The State of Western Australia v Ng
[2025] WADC 42
•21 JULY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- NG [2025] WADC 42
CORAM: ASTILL DCJ
HEARD: 27 JUNE 2025
DELIVERED : 21 JULY 2025
FILE NO/S: IND 109 of 2023
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
KENNY MENG WAI NG
Catchwords:
Criminal procedure - Operation of s 99 Criminal Procedure Act 2004 (WA) - Effect of guilty plea entered in court of summary jurisdiction - Where evidence suggests accused may be unfit to plead - Availability for court to determine accused's fitness to stand trial - Meaning of 'a sentencing proceeding' within s 9 of Criminal Law (Mental Impairment) Act 2023 (WA)
Legislation:
Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
The procedure provided for in s 99 of the Criminal Procedure Act 2004 (WA) does not constitute 'a sentencing proceeding' for the purposes of the Criminal Law (Mental Impairment) Act 2023 (WA)
Section 99 of the Criminal Procedure Act 2004 (WA) does not exclude the court's power to determine if an accused is fit to stand trial
Representation:
Counsel:
| The State of Western Australia | : | Ms J B Winter |
| Accused | : | Ms P S Chong |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Patti Chong Lawyer |
Case(s) referred to in decision(s):
Alben Hyland by Next Friend Ajay Singh v Mitchell [2022] WASC 300
Bennett v The State of Western Australia [2012] WASCA 70
Birch v The State of Western Australia [2017] WASCA 19
Corica v Throssell [2012] WASC 393
David Lockyer Harman by his Next Friend Portia De Guzman v Hall [2024] WASC 197
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
Maxwell v The Queen (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mouritz v The State of Western Australia [2006] WASCA 165
Ngatayi v the Queen (1980) 147 CLR 1
R v Hill [1979] VR 311
R v Jerome [1964] Qd R 595
R v Presser [1958] VR 45
R v Tonks [1963] VR 121
S (an infant) v Manchester City Recorder [1971] AC 481
Squance v WA Police [2023] WASC 479
SYO v The State of Western Australia [2020] WASCA 202
ASTILL DCJ:
Introduction
It was intended this matter would come before me on 27 June 2025 for the purpose of determining the question of the accused's fitness to stand trial pursuant to pt 3 div 2 (Fitness Inquiry) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMIA), that Act having come into effect on 1 September 2024.
By way of written submissions dated 24 June 2025 (State's Submissions) filed with the court three days prior to when the hearing was to take place, the State ‑ for the first time ‑ raised a preliminary objection as to the court's power to carry out the Fitness Inquiry. This was despite not taking any objection when the question of the accused's fitness was first raised on 7 June 2024, and despite the hearing on 27 June 2025 having been listed over six months ago by her Honour the Chief Judge on 19 December 2024.
These proceedings have been extensive and marred by delay. It is not necessary to go into detail regarding the protracted history other than to note throughout the State has not expressed opposition to the continuation of the inquiry that was commenced on 7 June 2024. When pressed, the State was unable to provide a satisfactory answer for why this issue was not raised at any point in the intervening 12 months.
To say it is regrettable that the issue was not raised previously understates the position. Nevertheless, having now been raised, I must now turn to consider the correctness of the objection.
For the reasons that follow, I am of the view nothing within the operation of s 99 of the Criminal Procedure Act 2004 (WA) (CPA) or within the meaning of 'trial' as defined in s 9 of the CLMIA prevents this court from conducting the proposed Fitness Inquiry.
Brief history of proceedings
The accused initially appeared before me on 21 May 2024 to be sentenced following his committal to this court from the Magistrates Court pursuant to s 99 of the CPA. On 25 January 2023 the accused had pleaded guilty to charge number PE 23042 of 2022, being a single count of indecently dealing with a child under 13 contrary to s 320(4) of the Criminal Code (WA).
At the time of appearing before me the court had received psychological, psychiatric and neuropsychological reports which had been prepared for the purposes of assisting in the sentencing process.
The reports, once provided to the court, raised concerns regarding the extent and effect of an apparent cognitive impairment identified in the accused.
It was in the context of having received these materials that on 21 May 2024 I raised with the accused's counsel, Ms Chong, whether she was confident the accused was in a position where he would be capable of entering pleas of guilty to the (now) two charges presented against him. Ms Chong confirmed she had experienced difficulties in discussing matters with the accused. Proceedings were adjourned for unrelated reasons, but Ms Chong confirmed she would utilise the opportunity to consider the accused's position.[1]
[1] ts 20.
On 7 June 2024 the accused again appeared before me. At that appearance Ms Chong confirmed reports should be ordered for the purposes of assessing the accused's fitness to stand trial.[2] No objection was taken by the State.[3] On the basis there was no objection, reports were ordered pursuant to s 12(2) of the (then) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CLMIAA). Delay in obtaining these reports has largely accounted for the significant delay in listing this matter for the Fitness Inquiry which was to take place on 27 June 2025.
[2] ts 26.
[3] ts 27.
During the intervening period, the CLMIAA was repealed and the CLMIA came into effect. The proceedings which had been commenced on 7 June 2024 under the CLMIAA are taken to be proceedings commenced under the CLMIA.[4]
[4] CLMIA s 245.
The State now submits there is no power for the court to engage in a Fitness Inquiry because the operative provisions of the CLMIA are precluded by operation of s 99 of the CPA.
What are the issues for resolution arising from the State's submissions?
Nothing in s 99 explicitly precludes the CLMIA from operating. It is the exclusion of 'a sentencing proceeding' from the meaning of 'trial'[5] for the purposes of the CLMIA which the State ultimately submits precludes the Fitness Inquiry from occurring.
[5] CLMIA s 9.
Paragraph 6 of the State's Submissions outlines the State's position that this court must adopt the procedure outlined in s 99 of the CPA 'notwithstanding any fitness issues that might now exist'. From the way the submission was developed in oral argument, the State submits when a summary court commits an accused following a guilty plea, this court must then apply the procedure provided for by s 99, which leaves no room for the CLMIA to apply.
As I understand it, the effect of the totality of the State's submissions is that upon committal to the superior court, the procedure provided for in s 99 of the CPA immediately applies and sentencing proceedings thereby commence in this court. If that submission is correct, the consequential effect is that s 9 of the CLMIA would prevent the operative provisions of pt 3 div 2 from applying.
Examination of the correctness of that submission necessarily involves resolution of three questions:
1.What is the extent of the exclusionary operation of s 99 of the CPA?
2.What is the meaning of 'a sentencing proceeding' as provided for in s 9 of the CLMIA?
3.Does the application of s 99 of the CPA in a superior court following committal by a summary court constitute 'a sentencing proceeding' as defined in s 9 of the CLMIA?
However, before those questions are answered, a further preliminary question arises. The State submits s 99 of the CPA applies to both counts 1 and 2 on the indictment dated 31 January 2023. If the State's primary submission that s 99 precludes the operation of the CLMIA is correct, then it would operate to preclude a Fitness Inquiry in relation to both counts.
As will be seen, the mechanism by which the prosecution commenced count 2 is different to the mechanism used with respect to count 1. Before resolving the substantive questions I have identified at [16], the extent to which the answers to those questions might affect the disposition of count 2 also needs to be resolved.
Does the procedure outlined in s 99 of the Criminal Procedure Act 2004 (WA) apply to count 2?
Both counts allege that on a date unknown between 3 June 2017 and 4 June 2019 the accused indecently dealt with the complainant, a child under the age of 13 years.
The principal difference between the two counts is the particularisation of the indecent act the accused is alleged to have committed against the complainant: count 1 particularises the conduct as the accused touching the complainant on the vagina whereas count 2 alleges the accused placed the complainant's hand on his penis.
However, for present purposes, the materially significant difference is the way the two counts were commenced.
The margin note for count 1 refers to 'PE 23042/22'. This is a reference to the prosecution notice which was committed by the summary court to this court pursuant to s 99, signifying count 1 is a prosecution commenced pursuant to s 83(4) of the CPA.
The margin note for count 2 refers to s 83(6) of the CPA. Section 83(6) is the power conferred upon an authorised officer to commence a prosecution for an indictable offence in a superior court 'even if the person has not been charged with the offence in a court of summary jurisdiction' or where the person has not been 'committed to a superior court on a charge of the offence'. This is often referred to as an 'ex officio' charge.
The State submits it exercised its power under s 83(6) of the CPA to commence the prosecution the subject of count 2 to cure a 'patent duplicity' issue which had been identified in PE 23042 of 2022. The State submits that count 2 therefore still falls within the ambit of s 99 as the accused was, in effect, still committed under that provision by the summary court.
The reason this has material significance is because the scope and operation of s 99 is confined to circumstances as set out in s 99(1).[6] In order to satisfy the preconditions specified in s 99(1), an accused must have been provided with, inter alia, the prosecution notice with respect to the charge.[7] It follows that if an accused is entering a plea to a charge for which a prosecution notice was not provided and to which a plea of guilty was not entered in the Magistrates Court, then s 99(1) will not have been complied with and s 99 will not apply.
[6] Birch v The State of Western Australia [2017] WASCA 19 [198] (Mazza JA).
[7] CPA s 39; Birch [199] (Mazza JA).
The committal summary report records the accused was committed to this court in relation to only one charge which, as noted at [22], is now the subject of count 1. At the time of committal, the charge as pleaded within the prosecution notice alleged the accused 'indecently dealt with one [complainant's name], a child under the age of 13 years'. As can be seen, the prosecution notice did not particularise the act which is the subject of the dealing.
The word 'duplicity' is usually employed to refer to a defect in the pleading where a count in either the indictment or the prosecution notice charges the accused with having committed more than one offence. This will often be referred to as 'patent duplicity' to distinguish it from 'latent duplicity'.
As observed by Pullin JA in Mouritz v The State of Western Australia[8] the word 'duplicity' is often used interchangeably with 'uncertainty'. Uncertainty, which is also referred to as 'latent duplicity', will refer to circumstances where the ambiguity emerges during the hearing of the evidence or where the verdict may be supported by different facts.[9]
[8] Mouritz v The State of Western Australia [2006] WASCA 165 [41] (Pullin JA).
[9] Mouritz [42] (Pullin JA).
As noted above at [26], the prosecution notice simply alleged the accused indecently dealt with the complainant without identifying the act, or acts, the subject of the dealing at all. The pleading revealed no deficiency as it correctly identified a singular act which was the subject of the charge: an indecent dealing.
The ambiguity that arose was in relation to the facts relied upon to establish that charge. The (then) statement of material facts identified two acts which could satisfy the meaning of an 'indecent dealing': the touching of the complainant's vagina (which became the basis of count 1) and the placing of the complainant's hand onto the accused's penis (which became the subject of the ex officio count 2). This ambiguity is more accurately described as a 'latent duplicity' or an 'uncertainty' when adopting the language used by Pullin JA.
Ultimately, that is not an issue I need to determine conclusively, though the State appeared to accept the correctness of this characterisation during oral submissions.[10]
[10] ts 72.
The State's identification of either duplicity or uncertainty was appropriate, as was the State's decision to cure it through the presentation of an ex officio charge. But that does not cure the difficulty of not complying with s 99(1), nor does it bring count 2 within the ambit of that provision. The manner in which the State has sought to cure the 'duplicity' or the 'uncertainty' did not cure the unfairness experienced by the accused when he pleaded guilty to PE 23402 of 2022 in the Magistrates Court, which the principles around duplicity and uncertainty seek to cure.
It is clear from the face of PE 23402 of 2022 the accused was not charged with either 'indecently dealing with [complainant] by touching her on the vagina and placing her hand on his penis' (which would, in my view, then be patent duplicity) or 'indecently dealing with [complainant] by placing her hand on his penis'. At no point was the accused provided with a prosecution notice which asserted against him that he indecently dealt with the complainant by placing her hand on his penis, which is what count 2 now specifies. The duplicity or the uncertainty of what the accused was admitting guilt to when pleading guilty to PE 23402 of 2022 is not made clear from the plea.
The State provided correspondence exchanged between the accused's (then) counsel and the State as to what their respective understandings were at the time of the accused entering the plea of guilty. However, that is evidence of the accused's counsel's understanding. Whether this was in fact the position the accused was intending to adopt is not evident from the plea of guilty to the charge alone due to the ambiguity caused by the duplicity or the uncertainty.
It is well established that a plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all the essential facts necessary to constitute the offence, as well as negativing all defences. However, a plea of guilty does not constitute an admission of all the facts stated in the State's or Crown's depositions or witness statements.[11]
[11] R v Hill [1979] VR 311 cited with approval in Bennett v The State of Western Australia [2012] WASCA 70 [110] (Buss P).
In circumstances where the prosecution notice did not particularise the nature of the indecent act, and the facts relied upon gave rise to two different acts capable of satisfying the elements of the offence, the latent duplicity creates uncertainty as to what the accused was admitting to when pleading guilty to the charge.
The accused could have, for example, been admitting to touching the complainant's vagina but not accepting he placed her hand on his penis. A plea of guilty on this basis would have constituted an admission by the accused of the essential facts necessary to satisfy the elements of the offence, whilst still disputing aspects of the facts alleged by the State.
If the State's interpretation is accepted, in circumstances where there was no patent duplicity in the charge but latent duplicity in the facts, an accused who entered a plea of guilty would potentially be precluded from challenging those facts when committed to the superior court if the State cured the latent duplicity by presenting an ex officio count. Not only would an accused be deprived of the ability to challenge the facts, but a court, after applying the procedure outlined in s 99(4)(a), would potentially be required to enter a plea of guilty on behalf of the accused notwithstanding the accused may never have intended to admit that fact, let alone their guilt.
The present ambiguity could have been clearly remedied by the State recognising the duplicity (as the correspondence suggests it had) and filing a second prosecution notice particularising the second act alleged. The State, as part of its oral submissions, appears to accept it must have turned its mind to this possible course but instead elected to deal with the duplicity 'by way of an ex officio charge on indictment'.[12]
[12] ts 71.
If the accused pleaded guilty to a second prosecution notice clearly particularising the act and was committed by the summary court following that plea, then the preconditions for s 99(1) would be satisfied and the procedure provided for by s 99 would then arguably apply. That of course did not occur.
The State instead elected to commence a prosecution in this court pursuant to s 83(6) of the CPA alleging the accused indecently dealt with the complainant by placing her hand on his penis. That was an equally permissible course open to the State to remedy the duplicity and cure the same unfairness. But the fact the course adopted by the State achieves the same outcome does not mean count 2 reproduces a charge that the accused pleaded guilty to in, and was committed by, the summary court.
To the extent that PE 23402 of 2022 ever included as part of that charge an allegation the accused placed the complainant's hand on his penis, it has now been excised due to the State's decision to confine count 1 to the act of touching the complainant on the vagina.
The decision to remove that act from the scope of count 1 does not mean that allegation is now part of a non‑existent prosecution notice underpinning count 2. The proceedings commencing count 2 were commenced in this court. Self‑evidently it could not have been initiated by prosecution notice in the summary jurisdiction. It also therefore follows the accused could not have received a prosecution notice in relation to that specific charge as one never existed.
This much is reflected in the fact the State has commenced count 2 not under s 83(4) but, rather, under s 83(6).
The State accepts that if I were to conclude that count 2 fell outside of the operation of s 99, then there would be nothing precluding the court from engaging in a Fitness Inquiry with respect to that count. I am not satisfied the preconditions required by s 99(1) have been met with respect to count 2 and so the procedure provided for by s 99 does not apply to that count.
What is the extent of the exclusionary operation of s 99 of the Criminal Procedure Act?
The State submits 'the first question for the Court's determination at this time, is not whether the accused is unfit to stand trial pursuant to s.26 of [the CLMIA], but rather whether pursuant to s.99(5) of the CPA, there is any basis upon which to set aside the plea of guilty which the accused entered in the Magistrates Court on 25 January 2023' (emphasis added).[13]
[13] State's Submissions, par 7.
In considering that 'first question' the State submits there is no such basis because there is 'insufficient material before the Court which could satisfy the Court that at the time the accused entered pleas of guilty in the Magistrates Court, namely on 25 January 2023, the accused "was under a material misunderstanding as to the charge, the plea, or the purpose of the proceedings"'.[14]
[14] State's Submissions, par 8.
The State's submission that the 'first question' is to determine if there is a basis to 'set aside the plea of guilty' proceeds on an assumption that a plea of guilty is something that must be 'set aside'. What the State means by 'set aside' is not clear.
Section 99(1)(b) will only operate in circumstances where an accused has been committed to a superior court and where a conviction has not been entered by the summary court.
Section 99(2) requires an accused to 'plead to the charge in the indictment in the same manner as other accused'. An indictment cannot be filed in the summary court.[15] An accused can only plead to an indictment once an accused has appeared in the superior court.
[15] CPA s 3(1).
The necessity for an accused to plead to the charge in the indictment clearly contemplates an accused will enter a fresh plea, independent to the one that was entered in the summary court, at some point after appearing in the superior court. This sits inconsistently with the concept of 'setting aside' the plea of guilty entered in the summary court.
Further, the requirement imposed by s 99(2) that an accused must plead 'in the same manner as other accused' must, as a minimum, incorporate s 126 and the pleas available to an accused. These include pleas other than one of guilty.
Indeed, this much is provided for by s 99(4) which recognises an accused may enter something other than a plea of guilty when required to plead to the indictment. Where an accused does so, then s 99(4)(a) or s 99(4)(b) will then apply.
Section 99(4)(a) will require the superior court to consider the facts and, if satisfied they do not materially differ from the facts disclosed to the accused under s 35, the superior court will be required to enter a plea of guilty on behalf of the accused. If the plea of guilty entered in the summary court was considered to have any binding effect on either the accused or the superior court, it is unusual that the superior court would then have to take the additional step of entering a plea of guilty on behalf of the accused.
Similarly, s 99(4)(b) provides if the superior court is not satisfied, then the court must enter a plea of not guilty on behalf of the accused. Again, it is significant the provision makes no reference to 'setting aside' the plea of guilty made by the accused in the summary court. Instead, the provision appears to proceed on a basis the superior court is in no way constrained by the plea entered in the summary court.
The same position is adopted with respect to the overarching discretion provided to the court by s 99(5). I will return to this provision in greater detail below, but what is notable is that provision uses similar language to s 99(4). If a superior court is satisfied of either of the matters provided for in s 99(5)(a) or s 99(5)(b), s 99(5) does not speak of the superior court 'setting aside' the plea of guilty entered in the summary court but, rather, requires the court to enter a plea of not guilty on the accused's behalf.
Section 99, when it applies, requires a superior court to adopt special procedures that it would not otherwise follow once a plea has been taken from an accused. These procedures govern how the court is to proceed in response to the plea. However, they only apply after the superior court has taken the plea.
These procedures do not require the superior court to have any regard to, or be constrained by, the plea of guilty entered in the summary court. The superior court is not required to take any steps to deal with or 'set aside' the plea of guilty in the summary court. The guilty plea in the summary court simply acts as a necessary precondition provided for by s 99(1)(a) before the special procedures provided for in s 99 will apply.
Plea of guilty vs conviction
The use of the phrase 'set aside' appears to conflate the making of a plea of guilty and the entering of a conviction.
In R v Tonks[16] the Victorian Full Court, after having carried out a comprehensive review, was of the opinion that a plea of guilty does not, of its own force, constitute a conviction and 'amounts to no more than a solemn confession of the ingredients of the crime alleged' whereas a conviction is a determination of guilt.
[16] R v Tonks [1963] VR 121, 127 - 128.
Whilst Tonksis a Victorian decision and would otherwise be only persuasive authority upon this court, it was cited with apparent approval in Maxwell v The Queen.[17] There is no reason to think the position as stated in Tonks is not an accurate summary of the position at common law.
[17] Maxwell v The Queen (1996) 184 CLR 501, 508 (Dawson & McHugh JJ), 520 ‑ 521 (Toohey J), 529 (Gaudron & Gummow JJ).
The CPA clearly contemplates a distinction between a plea of guilty and a conviction. Section 41(3), s 47, s 83(4) and s 99 of the CPA all contemplate a summary court taking a plea of guilty without entering a conviction and then committing the accused to the superior court to be dealt with. This is consistent with the court's approach as outlined in Tonks that a plea of guilty might be a 'solemn confession of the ingredients of the crime alleged' but it will be for the 'court charged with deciding the guilt of the accused' to determine the accused's guilt and, in doing so, convict the accused.[18]
[18] Tonks (127).
Significantly, the determination of guilt and thereby the conviction must be the act of the court which has been 'charged with deciding the guilt of the accused'. In relation to an indictable charge (or an 'either way' offence that has been determined to be dealt with on indictment), it is the superior court charged with that responsibility by virtue of its exclusive jurisdiction over indictable matters.
A court is of course permitted to rely upon the confession of guilt arising from a guilty plea to then determine the accused's guilt and convict the accused. But that is contingent upon the court accepting the plea of guilty.
At common law, a plea of guilty must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. If the plea of guilty is not genuine or not unequivocal, then a plea of not guilty must be entered.[19]
[19] Maxwell (511) (Dawson & McHugh JJ).
The circumstances in which a court will be able to accept and act on a plea of guilty were made clear in Meissner v The Queen:[20]
A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea … but [if] the plea is in fact procured by pressure and threats, there is a miscarriage of justice.
(footnotes omitted)
[20] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 141 ‑ 142 (Brennan, Toohey & McHugh JJ).
Ordinarily, when an accused enters a plea of guilty, s 129 of the CPA will prohibit a court from accepting the plea unless the court is satisfied of the criteria provided for in s 129(2)(a) or s 129(2)(b).
Section 129(2)(a) permits a court to act on a plea of guilty if the accused is, at the time the plea of guilty is made, legally represented. Where an accused is legally represented, a court is generally entitled to rely upon an assumption the accused's legal representative will have advised the accused as to the factual and legal matters necessary to allow an unequivocal plea to be entered.[21]
[21] See Corica v Throssell [2012] WASC 393 [42] (McKechnie J).
Where an accused is not legally represented, s 129(2)(b) requires the court to satisfy itself the accused understands the plea and its consequences before being permitted to act upon that plea.
As can be seen, even when a plea of guilty is taken in a superior court, ordinarily the plea cannot be accepted and a conviction cannot be entered until s 129(2) is satisfied.
Once a court is satisfied of either of the criteria under s 129(2) the court can then act on the plea of guilty by proceeding in accordance with s 147(1).
Section 147(1) provides the court may enter a judgment of conviction. By conferring a discretion to enter a judgment of conviction, the provision also appears to afford the court a discretion not to enter a conviction. The circumstances in which a court may be permitted to exercise its discretion not to enter a judgment of conviction following a plea of guilty are not set out in s 147.
The existence of such a discretion seems to suggest that even if after complying with s 129, if the court still holds a view the plea is equivocal, or if the plea does not meet the requirements outlined in Meissner, a court could exercise a discretion not to enter a judgment of conviction. Similarly, if the court has an inherent power to set aside a conviction to prevent a miscarriage of justice,[22] it would be surprising if s 147(1) did not also give the court discretion to withhold entering a conviction in comparable circumstances.
[22] Birch [213] (Mazza JA).
Thus, if information came to light after a plea of guilty that suggested entering a conviction may result in a miscarriage of justice, it appears arguable the discretion under s 147(1) could be engaged. Ultimately, this is not a question I need to resolve for present purposes.
However, the significance of s 129 (even if s 147(1) does not confer a discretion in the manner I have outlined above) is that s 129 still appears to give statutory effect to, at least to a degree, the common law position that a plea of guilty will not be accepted unless the plea is unequivocal, is made in circumstances that suggest it is a true admission of guilt and that the accused is aware of the significance of the plea.
In that context, it is equally significant s 129(1) excludes s 129 from operating in relation to pleas of guilty to indictable offences that are made in the summary court. A magistrate, when taking a plea to an offence that is to be dealt with on indictment, is not required to be satisfied the accused is legally represented or understands the nature and consequences of the plea before acting on the plea. This is despite the fact a magistrate, when taking a plea of guilty in relation to a summary offence (or an either way offence that is to be dealt with summarily) will be required to comply with s 129(2) before acting on it.
The distinction between when a magistrate is taking a plea in relation to an offence being dealt with on indictment versus when taking a plea in relation to an offence being dealt with summarily is no doubt partly because, although the magistrate may take the plea of guilty, they cannot enter a judgment of conviction under s 147(1) in relation to an offence being dealt with on indictment.
Again, this appears to be a statutory reflection of, or at least consistent with, the common law position as outlined in Tonks that it is the responsibility of the superior court, being the court charged with determining the accused's guilt, to make the determination that the plea is:
(a)unequivocal;
(b)understood by the accused; and
(c)is made by someone who is of apparent sound mind and understanding.
On its face, s 99(3) appears to exclude the operation of s 129 as it provides that where an accused pleads guilty, the superior court 'must accept the plea of guilty and deal with the accused according to law'.[23]
[23] CPA s 99(3).
Nevertheless, s 99(3) remains subject to the supervisory oversight and level of safeguard provided by s 99(5).
Section 99(5) provides that, irrespective of whether an accused does or does not plead guilty when required to do so under s 99(2), the court must[24] enter a plea of not guilty if satisfied the accused could not have or may not have committed the offence charged, or if the plea in the summary court was entered under a material misunderstanding.
[24] Whilst s 99(5) uses the word 'may' that word has been interpreted as conferring an obligation rather than a discretion ‑ see Birch [214] (Mazza JA).
In SYO v The State of Western Australia[25] the court considered in detail the purpose of s 99(5) when considering the operation of that provision. In doing so, the court was of the view, inter alia:[26]
1.Section 99(5)(b) is directed to alleviating, for the benefit of the accused, the criminal law consequences that would otherwise follow from a plea of guilty.
2.The relevant purpose or object is that despite the entry of a plea of guilty to an offence in the lower court, an accused should not be convicted of the offence and sentenced by the superior court if, by reason of the matters specified in s 99(5), it would be unfair to the accused or potentially productive of a miscarriage of justice if the accused was bound by the plea.
[25] SYO v The State of Western Australia [2020] WASCA 202.
[26] SYO [168].
In relation to s 99(5)(a), Mazza JA noted in Birch[27] that s 99(5)(a) is broader in scope than the position at common law where an accused was only permitted to change a plea after conviction by establishing that they could not have been guilty of the offence. His Honour considered the possible justification for the broader scope of s 99(5)(a) lies in the fact that an accused invoking the provision, at that time, remains unconvicted.
[27] Birch [210] and [211] (Mazza JA).
What was also clear from Birch is s 99(5) does not abrogate the court's inherent jurisdiction to set aside a plea of guilty on the basis of a miscarriage of justice; instead it operates in addition to.
The extent to which s 99(3) and s 129 may be inconsistent with each other, or to what extent the protection offered by s 99(5) may be different to that offered by s 129 is not something I need to resolve. What is evident is, consistent with Tonks, the superior court is still required to exercise a cautionary discretion before accepting and acting on a plea of guilty under s 99(2), notwithstanding the fact a plea of guilty was made by the accused in the summary court.
The procedure provided for by s 99 can be contrasted by the differences provided for under s 100. Section 100 applies when an accused is committed following conviction by the summary court to the superior court for sentence. Unlike s 99(2), s 100(2) specifically prohibits the superior court from requiring the accused to plead afresh to the prosecution notice.
Further, s 46 (dealing with committals for sentence following conviction in the summary court) applies to an either way offence being dealt with summarily. Because the charge will no longer be one 'to be dealt with on indictment' s 129 will apply to any plea of guilty made by an accused to that charge. Before proceeding to enter a judgment of conviction under s 147(1) it will be necessary for the summary court to satisfy itself of the s 129(2) criteria. After convicting the accused the summary court can then commit the accused for sentence to the superior court.
Again, as can be seen the procedure provided for by s 46, s 100 and s 129 reflects, or is at least consistent with, the common law position as outlined in Tonks. In these circumstances the summary court is the court charged with determining the guilt and has the power to convict the accused. It is the summary court that is required to satisfy itself that it can act upon the plea of guilty as a genuine plea before then acting on it. The fact the summary court then commits the charge to the superior court is not because the superior court is the one that is charged with determining the charge, but because it is the superior court that has the jurisdiction to impose a sentence greater than the summary penalty available to the summary court.
It is equally telling that in those circumstances, where the summary court has had to satisfy itself of the s 129 criteria, that s 100 does not contain a similar safeguard to s 99(5).
This suggests, consistent with the common law position under Tonks, there is no intention that the plea of guilty entered before the summary court should have any determinative effect upon the superior court. To the contrary: the operation of s 99 suggests a superior court cannot act on any plea, whether it is guilty or not guilty, until a plea is entered by the accused in the superior court as required by s 99(2) and the court is satisfied s 99(5) does not apply.
Independent to s 99(5), before the conviction can be entered under s 147(1), the superior court as the court entering the judgment, must be satisfied the safeguards against a miscarriage of justice have been met.
It is clear under s 99 there is no 'plea of guilty to set aside' as the plea of guilty to an indictable charge entered in the summary court has no effect in the superior court other than to satisfy one of the preconditions provided for by s 99(1)(a).
Requirement to plead
As noted above at [14], part of the State's submission as to why the CLMIA is excluded is because, on its proposed construction, upon committal the superior court is required to proceed under s 99. The State identifies the requirement imposed by s 99(2) that 'the accused must be required to plead to the charge' as the textual support for this submission.
The State submits the imperative 'must' requires the accused to plead upon appearance in the superior court thereby commencing sentencing proceedings.
The State's submission omits critical words that are contained in s 99(2). The full text of s 99(2) reads:
The accused must be required to plead to the charge in the indictment in the same manner as other accused.
(emphasis added)
I have already dealt with the obvious relevance s 126 of the CPA must have to the operation of s 99(2). However, the significance of the word 'manner' cannot be overlooked.
The ordinary meaning of the word 'manner' is 'way of doing, being done, or happening; mode of action, occurrence'.[28] Section 99(2) does not simply refer to the pleas available to an accused, but also refers to the way or mode in which the plea is taken.
[28] Macquarie Dictionary (9th ed, 2023).
Section 91 provides for when an accused can be required to plead to a charge. This provision empowers a court to require an accused to plead to an indictment at any time after the indictment is lodged with the court. A provision that confers a discretionary power also confers the discretion on a court not to exercise that power. Accordingly, the corollary of s 91 is it empowers the court with a discretion not to require an accused to plead until a decision is made under s 91 to do so.
In my view there is no textual support for the State's submission that s 99(2) precludes the operation of the CLMIA by imposing an imperative upon an accused to enter a plea immediately. To the contrary. In my view the combination of s 99(2), the discretion conferred by s 91, and the operation of the CLMIA permits a superior court to carry out, where necessary, an inquiry to ensure an accused is fit to then plead to the charge when required to do so by s 99(2).
The reference in s 99(2) to 'same manner as other accused' makes this clear. As outlined above, the legislative context as well as the court's obligations at common law require a court, when taking a plea of guilty from 'other accused', to ensure the accused is a 'person who is of full age and apparently of sound mind and understanding' before being capable of being satisfied the plea is one that can be acted upon. This is made clear in Meissner.
Similarly, as observed at [52], s 99(2) allows an accused to enter any other plea provided for by s 126 when required to plead to the indictment. By its construction, the provision contemplates an accused attempting to enter a plea of not guilty when called upon to do so under s 99(2).
Section 28(2) of the CLMIA permits the defence, the prosecution or the court on its own initiative to raise the question of whether an accused is unfit to stand trial. Ordinarily an accused is presumed to be fit to stand trial[29] and so in the absence of anything to question the presumption, at the time of taking a plea from an accused the court can act on that plea.
[29] CLMIA s 27(1).
But where an accused intends to enter a plea of not guilty (or a plea of guilty prior to sentencing proceedings commencing) and the court becomes aware of information that may put the presumption into question, the court is empowered under s 28(2) to confirm the accused's capacity to enter that plea before permitting the accused to do so. In the event the court is satisfied the accused does not have the capacity, then the court cannot permit the plea.[30] The court's ability to determine as a preliminary issue (where relevant) the accused's capacity to properly make a plea before doing so must, in my view, form part of the way or 'manner' by which a plea is ordinarily taken from an accused.
[30] CLMIA s 35 and s 37.
The consequence of the State's proposed interpretation, if accepted, is an accused who falls within s 99 and who intended to, at the very least, plead not guilty would be required to do so in a manner that is different to other accused, by excluding the court's ability to determine (where necessary) that accused's capacity to properly make a plea. To adopt that interpretation would be contrary to s 99(2) as it would not be in the same manner as other accused.
Conversely, the interpretation of s 99(2) that I prefer, which allows a court to exercise the discretion conferred under s 91 not to require an accused to immediately plead to the indictment, but instead to first determine (where necessary) whether the accused can properly enter a plea of not guilty should the accused wish to do so, is consistent with the obligation to require an accused to plead in the same manner as any other accused.
On the bases outlined above, there is no textual justification for the State's proposed interpretation or construction of the operation of s 99.
Summary
In my view, the purpose and effect of s 99 when read in the context of the other relevant provisions of the CPA that I have referred to, is as follows:
1. An accused who has been committed to be dealt with under s 99 will be required by s 99(2) to plead to the charge, irrespective of the fact they have previously entered a plea of guilty in the summary court.
2.The requirement to plead must occur in the 'same manner' as other accused and so need not occur until the accused is required by the court to do so under s 91.
3.Once a court requires an accused to plead, they can enter any plea permitted by s 126 and are not required to enter the same plea they entered in the summary court.
4.If the accused enters something other than a guilty plea, then the process provided by s 99(4) is engaged.
5.Regardless of what plea an accused enters, the court has an overriding discretion to enter a plea of not guilty where the court is satisfied of any of the matters provided for in s 99(5)(a) or s 99(5)(b).
6.If the court is satisfied that s 99(5) does not apply, then the court may enter a conviction under s 147(1).
7.Once conviction is entered, the court still holds an inherent jurisdiction to set aside the conviction, even where that conviction is based upon a plea of guilty, if it would result in a miscarriage of justice not to do so.
8.If the court does not set aside the conviction, then s 148 will apply and the court must proceed to sentence.
There is nothing, in my view, arising from the operation or the text of s 99 that as a matter of procedure excludes the operation of the CLMIA.
If the CLMIA is excluded from operation, it can only be because the procedure under s 99 constitutes 'a sentencing proceeding' as that term is used in the CLMIA. I now turn to that question.
What is the meaning of 'a sentencing proceeding' as provided for in s 9 of the Criminal Law (Mental Impairment) Act 2023 (WA)?
Section 9 of the CLMIA defines the word 'trial' as not including, inter alia, 'a sentencing proceeding'. The State does not contend as part of its submissions that the current proceedings could constitute any of the other kinds of proceedings that are excluded from the meaning of 'trial'.
Section 24 of the CLMIA provides that pt 3 div 2, being the relevant operative division for the purposes of determining the question of fitness, applies with respect to deciding the question of 'whether an accused is fit to stand trial'. By extension, pt 3 div 2 will not apply to determining the question of an accused's fitness for a sentencing proceeding.
The term 'a sentencing proceeding' is not defined by the CLMIA. Accordingly, the question of what is meant by 'a sentencing proceeding' for the purposes of the CLMIA must be considered.
Whilst in Maxwell the question the court was resolving was the meaning of 'conviction', it still provides some useful guidance as to what 'sentencing' and, by extension, sentencing proceedings might mean at common law.
In examining that question in Maxwell, the court referred to Lord Reid's observation in S (an infant) v Manchester City Recorder[31] that a court could permit an accused to change their plea to not guilty 'at any time before the case is finally disposed of by sentence or otherwise'. Dawson and McHugh JJ[32] reasoned from Lord Reid's observation that this might provide an explanation for Gibbs J's hesitation in accepting in R v Jerome and McMahon[33] that a determination of guilt by a court might occur when a court adjourned proceedings to obtain information only relevant to the question of sentence.
[31] S (an infant) v Manchester City Recorder [1971] AC 481, 488.
[32] Maxwell (509) (Dawson & McHugh JJ).
[33] R v Jerome [1964] Qd R 595.
Dawson and McHugh JJ were of the view that when a court embarks upon a consideration of sentence, the court is accepting the plea of guilty but, pending actual sentence or some other disposal of the matter, could still allow for a change of plea until then. For this reason they referred to the acceptance of the plea as being 'provisional' whereupon pronouncement of the actual sentence would dispose of the matter and then turn the provisional, final.[34]
[34] Maxwell (510) (Dawson & McHugh JJ).
Toohey J,[35] referring to Griffiths v The Queen[36] noted there was a distinction between conviction and judgment and 'that the former preceded the latter'. Here, when Toohey J was referring to 'judgment' he was referring to either the recording of the conviction or the passing of the sentence. Similarly to Dawson and McHugh JJ, Toohey J considered a conviction to be 'provisional' and capable of being vacated until sentence was passed.[37]
[35] Maxwell (520) (Toohey J).
[36] Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293.
[37] Maxwell (523) (Toohey J).
Gaudron and Gummow JJ considered and rejected the position adopted in the United Kingdom that there was no conviction until 'final adjudication by sentence'. Their Honours were of the view it would be 'unsatisfactory' if submissions were being made to a court with respect to sentence before there had been a determination of guilt by the court.[38]
[38] Maxwell (530) (Gaudron & Gummow JJ).
Their Honours concluded 'conviction' will occur when the court does some act which indicates that it has determined guilt, such as by moving to impose punishment.[39] Their Honours' reasoning suggests that, at a minimum, before sentencing can commence there must have been a determination of guilt by the court. This proposition seems uncontroversial. But it suggests sentencing proceedings will occur when the court's role shifts from the question of determining the accused's guilt, or otherwise, and moves to the consequences of that determination.
[39] Maxwell (531) (Gaudron & Gummow JJ).
The commonality that comes from the court's reasoning in Maxwell is that sentencing proceedings commence where there has been some determination of the accused's guilt, either provisionally or determinatively, and the court then commences the process of the final disposition of the matter by way of 'judgment'.
The determination of guilt can occur from the court accepting a plea of guilty, but only when the court charged with determining the question has been satisfied the plea is an unqualified confession made by somebody of apparent sound mind and understanding.
The sentencing procedure in this jurisdiction is governed (subject to certain exceptions which are not relevant for these purposes) by the interaction of the CPA and the Sentencing Act 1995 (WA) (the SA). Section 148 of the CPA provides that, subject to certain qualifications (which, again, are not relevant for present purposes), once a judgment of conviction is entered under s 147, the court must then sentence the accused. It can be seen a necessary precondition under the CPA before sentencing can commence is a recording of conviction.
Again, subject to the qualifications provided for in s 3(2) and s 3(3) of the SA (which are not relevant), s 3(1) provides the SA applies to 'all persons convicted of an offence'. Section 39 of the SA empowers the court with the sentencing options available when sentencing an 'offender'. An 'offender' is defined by s 4 of the SA as being 'a person convicted of an offence'.
When looked at together, it is apparent that the power of a court to impose a sentence under the SA is contingent upon a conviction being entered under s 147 of the CPA and then proceeding under s 148. Neither of these two Acts appear to contemplate proceedings that precede the conviction as constituting 'a sentencing proceeding'.
As can be seen, the procedure established by the CPA and the SA operate to create what can be considered 'sentencing proceedings.' This procedure operates consistently with the common law concepts distilled from Maxwell.
Of course, what might be established through the procedure created by the interaction of the CPA and the SA is not necessarily determinative of what the phrase 'a sentencing proceeding' might mean for the purposes of the CLMIA. But, consistent with principles of statutory interpretation, the legislature when using the phrase 'a sentencing proceeding' must be taken to have done so with an awareness of the procedure established by the CPA and the SA. Accordingly, this provides a useful starting point in determining what 'a sentencing proceeding' might mean under the CLMIA.
This is particularly so given that s 14(1) of the CLMIA provides the CPA will apply 'with the necessary modifications' to proceedings conducted under pt 3 and pt 5 of the CLMIA. Additionally, s 14(2) of the CLMIA incorporates proceedings under pt 3 ‑ which includes an inquiry to determine an accused's fitness to stand trial under div 2 ‑ within the meaning of 'prosecution' under s 3(1) of the CPA.
Section 14 of the CLMIA suggests it is the intention of the CLMIA to align itself as closely as possible with the procedure that is provided for in the CPA which may further assist in determining what 'a sentencing proceeding' means for the purposes of s 9.
In support of the State's submission, it relies upon two decisions from the Supreme Court exercising the power of judicial review conferred by s 36 of the Magistrates Court Act 2004 (WA).
In David Lockyer Harman by his Next Friend Portia De Guzman v Hall[40] Glancy J was required to review the learned magistrate's decision to set aside a judgment of conviction and make a custody order under s 22 of the CLMIAA. Her Honour, following the reasoning of Forrester J in AlbenHyland by Next Friend Ajay Singh v Mitchell,[41] was of the view that after a plea of guilty was made and a conviction was entered, the applicant's trial was at an end and so the CLMIAA would then have no work to do.[42]
[40] David Lockyer Harman by his Next Friend Portia De Guzman v Hall [2024] WASC 197.
[41] Alben Hyland by Next Friend Ajay Singh v Mitchell [2022] WASC 300 [71] ‑ [77].
[42] Harman [47] and [48].
However, what was central to Glancy J's reasoning in dealing with that issue was that following conviction, the summary court's role in determining whether the applicant was guilty or not was now ended.[43]
[43] Harman [48].
In Hyland, Forrester J was dealing with a number of different charges which were made the subject of a custody order following a determination by the learned magistrate that the applicant was unfit. It is evident from a review of her Honour's reasons that there were a number of procedural irregularities that affected the correctness of the learned magistrate's decision.
However, the relevant portion of her Honour's reasons the State relies upon are at [71] ‑ [77]. Her Honour concluded in relation to the charges dealt with in those paragraphs that the proceedings before the learned magistrate were 'sentencing proceedings', and so the learned magistrate did not have the power to determine the applicant 'unfit'. In coming to that conclusion her Honour observed:[44]
As outlined above, the applicant entered pleas of guilty on 19 February 2019 and 14 May 2019 as follows [her Honour then set out the charges for which pleas were entered] … As such, the proceedings in relation to these charges were sentencing proceedings.
[44] Hyland [71] - [72].
It is true that in concluding the proceedings were 'sentencing proceedings' her Honour did not specifically refer to the question of whether a conviction had been entered by the learned magistrate following the pleas of guilty.
It is significant though that the pleas of guilty were in the Magistrates Court and that court was the court 'charged with determining guilt' and so this was the type of situation contemplated by Tonks where a plea of guilty could be made, the court could be satisfied the plea amounted to an admission and the court would have jurisdiction to act on that admission to convict the applicant.
The 'judgment of conviction' was demonstrated by the court proceeding to deal with the charges in a manner that was no longer consistent with the court carrying out an inquiry to determine guilt by moving to dispose of it by way of sentence. I take that to be what her Honour means when she said, 'the applicant had already pleaded guilty to the offences, and those matters were at a stage of the proceedings which could in no way be described as "before or during the trial" of the applicant'.[45]
[45] Hyland [75].
Hyland and Harman both support the State's submission that once sentencing proceedings commence, the CLMIA will have no application. That is not a controversial proposition. But neither decision provides any direct assistance in determining what 'a sentencing proceeding' might mean for the purposes of the CLMIA.
In relation to that question, what is of significance is both of their Honours appear to have placed significance on the fact of the conviction (in Harman) and the plea of guilty in the way I have discussed (in Hyland) as being indicative of the fact that sentencing proceedings had commenced.
In Squance v WA Police[46] Howard J was considering the meaning of 'trial' for the purposes of s 8 of the CLMIAA. Section 8 of the CLMIAA defined 'trial' to mean 'all court proceedings for an offence other than … sentencing proceedings'. As can be seen, for the present purposes, s 8 of the CLMIAA largely mirrors s 9 of the CLMIA.
[46] Squance v WA Police [2023] WASC 479.
His Honour interpreted s 8 and the meaning of 'court proceeding for an offence' broadly.[47] In doing so, his Honour was satisfied the process of pleading guilty would, in itself, be a part of the 'court proceedings' and therefore part of the 'trial'. Adopting this interpretation, his Honour was satisfied the process of determining whether an accused was fit to stand trial would still be capable of being undertaken where an accused wanted to plead guilty, but the extent to which an accused was 'fit to stand trial' needed to be assessed against the nature of the 'trial' the accused was facing.
[47] Squance[54].
Squance is readily reconciled with the decisions in Hyland and Harman when one applies the reasoning in Tonks. It will be once a plea of guilty is entered, and the relevant court is satisfied the plea can be acted upon to convict, that the proceedings will then transition from a 'trial proceeding' to a 'sentencing proceeding'. But, on this analysis ‑ and consistent with the reasoning Howard J has demonstrated in Squance ‑ the point at which the accused is entering the plea of guilty still forms part of the 'trial proceedings'. The critical point is when the court who is determining guilt is satisfied it can act upon that admission that the transition then occurs.
This is consistent with the analysis I have outlined above regarding the significance of s 99(2) of the CPA. The taking of a plea under s 99(2) of the CPA ‑ whether guilty, not guilty, or any other plea permitted under s 126 of the CPA ‑ remains part of the 'trial proceedings'. Once it is established the plea can be acted upon, the superior court as the court responsible for determining guilt, may either act upon the plea and convict the accused ‑ thereby moving to sentencing proceedings ‑ or apply the special procedures set out in s 99(3), s 99(4), and s 99(5), as the case may require.
In my view, the meaning of 'a sentencing proceeding' for the purposes of s 9 of the CLMIA should adopt, as a minimum, the common law concepts identified in Tonks and Maxwell. That is, before proceedings will constitute 'a sentencing proceeding' there must be a finding of guilt capable of amounting to a conviction. A plea of guilty, for the reasons I have outlined, cannot in itself amount to a conviction. It will be upon conviction that proceedings will transition from 'trial proceedings' to 'a sentencing proceeding'.
As I have already noted, it is the meaning of 'a sentencing proceeding' as contained within the CLMIA that is relevant. However, the meaning that I have preferred is also consistent with the sentencing procedure established by the CPA and the SA that I have discussed above at [123].
There is nothing from the operation of the CLMIA that I consider to be inconsistent with the meaning I have attributed.
The State submits that an interpretation which does not allow an accused ‑ who entered a guilty plea in the summary court while (presumably) fit ‑ to be held to that plea by the superior court when now potentially unfit, would be inconsistent with the stated purposes of the CLMIA. In essence, the State argues that because the accused previously expressed an intention to plead guilty in the summary court, it would be inconsistent with s 7(1)(b)(ii), s 7(1)(b)(iv), and s 7(1)(b)(v) of the CLMIA to now prevent him from entering a guilty plea in the superior court and proceeding to sentence.
Section 7 of the CLMIA relevantly provides:
(1)The objects of this Act are as follows -
…
(b)to ensure persons with mental impairment who are charged with an offence -
…
(ii)are given a reasonable opportunity to become fit to stand trial; and
…
(iv)are not found to have committed the offence unless, on the evidence available, it can be proved to the ordinary criminal standard of proof that the person committed the offence; and
(v)are subject to the least possible interference with their rights and dignity; …
It is difficult to see how s 7(1)(b)(ii) has any relevant application to the determination of this issue. The State's oral submissions did not make the position any clearer.
When one considers the totality of the State's submissions, it may be the State suggests its proposed interpretation aligns with s 7(1)(b)(ii) in that a person with a mental impairment will be 'given a reasonable opportunity to become fit to stand trial' if the capacity for the court to declare the person unfit is removed. To the extent this is the State's submission, then it must be in my view qualified by the word 'unnecessarily': a person with a mental impairment will be given a reasonable opportunity to become fit to stand trial if the capacity to unnecessarily declare the person unfit is removed.
In relation to s 7(1)(b)(iv), the State orally submitted that provision 'has some applicability'.[48] It was not elaborated upon as to how. It may be the State suggests it has 'some applicability' because a plea of guilty, if acted upon, can act to prove to the ordinary criminal standard of proof that the person committed the offence.
[48] ts 94.
If this is the State's submission, then it is undoubtedly correct for the reasons I have outlined above: a plea of guilty, if accepted, can provide the basis upon which a court can act to be satisfied as to the accused's guilt. But if that is indeed the State's submission, it focuses on only part of s 7(1)(b)(iv).
The stated object and principle provided for in s 7(1)(b)(iv) is to ensure persons with a mental impairment who are charged with an offence are not found to have committed the offence unless, on the evidence available, it can be proved to the ordinary criminal standard of proof that the person committed the offence.
As stated in Maxwell[49] if the court considers the plea of guilty is not genuine or unequivocal then, it must direct a plea of not guilty be entered. The imperative 'must' makes clear this is not discretionary. The reason for this is evident: where a court is being asked to convict on the guilt evidenced by the plea and it does not consider the plea to be genuine or unequivocal, the court must in those circumstances hold a doubt and cannot act on it. It has not been satisfied to the ordinary criminal standard.
[49] Maxwell (511) (Dawson & McHugh JJ).
Where there is evidence capable of suggesting the accused may be unfit, such an accused will not be of 'apparent sound mind' and so the court will not be capable of considering an intended plea of guilty to be genuine or unequivocal until that issue is resolved.
If a court resolves the accused is fit, then any plea can still be made by the accused. If the plea is one of guilty, then the court will be able to act on that plea and satisfy itself to the ordinary criminal standard that the accused committed the offence. If the court resolves the accused is not fit, then an intended plea of guilty would not be capable of meeting that threshold.
An accused with a mental impairment will not be found to have committed the offence on the evidence available ‑ namely the plea of guilty ‑ unless the plea is genuine and unequivocal whereby it will be proven to the criminal standard the accused committed the offence.
As can be seen, rather than contradicting s 7(1)(b)(iv) the interpretation I have preferred by adopting the reasoning in Maxwell, in fact furthers it.
Finally, the State submits that an interpretation that does not give effect to the accused's plea of guilty entered in the summary court 'essentially [is] undermining or ignoring a decision that was made by an accused at a point in time where they were fit'[50] and is inconsistent with s 7(1)(b)(v).
[50] ts 94.
As has been referred to a number of times throughout these reasons, a person has the right to plead guilty and to have a court act on that plea. However, that right is preconditioned on the person being 'of full age and apparently of sound mind and understanding'.[51] Conversely, a person who is not of apparent sound mind and understanding has the right to be protected from a court acting on a plea of guilty where doing so may cause a miscarriage of justice.
[51] Meissner (141) ‑ (142) (Brennan, Toohey & McHugh JJ).
The State's submission proceeds on the assumption an accused person is at the time of pleading guilty in the summary court in fact fit. The presumption of fitness will of course apply, and a summary court can act on that presumption by then committing the accused to the superior court, but that is different to a positive finding the accused is at the time of making the plea is in fact fit.
As I have outlined above, the safeguards which exist in the superior court to ensure an accused is of apparent soundness of mind and understanding are not present in the summary court when an accused enters a plea of guilty. The interpretation I have preferred provides the superior court with that safeguard.
An accused person who has pleaded guilty in the summary court and been committed, without conviction, to the superior court to be dealt with pursuant to s 99 of the CPA still has a right to plead guilty: s 99(2) confers that right. The interpretation I have preferred does not diminish or take that right away.
However, at common law, where an accused person who was not of apparent sound mind entered a guilty plea before the superior court, the superior court would not be capable of acting on that plea. Under this approach, a mentally impaired accused may be prohibited from entering a plea of guilty at all.
Conversely, on the interpretation the State submits, s 99(2) would require the court to take the plea of guilty from the accused and s 99(3) would require the court to 'accept the plea of guilty and deal with the accused according to law' irrespective of whether the accused has capacity to do so at the time of making the plea of guilty before the superior court. The reference to 'according to law' must be a reference to s 148 of the CPA.
As can be seen, such an interpretation would require the court to convict and sentence the accused regardless of the extent to which the accused's mental impairment may affect the accused's capacity to understand the consequences of the plea of guilty at the time of making it before the superior court.
The interpretation I have preferred permits a mentally impaired accused who is not of 'apparent sound mind' to still have the right to plead guilty notwithstanding the accused may have a mental impairment and may not be 'of apparent sound mind'. The accused will still have the capacity to enter the plea of guilty if the superior court is satisfied the accused understands the criteria provided for in s 26 of the CLMIA. However, where it is demonstrated the mentally impaired accused does not have the capacity to understand that criteria, then the provisions of CLMIA will operate to protect the accused by preventing the court from acting on that plea.
This interpretation achieves a balance between the position at common law ‑ that prevents a court from acting on a plea of guilty by an accused who is not of apparent soundness of mind ‑ and the rigidity of the State's interpretation ‑ which requires the court to act on the plea of guilty regardless of what capacity the mentally impaired accused might have. To this extent it achieves, to the best it can, the least possible interference with the rights and dignity of a mentally impaired person who may wish to plead guilty to the offence they have been charged with. That interpretation cannot be said to be inconsistent with s 7(1)(b)(v).
As I have discussed above, in Squance[52] Howard J was required to consider the meaning of 'trial' under the CLMIAA. As part of his process of determining that issue, his Honour incorporated the 'reasonable and common sense' criteria derived from R v Presser[53] and considered in Ngatayi v The Queen[54] into what the court would need to consider when determining if an accused was fit to stand trial.
[52] Squance [65] - [66].
[53] R v Presser [1958] VR 45, 48.
[54] Ngatayi v The Queen (1980) 147 CLR 1.
In applying this approach, his Honour was of the view a court conducting an inquiry under the CLMIAA will only consider those criteria relevant to, and shaped by, the specific 'trial' to which the inquiry relates.
It may be if a court, when carrying out a Fitness Inquiry under the CLMIA, adopts an approach similar to the one identified by Howard J in Squance, then this will further promote the object of s 7(1)(b)(v) by subjecting the mentally impaired accused 'to the least possible interference with their rights and dignity'. However, this is not something I must resolve for the purposes of this question.
Ultimately, it is one of the unavoidable consequences of the CLMIA's operation that it will necessarily deprive some mentally impaired accused from being able to exercise a choice ordinarily available to most people. That is the effect of a finding under pt 3 div 2. This will inevitably cause an interference upon that person's rights.
The interpretation I have preferred allows for a court, acting in accordance with the provisions outlined in pt 3 div 3, to carry out a Fitness Inquiry to permit an accused who is not of apparent sound mind to still be able to plead guilty unless it is proven there is an absence of capacity to do so under s 26 of the CLMIA.
Consistent with that interpretation, in my view the meaning of 'a sentencing proceeding' for the purposes of s 9 of the CLMIA ought to be read as meaning any proceeding, subsequent to conviction, taken for the purpose of finally disposing of the matter.
Does the application of s 99 of the Criminal Procedure Act in a superior court following committal by a summary court constitute 'a sentencing proceeding'?
Having concluded what 'a sentencing proceeding' must mean under s 9 of the CLMIA, it follows from the analysis I have outlined above and summarised at [107] that s 99 of the CPA cannot fall within that meaning.
The only textual support for the State's submission that s 99 forms part of 'a sentencing proceeding' is the section heading for that provision. That section heading reads 'Unconvicted accused committed for sentence, procedure on'. Of course, a section heading does not form part of the written law[55] when considering a section meaning.
[55] Interpretation Act 1984 (WA) s 32.
Notwithstanding, the 'for' in 'committed for sentence' must be seen to be used in the prepositional context. The word 'for' can variously mean 'with the object or purpose of; intended to belong to, suit the purposes or needs of, or be used in connection with; in order to obtain; with inclination or tendency towards'.[56] Here, whilst the committal may have been with the object or purpose of, or the intention of, sentencing the accused, that cannot occur until the procedures outlined in s 99 have been satisfied.
[56] Macquarie Dictionary (9th ed, 2023).
The procedure provided for by s 99 of the CPA is not, by itself, 'a sentencing proceeding' for the purposes of s 9 of the CLMIA. Until a plea has occurred under s 99(2) and a conviction entered under s 147(1), then the court cannot proceed under s 148.
Conclusion
For the reasons I have outlined, the procedure provided for in s 99 of the CPA does not constitute 'a sentencing proceeding' for the purposes of the CLMIA.
I am satisfied that nothing within the operation of s 99 of the CPA excludes the court's power to determine if an accused is unfit as provided for by pt 3 div 1 and pt 3 div 2 of the CLMIA.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EO
Associate to the Judge
21 JULY 2025
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