The State of Western Australia v Bai
[2018] WADC 70
•30 MAY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BAI [2018] WADC 70
CORAM: JUDGE GLANCY
HEARD: 10 MAY 2018
DELIVERED : 30 MAY 2018
FILE NO/S: IND 458 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
BAI
Catchwords:
Application to change pleas of guilty - Section 99(5)(a) of the Criminal Procedure Act 2004 - Accused may not have committed the offence charged - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA)
Result:
Application dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr B F Stanwix |
| Accused | : | Mr R W Keeley |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Rod Keeley Legal |
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19
JUDGE GLANCY:
Issue
This matter concerns an application by BAI, to change his pleas of guilty to certain offences to not guilty. The application is brought pursuant to s 99(5)(a) of the Criminal Procedure Act 2004 (WA) (CP Act).
Indictment
The applicant, BAI, is charged by indictment dated 1 November 2017 with two offences alleging that on or about 17 May 1985 (in relation to count 1) and on a date unknown between 1 January 1987 and 31 December 1987 (in relation to count 2) he unlawfully and indecently dealt with G (a child), a child under the age of 14 years, by sexually penetrating her vagina with his fingers.
History of the proceedings to date
The applicant entered a plea of guilty to each charge on 15 March 2017 in the Perth Magistrates Court and he was committed to the District Court for sentence mention on 12 May 2017.
When the matter came on for sentence on 7 November 2017 (having been adjourned to 12 May 2017) the applicant denied the facts of the alleged offending and ultimately the change of plea application was made on 15 February 2018.
Prior to the plea being entered on 15 March 2017 the matter had been adjourned on four occasions. One adjournment was in order that the applicant could obtain legal advice and another occasion was to allow discussions to take place between the State and the applicant about the charges.
It is not in dispute that by the time the plea was entered the applicant had received legal advice, negotiations with the State had taken place and he had received all of the committal papers.
Jurisdiction to allow a change of plea
In this case the application to change the plea is said to be brought only pursuant to s 99(5)(a) and further, that it is limited to the circumstance that BAI 'may not have committed the offence charged' (ie the application does not argue that he 'could not have committed the offence charged').
Section 99(5) provides as follows:
(5)Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if -
(a)having considered -
(i)the material served on the accused under section 35 or 95; and
(ii)the facts stated by the prosecutor under section 129,
the court is satisfied that the accused could not have or may not have committed the offence charged; or
(b)having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding as to the charge, the plea or the purpose of the proceedings.
To what can the court have regard in considering application under s 99(5)(a)?
Section 99(5)(a) directs the court to consider certain materials some of which are described by reference to other sections of the CP Act. It is common ground that the materials coming within s 99(5)(a) to which regard must be had in determining BAI's application are:
1.the facts as set out in the amended statement of material facts read by the prosecutor. In this case it was conceded by the defence that the facts as read by the prosecutor were not materially different from those disclosed to the defence before the pleas were entered;
2.the accused's criminal record; and
3.the electronic record of interview (EROI) and transcript of the EROI of 9 May 2016.
The Court of Appeal considered the issue of the matters to which regard is to be had by the court under s 99(5)(a) of the CP Act in Birch v The State of Western Australia [2017] WASCA 19.
In that case the Justices of Appeal were not unanimous about the material to which regard could be had in determining an application under s 99(5)(a).
Buss P determined that the court could not consider or take into account any material other than that specified in s 99(5)(a): Birch v The State of Western Australia [101].
Mazza JA agreed with Buss P that it was not open to the parties to adduce any evidence or material other than that to which the court was directed to have regard under s 99(5)(a)(i) and s 99(5)(a)(ii), but then went on to say that the court was entitled to have regard to the procedural steps taken under the CP Act which occurred prior to the accused entering the plea of guilty in the lower court, including the plea of guilty itself: Birch [216] – [217].
Mitchell JA agreed with Buss P that the court was confined to considering the material referred to in s 99(5)(a).
In the circumstances, adopting the approach taken by Buss P and Mitchell JA, in determining this application no regard will be had to material that does not fall within the ambit of s 99(5)(a) including the affidavit sworn by BAI in support of his application.
Standard to be applied
The CP Act does not direct the court to the standard that is to be applied in determining whether it is satisfied that the accused may not have committed the offence.
This matter was also considered in Birch. Again, the learned Justices of the Court of Appeal were not unanimous in their determination on the issue.
Buss P determined that the accused must satisfy the court that it was 'reasonably arguable' that he had not committed the offence charged: Birch [105]; [108].
Mazza JA considered that the court must be satisfied that there was a realistic prospect, which is not slim, fanciful or remote, that the accused did not commit the offence charged: Birch [218].
Mitchell JA considered that s 99(5)(a) required the court to consider whether there is a deficiency in the prosecution case which deficiency is apparent from the facts contained in the materials to which regard is to be had for the purposes of determining the application. Mitchell JA found that the presence of exculpatory statements of an accused do not require the court to enter a plea of not guilty if the State's case discloses the commission of an offence and the relevant materials do not disclose a deficiency in that case: Birch [279].
Facts revealed in statement of material facts
The amended statement of facts provides as follows:
The offender, [BAI], and his then wife, [BNI], are the adoptive parents of [G], the victim in this matter. The offender and his partner adopted the victim soon after her birth on … .
During the victim's childhood, the offender sexually abused the victim on an ongoing basis. The offences the subject of the indictment are representative of that ongoing conduct.
COUNT 1Indecent dealing with child under 14
CRC 183
CHARGE NUMBER: MI 5154/16
VICTIM:[G]
The offender and his then wife, [BNI], are the adoptive parents of [G], the victim in this matter. The offender and his partner adopted the victim soon after her birth in 1974.
On 17 May 1985, the offender took the victim to a farm in [REDACTED] where he had been contracted to perform earthworks. At that location the offender met with his brother-in-law, [LG], and with his nephew, [RG], both of whom had begun work a few days earlier.
That evening, the offender, the victim and [RG] and [LG] slept in a caravan situated on the farm. The offender and the victim slept on a fold out couch in the caravan. [RG] and [LG] slept nearby but in another part of the caravan.
During the night, the offender used his fingers to penetrate the victim's vagina, causing her to rouse from her sleep due to the pain in her vagina. [RG] felt the caravan rocking and heard the offender and victim moaning and groaning. The offender continued to penetrate the victim before falling asleep.
Once the offender fell asleep the victim slid out of the bottom of the bed and left the caravan. The follow morning she woke in a bedroom at the farmhouse. That same morning the victim was taken by her mother from [REDACTED] back to her home in [REDACTED].
The victim was 11 years old at the time of the incident.
On 9 May 2016 the offender was arrested in relation to the offence and participated in an Electronic Record of Interview. The offender provided an account claiming the victim had placed his hands between her legs and rubbed her vagina on his hands. The offender claimed he was half asleep and did not realise what the victim had done. He said the incident lasted 1 1/2 to 2 minutes before he removed his hands and told the victim to stop. The offender claimed he would never touch his daughter inappropriately and denied penetrating her vagina with his fingers or any other part of his body.
COUNT 2Indecent dealing with child under 14
CRC 183
CHARGE NUMBER: MI 5155/16
VICTIM:[G]
In 1987 the victim was 13 years old and living with the offender, his wife and two other adopted children at [REDACTED]. On one night that year, the offender was out of town for work and not due to return that night.
That evening, due to a storm, the victim went to sleep with her mother [BNI] in her bed. The victim usually slept with her sister in their room with the bedroom door locked.
During the night, the offender returned home and went to sleep in his bed with [BNI] and the victim. The offender used his fingers to play with the victim's clitoris before using his fingers to penetrate the victim's vagina. As he did so, the offender made grunting noises but it is not known whether he ejaculated.
Once the offender fell asleep the victim left and returned to her own bedroom.
During his EROI on 9 May 2016, the offender provided an account and without prompting claimed that the victim often slept with him and his wife. He said that he believed around the time the victim was 14 years of age, she was sleeping between him and his wife and in the morning he had an involuntary erection. The offender claimed he felt the victim push her bottom up against his erection and that he felt his penis enter either her anus or vagina. The offender advised police the victim was not wearing underwear or pants and that his penis somehow came out of his pants. He claimed he was half asleep and believed it was his wife.
The criminal record
BAI's criminal record reveals that he has numerous convictions for driving related offences which have either been dealt with by fines or periods of either suspension or disqualification of his driver's licence.
He was also convicted of stealing on 1 August 2006 in the Midland Magistrates Court, for which he was sentenced to a conditional release order of 6 months; a $200 undertaking and a spent conviction.
He was also convicted of the offence of driving a vehicle with a false licence plate on 4 April 2013 and fined $300.
BAI's criminal record also reveals that he was charged with three counts of aggravated indecent assault but that those charges were dismissed for want of prosecution on 8 December 2010 in the Collie Magistrates Court.
It was submitted by BAI's counsel that his criminal record reveals nothing of relevance for these proceedings.
The State submitted that the criminal record reveals that prior to having been interviewed in relation to these two charges BAI had been involved in the criminal justice system, specifically in relation to charges of a sexual nature and he could not be regarded as a person with no knowledge of the processes involved at the time he participated in the EROI with the police.
I have not considered the exculpatory statements made in the EROI through the prism of BAI having been well‑acquainted with the criminal justice system when they were made.
The electronic record of interview
BAI's counsel submitted that the EROI contains an acknowledgement of the incidents at which it is said that these offences occurred and an acknowledgement of the contact alleged between the accused and the victim. But, it was said that the EROI contains exculpatory material in the sense that the accused, while acknowledging the sexual contact, offers up an innocent explanation for it having occurred on each occasion.
Initially BAI denied to police he had ever done anything indecent to the complainant and said 'if anything sh-, she was a bit of a naughty girl, you know'.[1]
[1] EROI transcript 31.
In relation to count 1, BAI then described the same factual scenario as that alleged in the Amended Statement of Material Facts (concerning the occasion on which the accused, the victim, [RG] and [LG] were in a caravan in [REDACTED]) but said it was the complainant who got into bed with him, took his hand and rubbed it against her 'fanny'. He said that the incident lasted for 1 – 2 minutes[2] and that it was only the complainant who did any moaning.[3]
[2] ts 86.
[3] ts 50 ‑ 51, 69 ‑ 72, 78 – 79, 83 ‑ 86.
It is clear from the EROI that BAI did not then admit to penetrating the complainant's vagina with his fingers on the occasion referred to in count 1 although he accepted that he had rubbed his hand on her vagina for between one and two minutes and that his hand had made contact with her vagina. At the conclusion of the EROI when asked why he let this go on for so long the following exchange took place:[4]
BAI:Because. I don't know. Then I realised. As you, as you think about it, I don't know, yeah, maybe she was, if she was enjoying it, you know - - -
1/CON DRUMMOND: Yep.
BAI:She enjoyed my hand - - -
1/CON DRUMMOND: Mmm.
BAI:Being close to her you know. You know what I mean?
1/CON DRUMMOND: Mmm. Yeah.
BAI:Like someone eating a pie, oh that's nice. Ha Ha. Ha. Ha.
[4] ts 90.
In relation to count 2, in the EROI BAI accepted that the complainant would, on occasions, come into the bed in which he slept with his wife. Having done so the following exchange took place between him and First Class Constable Drummond:[5]
[5] EROI page 38.
BAI: It was nothing, that-, nothing was done from me ---
1/CON DRUMMOND: Yeah
BAI:Intentionally to do anything dirty, you know. No way.
1/CON DRUMMOND: So, she would jump into bed ---
BAI:Yeah.
1/CON DRUMMOND: And then, between you two, and she ---
BAI:That's right, yeah.
1/CON DRUMMOND: She would rub her bum, ---
BAI:Ah, yeah, and shen she'd turn around against me, push herself again - . [BNI] used to get up, sometimes earlier in the morning.
1/CON DRUMMOND: Yep.
BAI:And, she's still be in bed with me, and she'd push herse-, she'd push her bottom up against me.
A little later the following exchange took place:[6]
[6] EROI page 79.
BAI:Ah, ah, ah, ah, I think I said, oh, [G] reckons I, I, ah, I t-, you know I touch her down below, you know. Ah, and I said look, [G], I never done that. And the only time I might of touched you there or when you were sleeping between mum and I, you know.
1/CON DRUMMOND: Yeah.
BAI:When you had your bottom against me all the time. Ha. Ha. You know wh-, everybody, you know when you're, in the morning and when you're, when you're, when you're young in the morning you're, you, you do get an erection, don't you?
1/CON DRUMMOND: Yeah.
BAI:When you're - - -
1/CON DRUMMOND: Yeah, and so - - -
BAI:Naturally in the morning when you get, yeah.
1/CON DRUMMOND: It's a physical thing. It's not, yeah.
BAI:Yeah, it's just somehow [indistinct], you know. And, and she probably used to put her bum against me, you know. And, ah, she used to push herself up, you know and it, and sometimes I'd sort of be half asleep. I th-, sometimes I thought it might have been my wife, [BNI], you know. Naturally you know you think it's your wife. You, you hold her close.
1/CON DRUMMOND: Mmm.
BAI:I might have done that, you know thinking it was - - -
1/CON DRUMMOND: Yeah.
BAI:[BNI]. But, you know what I mean?
1/CON DRUMMOND: Yeah.
The following exchange then took place:[7]
[7] EROI pages 80 ‑ 83.
BAI:One time I realised it as her, you know, yeah. And I told [BNI] about it. I told my wife about it.
1/CON DRUMMOND: Do you remember when that was?
BAI:Aye?
1/CON DRUMMOND: Do you remember when that was?
BAI:Oh God,. Ah, oh some time ago anyway. Those days anyway. And I said to [BNI], but I, ah, ha, ah, I said you mustn't let [G] sleep between us I said, you know, because something stupid happened the other day, the other morning, ah.
1/CON DRUMMOND: Yeah. So did, um, ---
BAI:I beg your pardon?
1/CON DRUMMOND: Those times that something happened, can you tell me what happened exactly? Was it, um, did you, did you think it was your wife and have intercourse?
BAI?I beg your pardon?
1/CON DRUMMOND: Did you think it was your wife and have intercourse or - - -
BAI:Oh, m- I might of and, you know when you're asleep - - - -
1/CON DRUMMOND: Yeah.
BAI:And before you wake up, I -, if you feel a bottom against you, you know - - -
1/CON DRUMMOND: Yeah.
BAI:You think it could be, it could be your wife. You know what I mean? And then you real - , and you sort of, suddenly you wake up and, Oh Jesus Christ [G]. You know? So you push her away and, and I told her I told [BNI], you know that, that [G] puts her, she puts herself against me, ha, ad she put it, you know really hard. You know and, oh.
1/CON DRUMMOND: Did [G] have her, um, oh, what did she wear to sleep?
BAI:I'm sorry I wasn't sure those days. I don't know what's, oh oh, shit, I think she used to wear a, a little, ah, nightie dress. A nightdress and - - -
1/CON DRUMMOND: Yep. I, I guess, um ---
BAI:And a pair of pants there.
1/CON DRUMMOND: I guess what I'm getting at is, ah, did she have - - - -
BAI:Yeah.
1/CON DRUMMOND: You know did she take the pants off or did she have her, her dress up, her nightie up? So was she naked underneath?
BAI:I think she had her pants off. That time that I, I realised who it was - - -
1/CON DRUMMOND: Mmm.
BAI:She had her pants off.
1/CON DRUMMOND: And what about you?
BAI:No, no.
1/CON DRUMMOND: No?
BAI:No.
1/CON DRUMMOND: So were there any, um, - - -
BAI:I had pyjamas on, you know. Like - ‑ ‑
1/CON DRUMMOND: Yeah. Were there any time where she had nothing underneath? So she had, um, - ‑ ‑
BAI:Yeah.
1/CON DRUMMOND: No underwear, no - - ‑
BAI:It's more, aye - ‑ ‑
1/CON DRUMMOND: Like she took her pants off?
BAI:I might of, she might have pushed herself against me and I might, ha, ha, you know you could have an erection, you know.
1/CON DRUMMOND: Mmm. Yep.
BAI:And it, ah, I don't know what. I mean I, I, I don't really do any, ah, I, I didn't ma-, you know make lover to her or anything like that.
1/CON DRUMMOND: Mmm. Yeah.
BAI:But it might have been up against her, you know.
1/CON DRUMMOND: Um, - - -
BAI:You know what I mean?
1/CON DRUMMOND: So correct me if I'm wrong and, and I might be wrong in my understanding, but - ‑ ‑
BAI:Yeah.
1/CON DRUMMOND: You're saying that, um, she might have put her bum against you and - ‑ ‑
BAI:She did. Yeah. Yeah. That's what she did.
1/CON DRUMMOND: Depending on, on what she was wearing that night - ‑ ‑
BAI:Yeah.
1/CON DRUMMOND: She might have had a nightie with, with no underwear on, or she might have had, um, pants that were pulled down?
BAI:She might have had nothing on, you know.
1/CON DRUMMOND: And might have had nothing on. And, um, you might have pushed against her with, or she pushed against you - ‑ ‑
BAI:Ah - ‑ ‑
1/CON DRUMMOND: And you had an erection?
BAI:Yeah.
1/CON DRUMMOND: Did you have pants on at the time? Were there - ‑ ‑
BAI:Oh, - ‑ ‑
1/CON DRUMMOND: Were there any times where - ‑ ‑
BAI:I would have done. Oh, I'm not sure. I w-, I normally do, you know.
1/CON DRUMMOND: Yeah, yeah.
BAI:[indistinct] have a pyjama. But sometimes you have a loose pyjama. Loose?
1/CON DRUMMOND: Yep.
BAI:And, you know, ah, yeah.
1/CON DRUMMOND: So - ‑ ‑
BAI:Yeah, plenty of space to, ah, you know.
1/CON DRUMMOND: So were there any times where your penis would have, would have made con-, so your, your penis and the skin would have made contact with her bare skin?
BAI:Could have been, yeah. Could of done, yeah.
1/CON DRUMMOND: It's possible?
BAI:Yeah, possible, yeah.
1/CON DRUMMOND: Okay. Was that because - ‑ ‑
BAI:I think that, I think that might have happened. That might have happened that time.
1/CON DRUMMOND: Oh, the, the, that's the time that - ‑ ‑
BAI:I beg your pardon?
1/CON DRUMMOND: That's the time that she has pushed against you and you had an erection then you told - ‑ ‑
BAI:Yeah.
1/CON DRUMMOND: [BNI] about? That's the one we are talking about?
BAI:I'm sure. Yeah. Yeah.
1/CON DRUMMOND: Okay. Um, so where did you touch [G] with your penis?
BAI:Ah, well I say, on her bottom, you know. Her bottom, you know? I don't remember doing it, ah, anywhere else. Just you know just - ‑ ‑
1/CON DRUMMOND: Yep.
BAI:Ha. It's just strange you know and it's a, it might have been on her bottom or a bit lower. Who knows, you know?
1/CON DRUMMOND: Did you, um, did your penis penetrate her vagina?
BAI:No. Not that I know of. Although it, I don't remember that. Yeah, no, I don't remember.
It is clear that BAI does not admit in the EROI that he penetrated the complainant's vagina with his finger as is alleged in count 2 although he acknowledged an occasion had occurred in which the complainant had been in bed with him when his penis had come in contact with her bottom. His suggestion is that he thought he was having sexual contact with his wife.
The question which the court is required to consider, depending on which Justice of the Court of Appeal's reasoning is applied is whether, based on the material to which I have referred:
1.Is it reasonably arguable that BAI did not commit the offences? (applying Buss P); or
2.Is the court satisfied that there is realistic prospect, which is not slim, fanciful or remote, that the accused did not commit the offence charged? (applying Mazza JA); or
3.Is there a deficiency in the prosecution case which deficiency is apparent from the facts contained in the materials? (applying Mitchell JA)
Defence position
Counsel for BAI submitted that this is essentially a case of determining whose evidence is to be believed, the complainant or the accused and that there is a reasonable defence to the charges: being that any admitted contact was involuntary or accidental only and submitted that that defence is revealed on the materials.
The defence also submitted that no prejudice would be occasioned to the State in the event that the application were to be granted and the matter proceeded to trial because, given that these offences are now some 30 years old, it is unlikely that the witness would fail to recall the matters about which they would be required to give evidence at trial.
State's position
The State opposed the application to allow the change of plea on the basis that the court could not be satisfied that BAI may not have committed the offences charged.
Furthermore, the State contended that, when regard is had to the procedural history of the matter, as Mazza JA's formulation of the test in s 99(5)(a) allows, the application should be rejected because, by the time BAI pleaded guilty in March 2017, he not only had all of the documents one would have in the case of a fast track plea, but had also received all of the committal papers (ie statements of the complainant and her mother and another witness), had received legal advice from experienced counsel and there had by the time he pleaded been negotiations with the State about matters relevant to the charges. Accordingly, the State submits that the weight to be given to the exculpatory statements in the EROI is negligible.
Elements of the offence
In respect of each count on the indictment the State is required to prove that:
1.the offender was BAI;
2.BAI unlawfully and indecently dealt with G by penetrating her vagina with his finger; and
3.G was under the age of 14 years at the time of the offence.
There is no issue that there is evidence in the materials to which the court is directed by s 99(5)(a) that establish each of the elements of the offence.
Possible defence
Consent is not a defence to a charge of sexual penetration of a child even if she initiated the contact. Thus, the only defence that may be available is that the sexual penetration was not unlawful because the penetration in count 1 was involuntary[8] and the penetration in count 2 was accidental in the sense that BAI was under the mistaken belief that he was penetrating his wife in count 2.
[8] Section 23A Criminal Code: a person is not criminally liable responsible for an act or omission which occurs independently of the exercise of the person's will.
Evaluation of the facts
Count 1
It is inherently implausible that BAI could have involuntarily rubbed an 11‑year‑old girls 'fanny' for somewhere between one and two minutes. No‑one could believe that a father could take that long to put a stop to conduct of that kind even if it were to have been initiated by the child. BAI's exculpatory statement is inherently implausible when the relevant material is evaluated as a whole without seeking to test the cogency probative value of all of the facts. BAI's claim lacks all credibility. I am positively satisfied that it is not reasonably arguable that the accused may not have committed the offence of sexual penetration alleged in count 1. On the materials, there is no realistic prospect that he may not have committed the offence. There is no deficiency revealed in the State's case by the materials such that it could be said that the alleged facts do not unequivocally establish that BAI may not have committed the offence.
If the law permits consideration of the procedural history of the matter as Mazza JA thought it did, then there is an even stronger basis for refusing the application to allow the change of pleas.
Count 2
The State contends that count 2 needs to be considered in light of the findings made in relation to count 1. The explanation BAI offered for how his involuntarily erect penis may have contacted the complainant's buttocks involuntarily is not implausible. But he had been charged with, and plead guilty to, sexually penetrating G's vagina with his finger.
This is not denied by BAI. Indeed he says nothing at all about touching her with his fingers while she was in the bed at home with him and the mother. He says at page 80 of the EROI:
… [b]efore you wake up … you feel a bottom against you … you think it could be, it could be your wife … and you sort of, suddenly you wake up and, oh, Jesus Christ, [G].
It could be that the digital penetration was wrapped up in the conduct he was referring to there which, he claimed, was initiated by his daughter's contact with him, but accidental because he thought she was his wife.
While BAI's counsel referred in his submissions to the materials raising an argument that the conduct was involuntary and accidental, I do not accept that BAI's exculpatory statements in the EROI raise the issue of involuntariness in relation to the digital penetration. If it occurred, it is not claimed on this occasion that she compelled him to do it, but rather that she initiated the conduct by rubbing up against his involuntary erection following which, his explanation seems to have been that whatever sexual conduct occurred did so with him thinking the other person involved was his wife rather than the complainant.
It would seem rather to be an attempt to raise a defence of mistake of fact rather than involuntariness.
In my view it beggars belief that BAI would not have known the difference between his wife and his 13‑year‑old daughter even if he were only half awake at the time.
The defence is not reasonably arguable and is implausible particularly when considered in light of the finding in relation to count 1.
Conclusion
BAI's exculpatory statements are inherently implausible. I am not satisfied that BAI may not have committed the offences alleged in counts 1 and 2.
Accordingly the application to allow the change of plea to not guilty on both counts is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
ASSOCIATE TO JUDGE GLANCY29 MAY 2018
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