Court of Appeal (WA)|2001-05-24|Before: Malcolm CJ

Green v The Queen [2001] WASCA 162 (24 May 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GREEN -v- THE QUEEN [2001] WASCA 162

Appeals - Criminal - Admissions and confessions - Miscarriage of justice

Appeals - Criminal - Admissions and confessions - Appeal against conviction - Acceptance of plea of guilty by court - Whether duty to examine - Protection of persons of Aboriginal descent - Unfairness

Appeals - Criminal - Appeal against sentence - Indefinite sentence - Uncompleted pre-sentence and psychiatric reports

1 MALCOLM CJ: This is an application for an extension of time to appeal against conviction and make an application for leave to appeal against sentence. The appellant was convicted on his plea of guilty in the District Court at Kalgoorlie on 3 June 1997 of one count of aggravated sexual assault in an indictment which alleged that on 2 February 1997 at Laverton he attempted to sexually penetrate the complainant by inserting his penis into her vagina contrary to s 326 when read with s 526 of the Criminal Code. The circumstance of aggravation alleged was that the appellant did bodily harm to the complainant.

2 On 2 November 2000, some three years and four months out of time, the appellant applied for an extension of time within which to appeal or make an application for leave to appeal against conviction and to make an application for leave to appeal against sentence. On the same date a notice of appeal against conviction was filed. The appeal was on the grounds that:

1. The learned trial judge contravened section 49 of the Aboriginal Affairs Planning Authority Act 1972 (WA).

Particulars

1.1 On 3 June 1997 in the District Court sitting at Kalgoorlie I pleaded 'Guilty' to one count of attempted sexual penetration without consent.

1.2 The learned trial judge was obliged to personally conduct an examination of me to see whether I was capable of understanding this plea.

1.3 The learned trial judge failed to conduct this examination.

...

2. My conviction is a miscarriage of justice as I did not appreciate the nature of the charge against me; and I did not intend to plead guilty to that charge."

3 The plea of guilty was taken at Kalgoorlie and the learned Judge then heard counsel for the Crown state the material facts and heard submissions about sentencing. The learned Judge requested a pre-sentence report and a psychiatric report and remanded the appellant in custody for sentencing at Perth on 21 August 1997. On 21 August 1997 the appellant appeared before the learned Judge when her Honour pointed out to counsel that, when the facts had been stated by the Crown in Kalgoorlie, no mention was made of a statement provided by the complainant. The statement was then tendered by the Crown. In the result, the matter was brought on again on 22 August when further submissions were made by both counsel. On 26 August the learned Judge sentenced the appellant to imprisonment for three years for the offence. The learned Judge decided not to make an order that the appellant be eligible for parole. Instead, the learned Judge imposed a sentence of indefinite imprisonment on the appellant under s 98 of the Sentencing Act 1995 (WA). The sentence for the finite term was ordered to commence on 22 March 1997, the date on which the appellant was first taken into custody.

4 In such a case as this, where there has been lengthy delay, an extension of time will only be granted where exceptional circumstances have been shown or where there has been a substantial miscarriage of justice: Lancaster v The Queen [1989] WAR 83 at 85 per Malcolm CJ; Holcroft v The Queen, unreported; CCA SCt of WA; Library No 970550; 12 September 1997.

5 At the hearing of the applications on 22 March 2001 the appellant was granted leave to amend the grounds of the application for leave to appeal against sentence by adding a further ground, namely, that the learned sentencing Judge erred by making an order of indefinite imprisonment.

6 Section 49 of the Aboriginal Affairs Planning Authority Act provides that:

"(1) In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of 6 months or more the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.

(2) The provisions of subsection (1) are in addition to, and not in derogation of, any rule of law or practice relating to the admissibility of pleas of guilt or admissions of guilt or confessions."

7 In Williams v The Queen (1992) 8 WAR 265 at 283, Franklyn J explained the purpose and requirements of s 49 as follows:

"That section is a special provision dealing with persons of Aboriginal descent. Relevantly it requires the court trying such a person for an offence punishable at first instance with imprisonment of not less than six months, to refuse to accept an admission of guilt or confession made by the accused if it is satisfied that, 'from want of comprehension of the nature of the circumstances alleged, or of the proceedings' that person was not capable of understanding the admission or confession. It is not concerned with discretion. Where it applies it compels exclusion. It is predicated on a lack of capacity to understand which arises out of the specific matters stated therein. It requires an examination of the accused by the court to determine whether the lack of capacity exists and requires exclusion if the court is so satisfied. To the extent that it is predicated on a lack of capacity to understand the admission or confession, it would seem to add nothing to the common law relating to involuntary statements. Its significance, however, is that it imposes an obligation on the court to examine the accused to satisfy itself first, that he is a person of Aboriginal descent and secondly, whether because of a relevant lack of comprehension, he was not capable of understanding the admission or confession."

8 The appellant first appeared before a Justice of the Peace in the Court of Petty Sessions at Laverton on 24 February 1997. He was then remanded to appear before the Court of Petty Sessions at Kalgoorlie on 28 February 1997. On that date he appeared before the Magistrate at Kalgoorlie when he entered a plea of guilty under the fast-track system. He was remanded in custody to appear in the District Court at Kalgoorlie for sentence on 3 June 1997. A pre-sentence report was ordered by the learned Magistrate. The form of complaint on the court file bears a rubber stamp which reads:

9 It may be accepted that this is a reference to s 49 of the Act. There is a notation above the stamp "DJP" in what clearly appears to be the handwriting of the Justice of the Peace who remanded the appellant to appear before the Magistrate in Kalgoorlie. There is no suggestion that a plea was taken in Laverton. Hence, there is nothing on the record to say whether or not s 49 was complied with by the learned Magistrate when the plea of guilty under the fast-track system was accepted in the Court of Petty Sessions at Kalgoorlie on 22 February 1997.

10 The Statement of Material Facts presented to the Court of Petty Sessions was as follows:

"On this occasion the accused and the complainant had been drinking in a vacant block, Spence Street, Laverton.

Sometime during the late afternoon of Friday 21st February, 1997 the accused has approached the complainant and punched her to the face causing bruising and swelling to the mouth. The accused has forced the complainant to the ground then dragged her under a tree and has removed her pants and underwear.

The complainant who is a frail 45 year old female was to [sic] weak to resist the accused. He then removed his pants, and attempted to have sexual intercourse with the complainant but was disturbed by other people in the area.

In her efforts to resist, the complainant has scratched the face of the accused. The accused stopped only when a concerned third person intervened and struck the accused across the back with a blunt object.

The accused was interviewed on Saturday 22nd February, 1997 and admitted the offence to Police on video.

The accused is a thick set male and the 1st cousin of the complainant."

11 On 3 June 1997 the appellant was put up in the District Court at Kalgoorlie. When the Clerk of Arraigns asked the appellant to stand, he did not do so. The learned sentencing Judge asked his counsel whether the appellant had a hearing problem. Counsel responded that he did and suggested that he stand next to him while the indictment was read so that he could hear what was being said. There was then a short adjournment as the indictment was not on the court file. On the resumption, arrangements were made for the Aboriginal Legal Service Court Officer, a Mr Stubbs, to stand next to the appellant in the dock to ensure the appellant could hear what was being said. The transcript then records the following:

YEATS DCJ: Yes - If Mr Stubbs would stand next to him and assist him to understand what is being read, in the dock if he likes.

THE CLERK OF ARRAIGNS: Garth John Green, is that your name?

THE ACCUSED: Yeah.

THE CLERK OF ARRAIGNS: Garth John Green, you stand charged by that name that on 21 February 1997 at Laverton you attempted to sexually penetrate Julie Ann Gill without her consent by attempting to insert your penis in her vagina and that at the time you did bodily harm to Julie Ann Gill.

STUBBS, MR: Do you understand what she said? Do you understand what she just said - yes or no? You have got to speak up. Do you understand that charge? She just said you tried to have sex with a Wongai lady. You tried to put your (Aboriginal language) Do you understand that? Do you understand the charge? Did you try to put your (Aboriginal language)

THE ACCUSED: Mm.

STUBBS, MR: Right. Then you are guilty. You have to say 'guilty'. You have to speak up more than that. They can't hear you. All right. You have got to say guilty louder.

THE ACCUSED: Guilty.

THE CLERK OF ARRAIGNS: How say you? Are you guilty or not guilty?

THE ACCUSED: Guilty.

THE CLERK OF ARRAIGNS: Garth John Green, you have been convicted on your own confession of one count of attempted aggravated sexual penetration. Being now called upon, have you anything to say why sentence should not be passed upon you according to law?

YEATS DCJ: Mr Crofton?

CROFTON, MR: If it please the court. Your Honour, I appear for Mr Green and there is no reason why the law should not take its course.

YEATS, DCJ: I order that judgment of conviction on one count of attempted aggravated sexual penetration be entered. There is a question of course under the Aboriginal Affairs Planning Authority Act and it may be a matter that I should have spoken to him himself with his hearing problem. This is not the first time he has been before court.

CROFTON, MR: No, indeed it isn't, ma'am. He has been to court many times.

YEATS DCJ: And he understands court processes.

CROFTON, MR: He certainly does.

YEATS DCJ: He has instructed you in the past.

CROFTON, MR: He has.

YEATS DCJ: And continues to, and he appreciates what he is here for today.

CROFTON, MR: Yes, he does.

YEATS DCJ: I think in the circumstances I am satisfied and will accept the plea and enter the judgment of conviction."

12 The learned Judge then invited counsel for the Crown to state the material facts to the court as is required by s 617A of the Code. The facts so stated were in accordance with the Statement of Material Facts, to which I have already referred. The learned Judge then asked counsel for the appellant whether the appellant accepted the material facts as so stated. Counsel responded:

"Yes, he has no quibble with those and in fact my instructions accord essentially also with the learned author of the pre-sentence report's summation at page 2 of the report."

13 In particular, the Judge was told that the appellant acknowledged physically assaulting the victim. It was pointed out that the appellant had received some scratches as well. Counsel also said that:

"It is evident, your Honour, that he has hearing impairment and that he has cognitive problems."

14 This meant that there was no prospect of doing an adequate and appropriate psychological assessment. The pre-sentence report also said that the appellant was totally deaf in his left ear and had moderate to medium deafness in his right ear. He also suffered from mental impairment as a result of his drinking. For these reasons he was regarded as unsuitable for the Sex Offender Treatment Programme. In addition, he was ineligible for the programme because he told the author of the report that he did not intend to have sex with the complainant, because he was too drunk. Counsel for the appellant said that this could be explained on the basis that he was in fact too drunk. In other words, he "may have had the intention, perhaps, not the capacity".

15 In Smith v Grieve [1974] WAR 193 at 194 Burt J (as he then was), having set out the provisions of s 49(1) of the Act, said:

"The expression 'person of Aboriginal descent' is defined by s 4 of the Act to mean:

'Any person living in Western Australia wholly or partly descended from the original inhabitants of Australia who claims to be an Aboriginal and who is accepted as such in the community in which he lives'."

16 In that case, the appellant had pleaded guilty and was convicted in respect of two charges in the Roebourne Court of Petty Sessions. The first was a charge of disorderly conduct in a public place, namely the front bar of an hotel. The second was a charge of resisting a member of the Police Force in the execution of his duty. He was sentenced to imprisonment for three months on each charge to be served cumulatively. On the appeal, however, there was evidence that the appellant was an "Aboriginal" as defined in s 4 of the Act. He maintained that he did not understand what went on in court and that the court made no such examination of him as it was required to make by s 49(1).

"The respondent to the appeals does not dispute the facts upon which this challenge to the decisions was based, the submission advanced by him being that s 49(1) of the Act places no duty upon the court to examine an accused person even if such a person is known by it to be an Aboriginal, and should it decide not to do so, or by way of oversight or otherwise fail to do so, then it cannot be said nor can it be the case that the court was satisfied of the matters referred to in the section, and this being so there existed no reason for not accepting a plea of guilty and convicting upon it.

In my opinion this submission, which, if accepted, would make the application of the subsection and the protection which it was its evident intention to extend, a matter lying within the mere grace of the court, should be rejected. It will be observed that notwithstanding the marginal note - 'Court may refuse to accept plea' - the subsection is in its terms mandatory, the words being 'the court shall refuse to accept or admit a plea of guilty at trial ...' where 'upon examination of the accused person' it is satisfied that he is within the statutory description. The legislative command addressed to the court and conveyed by the use of the word 'shall' is conditioned. It becomes operative and is to be obeyed when upon examination of the accused person the court is satisfied as to the matters mentioned, and this I think by necessary implication - made necessary by the evident intent of the Statute - places upon the court, before accepting a plea of guilty and whenever it should reasonably appear that the accused person may be within the statutory description, a duty to exercise the given power to examine the accused person so that it can be satisfied that such is not the case. This may be said to be an extension of the rule that when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises. Compare Bowden v Bowden [1960] HCA 12; (1959) 103 CLR 610 at p614 per Dixon J ... It is an extension in the sense that in a situation in which whether the case has arisen or not can only be ascertained by the exercise by the court and on its own initiative of an inquisitorial power then, if there exists any reason for supposing that it might be such a case, it is imperative that the power be exercised. The practical difficulties involved in the exercise of the power before admitting into evidence an out-of-court confession are apparent enough. But this has no bearing upon the existence of the duty. In a Petty Sessions case if the power to examine is exercised then that fact and the result should I think as a matter of practice be noted on the Charge Sheet."

18 In the present case, it is apparent that when the appellant appeared before the Magistrate and entered the plea of guilty under the fast-track system, no relevant record was made that the Court of Petty Sessions was satisfied that the appellant properly comprehended the nature of the circumstances alleged or of the proceedings, or was capable of understanding his plea of guilty. Given that the Justice of the Peace had found it necessary to note that s 49 had been complied with, and given the purpose of the provision and the comments of Burt CJ, this is not an appropriate case in which to apply the presumption of regularity. As is commented in Cross on Evidence (6th Aust Ed 2000) par 7280 at 237:

"... it is hard to believe since the decision in Woolmington's Case [Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462] that a court would be prepared lightly to apply a common law presumption so as to cast a legal burden upon the accused in a criminal case ..."

19 In Dillon v R [1982] AC 484 the Privy Council held that courts will not presume the existence of facts which are central to an offence, and that where the liberty of the subject is involved, there is no room for presumptions in favour of the Crown. In these circumstances, it was necessary for her Honour to be so satisfied. The question then becomes whether the procedure which was adopted by the learned Judge in this case was sufficient compliance with s 49.

20 In Webb (1994) 74 A Crim R 436 at 438, in a judgment with which Seaman J agreed, I held that in the context of a confession by a relevant person, it was necessary for the Judge personally to undertake the examination required by s 49 unless there had been a voir dire. In the case of a voir dire the examination could be conducted by counsel for the accused whose evidence could be tested by cross-examination by the prosecutor, if necessary. As is apparent, that was not the procedure followed in this case. The learned Judge simply asked counsel for the appellant a number of questions about the appellant's ability to understand and comprehend the proceedings.

21 It was submitted by the Director of Public Prosecutions that counsel for the appellant did not challenge the method of examination. It was further submitted that what s 49 requires is the conduct of an enquiry in such a way as to elicit the presence or absence of factors bearing upon the court's capacity to accept the plea. In practice, the enquiry has been conducted differently, depending on whether the accused has been represented or unrepresented: Hayward v The Queen, unreported; CCA SCt of WA; Library No 930496; 10 September 1993 at 5 per Murray J. Further, it was submitted that merely establishing non-compliance with s 49 would not result in a successful appeal against a conviction, unless the non-compliance was shown to have been productive of a miscarriage of justice. Such a miscarriage would occur if the making of the plea of guilty in the context of a procedural irregularity by non-compliance with s 49 resulted in the appellant being deprived of a chance of an acquittal which was fairly open to him, subject to the possible application of the proviso: Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493; and Hayward v The Queen, supra, per Murray J at 7.

22 In this context, I consider that a miscarriage of justice would be demonstrated if it were shown that the plea of guilty had been entered in circumstances which vitiated the capacity of the court to accept it, with the result that there ought to have been a trial by jury of the issues raised by the offence charged. This would not be established merely as a result of the fact of non-compliance with s 49: Hayward v The Queen, supra, at 7 per Murray J.

23 In Williams v The Queen, supra, at 283 - 284 Franklyn J said of s 49:

"Reference was made by respondent's counsel to s 49 of the Aboriginal Affairs Planning Authority Act 1972 in support of the discretionary exclusion of the statements. That section is a special provision dealing with persons of Aboriginal descent. Relevantly it requires the court trying such a person for an offence punishable at first instance with imprisonment of not less than six months, to refuse to accept an admission of guilt or confession made by the accused if it is satisfied that, 'from want of comprehension of the nature of the circumstances alleged, or of the proceedings', that person was not capable of understanding the admission or confession. It is not concerned with discretion. Where it applies it compels exclusion. It is predicated on a lack of capacity to understand which arises out of the specific matters stated therein. It requires an examination of the accused by the court to determine whether the lack of capacity exists and requires exclusion if the court is so satisfied. To the extent that it is predicated on a lack of capacity to understand the admission or confession, it would seem to add nothing to the common law relating to involuntary statements. Its significance, however, is that it imposes an obligation on the court to examine the accused to satisfy itself first, that he is a person of Aboriginal descent and secondly, whether, because of a relevant lack of comprehension, he was not capable of understanding the admission or confession."

24 In Webb, supra, at 437 I also said, with the agreement of Seaman J, that:

"Section 49 of the Aboriginal Affairs Planning Authority Act imposes significant obligations on Judges and Magistrates in the case of persons of Aboriginal descent."

25 It was apparent that the appellant was a "disadvantaged person", at least in terms of his cultural background, cognitive ability and hearing loss: cf Howard D et al, "Aboriginal Hearing Loss and the Criminal Justice System", (1993) 3 Aboriginal Law Bulletin, No 65 at 9. Consequently, as Rowland and Owen JJ said in R v Williams (1992) 8 WAR 265 at 277, being a disadvantaged person of Aboriginal descent, the applicant was a person who was:

"... entitled, as a matter of statute law, to scrutiny of admission of guilt he makes in a court of law under s 49 of the Aboriginal Affairs Planning Authority Act."

26 At the time of his conviction the appellant had hearing problems in that he was totally deaf in his left ear and had only moderate to medium hearing in his right ear. He was not wearing a hearing aid at the time he was convicted. He had cognitive problems from drinking alcohol. These problems tend to support the appellant's contention that he did not appreciate the nature of the charge against him and that he did not intend to plead guilty to that charge.

27 The numerous occasions upon which the appellant had appeared before the Court of Petty Sessions at Laverton may have given him some understanding of court procedure. The appellant had been before the Supreme Court in 1985 and 1992 and before the District Court in 1994 and 1995, but all of his other appearances were before the Children's Court or the Court of Petty Sessions. In the case of the latter two courts, the vast majority of his appearances had been in the Court of Petty Sessions at Laverton. However, the frequency with which the appellant had previously appeared in court and the assurances which the learned Judge received from counsel, who had appeared for the appellant on previous occasions, were matters which her Honour was entitled to take into account. On this basis, it was contended by the Director that the appellant was a person well experienced in the criminal law and in the making of guilty pleas and the effect of so doing. In addition, the appellant was represented by counsel.

28 In this context, it may be accepted that a plea of guilty provides the strongest evidence of guilt and will only be set aside in exceptional circumstances. To establish such circumstances it must usually be shown that the accused did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged: Hayward v The Queen, supra, per Murray J at 17; and see also per Rowland J at 16 - 17; and Nicholson J at 26 and 32; and Bradshaw v Moylan, unreported; SCt of WA; Library No 940084; 15 February 1994 per Nicholson J at 13.

29 It was also submitted by the Director that this was an expedited committal or fast-track plea of guilty. The facts stated by the Crown under s 617A of the Criminal Code were the same as those disclosed by the material served by the prosecution under s 100(1) of the Justices Act 1902 (WA). Consequently, it was contended that if the appellant had pleaded not guilty before the District Court, s 618 of the Criminal Code would have operated and the District Court, despite the plea of not guilty, would have directed that a plea of guilty be entered. This submission was based upon the fact that there had been no suggestion that the appellant did not appreciate the nature of the charge or did not intend to plead guilty before the Court of Petty Sessions. The difficulty with that contention is that, as I have already noted, there is nothing in the record to suggest that the learned Magistrate, who presided when the plea of guilty was entered in the Court of Petty Sessions, had taken any steps to satisfy himself or herself about the matters referred to in s 49.

30 Insofar as counsel for the appellant did not challenge the method of examination before her Honour, it seems to me that it is not for counsel for waive compliance with the provisions of the Act. It was submitted, however, that the obligation imposed by s 49 was to conduct an enquiry in such a way as to elicit the presence or absence of factors bearing upon the court's capacity to accept the plea. In practice, the enquiry has been conducted differently, depending on whether the accused has been represented or unrepresented: Hayward v The Queen, supra, at 5 per Murray J.

31 It was submitted on behalf of the appellant, however, that the learned Judge failed to comply with s 49, in that her Honour had proceeded to order a judgment of conviction be entered against the appellant without conducting an examination of the appellant herself to determine whether he was capable of understanding his plea of guilty. The fact remains, however, that counsel for the appellant did not challenge the method of examination adopted by the learned Judge. Counsel, who had appeared for the appellant previously, specifically assured her Honour that the appellant understood the nature of the plea and its implications.

32 Having had the opportunity once again to review the various authorities, I have come to the conclusion that it is not necessary for compliance with s 49 that the presiding Judge or other judicial officer is required personally to conduct the examination and, as I had endeavoured to make clear in Webb, supra, it is only necessary for that to be done if there had not been a voir dire. In other words, the section would be fully complied with if counsel for the accused examined him or her regarding the relevant matters and an opportunity was provided for counsel for the prosecution to test the relevant evidence, so far as was necessary. In the present case, in the end result, there was no significant or sufficient examination of the appellant by anyone. In these circumstances, albeit with some regret, I am of the opinion that the provisions of s 49 were not complied with. The result is that it is not possible to be satisfied that there was no miscarriage of justice in this case. The necessary further consequence is that the conviction must be quashed and the case remitted to the District Court for further consideration on the basis that it will be necessary to conduct an examination under s 49 before calling upon the appellant to plead to the charge again.

33 This conclusion means that it is strictly unnecessary to consider the application for leave to appeal against sentence in the usual way. However, given the circumstances in which I consider it would be appropriate to quash the conviction, it follows that the sentence cannot stand and should be set aside. The appellant will have to be resentenced, if and when his plea of guilty is accepted, when he is brought before the Court again. I consider, however, that it would be desirable to make some observations regarding the indeterminate sentence originally imposed on top of the finite sentence of three years.

34 Counsel for the appellant in the District Court accepted that, based on the pre-sentence report and taking into account the appellant's prior convictions for "not dissimilar types of offences, including a number of aggravated assaults on females, an aggravated sexual assault and a rape", the appellant could not be given any discount on account of his record. It was also said that the Court was placed in a difficult position in relation to sentencing because there was no relevant programme available for the appellant while he was in prison. This prompted the learned Judge to say:

"But as I read the pre-sentence report, he is unsuitable for any program and is assessed as presenting a severe danger to the community upon eventual release."

"CROFTON, MR: Well - - -

YEATS DCJ: Mr Crofton, I don't think I have ever read a report that is - - -

CROFTON, MR: That's more damning?

YEATS DCJ: Well, not so much damning, but that tells the court the risk that your client is to the community, the Aboriginal community."

36 It was then suggested to the learned Judge that a psychological report should be obtained, although it was acknowledged that it would be difficult to obtain because of the appellant's hearing and cognitive problems. Reference was then made to the decision of this Court in Juli (1990) 50 A Crim R 31 at 36 in which I said:

"In the particular circumstances of this case the applicant's abuse of alcohol reflect[s] [the] socio-economic circumstances and the environment [in] which he has grown up [and] should be taken into account as a mitigating factor ..."

37 Counsel for the Crown submitted that imprisonment was the only option, but made submissions on the question of eligibility for parole. The appellant had an extensive history of convictions for physical and sexually violent behaviour as reflected in his criminal record. These convictions included four aggravated assaults on a female, seven assaults occasioning bodily harm, 10 assaults, one rape and one aggravated sexual assault. The appellant persisted in denying the commission of the sexual offence the subject of this appeal as well as the earlier sexual offences.

38 In the context of his previous response to supervision, the pre-sentence report noted that on 26 April 1985 he appeared in the Supreme Court at Perth and was convicted on one count of rape. He was sentenced to imprisonment for six years with a minimum of two years and nine months. On 18 June 1987, whilst an inmate of Greenough Prison, he appeared in the Geraldton Court of Petty Sessions and was convicted of an assault occasioning bodily harm perpetrated against another prisoner. He was sentenced to imprisonment for 12 months cumulative upon his previous term of imprisonment.

39 The appellant was released on parole on 1 July 1988 for a period due to expire on 25 April 1992. His performance on parole was assessed as "poor". On 14 September 1990 the Parole Board was informed of the appellant's persistent re-offending, but breach action was not implemented, given a decision by the Board to review his progress on 14 December 1990. In the interim, the appellant re-offended again and his parole was briefly cancelled. He was again released to parole subsequently, when he re-offended and his parole was briefly cancelled. He was again released to parole, but re-offended on 19 November 1990 and parole was revoked.

40 He was released on parole again on 27 February 1991 but his parole was cancelled on 4 December 1991 following further charges being preferred against him. He was subsequently convicted in the Supreme Court of aggravated sexual assault for which he was sentenced on 10 March 1992 to imprisonment for two years and four months without eligibility for parole.

41 On 18 August 1994 he was sentenced to imprisonment for a total of nine months for two offences of burglary. He was not entitled to parole in respect of those sentences. On 10 October 1994 he was sentenced in the District Court at Kalgoorlie to imprisonment for a further 10 months for unlawful wounding. On 6 February 1995 he was sentenced in the District Court at Kalgoorlie to imprisonment for two years cumulative for an aggravated indecent assault on a female. Although he was then given the benefit of eligibility for parole, the Parole Board rejected his application for parole on 24 November 1995 because his parole plan was not viable, his previous response to parole supervision had been poor, and he had failed to address his offending behaviour.

42 After his ultimate release from prison in 1996, he had convictions on 27 September 1996 for driving with a blood-alcohol content of in excess of 0.08 per cent and driving without a licence; on 16 January 1997 for disorderly conduct; and on 13 February 1997 for disorderly conduct. It was eight days after this that the present offence was committed leading to his latest conviction.

43 It is significant that, while the appellant had an extensive record, it consisted mainly of offences against good order, offences associated with the abuse of alcohol and some property offences dating back to 1977 when he was aged 14. In 1979 he was convicted in the Children's Court at Laverton of aggravated assault on a female and also convicted of assault occasioning bodily harm. For the first of these offences he was sentenced to imprisonment for three months. The other two offences resulted in him being committed to the care of the former Child Welfare Department until the age of 18 years. On 16 September 1982 when he was aged 20 he was convicted in the Court of Petty Sessions at Laverton of an aggravated assault on a female and sentenced to imprisonment for six months. On 26 April 1985 he was sentenced to imprisonment in the Supreme Court following a conviction for rape for six years. He was made eligible for parole after serving two years and nine months. On 10 March 1992 he was convicted of an aggravated sexual assault. The circumstance of aggravation was the use of violence. The sentence was imprisonment for two years and four months as previously mentioned. On 10 October 1994 he was convicted in the District Court of unlawful wounding and sentenced to imprisonment for 10 months. On 6 February 1995 he was convicted in the District Court of an aggravated indecent assault and sentenced to imprisonment for two years cumulative on the sentence he was then serving for the unlawful wounding. Thus, between 1978, when he was aged 15, and 1999, when he came before the learned Judge for sentence in this case, so far as sex offences were concerned, he had been convicted of one count of rape in 1985, one offence of aggravated sexual assault in 1992 and one of aggravated indecent assault in 1995. He did, however, have a substantial number of convictions in the Court of Petty Sessions for offences involving violence.

44 The power to impose indefinite imprisonment in addition to a fixed term or fixed terms of imprisonment is conferred by s 98 of the Sentencing Act 1995 (WA) where the court imposes a term of imprisonment which is not suspended and an eligibility for parole is not made. In such circumstances, an order may be made that the offender be imprisoned indefinitely in addition to serving the term of imprisonment imposed. Section 98(2) provides that:

"Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors:

(a) the exceptional seriousness of the offence;

(b) the risk that the offender will commit other indictable offences;

(c) the character of the offender and in particular -

(i) any psychological, psychiatric or medical condition affecting the offender;

(ii) the number of seriousness of other offences of which the offender has been convicted;

45 By s 100 of the Act, a sentence of indefinite imprisonment begins on the day when the offender would, but for that sentence, be eligible to be released from custody. So far as parole is concerned, s 89(2) of the Act provides that:

"In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:

(a) the seriousness and nature of the offence;

(b) the circumstances of the commission of the offence;

(c) the offender's antecedents;

(d) circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;

(e) any other reason the court decides is relevant."

46 As Gleeson CJ, Callinan, Gaudron, Gummow, Hayne and McHugh JJ said in Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007 at [8]:

"The principles according to which the courts in Western Australia make decisions concerning eligibility for parole were summarised in Thompson v The Queen [(1992) 8 WAR 387 at 395-396]. They recognise that the need to protect the community or particular members of it is a factor relevant to the exercise of discretion both by the sentencing judge and, ultimately, the Parole Board. [See also Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 532] Senior counsel for the appellant did not challenge that proposition, although he challenged another proposition, stated in Thompson, to the effect that 'the discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something ... which points positively towards the appropriateness of parole ... but nonetheless the philosophy of the Act suggests a bias towards eligibility'. [Thompson v The Queen (1992) 8 WAR 387 at 395] The meaning of that proposition is somewhat elusive. However, it was not fully argued, and was not relied upon in the reasoning of the Court of Criminal Appeal. It is unnecessary to examine it further."

47 At [10] the High Court noted that there may be a substantial degree of commonality between the facts relevant to the discretionary considerations arising under s 89 and the facts relevant to the discretionary considerations which arise under s 98. However, specifically so far as the power to order indefinite imprisonment is concerned, their Honours said at [11] - [12] at 1009 - 1010:

"Legislation of the kind contained in s 98 of the Act is not novel. In R v Moffatt [[1998] 2 VR 229], reference was made [R v Moffatt [1998] 2 VR 229 at 251-252] to some aspects of the history, in Australia and elsewhere, of laws providing for preventive detention. This Court, in Chester v The Queen [(1988) [1988] HCA 62; 165 CLR 611] considered s 661 of the Code, which was the precursor of s 98. It was there said that the exercise of the power 'should be confined to very exceptional cases where the exercise of the power is demonstrably necessary'. [Chester [1988] HCA 62; (1988) 165 CLR 611 at 618] It was pointed out in Moffatt [[1998] 2 VR 229 at 255, per Hayne JA] that, because an indefinite sentence of the kind provided for in such legislation goes beyond punishing an offender to an extent that is proportionate to the crime, the power conferred upon the court is exceptional, as are the cases that warrant an exercise of the power.

The effect of subs (2) is that the condition of the exercise of the power is that the court is satisfied on the balance of probabilities that, at a future time, when the offender would otherwise be released, he or she would be a danger to society, or a part of society, because of one or more factors. Thus, what is involved is a decision about a state of affairs that will exist at a time which may be several, perhaps many, years ahead. The relevant state of affairs is a form of danger. That will usually involve an evaluation of risk, and, perhaps, of steps that may be taken to avoid or reduce the risk. The concept of danger to society, or a part of it, may also involve difficult questions of judgment. It was common ground that the present case did not fall within par (a) of subs (2). The Crown relied upon a combination of pars (b) and (c). Once again, these paragraphs raise questions of evaluation and prediction."

48 In the context of the relevant factors under s 98(2) of the Sentencing Act, the first is "the exceptional seriousness of the offence". That is the offence the subject of the present proceedings. The maximum penalty for the offence is imprisonment for 10 years. Counsel for the appellant described it as a "hopeless attempt". In my opinion, it is not possible to characterise the present offence as one of exceptional seriousness. Any offence of aggravated sexual assault is a serious offence, but this was constituted by an attempt aggravated by doing bodily harm. In my view, as serious as the offence was, it is not in the category of the worst of its kind or otherwise exceptional.

49 The second relevant factor is the risk that the offender will commit other indictable offences. In this respect, the pre-sentence report states that:

"Given Green's impaired hearing and cognitive functioning, it was not possible to undertake a formal assessment as to his state of cognitive functioning nor of his psychological or emotional stability. The irreversibility of alcohol related brain damage provides little cause for optimism that his lifestyle may improve. Certainly his capacity to engage in any formal treatment programme currently available within the Ministry of Justice is assessed as unviable. Whilst he has previously (May/June 1995) engaged in a programme designed to enhance the offender's skills for aggression control, this has proven to have been of dubious benefit given his resurgence of violent behaviour upon release from prison.

Green's history of offending behaviour and the rapidity with which he engages in further offending strongly suggests a limited ability to control his aggressive and sexually inappropriate behaviours. The possible presence of paranoid delusions may serve to fuel these behaviours and the entrenched presence of alcohol in his lifestyle certainly contributes to his negligible capacity for self control.

Green is unsuitable for inclusion in any of the programmes offered by the Sex Offender Treatment Unit. Regardless of his cognitive impediment, his persistent stance of denial precludes entry."

"Green is an aboriginal man of tribal origins with an entrenched history of physical and sexual violence and chronic abuse of alcohol. He suffers from a severe hearing impediment and significant cognitive dysfunction which is apparently the consequence of long term and substantial abuse of alcohol. Whilst he accepts having a problem with alcohol and of engaging in physically violent behaviours he denies having, or ever having, perpetrated an offence of a sexual nature. Green is unwelcome at any of the aboriginal communities which he has at some time regarded as his home territory. Historically his previous periods of parole have been unsuccessful with recidivistic offending clearly out of control.

These factors all contribute to Green's assessed risk of reoffence as being extremely high. His capacity to control his behaviour has been shown by his record of convictions to be minimal. Furthermore, his ability to engage in meaningful interventions to address the issues of alcohol abuse, physical violence and sexually deviant behaviour is severely limited. Consequently, Green is assessed as presenting a severe danger to the community upon eventual release."

"It appears from the retrospective case documentation that Mr Green has had convictions of similar nature in the past from which he did not appear to have learnt a great deal about his offending behaviour and the consequences of it. The complicating factor with him would be his probable heavy dependence on alcohol leading to repeated offending behaviour. His personality profile do also indicate probable difficulties in impulse control leading to disinhibited behavioural repertoire. His proclivity to alcohol, ie pathological intoxication, do indicate some probable organicity (brain damage) which warrants further testing. Given his past repeated offending behaviour, heavy dependence on alcohol, his partial insight, limited understanding of his offending behaviour and the relationship between alcohol leading to crime, all would indicate that Mr Green is likely to reoffend in the future.

I would like to respectfully recommend to the court that Mr Green does require to undergo an indepth alcohol and drug assessment and rehabilitation program in a structured and probably in a residential setting. He would also benefit from a Sex Offender Treatment Program, which would address also some of his antisocial traits such as impulsivity, disinhibition, seeking immediate gratification, etc. As mentioned above, Mr Green is likely to reoffend if he returns to similar environment and resorts to alcohol consumption once again. This recommended measures, in my view should be imposed as conditions of his release into the community if this option is chosen. But preferably in the first instance, this issue should be addressed in a custodial setting for him to gain some understanding of these issues and the impact of his actions on others."

52 The reports indicate that there is a very significant risk that the appellant will commit other offences of a kind in the future which present a severe danger to the community, subject to the outcome of the recommendations contained in the psychiatric report. The relevant issue, however, is the risk that the appellant will commit "other indictable offences". He has in fact committed the five indictable offences to which I have referred, of which he was convicted in 1985 (rape), 1992 (aggravated sexual assault), 1994 (unlawful wounding), 1995 (aggravated indecent assault) and in 1997 (attempted sexual penetration with bodily harm).

53 These circumstances are also relevant to the third factor in s 98(2), namely the character of the offender, including, in particular, his psychological, psychiatric or medical condition and the number and seriousness of other offences of which he has been convicted. These have already been noted. In this context, the pre-sentence report and the psychiatric report do not give much cause for optimism for the future, but the possibility of some prospect of rehabilitation is raised by the psychiatric report. Apart from the factors mentioned, there would not appear to be other exceptional circumstances.

54 As has been said on more than one occasion, an indefinite sentence requires a conclusion that on release the appellant would pose a continuing and constant danger of re-offending by way of the commission of further indictable sexual assaults or other indictable offences. The matter does not appear to me to have been approached in that way by the learned sentencing Judge.

55 WALLWORK J: The facts of this matter are set out in the reasons for judgment of the Chief Justice and Wheeler J, and I will not refer to them except as is necessary.

56 Section 49 of the Aboriginal Affairs Planning Authority Act provides that where a person is punishable by a term of imprisonment for a period of six months or more, the court hearing the charge shall refuse to accept or admit a plea of guilt at trial, or admission of guilt or confession before trial, in any case where the court is satisfied, upon examination of the accused person, of certain matters. The first is that the accused person is a person of Aboriginal descent. The second is that that person, from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding the plea of guilty or that admission of guilt or confession.

57 The fact that a person is of Aboriginal descent, by itself, does not require the court to refuse to admit a plea of guilt and obviously, where for example the person concerned is known to the court to have sufficient capabilities, for example, education, which would enable that person to understand the matters required, the court would not have to examine the person concerned.

58 I agree with Justice Wheeler that, having regard to the purpose of the section, a duty to conduct an examination would arise wherever circumstances suggested that a person might be of Aboriginal descent and might lack the relevant comprehension. As her Honour says in her reasons:

"... it would be a duty which arose wherever the circumstances sufficiently indicated that it was possible that examination might produce the satisfaction to which the section refers."

59 That reasoning is in accord with Chief Justice Burt's comments in Smith v Grieve [1974] WAR 193, where his Honour said that the duty arose "whenever it should reasonably appear that the accused person may be within the statutory description". It is also in accord with

Chief Justice Burt's comments that it is imperative that the power to examine the accused person must be exercised "if there exists any reason for supposing that" the accused person may be within the statutory description.

60 In this case, the appellant first appeared before a Justice of the Peace in the Court of Petty Sessions at Laverton and was then remanded to appear before the Court of Petty Sessions at Kalgoorlie. When he entered a plea of guilty before the Magistrate at Kalgoorlie, he was remanded in custody to appear in the District Court at Kalgoorlie for sentence. As the Chief Justice says in his reasons, there is nothing on the record in this case to indicate whether or not the learned Magistrate took action under s 49 when the plea of guilty under the fast track system was accepted in the Court of Petty Sessions at Kalgoorlie on 22 February 1997. We do know that, on that occasion, a statement of material facts was presented to the learned Magistrate.

61 In their reasons for judgment, the Chief Justice and Wheeler J have related the events when the appellant appeared in the District Court at Kalgoorlie on 3 June 1997. On that day, the learned Judge was advised that the appellant had a hearing problem. An Aboriginal Legal Service officer stood next to the appellant in the dock to ensure that he could hear what was being said. Having had some discussion with the appellant, that officer told the appellant he was guilty and that he had to say he was guilty. The appellant then said guilty. A judgment of conviction was then entered.

62 The learned Judge then asked counsel for the appellant whether it was the first time he had been before the court and whether he understood court processes. Counsel advised the Judge that the appellant had been to court many times and certainly did understand court processes. The Judge asked counsel whether the appellant had instructed him in the past and was told that he had. The Judge then asked whether the appellant appreciated what he was in court for at that time. Counsel advised that he did. The Judge said that, in the circumstances, she was satisfied and would accept the plea of guilty and enter the judgment of conviction.

63 It is apparent that the learned Judge did not examine the appellant in accord with s 49(1) of the Act, but rather relied on the Aboriginal Legal Service officer and counsel who appeared for the appellant for assurances that the appellant was able to understand the nature of the circumstances alleged, the proceedings and the plea of guilty which was made by him. Counsel told the Judge that the appellant accepted the material facts in the statement of facts which had been read to the court. He also assured the Judge that his instructions accorded with the statement of material facts and also with the summation of them in the pre-sentence report.

64 In the course of his plea, counsel advised the Judge that the appellant had a hearing impairment and cognitive problems. The pre-sentence report said that the appellant was totally deaf in his left ear and had moderate to medium deafness in his right ear. It also said that he suffered from mental impairment as a result of alcohol consumption.

65 The appellant had told the author of the pre-sentence report that he did not intend to have sex with the complainant because he was too drunk. Counsel for the appellant said that that could be explained on the basis that the appellant had been too drunk - in other words, he "may have had the intention, perhaps, not the capacity".

66 I agree with the learned Chief Justice's conclusion that, when the appellant appeared before the Magistrate and entered the plea of guilty under the fast track system, there is no relevant record that the Magistrate was satisfied that the appellant properly comprehended the nature of the circumstances alleged, or the proceedings, or was capable of understanding his plea of guilty. I also agree with the learned Chief Justice that, in the District Court, the learned Judge asked counsel for the appellant a number of questions concerning the appellant's ability to understand and comprehend the proceedings.

67 I agree with the Chief Justice that s 49 of the Act would be complied with if counsel for an accused examined the appellant regarding the relevant matters and an opportunity was provided for counsel for the prosecution to test the relevant evidence as far as it was necessary, and the court then decided whether or not to record a conviction. I also agree that in the present case there was no significant or sufficient examination of the appellant by anyone. The provisions of s 49 were therefore not complied with and the result is that it is not possible to be satisfied that there was no miscarriage of justice in this case.

68 The conviction must therefore be quashed and the case remitted to the District Court for further consideration on the basis that it will be necessary for an examination under s 49 to be conducted before the appellant is asked to plead to the charge again.

69 With respect to the question of an indefinite sentence, I agree with the remarks which have been made by the Chief Justice. There is nothing I wish to add to what his Honour has said in that regard.

70 WHEELER J: On 3 June 1997 the appellant was convicted on his own plea of guilty, on the fast-track system, of one count of attempted aggravated sexual penetration. On 26 August 1997 he was sentenced to three years' imprisonment which was backdated to 22 February 1997, the day on which he was taken into custody. An order for indefinite imprisonment was also imposed. The appellant now appeals against both conviction and sentence.

71 The questions presented by the proposed appeal are of some importance, and the sentence imposed upon the appellant is, in its indefinite component, a severe one. The matters deposed to in the appellant's affidavit in support of his application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence are such that, if accepted, they would explain the delay. The application for extension of time was not opposed by the Crown. For those reasons, the court granted an extension of time both in relation to the appeal and the application in respect of the sentence.

72 The appellant is a person of Aboriginal descent. He has severe hearing difficulties, being able to hear with one ear only and then requiring a hearing aid in order to hear properly, and he suffers from impaired cognitive functioning. There is an affidavit which, strictly, purports to be sworn only in support of his application for extension of time, but to which I have regard for the purpose of the appeal. In it, he deposes that he thought that, when he appeared in the District Court in respect of this matter, he was in court only for "hitting" the complainant and that had he known that he was charged with trying to "rape" her, he would have entered a plea of not guilty.

73 There are two grounds of appeal, both of which go to his understanding of the charge against him. They read as follows:

1. The learned trial judge contravened section 49 of the Aboriginal Affairs Planning Authority Act, 1972 (WA).

Particulars

1.1 On 3 June 1997 in the District Court sitting at Kalgoorlie I pleaded 'Guilty' to one count of attempted sexual penetration without consent.

1.2 The learned trial judge was obliged to personally conduct an examination of me to see whether I was capable of understanding this plea.

1.3 The learned trial judge failed to conduct this examination.

Miscarriage of Justice

2. My conviction is a miscarriage of justice as: I did not appreciate the nature of the charge against me; and I did not intend to plead guilty to that charge."

74 The learned trial Judge's enquiry into the appellant's capacity to understand the charge against him arose in the following way. Prior to his being arraigned, her Honour asked the appellant's counsel whether the appellant had a hearing problem, and counsel obtained her Honour's permission to stand next to him when the indictment was read. After a short adjournment, it was suggested to her Honour that it would be convenient if Mr Stubbs, who appears to have been a court officer supplied by the Aboriginal Legal Service, could stand next to the appellant.

75 The indictment was then put to the appellant and the court officer asked him:

"Do you understand what she said? Do you understand what she just said - yes or no? You have got to speak up. Do you understand that charge? She just said you tried to have sex with a Wongai lady. You tried to put your (Aboriginal language). Do you understand that? Do you understand the charge? Did you try to put your (Aboriginal language)."

The appellant answered "Mm" and the court officer then advised him that in that case he was guilty and had to say "guilty".

76 After her Honour had entered a judgment of conviction, the following exchange took place:

"YEATS DCJ: There is a question of course under the Aboriginal Affairs Planning Authority Act and it may be a matter that I should have spoken to him himself with his hearing problem. This is not the first time he has been before court.

CROFTON, MR (Counsel for the appellant): No indeed it isn't, ma'am. He has been to court many times.

YEATS DCJ: And he understands court processes.

CROFTON, MR: He certainly does.

YEATS DCJ: He has instructed you in the past.

CROFTON, MR: He has.

YEATS DCJ: And continues to, and he appreciates what he is here for today.

CROFTON, MR: Yes, he does.

YEATS DCJ: I think in the circumstances I am satisfied and will accept the plea and enter the judgment of conviction."

77 Her Honour was then advised, as was the fact, that the appellant had entered a plea of guilty on the "fast-track" system. It appears from the complaint, although her Honour was not referred to it, that at the time of the appellant's first appearing in relation to this matter, the complaint had been endorsed by the Justice at Laverton with a stamp which indicated that that court was satisfied that the appellant understood the charge for the purposes of s 49 of the Aboriginal Affairs Planning Authority Act. The appellant was then remanded to the Court of Petty Sessions in Kalgoorlie, where the plea of guilty was taken. The record does not indicate what, if any, consideration was given to s 49 at that stage. It does indicate that the appellant was represented by a person named "Parker".

78 The facts of the offence and certain other information were put to her Honour and Mr Crofton made a number of remarks which indicated the extent to which, on his instructions, the appellant accepted what was put to her Honour. Mr Crofton observed that the appellant had a hearing impairment and cognitive problems. There was before her Honour a pre-sentence report which referred to his hearing impairment and impaired cognitive functioning, to which I will return later. Her Honour was concerned about the danger presented to the community upon the appellant's eventual release in the light of the information then before her, and adjourned the matter so that a psychological assessment could be conducted. When Mr Stubbs explained the remand to Perth to the appellant, the appellant's response was such that Mr Stubbs informed the court that, "He needs a hearing aid".

79 On 22 August her Honour heard further submissions in relation to the matter. There was then before the court also a handwritten statement provided by the complainant, and the counsel who then represented the appellant (a different counsel from the one who had appeared in Kalgoorlie) took instructions for a matter of 20 to 25 minutes in relation to those facts. Counsel then explained to her Honour in some detail the extent to which his instructions coincided with and differed from the statement of the complainant. There were a number of points of difference. However, counsel said that on his instructions the appellant "says that he hadn't got to the stage of taking his pants off but he does admit that he kneeled down in front of her and that he was going to try to have sex with her but that one of the others hit him in the back ...".

80 Detailed submissions were then made to her Honour in relation to the appropriate sentence and, in particular, in relation to whether an order for indefinite imprisonment should be imposed. Her Honour adjourned to consider the matter further and, in due course, sentenced the appellant on 26 August.

81 The thrust of the appellant's submission in relation to this provision is that it imposes upon a trial Judge a non-delegable duty personally to conduct an examination of a person of Aboriginal descent in order to ascertain whether the person is capable of understanding a plea of guilty (or any admission or confession as the case may be). In this case, it is asserted that the enquiry which her Honour made of defence counsel was not sufficient for the reason that there was no examination of the appellant. The appellant cites the cases of R v Williams (1992) 8 WAR 265 and Webb v R (1994) 74 A Crim R 436 as authority for the proposition that a duty of the kind referred to is imposed by the section upon a judicial officer.

82 It is my view that the premise upon which the appellant's case rests is mistaken. Section 49 of the Aboriginal Affairs Planning Authority Act reads as follows:

(1) In any proceedings in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of 6 months or more the court hearing the charge shall refuse to accept or admit a plea of guilt at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings, is or was not capable of understanding that plea of guilt or that admission of guilt or confession.

(2) The provisions of subsection (1) are in addition to, and not in derogation of, any rule of law or practice relating to the admissibility of pleas of guilt or admissions of guilt or confessions."

83 On its face, the section does not purport to impose a duty to examine. Rather, it requires the court to refuse to accept or admit a plea (accepting, as appears beyond doubt, that the word "may" in the heading does not import a discretion) where the court is satisfied, having conducted an examination, that the accused meets the two criteria of being a person of Aboriginal descent and of lacking the relevant comprehension. On reading the words of the section in their natural sense, no duty to examine is created. The only duty is a duty to refuse to accept a plea in particular circumstances.

84 However, the evident purpose of the section is the protection of persons of Aboriginal descent, who are likely as a class to suffer particular disadvantages in relation to judicial proceedings, from potential unfairness. Having regard to that purpose, a duty to conduct an examination would arise, as part of the court's ordinary duty to ensure a fair trial, wherever circumstances suggested that a person might be of Aboriginal descent and might lack the relevant comprehension. That would arise as a matter of implication from the section, rather than from its express words.

85 The duty would be a duty, not to examine every accused person in order to ascertain whether they were Aboriginal and whether they lacked relevant comprehension, nor to examine every person apparently of Aboriginal descent in order to ascertain whether they lacked the relevant comprehension; rather, it would be a duty which arose wherever the circumstances sufficiently indicated that it was possible that examination might produce the satisfaction to which the section refers. The view expressed above is one derived from the words of the section and from my understanding of the duty of a trial court. It is also however, in my view, one which is supported by authority in this Court and which is not inconsistent with the decisions to which the appellant refers. In order to explain this conclusion, it is necessary to examine the relevant line of authority.

86 The first relevant case is that of Smith v Grieve [1974] WAR 193, a decision of Burt J. The proper construction of s 49 of the Aboriginal Affairs Planning Authority Act directly arose in that case. The appellant was a person of Aboriginal descent who contended that he did not understand the court proceeding. There was no examination, and it was submitted by the respondent that s 49 places no duty upon the court to examine an accused even if the person is known to be Aboriginal. His Honour referred to the portion of the section which read, "the court shall refuse to accept or admit a plea of guilt ..." and reached the following conclusion (at 195):

"The legislative command addressed to the Court and conveyed by use of the word 'shall' is conditioned. It becomes operative and is to be obeyed when upon examination of the accused person the court is satisfied as to the matters mentioned, and this I think by necessary implication - made necessary by the evident intent of the Statute - places upon the court, before accepting a plea of guilty and whenever it should reasonably appear that the accused person may be within the statutory description, a duty to exercise the given power to examine the accused person so that it can be satisfied that such is not the case. This may be said to be an extension of the rule that when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises. Compare Bowden v Bowden [1960] HCA 12; (1959), 103 CLR 610 at p 614, per Dixon J; [1960] HCA 12; [1960] ALR 411. It is an extension in the sense that in a situation in which whether the case has arisen or not can only be ascertained by the exercise by the Court and on its own initiative of an inquisitorial power then, if there exists any reason for supposing that it might be such a case, it is imperative that that power be exercised." (emphasis supplied)

87 It appears from this passage, which represents the ratio of that case, that his Honour took the view that s 49 did place an obligation upon the court to examine the accused person. However, that duty only arose when "it should reasonably appear that the accused person may be within the statutory description" or, putting it another way, "if there exists any reason for supposing that it might be such a case". In either case, there must be a "reason for supposing" both that the accused is a person of Aboriginal descent and that the accused may lack the relevant comprehension. Only then does the duty arise.

88 The next decision in which observations were made concerning s 49 of the Aboriginal Affairs Planning Authority Act is R v Williams (supra). That was a case in which the respondent was on trial for wilful murder in circumstances where, being questioned by police shortly after the alleged commission of the crime, he had made certain admissions. A voir dire was held to determine whether his confession ought to be admitted into evidence. The trial Judge ruled that it had been made voluntarily, but excluded it in the exercise of his discretion because he considered that it was unfair to the respondent for it to be used against him. The appellant's alleged intoxication at the time of the questioning was a factor apparently of particular importance to his Honour.

89 However, the appellant was also a person of Aboriginal descent and certain observations were made by the Court of Criminal Appeal in relation to what are known as the Anunga rules and in relation to s 49. The only observation in the majority judgment of Rowland and Owen JJ, apart from passing mention at 275, is at 277 where their Honours observed that the appellant was a person "who is entitled, as a matter of statute law, to scrutiny of admissions of guilt he makes in a court of law under s 49 of the Aboriginal Affairs Planning Authority Act".

90 The observations of Franklyn J were more detailed. They were by way of obiter, since they arose in a context in which his Honour took the view that the admissions should not have been excluded, and in a context in which there had in any event been a lengthy and detailed voir dire directed to the question of the appellant's competence to comprehend questioning. His Honour said at 283 - 284:

"Where [s 49] applies it compels exclusion. It is predicated on a lack of capacity to understand which arises out of the specific matters stated therein. It requires an examination of the accused by the court to determine whether the lack of capacity exists and requires exclusion if the court is so satisfied. To the extent that it is predicated on a lack of capacity to understand the admission or confession, it would seem to add nothing to the common law relating to involuntary statements. Its significance, however, is that it imposes an obligation on the court to examine the accused to satisfy itself first, that he is a person of Aboriginal descent and secondly, whether, because of a relevant lack of comprehension, he was not capable of understanding the admission or confession."

91 In my view, his Honour was not purporting to set out exhaustively what s 49 required. Rather, his Honour was explaining in general terms the significance of the section in order to explain why he did not find reference to it helpful in that case. Although, read in isolation, his Honour's remarks might appear to suggest that there was an obligation on the court in every case to examine an accused to satisfy itself whether he is a person of Aboriginal descent and whether he suffers a relevant lack of comprehension, I would not understand it in that way. Rather, it appears to me that the obligation to which his Honour refers is, against the background of the words of the section and the views of Burt J in Smith v Grieve, to be understood as an obligation which arises where the circumstances are such as to suggest that examination is appropriate.

92 The next relevant decision is the unreported case of Hayward v The Queen, unreported; CCA SCt of WA; Library No 930496; 10 September 1993. In that case, both Nicholson and Murray JJ gave some brief consideration to s 49, and each of them cited with approval Smith v Grieve. Murray J went on to observe that in the way in which it was applied in practice by the courts, the duty of "examination" was understood as a duty of enquiry, which must in each case be conducted in a way appropriate to elicit the presence or absence of the relevant factors bearing upon the court's capacity to accept the plea, and which might be conducted differently depending upon whether the accused was represented or unrepresented. In my view, his Honour was correct in this observation. Where an accused person is represented, it will often be preferable for the examination to be conducted entirely or largely by counsel, with such intervention as the Judge may think necessary in order to ascertain that the statutory criteria are appropriately considered. It does, however, appear that there must be an "examination" of the accused wherever it appears that there is reason to believe that the statutory criteria may be satisfied, and for my own part I would not see this as a requirement which could be satisfied other than by requiring the accused himself to answer questions, as opposed to, for example, examining his counsel about the accused's level of comprehension.

93 Finally, in Webb (supra), both his Honour the Chief Justice at 437 - 438 and Ipp J at 443, with both of whom Seaman J agreed, cited both Smith v Grieve and Franklyn J in Williams' case as authorities which explained the requirements of s 49. That, too, was a case in which there had been a voir dire which directly put in issue the appellant's capacity to understand the caution administered to him and to comprehend the nature of the admissions which he made. It was accepted in that case that he was a person of Aboriginal descent. That too, therefore, was a case in which, because of the nature of the issues raised at the voir dire, there was, in the words of Burt J, "reason to suppose" that the appellant might be a person who fell within the statutory description. Like Williams, then, it was not a case in which it was necessary for the court to consider the circumstances in which the duty to conduct an examination would arise. The only material in that case bearing directly upon that question, would appear to be the court's approving references to Smith v Grieve.

94 I note also that in the only comment made on this provision during the course of the parliamentary debates, it was observed that "most magistrates probably do this anyway", (Hansard, Legislative Council, 12/02/72 at 553). This comment, which went unchallenged in debate, tends to confirm that the obligation imposed was not intended as a completely novel procedure which requires of every person who appears to be of Aboriginal descent.

95 It is therefore my view that s 49 does not require an examination to be carried out unless there is a reason for supposing both that an accused person is of Aboriginal descent and that the person may lack relevant comprehension. In this context, I turn to consider what was done by her Honour. If her Honour had reached a view that the circumstances were such as to require an examination of the appellant, then there may well be force in the appellant's submission that her enquiries of his counsel did not satisfy that requirement. However, it is my view that the "question" to which her Honour referred, particularly having regard to the fact that the appellant was represented and to the exchanges which he had had with Mr Stubbs, is properly to be understood as a "question" of whether it was necessary to carry out the relevant examination. It is not possible to ascertain from the transcript whether her Honour's inquiry arose because it appeared to her that the appellant may have lacked understanding, or whether it was merely precautionary.

96 I accept that there are indications in the transcript which may point to a lack of understanding and which may suggest that a duty to inquire had arisen; in particular, Mr Stubbs' exchange with the appellant potentially gives rise to concern. However, I am also conscious that the appellant's demeanour at that point would be very relevant to an assessment of whether he might be unable to comprehend the proceeding. Did he, for example, stand mute, or did he (as many Aboriginal persons do) merely reply very softly? Was he hesitant in his replies? In the absence of any material from the appellant, Mr Stubbs or Mr Crofton, explaining how the appellant reacted or what circumstances might have indicated a want of comprehension on his part, and having regard to the many indications that he did understand the allegations against him (to which I turn under the next heading) I am not prepared to accept that it did or should have appeared to her Honour that the appellant may have lacked the relevant comprehension.

97 For the sake of completeness, I deal with a further submission made on behalf of the respondent in relation to the applicability of s 49. That concerns the effect of s 618 of the Criminal Code. It has been suggested that it may be that, because of the provisions of this section, the appellant would have to challenge the plea entered in the Court of Petty Sessions, rather than the plea entered before the District Court. It seems to me that the true position is that s 49 operates in respect of a plea pursuant to s 618 of the Criminal Code as in relation to any other plea of guilt. Section 618(2) provides that the accused person, "is to be called on to plead to the indictment in the same manner as other persons and may plead any of the pleas listed in section 616".

98 The plea taken at that time is no empty formality. It is the plea upon which the court acts if it proceeds to enter a judgment of conviction. The section does provide that in certain circumstances, even where an accused person enters a plea of not guilty, the court will nevertheless direct that a plea of guilty be entered. That section is not exhaustive, however, and a person who has entered a plea of guilty before the Court of Petty Sessions may be permitted to change the plea in the exercise of the court's discretion in certain circumstances: Tihanyi v The Queen [1999] WASCA 226. This is another reason for forming the view that s 49 will apply in relation to the plea entered before the District Court, as well as before the Court of Petty Sessions.

99 However, for the reasons which I have already given, it appears that the duty to conduct an examination only arises when the court is in effect "put upon enquiry" so that there is some reason for considering that the court might after enquiry reach the satisfaction to which s 49 refers. In the normal run of cases, a superior court is entitled to act upon the presumption that the proceedings in the court below have been regularly conducted in accordance with the law, which would include compliance where necessary with s 49. In those circumstances, where it appears that a plea of guilty has been entered before the Court of Petty Sessions, there will, in the absence of any indication of want of comprehnsion, be no need to make any further enquiry or to consider whether it is necessary to conduct an examination pursuant to s 49. It may be that there will be unusual circumstances in which it does appear to the court necessary to do so. However, this was not such a case.

100 Before allowing a convicted person to withdraw the plea of guilty upon which a conviction is founded, it must appear that a miscarriage of justice has occurred. Withdrawal of a plea will only be permitted in exceptional circumstances. Some of the authorities are collected and discussed in Eyre v The Queen, unreported; CCA SCt of WA; Library No 930149; 18 March 1993, per Wallwork J. One such circumstance is where the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it. Although the court has both the power and duty to interfere where it appears that there is a miscarriage of justice, courts approach attempts on appeal to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with "caution bordering on circumspection" because of the public interest in the finality of legal proceedings and because of the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission of all of the necessary legal ingredients of the offence: see Liberti v R (1991) 55 A Crim R 120 at 122 per Kirby P.

101 In this case, the appellant submits that, at the time of conviction: English was not his first language; he had hearing problems; he was not wearing a hearing aid; and he had cognitive problems. Further, the pre-sentence report contains the comment that the appellant acknowledged assaulting the complainant but strongly denied engaging in any sexual behaviour with her and denied "the commission of the current and prior sexual offences". The psychiatric report contains the comment that the appellant claims, "that he had been heavily intoxicated and claims that it was a mutual understanding and denied the assault being an aggravated one". The last comment is rather difficult to understand, but may amount to a denial of some of the elements of the offence. These comments taken together, might give rise to a question whether the appellant had understood the nature of the plea which he entered. He has deposed that he did not. However, these matters must be seen in the context of the entire proceedings in which the appellant participated.

102 First, as I have noted, the court at Laverton reached the view that the appellant understood the charge. He was represented at Kalgoorlie Court of Petty Sessions and entered a plea of guilty. There is no material before this Court which calls that plea into question or explains how it came to be made, or suggests that s 49 was not complied with at that stage. Next, when the indictment was explained to the appellant by Mr Stubbs, who was standing beside him at the time, on 3 June, he indicated no want of understanding. He was represented by counsel with whom he had had dealings in the past. That counsel assured the court that he appreciated what he was in court for on that occasion. Further, counsel then advised the court as to what aspects of the matters put to her Honour by the Crown the appellant accepted; that advice can only have come from instructions given by the appellant. Finally, in detailed submissions on 22 August, a different counsel, who had taken some time to take instructions from the appellant and who recognised the difficulty of communicating with him, nevertheless advised the court, again in terms which could only have come from the appellant, of the facts which the appellant did accept. Those facts amounted to an admission of all the material features of the Crown's statement of facts, and covered all of the elements of the offence.

103 The appellant has not explained how he came to enter a plea of guilty in the Court of Petty Sessions, and nor has it been explained to the court on his behalf how the apparently detailed instructions which he gave to each counsel came to be given. Those instructions appear expressly to contradict the appellant's assertion in his affidavit that he was not aware that there was any sexual component to the charge against him.

104 It is desirable to add that I place no weight upon the fact that the appellant had appeared in court on other occasions. That circumstance does not necessarily indicate that he has an understanding either of the nature of court proceedings generally, or of the elements of any particular offence, or of the implications of a plea of guilty in any particular case. He may not have understood the prior proceedings. In any event, changed circumstances, such as deteriorating mental functioning or increasing deafness, may mean that a person who understood prior proceedings may not be able to follow later ones.

105 In this case, the facts to which the appellant points establish no more than that the appellant was a person who was at risk of not understanding the proceedings. Apart from his own assertion in his affidavit, there is nothing to suggest that he positively did not understand them. On the contrary, the record of proceedings at each stage in relation to this matter is in my view sufficient to establish that the appellant did understand both the nature of the charge and the nature of the proceeding. In my view, this ground of appeal cannot succeed, and I would therefore dismiss the appeal against conviction.

106 Having regard to the conclusions of his Honour the Chief Justice and Wallwork J in relation to the appeal against conviction, it is not strictly necessary to deal with questions of sentence. However, I consider it desirable to refer to some aspects of this issue.

107 The grounds of appeal in relation to the sentence are as follows:

"1. The learned sentencing judge erred in relying on the various pre-sentence and psychiatric reports that were ordered to determine the appropriate sentence.

Particulars

1.1 These reports are flawed as they rely on interviews with me which were conducted without an interpreter as well as a hearing aid for me; further, they were conducted in the absence of a 'friend' for me.

1.2 I am a tribal Aboriginal who, at the time these reports were prepared, also had hearing difficulties such that I required an aid to hear.

1.3 In making an order for indefinite imprisonment, the matters referred to at paragraph 1.1 should have been fully addressed before the learned sentencing judge placed any reliance on the reports and the adverse findings they contained against me.

2. The learned sentencing judge erred by making the order of indefinite imprisonment.

Particulars

2.1 Particulars 1.1 to 1.3 for Ground 1 are repeated for this ground.

2.2 Given the reliance placed on the learned sentencing judge on my cognitive ability, the order should not have been made until at least the testing recommended by the author of the psychiatric report dated 27 June 1997 referred to at page 3 of that report had occurred namely, 'His proclivity to alcohol, ie pathological intoxication, do indicate some probable organicity (brain damage) which warrants further testing'.

2.3 The order of indefinite imprisonment was not appropriate in all the circumstances."

108 Counsel for the appellant relied upon the observations of Kirby J in Thompson v The Queen [1999] HCA 43 at [18] and [19], which stressed the need for all relevant material to be before the Judge responsible for making such an order. The submissions of counsel for the appellant tended to focus upon the difficulty of communicating with the appellant and did not precisely identify the material which it was suggested her Honour should have had, but did not have, before her. No issue was taken with the way in which her Honour approached the task, and it appears that her Honour applied all relevant principles in relation to sentences of this type.

109 I have, however, come to the view that a close reading of the pre-sentence report and the psychiatric report does reveal them to be "incomplete", in the sense that they did not explain adequately, or in some respects at all, two important observations upon which her Honour relied in reaching the view that the appellant would be a constant and continuing danger to the community upon release. Those two factors were the appellant's alleged irreversible brain damage and his assessed unsuitability for any treatment programme. Both of those conclusions come particularly from the pre-sentence report, although some light is shed upon them by the psychiatric report.

110 So far as brain damage is concerned, the writer of the pre-sentence report conceded that she had experienced great difficulty in communicating with the appellant. Despite this, she wrote that, "By his own admission, Green has experienced extensive alcohol related brain damage. His concentration span is minimal and his capacity to engage in reasonable conversation is very limited". The appellant had certainly admitted to an extensive drinking history of the type which might well cause significant brain damage. However, it appears to me that brain damage, particularly "extensive" brain damage, cannot be a matter of admission, but must stem from some form of expert testing. This view is reinforced by the psychiatrist's comment in the psychiatric report that, "His proclivity to alcohol ... do [sic] indicate some probable organicity (brain damage) which warrants further testing". It is important to note that the psychiatric report apparently takes the view that brain damage is merely probable and that testing is required to establish its existence and, presumably, extent. In my view, although brain damage is distinctly probable, if her Honour were to rely, as she apparently did, upon irreversible brain damage, as one factor making it likely that the appellant would re-offend, it would have been necessary for that brain damage to have been demonstrated by testing carried out by a person with appropriate expertise.

111 So far as unsuitability for treatment is concerned, the psychiatrist recommended that the appellant did require an in-depth alcohol and drug assessment and rehabilitation programme, and suggested that he would also "benefit" from a sex offender treatment programme. Her Honour regarded these recommendations as expressions of a hope which any reasonable person would share, rather than of a view that the appellant's behaviour might be affected by such programmes. In my view, it is unlikely that the psychiatrist would have made such recommendations were there not some prospect (albeit in this case perhaps remote) that they would have an effect.

112 So far as the pre-sentence report is concerned, the author noted that typically a psychological assessment would have been undertaken in order to assist with the determination of treatment suitability, but that the appellant's cognitive and auditory limitations prevented such testing. Later in the report she made two comments directed to his suitability for treatment, however.

113 First, it was asserted that his capacity to engage in any formal treatment programme currently available within the Ministry of Justice was assessed as "unviable". The observation was then made that, while the appellant had previously (in 1995) engaged in a programme designed to enhance his skills for aggression control, this had proven to be of dubious benefit given his behaviour upon release from prison. It is not clear whether his capacity to engage in a treatment programme was assessed as unviable solely because of his previous behaviour upon release, or whether there were other factors. In my view, it is necessary to distinguish between a person's capacity to engage in a programme and perhaps benefit from it, and the question (always answerable only in hindsight) whether a particular programme has been successful in affecting a person's behaviour. At this point, the report appears to me potentially to confuse those two issues.

114 Later again, the writer comments that the appellant is unsuitable for inclusion in any of the programmes offered by the Sex Offender Treatment Unit. The comment is made, "Regardless of his cognitive impediment, his persistent stance of denial precludes entry". It does not appear that the cognitive impediment is seen as the primary reason for his unsuitability; nor is it clear whether this impairment would be sufficient, if standing alone, to make him unsuitable for such a programme. Rather, the focus is particularly on the stance of denial. The difficulty with that observation is that it is clear that the writer has had difficulty in communicating with the appellant, and the "denial" attributed to him is in any event ambiguous. It is not clear from the report whether the appellant was admitting a sexual intent but denying the capacity to carry it out because of his inebriation, or whether he was denying any sexual element at all. Certainly the submissions made to the sentencing Judge by his counsel suggested that he did accept that he had approached the complainant with a sexual intent. It may be, then, that the observations which were made about the appellant's unsuitability for treatment were based on inadequate factual foundation.

115 In reaching the conclusion which she did in relation to the indefinite sentence, her Honour referred to the appellant's psychological characteristics, including irreversible brain damage and impaired cognitive functioning, his inability to engage in any form of treatment programmes, and his record of serious offending. The record of offending included a very significant number of offences of violence in the form of assaults of one kind or another, and a number of sexual offences, often accompanied by some violence directed to the overcoming of resistence. It included a sexual assault directed against the appellant's own mother, a factor which would tend to suggest that the appellant presents a risk to any Aboriginal woman with whom he comes into contact.

116 However, it is not clear to me whether her Honour would have reached the view that an indefinite term of imprisonment was appropriate, if she had had regard only to that record of offending, even taken together with the appellant's past history of alcohol consumption, were it not for the superadded factor that the appellant was essentially regarded as untreatable. Having regard to the exceptional nature of such a sentence, I would take the view that a sentence of indefinite imprisonment would not have been appropriate having regard to the appellant's record alone, were there any prospect that he could be successfully treated while in custody. Treatment of any kind would no doubt be extremely difficult, having regard to his limited English skills, cognitive difficulties and hearing impairment, but, I am not persuaded that the reports available to her Honour compelled the view that it would be impossible. I would therefore have allowed the appeal against the indefinite component of the appellant's sentence.

Affairs Planning Authority Act 1972

Green v The Queen [2001] WASCA 162

At a glance

Court

Decision date

Before

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Source

Catchwords

Judgment (159 paragraphs)

Green v The Queen [2001] WASCA 162 (24 May 2001)

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Legislation Cited (1)

Cases Cited (7)