The State of Western Australia v Williams - [2018] WADC 68

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WILLIAMS [2018] WADC 68
CORAM:   CHIEF JUDGE SLEIGHT
HEARD:   3 MAY 2018
DELIVERED          :   21 MAY 2018
PUBLISHED           :   25 MAY 2018
FILE NO/S:   IND 1027 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JOSEPH WILLIAMS

Catchwords:

Change of plea application - Judgment of conviction entered following plea of guilty - Whether the court had jurisdiction to set aside a judgment of conviction on a plea of guilty prior to completion of sentencing - Whether the provisions of the Criminal Procedure Act 2004 (WA) displaced the common law inherent jurisdiction

Legislation:

Criminal Procedure Act 2004 (WA)

Result:

Application to set aside judgment of conviction and plea of guilty granted

Representation:

Counsel:

The State of Western Australia	:	Ms J Winter
Accused	:	Mr S D Freitag SC

Solicitors:

The State of Western Australia	:	Director of Public Prosecutions (WA)
Accused	:	Platinum Legal

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

Birch v The State of Western Australia [2017] WASCA 19
Corica v Throssell [2012] WASC 393
Grunwick Processing Laboratories Ltd v ACAS [1978] AC 655
Maxwell v The Queen (1996) 184 CLR 501
O'Toole v Scott [1965] AC 939
Potter v Minahan (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Camberwell Green Stipendiary Magistrate; Ex parte Christie [1978] 2 All ER 377
R v Inglis [1917] VLR 672; (1917) 23 ALR 378
R v Kardogeros [1991] 1 VR 269
R v Mutford and Lothingland Justices ; Ex parte Harber [1971] 2 QB 291
R v Plummer [1902] 2 KB 339
R v Tonks & Goss [1963] VR 121
S (An Infant) v Recorder of Manchester [1971] AC 481
Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66
Simms v Moore [1970] 2 QB 327
Sparks v Bellotti (1981) WAR 65
State of Western Australia v Wongawol [2010] WASC 324
The State of Western Australia v Coccetti [2017] WADC 135
Tihanyi v The Queen [1999] WASCA 226
Webster v The Queen [No 2] [2013] WASC 73
Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269
Windie v The State of Western Australia [2012] WASCA 61

CHIEF JUDGE SLEIGHT:

This is a decision concerning whether the District Court has power to set aside a judgment of conviction and a plea of guilty prior to completing sentencing of a matter.

Background

The accused, Mr Joseph Williams, was charged with the following offence:
On 23 November 2015 at Redcliffe, he attempted to possess a prohibited drug, namely, acetylfentanyl, with intent to sell or supply it to another.
The accused pleaded guilty to this charge in the Magistrates Court on 9 June 2017. At the time of entering the plea of guilty he was represented by experienced counsel. The accused was then committed to the District Court for sentencing.
On 8 December 2017 the accused was arraigned on the charge in the District Court before his Honour Judge McCann and entered a plea of guilty. At the time, the accused was represented by senior counsel. Following the plea of guilty, his Honour expressly entered a judgment of conviction.
The State's case as outlined in the sentencing hearing on 8 December 2017 was that on 23 November 2015 the police attended Australia Post at the Perth Airport to search for prohibited drugs being distributed by the mail. The police identified a package which contained 40 tablets of acetylfentanyl weighing 30.12 g. The package also contained 44 tablets of Etizolam weighing 31.2 g. Subsequent enquiries revealed that the accused was responsible for ordering the package.
During the course of submissions at the hearing on 8 December 2017, senior counsel on behalf of the accused informed the court that the accused had ordered Etizolam online and the acetylfentanyl tablets were received unintentionally. It is evident that senior counsel appearing for the accused was under the impression that Etizolam was a prohibited drug. He stated in the course of his submission as follows:
He's ordered things that he knows are illegal drugs, the fact that the contents are not entirely what he expected isn't a defence (ts 11).
The sentencing of the accused was adjourned by Judge McCann for reasons which I need not describe in detail. Essentially, his Honour wished to conduct a trial of the issues to hear evidence about the extent of the accused's involvement in the distribution of drugs generally. Subsequently his Honour recused himself from further hearing the matter for reasons not recorded.
It is now accepted that Etizolam is not a prohibited drug. The State informed the accused's counsel after the adjournment and the accused has now applied to set aside his plea of guilty. An element of the charge against Mr Williams is that he attempted to possess a prohibited drug. However, if he attempted to possess a legal drug, namely Etizolam, then he could not be guilty of the offence of attempting to possess a prohibited drug, to which he pleaded guilty. In support of the application, the accused's solicitor, Ms Ann Elizabeth Korzeniecki swore an affidavit stating that prior to the accused entering his plea of guilty in the Magistrates Court, the accused's then counsel was under the impression that Etizolam was a prohibited drug. Ms Korzeniecki states that the accused was advised, that despite the error in terms of what he received, he was still liable for the offence of attempting to possess the prohibited drug on the basis that what he had ordered (Etizolam) was also a prohibited drug.
The written application to set aside the plea of guilty lodged by the accused is pursuant to s 99(5)(b) of the Criminal Procedure Act 2004 (WA) (the CPA). However, it is clear from submissions presented by senior counsel for the accused that the accused also relies upon an inherent jurisdiction of the court.
The State concedes that based upon the accused's explanation that he ordered Etizolam, then the advice he received concerning his plea was incorrect and he should have been advised to plead not guilty. In written submissions the State contends that s 99(5)(b) has no application. However, the State concedes that the court has an inherent jurisdiction to set aside the judgment of conviction and allow the change of plea to not guilty. The State does not oppose such an order being made.

Can the Court set aside the judgment of conviction pursuant to s 99(5)(b) of the CPA

Section 99 of the CPA provides as follows:
99.     Unconvicted accused committed for sentence, procedure on
(1)     This section applies if —
(a)an accused pleads guilty to an indictable charge before a court of summary jurisdiction (the lower court); and
(b)the lower court, without convicting the accused, commits the accused to a superior court for sentence on the charge; and
(c)the accused is subsequently charged with the charge in an indictment.
(2)     The accused must be required to plead to the charge in the indictment in the same manner as other accused.
(3)     The accused pleads guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law.
(4)     If the accused does not plead guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must order the prosecutor to state aloud the material facts of the charge and —
(a)if it is satisfied that those facts do not differ materially from the material facts disclosed to the accused under section 35 at the time the accused pleaded guilty to the offence charged in the lower court, must enter a plea of guilty on behalf of the accused; or
(b)if it is not so satisfied, must enter a plea of not guilty on behalf of the accused,
deal with the accused according to law.
(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)    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.
(6)     If under this section a superior court enters a plea of not guilty on behalf of an accused, the prosecutor must lodge and serve the material referred to in section 95(6) within such period as the court orders.
(7)     A plea entered by a court under this section on behalf of an accused has the same effect as if it had been actually pleaded.
The State's submission that s 99(5)(b) does not apply is based upon the contention that the subsection only applies prior to conviction. The State's submission is partly based upon the heading of s 99 and the use of the word 'unconvicted'. The State's contention is that once a judgment of conviction was entered by Judge McCann the subsection had no further application.
Section 32(2) of the Interpretation Act 1984 (WA) provides that a heading does not form a part of the legislative provision. Notwithstanding s 32(2), there is authority that regard can be had to a section heading as extrinsic material assisting interpretation even though the heading does not form a part of the legislative provision. However, the level of assistance becomes very limited unless the heading forms part of the Bill before Parliament so as to indicate that Parliament authenticated the heading: Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269, Wheeler J at 290 [94]; see Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66, Edelman J [115]. My research indicates that at the time the Bill was presented to parliament the heading of s 99 was also on the Bill. However, notwithstanding this, I do not believe the heading provides any useful extrinsic material to the correct construction to be given to s 99 of the CPA. In my opinion, the use of the words in the heading 'Unconvicted accused committed for sentence …' refers to the position of the accused at the time when a charge for an indictable offence is before the lower court, the accused pleads guilty in the lower court and is committed for sentence. At that point of time in the lower court the accused is 'unconvicted' because the lower court is not capable of entering a conviction on an indictable offence.
Section 99 is concerned with the procedures once the unconvicted accused appears in the superior court on a committal for sentence. (See Birch v The State of Western Australia [2017] WASCA 19 per Buss P [81] and Mazza JA [183]). The section sets out the procedure where an indictment is presented and the accused either pleads guilty in the superior court [subsections (3) and (5)] or does not plead guilty in the superior court [subsection (4)]. It is important to note that if the accused pleads guilty to the charge on the indictment in the superior court then under subsection (3):
'unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law' (my emphasis).
A reference to 'according to the law' in the subsection necessitates consideration of s 147 and s 148 of the CPA and the common law.
Section 147(1) relevantly provides:
If an accused pleads guilty to … a charge, the court … may enter a judgment of conviction of the offence charged in respect of the accused.
Section 148 relevantly provides:
If a court convicts an accused of an offence … the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.
In my opinion the exception provided by s 99(5) gives the court power not to accept the plea of guilty and instead to enter a plea of not guilty. This is consistent with the word 'may' in s 147(1). However, once a plea of guilty is accepted, a judgment of conviction should be entered by the superior court and the next step in the procedure is for the accused to be sentenced (subject to what I discuss later in this decision about the right of the court to exercise an inherent jurisdiction to set aside the plea of guilty).
On my construction of s 99(5)(b), the exception it creates to the procedure under subsection (3) is to provide a mechanism for the superior court to reject the plea of guilty, decline to enter a judgment of conviction and enter a plea of not guilty.
This construction is consistent with observations made by Buss P in the decision of Birch wherein he stated:
… s 99(5)(a) only operates upon the first occasion on which the unconvicted accused appears in the superior court (in the circumstances specified in s 99(1)) and is required to plead to the charge in the indictment (in accordance with s 99(2). [112]
In this case Judge McCann accepted the plea of guilty and entered judgment and therefore, consistent with the interpretation given by Buss P, s 99(5)(a) has no further operation.

Does the court have an inherent jurisdiction to set aside a judgment of conviction entered on a plea of guilty?

At common law there is authority that a plea of guilty can be set aside at any time prior to completion of sentence: R v Plummer [1902] 2 KB 339; Maxwell v The Queen (1996) 184 CLR 501 [511]; R v Inglis [1917] VLR 672; (1917) 23 ALR 378; R v Kardogeros [1991] 1 VR 269. This inherent power arises from the ability of a court to regulate its procedures in the interests of justice: Corica v Throssell [2012] WASC 393 [31]; R v Camberwell Green Stipendiary Magistrate; Ex parte Christie [1978] 2 All ER 377; Simms v Moore [1970] 2 QB 327; O'Toole v Scott [1965] AC 939; Sparks v Bellotti (1981) WAR 65.
There has been a difference of opinion as to whether once a judgment of conviction is entered the court's power to allow an accused to withdraw his plea expires.
In the decision of R v Tonks & Goss[1963] VR 121, the Full Court was dealing with a situation where an accused had entered a plea of guilty to a lesser and alternative charge which had been recorded on the court record. The court ruled that a plea of guilty did not constitute a conviction and therefore the Crown was at liberty to proceed to trial on the more serious charge. In their decision at page 126 the court stated as follows:
But there are many cases to be found in the books in which the court has allowed a prisoner to change his plea from guilty to not guilty and vice versa. In R v Plummer [1902] 2 KB 339, which was followed in R v McNally (1954) 38 Cr App Rep, [1954] 2 All ER 372, it was said that there could not be any doubt that the power in the court to allow an accused to withdraw his plea of guilty could be exercised at any time before, though not after, judgment.
However, what constitutes a judgment of conviction is the subject of different meanings. In R v Plummer, the accused was charged with two others with a conspiracy offence. He pleaded guilty but the other two accused pleaded not guilty. The accused on pleading guilty was then remanded for sentence until after the other two accused's trial was completed. The other two accused were acquitted at trial. The accused then applied to set aside his plea of guilty but the court rejected his application on the basis that it had no jurisdiction to do so. On a case stated, the appeal court ruled that the court did have power to set aside the plea of guilty at any time prior to sentencing being completed. This case is the seminal authority to the effect that the court can change a plea of guilty at any time prior to sentencing being completed.
The position was clarified in the case of S (An Infant) v Recorder of Manchester [1971] AC 481. This case provides the key to unlocking the legal conundrum in this matter of how to do justice after a judgment of conviction is entered but the sentencing process reveals a defence. The case concerned a 16 year old who appeared in the juvenile court charged with rape. Unrepresented, the accused elected summary jurisdiction in the juvenile court and entered a plea of guilty. The magistrate accepted the plea of guilty and adjourned for reports on the physical and mental condition of the 16 year old. On the adjourned hearing, the appellant was legally represented and an application was made to withdraw the appellant's plea of guilty and enter a plea of not guilty. The magistrate refused on the grounds that he was functus officio having recorded a conviction. The House of Lords ruled that the acceptance of the plea of guilty did not debar the magistrate from setting aside the plea and entering a plea of not guilty.
Lord Reid at pages 489-490 stated :
I do not find it easy to understand why a different rule has emerged in recent times with regard to the powers of magistrates in summary proceedings. Several cases have held that magistrates have no power to allow a change of plea during the interval between their acceptance of a plea of guilty and final disposal of the case. They appear to me to have arisen out of a misconception of purely technical matters.
Much of the difficulty has arisen from the fact that 'conviction' is commonly used with two different meanings. It often is used to mean final disposal of a case and it is not uncommon for it to be used as meaning a finding of guilt. It is proper to say that a plea cannot be changed after 'conviction' in the former sense. But it does not at all follow that a plea cannot be changed after 'conviction' in the latter sense. It is perfectly true that 'conviction' is used in this latter sense in the Magistrates' Courts Act, 1952, and a number of other statutes. But I cannot infer from that any intention of the legislature to alter as regards summary jurisdiction the old rule that a plea can be changed at any time before final disposal of the case. I find nowhere any suggestion of any possible reason for making this alteration of the law, apart from a suggestion that once a plea has been recorded there is no power to alter it. But that cannot be right because every day accused persons who begin by pleading not guilty change their plea to guilty after the plea of not guilty has been recorded and the trial has begun, and that raises no technical difficulty.
It would seem that the first case which denies the right of magistrates to allow an accused to change his plea after 'conviction' in the sense of acceptance of a plea of guilty is Reg. v. Guest, Ex parte Anthony [1964] 1 W.L.R. 1273. There a man, after being advised by a solicitor, had pleaded guilty in unequivocal terms. Then a question arose as to possible deportation and he sought to change his plea to not guilty. It is always for the court's discretion whether to allow the accused to change his plea and the facts in this case were such that there was every reason to refuse to exercise that discretion in favour of the accused. But the court held that the magistrates had no power to allow the plea to be changed after they had directed a 'conviction' to be entered and had remanded the accused so that deportation could be considered. I can find no clear explanation of why this should be so, apart from a statement (at p. 1276), that the authorities depend '… in one way or another upon the question when a court is functus officio in the use of its powers to convict or acquit, as distinct from its powers to sentence' This seems to me to be both novel and erroneous. The case of Rex v. Norfolk Justices, Ex parte Director of Public Prosecutions [1950] 2 K.B. 558, does not appear to have been cited. As I read Lord Goddard's judgment he holds that a magistrates' court is not functus officio until final adjudication. And it seems to me to be clear that in the authorities dealing with the powers of a trial judge on indictment there is no such distinction: for otherwise how could the judge allow a change of plea if he were functus officio as regards power to 'convict' as soon as a plea of guilty was accepted. In my judgment magistrates have only one officium – to carry the case before them to a conclusion. There is no reason to divide up their functions and hold that at some stage in the proceedings one officium comes to an end and another begins. (My emphasis).

Also Lord Morris of Borth-y-Gest stated at page 501:
If, before the court has completed its task in regard to the case, an application to withdraw the plea is made and if it is made for reasons which the court deems valid and which perhaps it had previously had no opportunity of considering, is the court powerless to accede to it? It would be lamentable if that were so. The court might feel that having regard to the reasons advanced it would be wholly wrong to hold a person to some previous acknowledgment of guilt. The desire of any court must be to ensure, so far as possible, that only those are punished who are in fact guilty. The duty of a court to clear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. Guilt made be proved by evidence. But also it may be confessed. The court will, however, have great concern if any doubt exists whether a confession was intended or whether it ought really ever to have been made. (My emphasis).
The proposition that the decision in S (An Infant) v Recorder of Manchester supports is that a judgment of conviction does not make the court functus until sentencing is completed. Therefore, if during sentencing it becomes clear that the plea is not unequivocal the court has a power to set aside the plea of guilty to avoid a miscarriage of justice.
The common law power to set aside a plea of guilty at any time prior to completion of sentencing has been recognised in Australia: R v Maxwell per Dawson and McHugh JJ [509]; Toohey J [525]. The court must unequivocally accept the plea of guilty. Consistent with S (An Infant) v Recorder of Manchester, the unequivocal acceptance of the plea is not confirmed finally until the case is disposed of by the accused being sentenced: R v Maxwell per Dawson and McHugh JJ [509].
Also if necessary, the court has an inherent power to alter the court record: R v Maxwell per Gaudron and Gummow JJ [531].
The common law inherent power to change a plea of guilty at any time prior to completion of the matter by sentencing was accepted by McKechnie J in Corica v Throssell, wherein he stated:
The circumstances where a court will exercise a discretion to allow a change of plea cannot be regarded as subject to categories which are closed. In the normal course, where a person is represented by counsel, the court is generally entitled to rely upon counsel having explained to a defendant the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty. Absent an express statutory provision, a court is not obliged to separately explore the nature of a plea of guilty with the defendant unless, in the course of the plea in mitigation, something arises which might indicate that the plea is less than equivocal. In those circumstances, the court then has the duty, referred to by Dawson and McHugh JJ in Maxwell, to obtain an unequivocal plea of guilty. [42] (My emphasis).
In Birch v The State of Western Australia, Mitchell JA stated:
The common law power of a court to permit a change of plea prior to sentence or final disposition of a charge extends to cases where it is necessary to do so in order to avoid a miscarriage of justice. [255]
(See also Webster v The Queen [No 2] [2013] WASC 73).
On the basis of these decisions I conclude that at common law I have an inherent power to set aside the judgment of conviction and the plea of guilty if I am satisfied that it is necessary to avoid a miscarriage of justice.

Does the CPA alter the common law?

The one remaining issue for consideration is whether this inherent power at common law is altered in any way by operation of s 99, s 147 and s 148 of the CPA. To this question there appears to be a different view taken by different judges in the Supreme Court of Western Australia.
In the State of Western Australia v Wongawol [2010] WASC 324, Murray J found that an unequivocal judgment of conviction having been entered that the matter should proceed to sentence. That case concerned a misconception by the accused as to the operation of s 79(1)(c) of the Criminal Code (WA) at the time he entered his plea of guilty to a charge of murder. Section 279(1) provided that a person is guilty of murder if they unlawfully kill another person and:
(a)the person intends to cause the death of the person;
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person;
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is such a nature as to be likely to endanger human life.
After the plea of guilty had been entered, the accused's counsel contended that the accused should be sentenced on the basis that the death occurred in circumstances provided for under s 279(1)(c). The State contended that s 279(1)(c) did not apply on the admitted facts and that the accused should be sentenced under s 279(2). Murray J accepted the State's submission. His Honour stated as follows:
The plea was unequivocal and it was accepted. The misconception about the availability of s 279(1)(c) did not, in my view, qualify the plea when made or the effectiveness of the conviction entered. That having occurred, pursuant to the Criminal Procedure Act 2004 (WA), s 47(1), the court was committed to sentence the offender for the offence of which he had been convicted: Criminal Procedure Act, s 148. The conviction could only be vacated on appeal: Criminal Appeals Act 2004 (WA), s 23(1)(a), and there is, of course, a body of law which governs when the Court of Appeal will feel that there is justification or necessity to set aside a conviction entered upon a plea of guilty. [19] (My emphasis).
In my opinion it is not clear what view Murray J would have taken if he had concluded that the misconception was material and qualified the plea, or in other words was so fundamental to the issue of whether the accused was guilty it meant that the court was of the view that it could no longer unequivocally accept the plea of guilty.
In the matter of Webster v The Queen, Hall J did not feel constrained to consider an application for a change of plea because a judgment of conviction had been entered. In that case the accused was arraigned on indictment before Justice Jenkins on 1 November 2012, pleaded guilty and a conviction entered. Sentencing was then adjourned to 20 December 2012. On 6 December 2012 the accused filed an application seeking that he be permitted to change his plea. The application was on the basis that the accused had been pressured by his lawyer to enter a plea of guilty and he had entered the plea by mistake. The application to withdraw the plea was dismissed but not on the grounds that the application was not possible once a judgment of conviction was entered. The decision proceeded on the basis there was a power to set aside the plea of guilty but Hall J declined to exercise his discretion to do so. His Honour made the following observations:
As to the law, there is no provision in the Criminal Procedure Act 2004 (WA) dealing with a change of plea other than where an accused person pleads guilty to an indictable offence before a summary court and is committed for sentence: s 99 of the Criminal Procedure Act. However, there can be no implication drawn from this that jurisdiction to allow a change of plea in other circumstances does not exist.
There are obvious reasons why it was necessary to make special provision for a change of plea where the accused pleaded guilty in another court. Where the plea was entered in the same court, there is ample authority that the court has jurisdiction to deal with an application to change a plea. See Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377 and Corica v Throssell[2012] WASC 393. [23-24]
The two authorities cited by Hall J require consideration. The decision in Tihanyi v The Queen [1999] WASCA 226 was prior to the introduction of the CPA. The appellant had pleaded guilty in the Magistrates Court on a charge of possession of cannabis with intent to sell or supply. At the time he was represented by counsel. When he came before the District Court of Western Australia he raised his desire to change his plea. He accepted he was in possession of the cannabis but claimed it was for his own use. He was arraigned and stood mute and declined to enter a plea of guilty. The judge then entered a plea of guilty under s 618 of the Criminal Code which in broad terms provided for a procedure similar to s 99(4)(a) of the CPA. The lead judgment was by Murray J, with whom Malcolm CJ and Parker J agreed. The judgment of Murray J was to the effect that s 618 did not create a code as to the only circumstances when a plea in the Magistrates Court could be set aside, and that there remained at common law a power to set aside a plea of guilty exercising the inherent jurisdiction of the court. His Honour stated as follows:
… it is clear that although the discretion to allow a change of plea will only be exceptionally exercised, it is a power concerned to prevent a miscarriage of justice and there is no closed list of circumstances which may be relevant to the exercise of the power. [48]
As noted above, the opinion of Murray J in a later decision of The State of Western Australia v Wongawol was that in the circumstances of that case s 148 of the CPA required him to proceed to sentencing.
In Corica v Throssell, the appellant lodged an appeal against a conviction and sentence under the Planning and Development Act 2005 (WA) for an offence of failing to remove a landfill. On 11 November 2011 the appellant pleaded guilty. At that time the appellant was represented by experienced legal counsel. On 12 April 2012 the accused appeared unrepresented before the court for sentencing (the sentencing had been delayed for the appellant to carry out various tasks he had undertaken to the prosecution that he would complete) and applied to the magistrate to allow him to change his plea. The grounds for the application were spurious. The magistrate ruled that he had no power to reverse the decision to accept the plea of guilty and proceeded to sentence the appellant. The appeal against the conviction and sentence was dismissed. McKechnie J ruled that the magistrate had erred in holding that he lacked jurisdiction to set aside the plea but nevertheless, in the circumstances, there was insufficient material to justify a change of plea in the exercise of an inherent jurisdiction.
In the District Court, Birmingham DCJ in The State of Western Australia v Coccetti [2017] WADC 135 expressed obiter views consistent with the position taken by Murray J in The State of Western Australia v Wongawol.
Given the conflicting views, I believe there is no authority binding me and in this case I am at liberty to take my own view of the correct construction of the relevant provisions of the CPA. The meaning of these sections and in particular the use of the word 'must' in s 99(3) and s 148 requires consideration of a number of statutory interpretation principles.
1.The purpose of the legislation forms a guide as to the interpretation that should be given to the provisions contained in the legislation. In the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the plurality of McHugh, Gummow, Kirby and Hayne JJ stated:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. ([1998] HCA 28 [69]).
Section 18 of the Interpretation Act 1984 (WA) also gives priority to the purpose or object of the legislation. The section provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
2.While legislation can override common law principles it can only do so with the clearest language. Where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred. In Potter v Minahan (1908) 7 CLR 277, O'Connor J stated at page 304 as follows:
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.
3.The use of obligatory words such as 'shall' and 'must' in legislation prima facie places a duty to do what is prescribed. However, words creating duties can be viewed as being directory only rather than mandatory in a provision in which all that is involved is a mere matter of machinery for carrying out purposes: Grunwick Processing Laboratories Ltd v ACAS [1978] AC 655, per Diplock J [69].
The starting point of considering the effect of the CPA on the common law principles is that the CPA is not a code which operates to exclude the court's common law powers: Birch v The State of Western Australia, Mazza JA [213], Mitchell JA [254].
The CPA is clearly legislation designed to set out procedures in criminal prosecutions. In my opinion, it should be construed as primarily providing procedures not creating or taking away fundamental rights. I believe this is consistent with the nature of the provisions contained in the CPA. In my opinion, the correct interpretation of s 99(5), s 147 and s 148 of the CPA is not that they obstruct the doing of justice by creating barriers against revisiting a conviction that is plainly unjust, but they are procedural provisions which prescribe a flow of procedure after a plea of guilty is entered. Based upon this construction, the word 'must' in s 148 simply emphasises the next step in the procedure after a judgment of conviction is sentencing. A court could not, for example, simply adjourn a matter permanently without proceeding to sentencing. Being procedural in nature, I do not believe the provisions remove common law inherent powers which enable a court to revisit the entry of the judgment and set aside a plea of guilty if in the sentencing process it becomes clear that the accused should not have pleaded guilty. This conclusion is consistent with the Court of Criminal Appeal judgment in R v Mutford and Lothingland Justices ; Ex parte Harber [1971] 2 QB 291 wherein Lord Parker CJ (Ashworth and Brown JJ agreeing) said:
Once one realises that the jurisdiction to entertain a change of plea is not a statutory one but is based on the inherent jurisdiction of any court to see that justice is done, one asks oneself whether the statutory provisions to which reference has been made in the case of committals have in respect of the two courts forming this composite court ousted their jurisdiction. In my judgment those statutory powers clearly have not done so. [298]
Although the decision concerned English legislation, in my opinion this same reasoning applies to whether the CPA ousts the common law inherent jurisdiction to set aside a plea of guilty in order to avoid a miscarriage of justice. This is supported by the views expressed by Mazza JA in Birch concerning s 99 of the CPA. His Honour stated as follows:
… The existence of a superior court's inherent jurisdiction to set aside a plea of guilty on the basis of a miscarriage of justice is clear and well-established under common law. In my opinion, it is a common law principle which is of such strength as to require clear and unambiguous statutory language in order to abrogate its operation. See Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434 [22] - [24]. Although there is some overlap between s 99(5)(b) and the common law principles, I see nothing in the statutory language of s 99(5) which has that effect. Thus, s 99(5) does not prevent an accused, who fails to come within the ambit of the subsection and who is then convicted of the offence charged, from seeking to invoke the court's inherent jurisdiction. [213]

Conclusion

For the above reasons, I am satisfied I have an inherent jurisdiction at common law to set aside the judgment of conviction and allow the accused to change his plea. This I am able to do if I am satisfied that it is necessary in order to avoid a miscarriage of justice.
Turning to the question of miscarriage of justice, it is not easy to persuade a court to set aside a plea of guilty on this basis. There must be a strong case to do so. Although cases of miscarriage of justice cannot be exhaustively identified, there are three well-recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:
1.Where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
2.If upon the admitted facts the appellant could not, in law, have been guilty of the offence; or
3.Where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like. [See Windie v The State of Western Australia [2012] WASCA 61 per Mazza JA [31] (with whom McLure P and Newnes JA agreed)].
In my opinion, given the instructions of the accused to his legal representatives and their misconception that Etizolam was a prohibited drug, the plea of guilty entered by the accused was not a plea that a court should unequivocally accept. On the facts admitted by him he was not guilty of the offence as charged.
If the plea was not set aside then the court would be required to proceed to sentencing on a false premise. It would be almost impossible to properly sentence the accused as his culpability could not be properly assessed. Clearly, the Court of Appeal would have power to set aside a conviction on the grounds of a miscarriage of justice [s 30, Criminal Appeals Act 2004 (WA)]. However, that would be unfair to the accused and also a waste of time and resources. In my opinion to allow the plea of guilty in the judgment of conviction to stand would give rise to a miscarriage of justice.
For the above reasons, I exercise my discretion that I have at common law and set aside the record of a judgment of conviction made by Judge McCann and also the accused's plea of guilty.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
ASSOCIATE TO CHIEF JUDGE SLEIGHT
25 MAY 2018