant'.
However, counsel submitted that the fact that the appellant had not been advised to obtain independent legal advice 'up to the time when the appellant could have applied to change his pleas' did not, in all the circumstances, give rise to unfairness or produce some other kind of miscarriage of justice.
It was argued that the appellant had not identified any facts which might indicate that any personal interest, inconsistent with Dr Barber's duty to the court or to the appellant, manifested itself in an act or omission by Dr Barber which:
(a)inhibited the appellant from applying to change his pleas at any time after Dr Barber appreciated his oversight; or
(b)otherwise infringed any rights or interests of the appellant.
Counsel argued that on 29 July 2019, and before the arraignment in the District Court on 30 July 2019, Dr Barber advised the appellant in a meeting of the appellant's right to obtain legal advice and of his right to apply to change his pleas. The appellant was as fully aware of his rights as he would have been had he obtained independent legal advice. A different lawyer would have given the same information to the appellant.
Accordingly, so it was submitted, the fact that the appellant had not been advised to obtain independent legal advice did not result in a miscarriage of justice.

Grounds 1 and 2: the relevant provisions of the CP Act

Part 3 of the CP Act is headed 'Prosecutions in courts of summary jurisdiction' and comprises s 18 to s 79.
Part 4 of the CP Act is headed 'Prosecutions in superior courts' and comprises s 80 to s 124.
The term 'superior court' is defined in s 3(1) to mean, unless the contrary intention appears, the Supreme Court or the District Court.
Part 5 of the CP Act is headed 'Provisions applicable to any prosecution' and comprises s 125 to s 172.
Section 41 of the CP Act is concerned with charges that are to be tried on indictment. It provides:
(1)This section applies if ‑
(a)the charge must be tried on indictment; or
(b)under The Criminal Code section 5 or any other written law, the court has decided that the charge, being an either way charge, is to be tried on indictment.
(2)The court must ‑
(a)tell the accused that he or she is not required to plead to the charge; and
(b)give the accused the opportunity to plead to the charge.
(3)If the accused pleads guilty to the charge, the court, without convicting the accused, must commit the accused for sentence to a superior court with jurisdiction to deal with the charge, and comply with section 47(1).
(4)If the accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with section 42. (emphasis added)

We are satisfied that:
(a)when the appellant entered the plea of guilty in the Perth Magistrates Court on 12 March 2019, the appellant did not appreciate that the charged offence of unlawful wounding with intent to do grievous bodily harm (which became count 2), and that was asserted in the prosecution brief to have been committed in the course of conduct that constituted the charged offence of aggravated home burglary (which became count 1), would carry a mandatory minimum sentence of 15 years' imprisonment;
(b)when the appellant entered the plea of guilty in the Perth Magistrates Court on 12 March 2019, the appellant did not appreciate that the charged offence of aggravated unlawful and indecent assault (which became count 4), and that was alleged to have been committed in the course of conduct that constituted the charged offence of aggravated home burglary (which became count 1), would carry a mandatory minimum sentence of 5 years 3 months' imprisonment;
(c)the appellant's failure to appreciate that the mandatory minimum sentencing provisions would apply, when he was sentenced, to the charged offence of unlawful wounding with intent to do grievous bodily harm and to the charged offence of aggravated unlawful and indecent assault, was significant or influential in his decision to enter the pleas of guilty to those charged offences in the Perth Magistrates Court; and
(d)if the appellant had appreciated that the mandatory minimum sentencing provisions would apply, when he was sentenced, he would not have entered the pleas of guilty to the charged offence of unlawful wounding with intent to do grievous bodily harm or the charged offence of aggravated unlawful and indecent assault in the Perth Magistrates Court.
We are also satisfied that:
(a)the appellant was not aware, before he was arraigned in the District Court on 30 July 2019 and pleaded guilty, that he could seek to change his pleas of guilty to the charged offences of unlawful wounding with intent to do grievous bodily harm and aggravated unlawful and indecent assault, to pleas of not guilty; and
(b)if the appellant had been aware, before he was arraigned in the District Court on 30 July 2019 and pleaded guilty, that he could seek to change his pleas of guilty to the charged offences of unlawful wounding with intent to do grievous bodily harm and aggravated unlawful and indecent assault, to pleas of not guilty, the appellant would have instructed Dr Barber or another lawyer to apply to change those pleas.
In our opinion, if the appellant had made an application, before he was arraigned in the District Court and pleaded guilty, to change his pleas of guilty to the charged offences of unlawful wounding with intent to do grievous bodily harm and aggravated unlawful and indecent assault, to pleas of not guilty, then, on the basis of our construction of s 99(5)(b) and the findings of fact we have made in the appeal, any such application should have succeeded.
It is well established that:
(a)a lawyer must act in the best interests of a client in any matter where the lawyer acts for the client;
(b)a lawyer must protect and preserve the interests of a client unaffected by the interests of the lawyer;
(c)a lawyer must avoid conflicts between the interests of a client and the interests of the lawyer; and
(d)a lawyer must not provide, or agree to provide, legal services to a client if the lawyer knows or ought reasonably to know that the interests of the lawyer may conflict with the interests of the client, unless the client is fully informed of the conflict of interests, the client has received independent written legal advice about the effect of the conflict and the client agrees to the lawyer providing the legal services.
See r 6, r 7, r 12 and r 15 of the Legal Profession Conduct Rules 2010 (WA).
In Thompson v Mikkelsen,[11] Wootten J said:
[A client] is entitled to assume that [his solicitor] will be in a position to approach the matter concerned with nothing [in mind] but the protection of his client's interests against [those] of the other party. He should not have to depend on a person who has conflicting allegiances and who may be tempted whether consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself.
See also Wan v McDonald;[12] Unioil International Pty Ltd v Deloitte Touche Tohmatsu.[13]
[11] Thompson v Mikkelsen (unreported, Supreme Court, NSW, 3 October 1974).
[12] Wan v McDonald (1992) 33 FCR 491, 511 (Burchett J).
[13] Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98, 105 (Ipp J).
Those observations of Wootten J were made in the context of a lawyer acting for both parties to a transaction. However, his Honour's comments apply, by analogy, where a lawyer continues to act for a client in a matter, notwithstanding that the lawyer has made a significant mistake which has seriously prejudiced the client's interests in the matter, even if the lawyer discloses the mistake to the client.
In the present case, on 29 and 30 July 2019, it was apparent that the interests of Dr Barber conflicted with the interests of the appellant, in that:
(a)Dr Barber had failed to advise the appellant of the mandatory minimum sentencing provisions that would apply, when the appellant was sentenced, to the offence which became count 2 and the offence which became count 4, before the appellant entered his pleas of guilty in the Perth Magistrates Court on 12 March 2019.
(b)Shortly before 29 July 2019 Dr Barber realised that mandatory minimum sentences applied to those offences.
(c)When Dr Barber realised his error in relation to the mandatory minimum sentencing provisions, it was in the interests of the appellant to receive independent legal advice as to whether he could and should apply to change his pleas in relation to counts 2 and 4 from guilty to not guilty.
(d)The appellant's interests were not protected by Dr Barber merely informing the appellant of his options. The protection of the appellant's interests required that he be given independent legal advice about what he could and should do.
(e)By 29 July 2019, it was or should have been apparent to Dr Barber that if the appellant applied to change his pleas in relation to counts 2 and 4 from guilty to not guilty, Dr Barber was likely to be a material witness on the application. There was a risk that Dr Barber's credibility may have been put in issue if any such application had been made. Dr Barber may have been tempted, at least unconsciously, to endeavour to resolve the difficulty that his error had created for the appellant in a manner which was least embarrassing to himself.
In all the circumstances, by 29 July 2019 Dr Barber should have ceased acting for the appellant, apart from applying for an adjournment of the hearing listed in the District Court on 30 July 2019. If the relevant facts had been made known to her Honour on 30 July 2019, before the appellant was arraigned, there is no doubt, in our opinion, that her Honour should have granted an adjournment.
Section 30(1) of the Criminal Appeals Act 2004 (WA) provides that s 30 applies in the case of an appeal against a conviction by an offender.
By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.
Section 30(3) provides:
The Court of Appeal must allow the appeal if in its opinion -
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).
In the present case, s 30(3)(c) must be considered. Section 30(3)(a) and s 30(3)(b) are irrelevant.
In Nudd v The Queen,[14] Gleeson CJ observed, in the context of the Queensland equivalent of s 30(3)(c), that the concepts of justice and miscarriage of justice bear two aspects, namely outcome and process. Those aspects are different, but related. His Honour also observed:
[14] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [3].
(a)the emphasis upon outcome and process as requirements of justice according to law is fundamental [5];
(b)the common statutory provision governing criminal appeals in Australia (of which s 30(3) is an example) covers matters of both outcome and process [6];
(c)a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case [6];
(d)it is impossible to state exhaustively, or to define categorically, the circumstances in which a defect of that kind will occur [6];
(e)the concept of miscarriage of justice is wider than the potential for error in that not all miscarriages involve error [7];
(f)process is related to outcome in that the object of due process is to secure a just result [7];
(g)justice means justice according to law, and the observance of the law in relation to the conduct of a criminal trial has a public as well as a private purpose [7];
(h)an unjust conviction is one form of miscarriage [7];
(i)where a miscarriage of justice is alleged to arise from a failure of process, it is the process itself that must be judged, and not the individual performance of the participants in the process [8].
The expression 'miscarriage of justice' within s 30(3)(c), having regard to its historical context, includes 'any departure from trial according to law, regardless of the nature or importance of that departure': Weiss v The Queen[15] (original emphasis). See also King v The Queen.[16] Section 30(3)(c) includes cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippouv The Queen.[17] In M v The Queen,[18] McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones v The Queen,[19] Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. When the expression 'miscarriage of justice' in s 30(3)(c) is understood in the manner explained in Weiss and King, the word 'substantial', in the context of the expression 'substantial miscarriage of justice' in the proviso in s 30(4), has work to do. See Weiss [18]; King [53].
[15] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
[16] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53] (French CJ, Crennan & Kiefel JJ).
[17] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [14] (French CJ, Bell, Keane & Nettle JJ).
[18] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523.
[19] Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
A miscarriage of justice within s 30(3)(c) may occur where the appellant has been convicted on his or her plea of guilty. The concept is not confined to a conviction after a trial.
An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. See Meissner (157).
The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia:[20]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
[20] Vella v The State of Western Australia [2006] WASCA 129 [26].
Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia.[21] See also Chowdhury v Kenny [No 2];[22] Bowdenv The Stateof Western Australia.[23]
[21] Mikulic v The State of Western Australia [2011] WASCA 14 [23].
[22] Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P; Buss & Mazza JJA agreeing).
[23] Bowdenv The Stateof Western Australia [2013] WASCA 118; (2013) 45 WAR 168 [19] (Buss JA; McLure P & Mazza JA agreeing).
In the present case, when the appellant pleaded guilty to counts 2 and 4 upon arraignment in the District Court on 30 July 2019, Petrusa DCJ proceeded in accordance with s 99(3) of the CP Act. Her Honour accepted the pleas and dealt with the appellant according to law, including by recording judgments of conviction on those counts and imposing the sentences.
We are satisfied that, in all the circumstances, the recording of the judgments of conviction on counts 2 and 4 constituted a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act. Our reasons are as follows.
First, when the appellant was arraigned in the District Court on 30 July 2019, the appellant was not aware that he could apply to change his pleas of guilty to the charged offences of unlawful wounding with intent to do grievous bodily harm (being count 2) and aggravated unlawful and indecent assault (being count 4), to pleas of not guilty.
Secondly, if the appellant had been aware, before he was arraigned in the District Court on 30 July 2019, that he could apply to change his pleas of guilty to those charged offences to pleas of not guilty, the appellant would have instructed Dr Barber or another lawyer to apply to change those pleas.
Thirdly, if the appellant had made an application, before he was arraigned in the District Court, to change his pleas of guilty to those charged offences to pleas of not guilty, the application would have had at least reasonable prospects of success. Indeed, on the basis of our construction of s 99(5)(b) of the CP Act and the findings of fact we have made in the appeal, any such application should have succeeded.
Fourthly, on 30 July 2019 the pleas of guilty to counts 2 and 4 were entered and the judgments of conviction on those counts were recorded at a hearing where the appellant was represented by a defence counsel who had a conflict of interest in acting for and representing the appellant in relation to the entry of the pleas of guilty at that hearing.
Fifthly, if the relevant facts had been made known to Petrusa DCJ on 30 July 2019, before the appellant was arraigned, there is no doubt, in our opinion, that her Honour should have granted an adjournment.
Sixthly, the procedure prescribed by s 99 of the CP Act where an unconvicted accused is committed to a superior court for sentence has, as its apparent purpose or object, the securing of a just outcome by the conviction and sentencing of the accused according to law, where neither s 99(5)(a) or s 99(5)(b) applies, and by the entry of pleas of not guilty on behalf of the accused, where s 99(5)(a) or s 99(5)(b) applies. The observance of that procedure serves the public interest in the proper administration of criminal justice as well as the interests of the accused.
Seventhly, the combined nature, content and effect of the circumstances set out at [194] ‑ [198] above was to deprive the appellant of the opportunity, reasonably open to him, to make an application to change his pleas of guilty to the charged offences of unlawful wounding with intent to do grievous bodily harm (being count 2) and aggravated unlawful and indecent assault (being count 4), to pleas of not guilty. The loss of that opportunity was, having regard to the combined nature, content and effect of the circumstances set out at [194] ‑ [198] above, unfair to the appellant and inconsistent with the apparent purpose or object of the procedure prescribed by s 99, namely the securing of a just outcome in the manner specified at [199] above.
Eighthly, the defect in due process occasioned by the combined nature, content and effect of the circumstances set out at [194] ‑ [198] above cannot be overcome by the apparent strength of the State's case in relation to counts 2 and 4. However, in any event, we are not satisfied that the appellant's conviction on counts 2 and 4, as pleaded in the amended indictment, is inevitable. It would be open to a jury, properly discharging its function according to law, to form the view, based on the appellant's evidence before this court, that there is a reasonable possibility that the appellant's account of the alleged offending pleaded in counts 2 and 4 is reasonably possible. That is a matter to be determined by the fact finding tribunal at a trial, after the tribunal has heard all of the relevant and admissible evidence including relevant and admissible evidence from DB and PC. It is not a matter to be determined by this court in the context of this appeal.
Ground 2 has been made out.
Finally, in relation to ground 2, we note that in Larsen v The State of Western Australia[24] the appellant alleged that his defence counsel failed to inform him, prior to the entry of his pleas of guilty in the District Court, that if he pleaded guilty to an amended count, he would be liable to a mandatory minimum sentence of 15 years' imprisonment. The appellant argued that had he been informed of the mandatory minimum sentence he would have pleaded not guilty to the amended count and proceeded to trial. The appellant asserted that, in the circumstances, he suffered a miscarriage of justice. This court rejected the factual contentions which underpinned the appellant's case on this issue. Accordingly, it was unnecessary for the court to decide whether, if the appellant's factual contentions had been correct, a miscarriage of justice occurred in relation to his conviction on the amended count.
[24] Larsen v The State of Western Australia [2019] WASCA 181.

Ground 1: its merits

Ground 2 having been made out, it is unnecessary to consider and decide upon the merits of ground 1.

The appropriate disposition of the appeal

Section 30(5) and s 30(6) of the Criminal Appeals Act apply in the case of an appeal against conviction by an offender. Those provisions read, relevantly:
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or
…
(6)If the Court of Appeal enters a judgment of acquittal of offence A or enters a judgment of conviction of offence B, it may vary any sentence -
(a)that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and
(b)that took into account the sentence for offence A.

By s 30(5), if this court allows an offender's appeal and sets aside the judgment of conviction for the offence in question (offence A), the court must, relevantly, order a trial or a new trial (s 30(5)(a)) or enter a judgment of acquittal for offence A (s 30(5)(b)) or, if the conditions in par (i) and par (ii) of s 30(5)(c) are satisfied, enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence imposed for offence A.
The power of this court under s 30(5)(a) to order a trial or a new trial applies where the offender whose appeal has been allowed was convicted after a trial (in which case this court may order a new trial) or was convicted following his or her plea of guilty (in which case this court may order a trial).
Section 34(1) of the Criminal Appeals Act provides:
If as a result of a decision by the Court of Appeal ‑
(a)a trial or a new trial is required; or
(b)a person is to be required to plead to a charge; or
(c)an issue needs to be tried,
in the trial court, the Court of Appeal may fix the time and place for the parties to appear in the trial court and give any directions about it that are necessary.
As Buss P, Mazza JA and Mitchell JA observed in KWLD v The State of Western Australia,[25] this court has recognised, in the context of civil appeals, that it is implicit in the establishment of this court as a superior court, and the conferral of its appellate jurisdiction, that the court has power to make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its jurisdiction. See Jebb v Superior Lawns Australia Pty Ltd;[26] Barboutis v The Kart Centre Pty Ltd.[27] It was decided in KWLD [69] that the same implicit power exists in relation to the conferral on this court of jurisdiction under s 15A and s 15B of the Bail Act 1982 (WA) to hear and determine appeals against bail decisions.
[25] KWLD v The State of Western Australia [2020] WASCA 94 [68].
[26] Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [58] ‑ [63] (Mitchell & Beech JJA).
[27] Barboutis v The Kart Centre Pty Ltd [2019] WASCA 184 [10] (Mitchell & Vaughan JJA).
Further, it is well established that a grant of statutory power to a court in its civil or criminal jurisdiction carries with it, by implication, everything necessary for the exercise of the power. In other words, the grant of a statutory power to a court carries with it by implication, such powers as are incidental and necessary to the exercise of the power so conferred. The word 'necessary' is used in this context in the sense of matters which are reasonably required or legally ancillary (as distinct from 'essential') to the exercise of the statutory power which is conferred. See Grassby v The Queen;[28] Pelechowski v The Registrar, Court of Appeal (NSW);[29] Byrnes v The Queen;[30] DJL v The Central Authority.[31]
[28] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 ‑ 17 (Dawson J).
[29] Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [50] ‑ [51] (Gaudron, Gummow & Callinan JJ).
[30] Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1 [32] (Gaudron, McHugh, Gummow & Callinan JJ).
[31] DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 [25] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ).
In our opinion, the conferral on this court by s 30(5)(a) of the Criminal Appeals Act of the power to set aside a judgment of conviction and order a trial, where the offender whose appeal has been allowed was convicted following his or her plea of guilty, carries with it, by implication, such powers as are incidental and necessary to the exercise of the power so conferred. In particular, the conferral by s 30(5)(a) of the power to set aside a judgment of conviction and order a trial carries with it, by implication, a power to impose conditions on an order setting aside a judgment of conviction and an order that a trial be had to the extent that the conditions are reasonably required or legally ancillary to the exercise of the power to make those orders.
We are satisfied that, relevantly to the present case, this court has implied power to condition an order setting aside the judgments of conviction on counts 2 and 4 and an order that a trial be had on those counts so that:
(a)in the case of the order setting aside the judgments of conviction on counts 2 and 4, the order does not take effect until the appellant has made an application in the District Court under s 99(5)(b) of the CP Act to change the pleas he entered in the Perth Magistrates Court in relation to the charged offences which became counts 2 and 4, from guilty to not guilty; and
(b)in the case of the order that a trial be had on those counts, the order does not take effect unless and until a judge of the District Court decides to allow that application and enter pleas of not guilty to counts 2 and 4, on behalf of the appellant, in accordance with s 99(5) of the CP Act.
It is necessary, in the present case, to condition an order setting aside the judgments of conviction on counts 2 and 4 and an order that a trial be had on those counts because no application was made in the District Court under s 99(5)(b) of the CP Act. Compare Birch.
We are also satisfied that, relevantly to the present case, this court has implied power to make a conditional order for the resentencing of the appellant on counts 1, 3 and 5 and, if necessary, counts 2 and 4 when any proceedings in the District Court, consequent upon this court's orders, have been finally determined. It is necessary, in the present case, to make a conditional order in relation to resentencing because whether or not the appellant will have to be resentenced on counts 2 and 4 will depend upon whether the condition specified in [212(a)] above is satisfied and, if so, upon whether the appellant is subsequently convicted of counts 2 and 4.
We would make orders in the appeal to the following effect:
(1)Leave to appeal is refused on ground 1.
(2)Leave to appeal is granted on ground 2.
(3)The appellant's application in the appeal dated 28 November 2019 is granted.
(4)The State's application in the appeal dated 5 February 2020 is granted.
(5)The appeal is allowed.
(6)(a) Subject to the satisfaction of the condition specified in order (7)(a), the judgments of conviction imposed on counts 2 and 4 are set aside.
(b)Subject to the satisfaction of the condition specified in order (7)(b), a trial is to be had on counts 2 and 4.
(7)(a) The condition referred to in order (6)(a) is that the appellant files an application in the District Court under s 99(5)(b) of the CP Act to change the pleas he entered in the Perth Magistrates Court in relation to the charged offences which became counts 2 and 4, from guilty to not guilty.
(b)The condition referred to in order (6)(b) is that a judge of the District Court decides to allow that application and enter pleas of not guilty to counts 2 and 4, on behalf of the appellant, in accordance with s 99(5) of the CP Act.
(8)The appellant must file the application referred to in order (7)(a) within 21 days.
(9)Subject to the satisfaction of the conditions specified in order (7)(a) and order (7)(b), the sentences imposed by Petrusa DCJ on counts 1, 3 and 5 and the orders for concurrency and parole eligibility made by her Honour are set aside and the appellant is to be resentenced by a judge of the District Court on:
(a)those counts; and
(b)either or both of counts 2 and 4 (or any alternative offences) if the appellant is convicted on either or both of counts 2 and 4 (or any alternative offences) after this court's conditional order embodied in order (6)(a) takes effect unconditionally.
(10)Any resentencing in accordance with order (9) is to be undertaken when any proceedings in the District Court, consequent upon this court's orders, have been finally determined.
(11)(a) The appellant and the respondent must inform the Court of Appeal Registrar promptly in writing upon the condition specified in order (7)(a) or the condition specified in order (7)(b) being satisfied or not being satisfied.
(b)The Court of Appeal Registrar will then relist the appeal for the purpose of this court making formal orders which give full effect to orders (6) and (9).
(12)Each of the appellant and the respondent has liberty to apply in relation to the implementation of these orders.
The issue of whether, at any stage, the appellant should be remanded in custody or released on bail pending the final determination of any proceedings in the District Court, consequent upon this court's orders, will be a matter for decision by a judge of the District Court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss
4 DECEMBER 2020