THE STATE OF WESTERN AUSTRALIA -v- NEWPORT [2025] WADC 46

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION : PERTH
CITATION : THE STATE OF WESTERN AUSTRALIA -v- NEWPORT [2025] WADC 46
CORAM : ASTILL DCJ
HEARD : 3 JULY 2025
DELIVERED : 28 JULY 2025
FILE NO/S : IND BUS 27 of 2024
BETWEEN : THE STATE OF WESTERN AUSTRALIA
AND
ALEC JOHN NEWPORT
Catchwords:
Change of plea application – Judgment of conviction entered following plea of guilty – Exercise of court’s inherent jurisdiction to prevent miscarriage – Effect of legal representation – Where legal advice contributes to material misunderstanding – Whether plea a true plea of guilty
Operation of s 99 of the Criminal Procedure Act 2004 (WA) – Whether a material misunderstanding
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)
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Result:
Guilty plea set aside
Pleas of not guilty entered pursuant to s 99(5)(b) of the Criminal Procedure Act 2004 (WA)
Representation:
Counsel:
The State of Western Australia
:
Ms A J Healy & Ms S J Bowman
Accused
:
Mr T R Stephenson
Solicitors:
The State of Western Australia
:
State Director of Public Prosecutions
Accused
:
T R Stephenson
Case(s) referred to in decision(s):
Birch v The State of Western Australia [2017] WASCA 19
Corica v Throssell [2012] WASC 393
Glover v Reyne [2001] WASCA 305
Hough v The State of Western Australia [2018] WASCA 20
Liberti v The Queen (1991) 55 A Crim R 120
Lim v Bateman [2001] WASCA 307
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Pilkington v The Queen [1955] Tas SR 144
Rerekura v The State of Western Australia [2019] WADC 16
Snook v The State of Western Australia [No 2] [2015] WASCA 29
The State of Western Australia v Matahiki [2020] WADC 33
The State of Western Australia v Ng [2025] WADC 42
The State of Western Australia v Williams [2018] WADC 68
Vella v The State of Western Australia [2006] WASCA 129
Wilhelm v The State of Western Australia [2013] WASCA 188
Wright v McMurchy [2012] WASCA 257
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ASTILL DCJ
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ASTILL DCJ:
Introduction
1
By way of indictment dated 13 December 2024 (indictment) Mr Newport (applicant) stands charged that on 10 May 2024 at West Busselton he committed the offences of unlawfully making a threat to harm (count 1), aggravated burglary of a home (count 2) and unlawfully assault occasioning bodily harm (count 3). The victim of all three counts was the same person and was known to the applicant.
2
On 1 October 2024, whilst legally represented, the applicant pleaded guilty in the Busselton Magistrates Court to all three charges and was committed to the District Court for sentence pursuant to s 99 of the Criminal Procedure Act 2004 (WA) (CPA).
3
Except for one minor variation,1 the indictment presented in this court reflected the three charges the applicant was committed to be sentenced for.
4
The applicant appeared before Egan DCJ on 17 February 2025. Pursuant to s 99(2) of the CPA he was arraigned and the applicant, again whilst legally represented, entered pleas of guilty in relation to all three counts.2 His Honour acted upon the applicant’s pleas of guilty and entered judgments of conviction.3
5
The applicant now applies for an order permitting the pleas of guilty made in the summary court on 1 October 2024 to be withdrawn.4 The prosecution does not oppose the Application.
6
For reasons I will elaborate upon, I refuse the order sought by the applicant but will order the judgments of conviction entered by Egan DCJ on 17 February 2025 be set aside and enter pleas of not guilty pursuant to s 99(5) of the CPA.
1 The charge of aggravated burglary particularised the offence committed within Mr Krone’s home as being an aggravated assault occasioning bodily harm. Count 2 on the indictment particularises the offence committed within Mr Krone’s home as being an assault. Neither party sought to make any significance of this difference.
2 ts 6. Regrettably the transcript does not record the applicant’s pleas of guilty. However, neither party raised this as an issue.
3 ts 6.
4 The applicant’s application dated 10 March 2025 (the Application).
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Background to the Application
7
Following the applicant’s pleas of guilty to the indictment on 17 February 2025, the facts for the three counts were read aloud by the prosecutor. At that time the applicant was legally represented by Mr Alan Camp. He purported to accept the facts on the applicant’s behalf.5
8
A pre-sentence report (PSR) (undated) had also been prepared for the purposes of sentencing. The author recorded the applicant ‘minimised the seriousness of his offending’ and ‘disclosed having limited memory of the altercation’ but claimed the victim ‘provoked him’. When addressing this in the plea in mitigation, Mr Camp explained the applicant ‘did not mean to minimise the seriousness of his offending when speaking to the writer of the pre-sentence report’.
9
The applicant had provided his Honour with a letter of apology6 where he claimed he was ‘extremely apologetic’ and ‘take[s] full responsibility for the actions and mistakes that [he] made’.7
10
A character reference from the prison chaplain was also provided on applicant’s behalf.8 The prison chaplain noted he had discussed the offences with the applicant and how he had responded, and how he might respond differently in the future.9
11
Whilst making reference to the offending, neither document specifically addressed the factual events which were the subject of the offending.
12
Mr Camp’s plea in mitigation was surprisingly brief. When prompted by his Honour as to what Mr Camp’s submission as to sentence was, Mr Camp submitted it was open to his Honour to impose a conditional suspended imprisonment order. His Honour observed this submission was ‘somewhat surprising’. I agree.
13
After his Honour had expressed some justifiable reservation as to defence counsel’s submissions, the applicant sought to address his Honour directly. The applicant described his personal circumstances, expressed his remorse for what had happened and acknowledged the wrongness of what he did. Notably, he did not raise at that time any
5 ts 9.
6 Exhibit 2.
7 Exhibit 2.
8 Exhibit 3.
9 Exhibit 3.
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disagreement with the facts, the submissions which had been made on
his behalf, or express any misunderstanding as to what was alleged against him. However, he did express some confusion as to why Mr Camp had not provided some further details to his Honour as part of the plea in mitigation.10
14
His Honour adjourned the sentencing to 20 February 2025 so he could reflect on the ‘extremely ambitious submission’11 that had been made by defence counsel.
15
On 20 February the applicant appeared via video link. It is apparent from the transcript of those proceedings that there were difficulties with the link which caused the applicant to be placed ‘on mute’. Notwithstanding, the applicant could still see and hear his Honour.12
16
His Honour commenced the process of delivering his sentencing remarks. He started by outlining the facts for the purposes of sentencing, a summary of the applicant’s personal circumstances and antecedents, the applicant’s early childhood, employment history, mental health and his relationship details. His Honour had moved to addressing the contents of the PSR when his Honour noted the applicant was signalling to interrupt, and the link was ‘unmuted’.
17
When audio was restored, the applicant expressed a level of disagreement with aspects of what his Honour had said during the course of his remarks. Unfortunately, there were still difficulties with the link which made it difficult for the applicant to communicate what those disagreements were. The most coherent of what was recorded on the transcript was the applicant saying ‘I don’t know where they’re coming up with all of this – well, most of it, because I don’t think I – – – – understood the agreement (indistinct) was explaining things – like, my lawyer didn’t (indistinct) and then, when I – – – pleaded guilty’.13 Shortly after this his Honour severed the link and adjourned sentencing for the applicant’s counsel to take further instructions.
18
Upon resumption, Mr Camp advised his Honour that what the applicant wanted to say was the victim had bitten the applicant first and that was what had led to the altercation. Mr Camp then started to
10 ts 15.
11 ts 15.
12 ts 19.
13 ts 22.
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explain to his
Honour he had advised the applicant this was an overreaction and the applicant was ‘happy for your Honour to proceed’.14
19
As will become evident, the applicant disputes providing these instructions to Mr Camp. Ultimately it is not necessary for me to resolve this issue as whether he had or had not provided these instructions, the transcript makes clear that as proceedings continued, he subsequently became not ‘happy to proceed’ and raised concerns regarding the accuracy of the submissions Mr Camp was purportedly making on his behalf.15 His Honour, quite sensibly, expressed his reservation in continuing to sentence in light of what the applicant had raised and proceedings were adjourned to the following day.
20
When proceedings resumed on 21 February, Mr Camp confirmed he continued to act for the applicant, and was instructed to advise the court the victim at one stage bit the applicant ‘and that triggered [the applicant] to go into a rage’.16 The details Mr Camp provided regarding this alternative factual basis were limited and it was only through his Honour’s questioning of Mr Camp that further details were able to be elicited.
21
The following exchange then took place:17
EGAN DCJ: Mr Camp, what do you say about that, in terms of the material facts? Are they accepted by your client?
CAMP, MR: Yes, Your Honour.
EGAN DCJ: Yes, I see. Thank you. Quite sure?
CAMP, MR: Yes.
EGAN DCJ: Yes. [Prosecutor], are you content with that?
22
The prosecutor, quite properly, advised his Honour there were still reservations as the applicant had advised her that he wanted to represent himself during these proceedings. The prosecution asked his Honour to confirm with the applicant directly whether the applicant agreed with the facts.
14 ts 24.
15 ts 24.
16 ts 28.
17 ts 30.
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23
The applicant was again appearing via video link. When his Honour ‘unmuted’ the applicant, he confirmed he ‘not entirely’ accepted the facts.18 When his Honour indicated he was going to stand the matter down so the applicant could discuss it with his counsel, the applicant responded ‘No, I accept it. I accept it’. Despite what the applicant had said, his Honour adjourned for a discussion to occur. Upon resumption, the applicant again reiterated to his Honour ‘(Inaudible) just do this right now, just get it over and done with, please?’.19 Notwithstanding, his Honour quite understandably was not prepared to sentence and adjourned proceedings for the question of whether different representation was required to be resolved.
24
Following the adjournment on 21 February 2025, Mr Camp ceased acting for the applicant and the applicant’s current representative, Mr Stephenson, took over conduct of the applicant’s matter.
25
On 10 March 2025 the applicant filed his application seeking orders that:

1. The plea of guilty by the applicant made before Magistrate Atkins on 1 October 2024 be withdrawn.
2. Directions be made as to the trial of the indictment against the applicant as may be required.
3. The applicant be granted bail on such terms as the court may think fit.
   Basis of application
   26
   Although the applicant seeks an order allowing the withdrawal of the pleas of guilty entered in the summary court on 1 October 2024, for the reasons I set out in The State of Western Australia v Ng,20 those pleas have no operative effect in this court beyond satisfying the preconditions set out in s 99(1) of the CPA. Accordingly, there is nothing to be ‘withdrawn’.
   27
   What is of relevance to the applicant are the convictions recorded by Egan DCJ on 17 February 2025 pursuant to s 147 of the CPA. It is those convictions which enliven the operation of s 148 and thereby initiate the sentencing proceedings.
   18 ts 31.
   19 ts 34.
   20 The State of Western Australia v Ng [2025] WADC 42 (Ng).
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   28
   Further, whilst the Magistrates Court does have an inherent power to set aside a plea of guilty,21 that power derives from its own inherent jurisdiction. In determining this application, I am exercising the jurisdiction of the District Court, not the Magistrates Court. Accordingly, even if my reasoning in Ng was incorrect, I would still nonetheless lack the power to grant the order sought by the applicant.
   29
   Having been committed to this court, my power is limited to that which is conferred by s 99 of the CPA or from what is derived from this court’s inherent jurisdiction to correct this court’s record so as to ensure a miscarriage of justice does not occur. It is for this reason why at [6] above I refused to make the order sought by the applicant.
   30
   In support of his application, the applicant filed two sets of written submissions: undated submissions received 3 July 2025 prior to the hearing of evidence (preliminary submissions), and closing submissions dated 14 July 2025.
   31
   The applicant’s preliminary submissions identified the issue for resolution as being ‘whether, inter alia, the [applicant] was under a material misunderstanding as to the charges against him or as to the plea of guilty’.22 This is the language contained within s 99(5)(b) of the CPA. Seemingly he relies upon the power conferred by that provision as the basis of his application.
   32
   Section 99(5) requires the court to enter a plea of not guilty on behalf of an accused if the court is satisfied of either of the factors set out in s 99(5)(a) or s 99(5)(b). But that power ceases to exist once the court has entered a judgment of conviction under s 147(1). This much is apparent from Buss P’s reasoning (in dissent) in Birch v The State of Western Australia23 and consistent with the approach adopted by Sleight CJDC in The State of Western Australia v Williams.24
   33
   However, it is well established that s 99(5) coexists with the court’s inherent power to correct its record and set aside a conviction where a failure to do so would cause a miscarriage of justice.25 To that
   21 Corica v Throssell [2012] WASC 393 [45] (McKechnie J).
   22 Applicant’s submissions, par 1.
   23 Birch v The State of Western Australia [2017] WASCA 19 [117] (Buss P) (Birch).
   24 The State of Western Australia v Williams [2018] WADC 68 [20].
   25 Birch [258] (Mitchell JA).
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   end, there are three well
   -recognised, but not exhaustive, categories where the court will do so:26
   (a) where the accused did not understand the nature of the charge or intend to admit guilt;
   (b) if upon the admitted facts, the accused could not in law have been guilty of the offence; and
   (c) the guilty plea has been obtained by improper inducement, fraud or intimidation.
   34
   During oral submissions, the applicant’s counsel confirmed it is primarily the first category that is relied upon to support the applicant’s application.27
   35
   The onus is upon the applicant to show why it would be a miscarriage of justice not to set aside the conviction and allow him to change his plea.28 A court, when considering if that onus has been discharged, will approach the question with caution bordering on circumspection.29 This will be even more so when the person has had the benefit of legal advice.30
   36
   On both occasions when the applicant pleaded guilty (on 1 October 2024 in the Magistrates Court and 17 February 2025 before Egan DCJ) he was legally represented by Mr Camp. The question of legal representation and the greater level of circumspection exercised by the court when that occurs is a matter I will necessarily return to.
   The evidence
   The applicant
   37
   In support of his application, the applicant provided an affidavit sworn 1 April 202531 which was supplemented by his oral evidence before me on 3 July 2025. Additionally, it was agreed the court record would form part of the materials relevant to my consideration.
   26 Vella v The State of Western Australia [2006] WASCA 129.
   27 ts 90, ts 245.
   28 Glover v Reyne [2001] WASCA 305.
   29 Liberti v The Queen (1991) 55 A Crim R 120.
   30 Pilkington v The Queen [1955] Tas SR 144; Wright v McMurchy [2012] WASCA 257.
   31 Exhibit 1.
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   38
   The applicant deposed that following his arrest he was largely remanded in custody. As is evident from the committal summary report, save for the period between 2 July and 18 August 2024, the applicant remained in custody from 11 May 2024 until I granted him bail on 4 July 2025.
   39
   It was accepted by Mr Camp that at no point in time did he attend upon the applicant whilst the applicant was in custody. The only contact he had with the applicant was by phone.32 There was some suggestion of possible ‘face-to-face’ contact between the two when they were both in court, however the committal summary report records that prior to the applicant entering his pleas of guilty in the Magistrates Court, there was never an occasion where they were both present at the same time. I accept the applicant’s evidence33 he had trouble in contacting Mr Camp and the only contact would occur through the prison telephone system. These calls were limited to a maximum of 20 minutes.34 I am satisfied this had a material bearing upon the quality and nature of advice Mr Camp was able to provide to the applicant, which is something I will return to.
   40
   In his affidavit the applicant deposes that during one of these calls he told Mr Camp, inter alia:35
   (a) that he had not gone into the victim’s unit;
   (b) he had punched the victim in response to the victim attacking the applicant outside of the unit. He had done so because the victim bit him and the applicant thought it was necessary to stop the victim from biting him further; and
   (c) that he could not recall anything that happened after the assault.
   41
   In response, the applicant recalled Mr Camp telling him ‘something like because I couldn’t recall what happened and because there was a witness I should plead guilty. [Mr Camp] said this more than once’.36
   32 ts 183.
   33 Exhibit 1, pars 2 and 4.
   34 ts 100.
   35 Exhibit 1, par 6.
   36 Exhibit 1, par 6(g).
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   42
   For reasons that I will outline when summarising Mr Camp’s evidence, I am satisfied the above conversation occurred with Mr Camp prior to the applicant entering his pleas of guilty on 1 October 2024 in the Magistrates Court and was likely to have occurred on 30 September 2024. However, as discussed in further detail below, I do not accept the applicant’s evidence Mr Camp told him he ‘should plead guilty’ rather, I accept Mr Camp’s evidence he told the applicant he ‘had no choice but to plead guilty’.37 The significance of this is something I will of course return to.
   43
   When asked if he ever questioned Mr Camp’s advice, the applicant’s response was initially that he had not.38 However, when answering further questions the applicant said when he asked Mr Camp ‘why should I plead guilty when it was self-defence’ Mr Camp simply repeated the prosecution had a witness and the applicant could not remember what had happened.39
   44
   The applicant also confirmed during cross-examination Mr Camp never identified who the witness was, discussed what relationship the applicant might have with the witness, or sought any information from the applicant as to whether there were matters that might affect the credibility or reliability of the witness’s account.40 I accept this evidence.
   45
   I also accept the applicant’s evidence that he was never shown a copy of the statement from the ‘independent’ witness prior to entering his pleas in the Magistrates Court. Given all the conversations Mr Camp held with the accused were over the telephone, there would have been no opportunity to do so. To the extent there was any discussion about the statement, it could have only occurred by Mr Camp reading it to the applicant over the telephone during a prison call.
   46
   The applicant deposed of a further conversation that took place after the applicant’s surety cancelled and the applicant went back into custody.41 The committal summary report records that on 18 August 2024 the applicant’s surety withdrew and the applicant was remanded in custody that day.
   37 ts 188.
   38 ts 102.
   39 ts 103.
   40 ts 102.
   41 Exhibit 1, par 10.
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   47
   During the call Mr Camp advised the applicant that if he pleaded guilty he would get ‘a suspended sentence or at worst case a couple of months imprisonment’ as he would ‘get a s.9AA discount’ and could be out of prison ‘probably that same day’. After receiving this advice he pleaded guilty as he wanted ‘to get it over and done with’ and because he believed he would be released from prison if he did so.42
   48
   Save for the applicant’s evidence about Mr Camp advising he would ‘get a s.9AA discount’ I accept Mr Camp provided this advice to the applicant. As discussed further below when addressing Mr Camp’s evidence, it is likely this advice was provided either as part of the call on 30 September, or close to when the applicant pleaded guilty on 1 October.
   49
   The reason I do not accept the applicant’s evidence that Mr Camp advised the applicant of a ‘s.9AA discount’ is because it is apparent both from Mr Camp’s evidence43 as well as what was recorded in the sentencing transcript before Egan DCJ on 17 February 202544 that Mr Camp did not know what a s 9AA discount was. Indeed, Mr Camp’s evidence was that in 2024 he had never thoroughly read the Sentencing Act 1995 (WA).45
   50
   Further, I am also satisfied that when advising the applicant about the prospect of receiving a suspended sentence should the applicant plead guilty, Mr Camp’s advice did not make clear to the applicant he would need to be committed to the District Court to be sentenced. This is either because Mr Camp was unaware of that fact or because it did not occur to Mr Camp to provide that advice to the applicant. Regardless, I am satisfied as a consequence of the advice Mr Camp provided the applicant, it left him with the impression that upon entering pleas of guilty to the charges on 1 October 2024, the applicant would be out of prison ‘probably that same day’.
   51
   In summary, the applicant’s complaint, as outlined in his affidavit, is that at the time of entering his pleas of guilty in the Magistrates Court he had not been advised:46
   42 Exhibit 1, par 11.
   43 Exhibit 4.1, par 15.
   44 ts 9.
   45 ts 167.
   46 Exhibit 1, par 12.
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   (a) in any detail the evidence that was against the applicant, or what was being alleged. The applicant states Mr Camp did not provide him with a copy of the statement of material facts and so the applicant did not have any appreciation of what it was he was alleged to have done;
   (b) that the applicant may have a defence to one or more of the charges. Rather than discussing if the charges could be defended, the applicant says Mr Camp repeatedly told him to plead guilty;
   (c) that upon entering a plea of guilty the applicant would not be able to change his plea to one of not guilty without the leave of the court and that the plea of guilty would have the effect of him admitting the facts forming the essential elements of the offence; and
   (d) what the maximum penalties of each offence the applicant had been charged with were.
   52
   In cross-examination the applicant explained when he pleaded guilty his understanding of what was being alleged, based upon what he had been told by Mr Camp, was that the applicant ‘walked into [the victim’s] house’. The applicant explained that Mr Camp ‘didn’t tell me that the full extent of what they’re alleging [the applicant had] done’ and that Mr Camp had never provided detail about the alleged assault or threats.47
   53
   Based on the evidence I have previously accepted about the limited contact Mr Camp had with the applicant, I accept the applicant’s evidence that at the time of entering his pleas of guilty in the Magistrates Court he had not been told the facts of what was being alleged against him in any degree of detail.
   54
   Further, when asked in cross-examination about the extent of the legal advice Mr Camp provided to the applicant about what the charges comprised, the applicant’s evidence was as follows:48
   [PROSECUTOR]: So he – he never went through what the police were telling you happened?—He told me that the assault on [the victim] and, yeah, never went into detail with it, so – – –
   47 ts 105.
   48 ts 105 – ts 106.
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   Do you remember what it was that Mr Camp said to you about the assault?—It was an assault.
   Did he tell you any other details about what that assault involved?—No. No.
   And did he tell you that that assault involved you going into someone’s house?—No
   And did he tell you that there was a threat involved in the course of that assault?—No.
   …
   ASTILL DCJ: Did he tell you what an assault was?—No, he didn’t.
   What did you think an assault meant?—Hitting someone; putting an arm on someone, something like that, yeah.
   [PROSECUTOR]: So at this point when Mr Camp was telling you that this was about an assault what – what was it that you thought you were going to be pleading guilty to?—Me hitting him.
   55
   Later in his evidence, during cross-examination, the applicant confirmed his understanding of the aggravated burglary charge as being limited to ‘entering [the victim’s] unit’49 and ‘[w]ell, they said that I walked into his house. So that’s an aggravated burglary, entering the house’. When he pleaded guilty, that was what he understood he was accepting he did.50
   56
   In relation to the charge of unlawfully making threats, the applicant accepted at the time of pleading guilty before Egan DCJ he understood a threat to be ‘saying to harm him. Saying to someone that you’ll harm them’.51
   57
   Based upon aspects of Mr Camp’s evidence which I will return to, I accept the applicant’s evidence that at the time of entering his pleas of guilty in the Magistrates Court the legal advice he had received about the charges, the facts underpinning them and the elements of the offences, was indeed minimal.
   49 ts 114.
   50 ts 127.
   51 ts 126.
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   58
   In cross-examination the applicant agreed when he pleaded guilty in the Magistrates Court he was accepting he was ‘guilty to what was said that [he’d] done’.52 I understood from his subsequent elaboration upon this answer that the applicant was agreeing he knew his plea of guilty was an acceptance by him that he committed the offence alleged against him, but was unaware of the facts underpinning those offences. The applicant’s evidence, repeatedly, was that when he pleaded guilty he was pleading guilty to ‘hitting him to get him off me’.53
   59
   I accept the applicant’s evidence that the first time he understood the facts he was being sentenced for were different to what he had maintained happened, was when the facts were read aloud before Egan DCJ.
   60
   However, I do not accept the applicant’s evidence that he raised this with the court as soon as he became aware of the difference. It is evident from the transcript that this did not in fact occur until 20 and 21 February. Notwithstanding, this does not cause me to draw any adverse conclusions against the applicant’s credibility as it is evident his memory of what took place in this regard is simply unreliable. The fact the applicant did not raise any disagreement with the facts on 17 February is, in my view, consistent with the fact the applicant wanted to get the matter dealt with (as he maintained also on 20 February) in the hopes of getting a suspended sentence and being released from custody.
   61
   Indeed, it is evident from the answers given by the applicant in re-examination, that it was the hopes of obtaining a suspended term of imprisonment that motivated him to enter his pleas of guilty in the Magistrates Court.54 This is something I will return to.
   Mr Alan James Camp
   62
   The prosecution relied upon an affidavit drafted and sworn by Mr Camp on 4 April 202555 which was then supplemented by his oral evidence. At the conclusion of Mr Camp’s evidence, the prosecution advised the court that it no longer opposed the applicant’s application. For reasons I will elaborate upon, this was a proper concession for the prosecution to make.
   52 ts 107.
   53 ts 110.
   54 ts 141.
   55 Exhibit 4.1.
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   63
   Mr Camp confirmed at the time of making his affidavit he had refreshed his memory from the file notes he held in relation to this matter.56 Those file notes were also received into evidence and consisted of two pages.57
   64
   It was unclear why Mr Camp’s affidavit made no reference to the fact he had refreshed his memory from his notes. Nor was it clear why the affidavit made no reference to the existence of those notes, or why they were not attached as an annexure to the affidavit. Mr Camp was unable to provide a satisfactory answer to any of these questions during his evidence.
   65
   Instead, Mr Camp provided the notes to the prosecution on 10 June 2025 via an email sent two months after swearing his affidavit.58 Mr Camp explained it was not his practice to keep a physical file, rather he operated electronically.59 As it would transpire, it was only during the course of giving his evidence before me that Mr Camp realised he had only provided the first of the two pages of notes.60
   66
   If Mr Camp did refresh his memory from his notes prior to preparing the affidavit, it is even less clear as to why there were facts deposed to in the affidavit that were inconsistent with what was recorded in his notes. As will be seen, even where there was a file note this did not necessarily increase the reliability of Mr Camp’s evidence. Most of Mr Camp’s evidence appeared to be either a reconstruction from his ability to identify when emails were sent to him or, alternatively, based upon his interpretation of or deductions he drew from the notes he had made. These are matters that I will return to, but all these factors had a considerable impact upon the reliability and the credibility of Mr Camp’s evidence.
   67
   In relation to emails that Mr Camp was able to locate, these provided a more reliable record of events, particularly in relation to the timing of when things occurred. By reviewing his emails, Mr Camp was able to confirm:
   56 ts 163.
   57 Exhibit 4.3.
   58 Exhibit 4.2.
   59 ts 170.
   60 ts 168.
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   (a) he received the grant of legal aid to act for the applicant on 24 May 2024 and so any discussions or advice Mr Camp may have provided to the applicant only occurred after that date;61
   (b) on or about 31 May 2024 Mr Camp had filed a ‘Form 6’ application in the Magistrates Court to early list the applicant to appear for the purposes of making a bail application.62 I note from the committal summary report that the applicant appeared shortly thereafter in the Magistrates Court on 4 June but the application was dismissed as Mr Camp was unable to appear. It seems the bail application did not actually proceed until 2 July; and
   (c) on 9 July 2024 Mr Camp was sent a copy of the statement of material facts via email, along with a copy of the victim’s statement and the statement of the allegedly independent witness.63
   68
   Given the contemporaneous nature of these records, I am prepared to accept and act on this part of his evidence.
   69
   The file notes prepared by Mr Camp in relation to this matter were entries made in the mobile phone application ‘Pages’. This appeared to be the extent of any practice adopted by Mr Camp in relation to record keeping.64 As noted, they consisted in total of two pages.
   70
   Regrettably, because of the way the application worked as well as the wholly unsatisfactory practice of note taking Mr Camp had adopted, it was entirely unclear as to when the different entries in the notes had been made.
   71
   As Mr Camp explained, each time an entry was made in the Pages application the date and time recording would update to reflect the time the latest entry had been made. Consequently, the date and time only ever reflected the last entry and not when earlier entries were made. Despite being aware of this, Mr Camp had not adopted a practice of manually recording in each entry the date when it was being made.65 Accordingly, the only way to determine the time when a note was made was entirely based upon Mr Camp’s recollection of events.66
   61 ts 177.
   62 ts 177.
   63 ts 179.
   64 ts 160.
   65 ts 161 – ts 162.
   66 ts 162.
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   72
   Initially he indicated he thought the entries had been made in November 2024 ‘just after the bail application’.67 The bail application was made, as per the committal summary report, on 2 July 2024.
   73
   Upon being shown the email68 he had sent to the prosecution in which he had pasted the first page of the notes, he adopted what he had said in that email that ‘the last 2 entries were added 1 October 2024 @ 10:20am’.69 Then, at a later point during his evidence after having discovered the second page of notes, he appeared to accept (based upon an entry contained in that second page) that the entry had been made after the applicant had entered his pleas of guilty in the Magistrates Court. Those pleas, as noted, had occurred on 1 October 2024 and so it would be difficult to reconcile Mr Camp’s evidence that the earlier entries had been made on 1 October 2024 with Mr Camp’s evidence that the application automatically updated to reflect the date and time of the last entry.
   74
   The inability to ascertain with any degree of reliability the timing of an entry or note intended to form part of a legal file is plainly unsatisfactory.
   75
   The consequence of Mr Camp’s practice is that the only way to determine when an entry was made with any degree of reliability is by inferring from what is discussed in the note itself, or from extraneous materials. Even though Mr Camp, on a number of occasions, purported to give evidence as to his recollection of when he had been told something or when he had recorded it in his notes, it quickly became evident this was simply Mr Camp reconstructing based upon what he could deduce or interpret from the notes. Often this deduction or interpretation was quickly demonstrated to be incorrect.
   76
   Regardless, Mr Camp’s evidence was that the entries which were contained in page 1 of the notes, to his recollection, were made by him prior to the first bail application.70
   77
   The notes themselves do not provide anything that independently supports this recollection. It was apparent to me from Mr Camp’s evidence that he had no independent memory of that fact. His evidence appeared to be a reconstruction he derived from a series of logical inferences put to him by counsel, rather than a recollection based on actual memory.
   67 ts 160.
   68 Exhibit 4.2.
   69 ts 161.
   70 Exhibit 4.3, page 1.
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   78
   What is material for the purposes of determining this application is the difference in what was contained in the notes, which appear to reflect the applicant’s initial instructions, and how that affects the reliability of Mr Camp’s evidence overall.
   79
   Mr Camp deposed in his affidavit:
   …
4. [the applicant] has consistently said, that he was unable to remember anything about the incident involving the victim …
   …
5. [the applicant] maintained this version of events and didn’t offer any other explanation for his anger toward the victim until just before sentencing when he began to give another explanation.
6. [the applicant] only suggested he was acting in self defence after the district court adjourned part way through [Mr Camp’s] address at his sentencing on 20 February 2025.
   …
7. [the applicant] told [Mr Camp] that he had no recollection of any of the circumstances of the burglary or the assault on the victim.
   80
   Despite having sworn to the above in his affidavit, the first page of Mr Camp’s notes reflects the initial instructions he took from the applicant were:71
   (a) there was a prior relationship of animosity between the applicant and the victim;
   (b) the victim bit the applicant which caused the applicant to retaliate by punching the victim; and
   (c) the applicant was under the influence of alcohol at the time and was ‘quite drunk’. The applicant was then walking around the streets, not knowing where he was until a ‘good Samaritan’ picked the applicant up and brought him home.
   81
   As can be seen, contrary to what Mr Camp deposed in his affidavit, the first page of notes record that the applicant did have some memory of what had occurred and raised a foundation for, at the very
   71 Exhibit 4.3, page 1.
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   least, a possible defence of self
   -defence. When this was drawn to Mr Camp’s attention, he agreed the initial instructions as recorded in the notes suggest the applicant did in fact deny having unlawfully assaulted the victim.72 Equally, contrary to what Mr Camp said in his evidence before me, the applicant clearly raised the possible issue of self-defence much earlier than ‘halfway through [the] sentencing remarks’.73
   82
   The inconsistency between what Mr Camp had deposed in his affidavit as to his recollection versus what was contained in his notes was a material one that Mr Camp could not satisfactorily explain. Regrettably, as will be seen, this was not the only example.
   83
   On this basis I reject what is said by Mr Camp in his affidavit, referred to above at [79]. I am satisfied what the applicant in fact told Mr Camp is consistent with what is recorded in the notes and outlined above at [80].
   84
   Later, when confronted with the fact the notes record the applicant saying that the victim had bitten him, Mr Camp sought to resolve the inconsistency by saying that although the applicant had said that, the applicant had also acknowledged that his punching of the victim was an overreaction.74 Based on that, Mr Camp said he formed the view any potential defence was excluded.75 He acknowledged that his evidence on this point was based entirely on his own recollection of what was said76 as there was nothing to this effect in his notes.
   85
   The difficulty with Mr Camp’s recollection is not only was it inconsistent with what was contained in the notes (in that there was no mention in the notes of the applicant saying it was an overreaction) but it was also inconsistent with what Mr Camp had previously advised the court.
   86
   On 20 February 2025 when Mr Camp was addressing Egan DCJ, he told his Honour:77
   CAMP, MR: Mr Newport wanted me to say to your Honour that he was bitten by the victim, first of all, that led to what happened subsequently. And I tried to explain that his was an overreaction and disproportionate to – which I’ve explained to Mr Newport on numerous occasions.
   (emphasis added)
   72 ts 181.
   73 ts 205.
   74 ts 205.
   75 ts 205.
   76 ts 205.
   77 ts 23.
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   [2025] WADC 46 (HC) Page 21
   87
   If the applicant had acknowledged to Mr Camp that punching the victim was an overreaction, it is unclear why Mr Camp would need to explain that to the applicant not just once, but on numerous occasions. It is difficult to find a way to reconcile this with what Mr Camp now says in his evidence before me. Given the general unreliability of other aspects of Mr Camp’s recollection, I do not accept this evidence.
   88
   Similarly, in his affidavit Mr Camp deposed the applicant told Mr Camp:78
   … the victim was ‘an old gay guy’ who [the applicant] had inflicted punishment on because he was angry at him for having driven his partner and children to town on an occasion when they were fighting.
   In his evidence, Mr Camp maintained this is what the applicant told him.79
   89
   This was significantly inconsistent with what Mr Camp had recorded in his notes which reflected the applicant had told him he ‘was angry with the neighbour because he had removed his partner and kids to Perth once when fighting’.80 As can be seen, there was nothing in the notes reflecting the applicant told Mr Camp he ‘had inflicted punishment’ upon the victim because the applicant was angry.
   90
   When Mr Camp’s attention was drawn to this apparent inconsistency, he accepted what he had included in his affidavit, and what he had said in his evidence moments before, were both wrong.81 By way of explanation, he suggested that what he ‘might have intended to say’ when he said ‘inflict punishment on’ in his affidavit was in fact ‘he was angry. Not that he wanted to inflict punishment’.82
   91
   Given Mr Camp was the author of the affidavit, if that is what he intended to say, it is difficult to understand why he wrote something that was materially different. It is even less clear as to why he would then repeat this as part of his oral evidence. Mr Camp’s explanation for this apparent inconsistency was less than satisfactory. It appeared to me to be pure speculation in an effort to explain what was clearly an error in his memory.
   78 Exhibit 4.1, par 5.
   79 ts 212.
   80 Exhibit 4.3, page 2.
   81 ts 213.
   82 ts 214.
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   92
   The fact Mr Camp deposed to such a material inconsistency, particularly when he had confirmed he had had access to his notes when drafting his affidavit, is another example of the kind I have referred to at [82].
   93
   A further example was when Mr Camp, during his evidence, maintained the applicant had advised Mr Camp at an early stage that the prison had photographs of the bite marks the victim had allegedly inflicted upon him during the altercation.83 Mr Camp told the applicant to get the photographs from the prison as it would assist in his defence.
   94
   In his affidavit, Mr Camp deposed: 84
   Also, at that time [after the adjournment of sentencing proceedings on 20 February 2025], he, somewhat hesitantly, said that the victim had bitten him and the Bunbury prison had photographs that would show the bite marks. I asked him why he had not mentioned this fact of the photographs previously. He offered no explanation.
   95
   When confronted with this inconsistency, Mr Camp accepted what was contained in his affidavit was wrong.85 Again, Mr Camp could provide no satisfactory explanation for this inconsistency, despite his efforts to attempt to:86
   ASTILL DCJ: Is the short answer, Mr Camp, the best answer you can provide is, you don’t know why you put something that is factually inconsistent with the evidence you’re giving today in your sworn affidavit?—No. I – I think – as I recall, at the time he said to me that he was – that the victim had bitten him, it was early on, much at the time of these – writing these notes.
   Yes?—And I asked him why he hadn’t said that to me earlier: like, why he hadn’t said anything about any possible defence earlier. Yeah.
   Well, that – – -?—That’s as far as I can take it.
   96
   In relation to this explanation, I make a similar finding to the one I made earlier at [91] that this was a reconstruction to explain an error in his recollection.
   97
   Ultimately, I reject Mr Camp’s evidence on this issue as entirely unreliable. I do not accept the applicant ever told Mr Camp the punching was an overreaction, nor that it was for the purposes of
   83 ts 221.
   84 Exhibit 4.1, par 22.
   85 ts 221.
   86 ts 223 – ts 224.
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   [2025] WADC 46 (HC) Page 23
   inflicting punishment on the victim. In my view, both answers appear
   to be reconstructions by Mr Camp in an effort to explain away an apparent absence of any consideration by Mr Camp of a possible defence of self-defence arising from the applicant’s instructions.
   98
   I am not satisfied that Mr Camp ever gave any meaningful consideration to whether any defence might arise from the applicant’s instructions. In my view, had Mr Camp formed the opinion that the applicant’s instructions ruled out the availability of a self-defence argument, or had he advised the applicant to that effect, one would expect some form of contemporaneous note reflecting that position.
   99
   Mr Camp also agreed that at no point did the applicant admit as part of his instructions that he had gone into the victim’s home.87 At the time of pleading in the Magistrates Court, given the manner in which the prosecution notice pleaded the grounding offence for the purposes of the aggravated burglary, the requirement to have committed the offence of assault occasioning bodily harm inside the victim’s home was an essential element of the offence. Whilst not a ‘defence’, the absence of a clear instruction from the applicant admitting to this fact meant the element was at least potentially contentious. Mr Camp appeared to accept based on the initial instructions provided by the applicant, he was in effect denying he had committed the aggravated burglary.88
   100
   It is in this context I accept Mr Camp’s evidence when he agreed at no point did he provide the applicant with any advice regarding the possibility of a defence.89 I am satisfied he did so not because a defence did not arise on the applicant’s instructions, but because of a failure on Mr Camp’s part to either take proper instructions or to provide proper advice on the basis of the instructions he received.
   101
   Similar difficulties arose with respect to Mr Camp’s evidence that he recalled going through the statement of material facts with the applicant. Mr Camp claimed he ‘would have printed out the statement of material facts before I read – went through it with [the applicant]’.90 The use of ‘would have’ is not indicative of holding a clear memory of this occurring.
   87 ts 181.
   88 ts 181.
   89 ts 205.
   90 ts 170.
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   102
   The unreliability of this recollection was further highlighted when, at a later point during cross-examination, Mr Camp explained he ‘went through the statement of material facts’ prior to the guilty pleas being entered in the Magistrates Court. As part of the same answer he added ‘and I went through the pre-sentence report as well’.91 Obviously the pre-sentence report was ordered after the pleas of guilty were entered. This aspect of Mr Camp’s answer suggests what he is referring to is a conversation had with the applicant proximate to the sentencing before Egan DCJ, not the summary court proceedings.
   103
   The reliability of this evidence was put into further doubt when Mr Camp claimed he had made a record of doing so in his notes.92 There was no such record. Mr Camp was unable to produce anything – such as a copy of the statement of material facts signed by the applicant or signed instructions by the applicant confirming he had reviewed them – that is capable of corroborating, or even supporting, Mr Camp’s recollection that he ‘would have’ printed out the statement of material facts and gone through them with the applicant.
   104
   Given Mr Camp never attended upon the applicant in person, the only opportunity for Mr Camp to have ‘printed out and [go] through it’ with the applicant would have been over the telephone.
   105
   Mr Camp agreed there had been phone calls in the lead up to the pleas of guilty being entered, but these calls were for ‘relatively short periods’.93 It seemed from Mr Camp’s evidence nothing of substance was discussed during these calls. Mr Camp appeared to accept during cross-examination that he did not discuss or provide advice to the applicant until 30 September 2024.94 This was of course the day before the applicant then entered his pleas of guilty in the Magistrates Court. If there was any conversation between Mr Camp and the applicant regarding the statement of material facts, it would have been as part of this conversation.
   106
   Notwithstanding the significance of the content of this conversation, again there is no file note. The fact of the conversation, when it occurred and its duration were all only able to be identified because of the prison call register, rather than from any records maintained by Mr Camp. There is no record as to what was discussed, what advice Mr Camp provided the applicant or what the applicant’s instructions were.
   91 ts 203.
   92 ts 171.
   93 ts 186.
   94 ts 187.
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   [2025] WADC 46 (HC) Page 25
   107
   Mr Camp agreed it is ‘prudent’ practice to obtain signed instructions from a client facing serious criminal charges before they enter a plea.95 Despite being ‘prudent’, Mr Camp ‘didn’t consider it necessary’ on this occasion ‘because it seemed [to Mr Camp] that [the applicant] should plead guilty’.96
   108
   Mr Camp’s answer, and those that subsequently followed, did not make clear why his belief that the applicant should plead guilty made the ordinarily prudent practice of recording a client’s instructions any less prudent. Nonetheless, although his subsequent answers did not clarify the position any further, they did give rise to significant concern.
   109
   When I asked Mr Camp to elaborate on his answer as to why he did not take a note, his evidence was as follows:97
   ASTILL DCJ: Sorry, why is that?—Because it – it seemed to me to be, on the evidence, that he should plead guilty, and – yeah.
   Well, I understand that might have been your view, but I don’t understand why that means that you didn’t think it was then prudent to obtain written instructions from your client. So can you please explain – – -?—I – I didn’t know at the time. I didn’t know that that was effectively a ruling or whatever.
   …
   STEPHENSON, MR: I think what you’re telling us is that – – -?—I – I never – – –

• – – it – it was not – – –
  STEPHENSON, MR: – – – your practice to get written instructions about a plea of guilty, that that wasn’t your practice, was it?—No.
  …
  ASTILL DCJ: The answer that you gave a moment ago, that you didn’t know it was prudent or good practice to take a note or sign instructions from your client, does that remain your answer?—I – I – I’ve not turned my mind to the answer to that question before. I – I didn’t get a written note or signature on the page about – and I never have – about a decision to plead guilty or not guilty.
  95 ts 207.
  96 ts 208.
  97 ts 208.
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  110
  The reason Mr Camp’s evidence causes such concern is due to the similarities between this matter and criticisms made in Hough v The State of Western Australia98 regarding the operation of his practice, both at first instance and on appeal.99 When this concern was specifically raised with Mr Camp, rather remarkably, Mr Camp’s evidence was he had little recall as to the details of that matter.100 Rather unfortunately, I find myself accepting that evidence.
  111
  Regardless of Mr Camp’s ability to recall what had occurred in Hough, he is still a practitioner who has ‘been a lawyer for quite some time’.101 The Roll of Practitioners records he was admitted as a practitioner of the Supreme Court of Western Australia in 1978. Accordingly, as of 1 October 2024 the ‘quite some time’ was approaching 46 years.
  112
  Notwithstanding his length of experience, he agreed that in 2024 he was ‘relatively inexperienced in criminal law’.102 His evidence was he started in crime approximately seven years ago, and had only been practising ‘intensely’ in criminal law ‘for the last few years’.103 Nevertheless, he also agreed he held positions on the Legal Aid grant panels that would permit him to carry out serious criminal work.104
  113
  A practitioner does not need to have been practising ‘intensely’ in an area for more than ‘a few years’ to realise that an accurate record of a client’s instructions is more than just ‘prudent’. For a practitioner as experienced as Mr Camp, this much should have been self-evident. Mr Camp’s belief that, based on the evidence, the applicant ought to plead guilty did not change that fact.
  114
  Mr Camp’s failure to take a note of the advice he provided to, and the instructions he received from, the applicant means the only evidence capable of informing as to the contents of that conversation is what could be derived from Mr Camp’s recollection. His evidence was as follows:
  (a) the conversation took place via telephone to the prison and lasted for just under 19 minutes;105
  98 Hough v The State of Western Australia [2018] WASCA 20 34.
  99 District Court transcript, 22 June 2016, in the matter of The State of Western Australia v Hough, pages 15 and 54 (O’Neal DCJ).
  100 ts 209.
  101 ts 166.
  102 ts 166.
  103 ts 169.
  104 ts 167.
  105 ts 185.
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  (b) he advised the applicant he had ‘no choice’ but to plead guilty because of the presence of an independent witness;106
  (c) he provided a summary of the independent witness’s statement;107 and
  (d) Mr Camp had come to the view the applicant had ‘no choice’ but to plead guilty ‘in the last nine minutes when I was going through the statement of material facts with [the applicant]’.108
  115
  Given the conversation was in fact 18 minutes and 41 seconds in length, if Mr Camp went through the statement of material facts with the applicant ‘in the last nine minutes’ of the conversation, then any discussion about those facts and the applicant’s instructions in response, would have necessarily been brief.
  116
  The only record held by Mr Camp of any discussion, advice or instructions prior to the applicant entering his pleas of guilty on 1 October is what arises from the applicant’s initial instructions as outlined above at [80]. There is no apparent explanation, either from the notes or from Mr Camp’s evidence, for the then change in the applicant’s position the following day, to one of accepting his guilt.
  117
  In providing his advice, Mr Camp agreed he told the applicant he had ‘no choice’ but to plead guilty. He agreed those were the words he would have used.109 Clearly this advice was wrong as an accused always has the option to plead not guilty. However, Mr Camp explained he had formed this view because the prosecution had an ‘independent witness’ and the applicant had told Mr Camp he had no recollection of what had happened.110
  118
  Nothing in the notes taken prior to 1 October records the applicant telling Mr Camp he had no recollection of what had happened. To the contrary. The notes, as I have observed at [81] suggest the applicant did in fact have, at the very least, a limited recall of what had taken place.
  106 ts 188.
  107 ts 203.
  108 ts 188.
  109 ts 188.
  110 ts 189.
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  119
  Ultimately Mr Camp appeared to accept in cross-examination there was no record prior to 1 October of the applicant saying he had no recollection.111 To the extent that Mr Camp qualified his answer by saying ‘whether he told me that before as well, I’m not sure’,112 I do not accept that part of his evidence. The acknowledgment by Mr Camp he was ‘not sure’ is indicative of the unreliability of this part of his evidence.
  120
  It is apparent Mr Camp’s recollection regarding the applicant’s apparent inability to recall was based upon an entry that appears in the second page of the notes. That entry reads ‘can’t remember anything about the incident but may have bit the victim’.113 The reference to the applicant biting the victim is clearly an error and Mr Camp accepted as such.
  121
  He also conceded that this entry was, in fact, made on a later occasion, after the pleas of guilty had been entered in the Magistrates Court.114 This further highlighted the unreliability of Mr Camp’s recollection and his evidence that, at the time he advised the applicant there was ‘no choice’ but to plead guilty, it was because the applicant had told him he had no recollection of the events. I do not accept that evidence.
  122
  What was apparent from Mr Camp’s evidence is that he placed significant importance in the availability to the prosecution of what he believed to be an independent witness. Mr Camp agreed it was because of this statement and because of his (erroneous) belief that the applicant could not recall what had happened, he said words to the effect to the applicant that as far as Mr Camp was concerned, the applicant had done what the police had alleged and that he was guilty.115
  123
  In trying to explain such a comment, Mr Camp maintained it was merely a reflection on the evidence, not the expression of a personal opinion. If that was indeed how he communicated that reflection to the applicant, there was clearly a risk it may have been understood as conveying Mr Camp’s own personal view. In any event, Mr Camp’s answer made clear his focus was upon the independent witness’s account, rather than his client’s instructions.
  111 ts 195.
  112 ts 195.
  113 Exhibit 4.3, page 2.
  114 ts 194.
  115 ts 200.
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  124
  Mr Camp also accepted that at some point prior to the pleas of guilty being made, he advised the applicant about the possibility of a suspended sentence.116 I am satisfied, based upon the applicant’s evidence that the advice regarding the possibility of a suspended sentence was a significant motivating factor in him entering his pleas of guilty, that Mr Camp would have provided this advice either as part of the conversation on 30 September or very close to that date.
  125
  Mr Camp’s assessment, at the time of giving evidence, was there was an ‘outside possibility of getting a suspended sentence … But more likely it would be … six months in gaol, whatever’.117
  126
  Again, the difficulty presented in relation to assessing the reliability of this evidence is the absence of any note made of what Mr Camp’s advice as to sentence may have been at that time.
  127
  If Mr Camp’s evidence that he advised the applicant the sentence was ‘more likely [to] be … six months in gaol, whatever’ is accepted, it is unclear what information Mr Camp was relying upon to make the assessment there would be sufficient time in custody to result in the applicant serving an effective term of 6 months’ imprisonment.
  128
  As of 1 October, the applicant had spent no more than five months in custody. Whilst it was obviously an unknown as to how much further time the applicant may have spent in custody pending sentence in the District Court, (assuming Mr Camp provided advice about the need to be committed for sentencing) it seems unlikely the length of remand would be such as to result in the applicant receiving an effective sentence of ‘six months in gaol, whatever’.
  129
  The evidence from Mr Camp as to the extent of the discussions that had taken place at that stage, or more accurately the lack thereof, suggest there was insufficient information available to Mr Camp about the applicant’s background, antecedents or other mitigating factors, to provide Mr Camp with any basis to provide anything more than general advice as to possible sentence.
  130
  In my view, Mr Camp’s answer of ‘six months in gaol, whatever’ suggests this is a reconstruction based upon his current assessment as opposed to an accurate recollection of what his advice was at the relevant time. I am satisfied, at the time of providing advice to the applicant, Mr Camp, at best, discussed the sentencing options available in general terms.
  116 ts 201.
  117 ts 201.
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  131
  Given Mr Camp ultimately did submit to Egan DCJ that a conditionally suspended imprisonment order was the appropriate disposition, it was clearly something Mr Camp considered to be open. I am satisfied the prospect of a suspended sentence was something Mr Camp discussed with the applicant. Further, given Mr Camp agreed he did not have a proper awareness of s 9AA of the Sentencing Act118 it is highly likely Mr Camp, as part of his advice, emphasised to the applicant the likelihood of him receiving a suspended sentence would only exist in the event the applicant pleaded guilty.
  132
  Mr Camp also accepted he did not advise the applicant as to the finality of a plea of guilty.119
  133
  Mr Camp denied the suggestion that, when providing this advice, he was under the mistaken belief that the charges could be dealt with in the Magistrates Court. The reliability of that answer was undermined by his inability to correctly identify, when asked to do so, which of the three charges necessitated the applicant being committed to the District Court for sentence.120 Ultimately Mr Camp accepted he ‘possibly’ provided mistaken advice that the applicant would be able to be sentenced that day in the Magistrates Court if he pleaded guilty.121
  134
  If Mr Camp did have an awareness at the time of advising the applicant, I am satisfied Mr Camp did not include this as part of his advice, nor did he make clear to the applicant that following the pleas of guilty in the Magistrates Court he would be remanded in custody pending sentence in the District Court. Further, I am also satisfied that the advice provided by Mr Camp would have led the applicant to believe that immediate release from custody following pleas of guilty in the Magistrates Court was a realistic prospect. The prospect of release from prison was, understandably, of significant importance to the applicant.
  135
  Mr Camp’s affidavit did not address the advice he provided to the applicant concerning the nature of the charges, the elements of each offence, or the evidence and facts relied upon by the prosecution to establish them. When asked directly what explanation he had given the
  118 ts 166.
  119 ts 206.
  120 PE 26856 of 2024 being an offence against s 401(2)(a) of the Criminal Code (WA) where the summary conviction penalty does not apply.
  121 ts 206.
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  applicant in relation to each offence, Mr
  Camp was unable to provide a satisfactory response:122
  ASTILL DCJ: … Did you explain to him what an aggravated burglary is?—Yeah.
  When did you do that?—And – and – yeah. I said – I said to him – because – it’s – it’s when you enter a house uninvited and you know there’s someone else in the house.
  …
  ASTILL DCJ: … What does ‘an assault’ mean, Mr Camp?—In the context of – – –
  No. In the context of your legal advice that you provided to him. What is your legal advice as to the meaning of ‘an assault’?—An assault. I – I don’t think I explained the definition of assault – technical definition – or – or the legal definition. I explained to him that the allegations against him were – was that he had assaulted his neighbour.
  Do you know what the legal definition of an assault is?—No, not – not – not off my – not off the top of my head, your Honour.
  Do you know what the elements of an assault are?—I know what an assault is but I can’t – I can’t think at the moment.
  If I told you that the offence was actually one of aggravated assault occasioning bodily harm, would you be able to – well, do you know what the elements of that offence are?—I can’t think.
  Do you know what bodily harm is?—Yeah, I can’t think.
  In relation to the offence of making a threat, do you know what the elements of that offence are?—I can’t – my mind’s gone blank. I can’t think.
  136
  At an earlier point in his evidence when he was asked about the advice he had provided the applicant regarding the charge of making a threat to kill, Mr Camp expressed genuine surprise when answering ‘I don’t recall anything about killing’.123 This answer suggested to me both an absence of an awareness of this charge as well as what the elements of the charge actually are.
  122 ts 229 – ts 230.
  123 ts 204.
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  137
  Despite only having practised ‘intensely’ in criminal law for ‘a few years’ Mr Camp’s inability to provide a more fulsome and accurate explanation of the elements of each of the three offences that the applicant had been charged with causes me to hold considerable concern as to the nature and extent of the advice Mr Camp provided to the applicant on 30 September 2024.
  Findings
  138
  I found the applicant’s evidence to be, at times, tailored and I treat it with caution. Further, I found aspects of his oral evidence to be less detailed than what was contained in his affidavit. Consequently, I found the applicant’s oral evidence was likely to be a more genuine reflection of his recollection and of his state of mind at the relevant times than what was contained in his affidavit.
  139
  However, as should be apparent from the summary of Mr Camp’s evidence above, I found Mr Camp to be an unsatisfactory witness and generally unreliable.
  140
  To the extent there is any inconsistency between the applicant’s evidence and Mr Camp’s, I prefer the applicant’s.
  141
  Where there was an element of consistency between the applicant’s account and Mr Camp’s, I am prepared to act on that evidence. Similarly, where there were aspects of corroboration, or inferences capable of being drawn from independent records or from the court record, that support the evidence given by either the applicant or Mr Camp, I am also prepared to act on that evidence.
  142
  On the basis of the evidence that I do accept, I make the following findings:

1. Mr Camp received a grant to act for the applicant on or about 24 May 2024.
2. Despite only having practised ‘intensely’ in criminal law for ‘a few years’ Mr Camp was of sufficient experience that he could be expected to be able to provide accurate legal advice on indictable charges. At the very least, by virtue of the fact he was on the Legal Aid indictable offences panel, he had held himself out as being sufficiently experienced to provide such advice. The applicant had no reason to doubt or question Mr Camp’s capability to do so.
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3. Upon receiving the grant and familiarising himself with the matter, if Mr Camp had formed the view he was not sufficiently experienced to adequately represent the applicant, Mr Camp took no steps to return the brief and reassign the grant, nor did he disabuse the applicant of the applicant’s belief that Mr Camp was sufficiently qualified to represent him.
4. Following receipt of the grant, Mr Camp took initial instructions from the applicant. These instructions were primarily for the purposes of preparing and advancing an application for bail.
5. The instructions were taken by Mr Camp via telephone. All subsequent communications between Mr Camp and the applicant, up until 17 February 2025, would occur whilst the applicant was in custody and would take place by telephone.
6. As part of the initial instructions, Mr Camp obtained the applicant’s version of events. The applicant’s account suggested, inter alia, the applicant assaulted the victim in retaliation to the victim biting him. These initial instructions were recorded as page 1 of Mr Camp’s notes.
7. At the time of taking the applicant’s initial instructions, Mr Camp did not have the statement of material facts nor any of the prosecution materials, and so Mr Camp did not challenge the account he received from the applicant.
8. The applicant was granted bail on 2 July 2024. Bail was revoked on 18 August 2024. The applicant was returned to custody the same day. Save for that period of approximately six weeks (47 days), the applicant remained in custody for the entire time from when he was arrested on 11 May through to when I granted bail on 4 July 2025. At the time of pleading guilty in the Magistrates Court on 1 October 2024 the applicant had been in custody for approximately three months (97 days) and by the time he appeared before Egan DCJ on 17 February 2025 for more than eight months (236 days). The applicant has not previously served a term of imprisonment.
9. Mr Camp received the statement of material facts and other disclosure from the prosecution on or about 9 July 2024. This included the statement from the prosecution witness. This was the first time Mr Camp was made aware of what the prosecution were alleging against the applicant.
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10. Having reviewed the prosecution materials – particularly the statement from the prosecution witness – Mr Camp formed the opinion the case against the applicant was irresistible and that the applicant had ‘no choice’ but to plead guilty. The view held by Mr Camp subsequently influenced the advice he provided to the applicant.
11. After receiving the prosecution materials, the only substantive discussion Mr Camp had with the applicant regarding the charges, prior to the applicant entering his pleas of guilty, was on 30 September 2024. This discussion occurred via telephone whilst the applicant was in custody. The total length of the call was 18 minutes and 41 seconds.
12. To the extent Mr Camp discussed the statement of material facts with the applicant, I am not satisfied it was in any level of detail that would allow the applicant to fully understand what the prosecution was alleging against him.
13. To the extent Mr Camp provided advice to the applicant regarding the charges, the elements, what defences may have been available to the applicant and any other legal advice one might expect an experienced practitioner to provide to a client so the client can make a fully informed decision about what plea to enter and the consequences of that plea, it was of a superficial level.
14. Similarly, to the extent that Mr Camp sought to obtain updated or revised instructions from the applicant after having received the prosecution disclosure, these efforts were also superficial.
15. The focus of the advice provided to the applicant was as to the strength of the prosecution case. Mr Camp placed significant emphasis upon his belief that the availability of a witness that he perceived to be independent would result in an inevitable conviction, in the event the applicant pleaded not guilty. I am satisfied it was in this context that Mr Camp told the applicant he had ‘no choice’ but to plead guilty.
16. Further, I am satisfied the manner in which Mr Camp conveyed his advice regarding the strength of the prosecution case either reflected his own personal view that the evidence was sufficient to establish the applicant’s guilt or, at the very least, was such that it left the applicant with the view that his lawyer thought he was guilty.
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17. Mr Camp advised the applicant a suspended term of imprisonment was open. I am not satisfied Mr Camp advised the applicant it was ‘an outside possibility’. Given the seriousness of the offending, a term of suspended imprisonment was not a realistic prospect. Certainly, at the time of providing the advice, Mr Camp did not have sufficient information regarding mitigating factors that would suggest a suspended term of imprisonment was a legitimate prospect. The only mitigating factor of any weight was the applicant’s plea of guilty and I am satisfied Mr Camp emphasised this as part of his advice regarding the possibility of a suspended term of imprisonment.
18. If Mr Camp was aware the applicant would need to be committed to the District Court to be sentenced, he did not advise the applicant of this fact. I am satisfied the nature of the advice Mr Camp gave the applicant was to the effect, or at least capable of leaving the applicant with the understanding, that if he pleaded guilty to the charges when he appeared in the Magistrates Court there was a real prospect of him being immediately released from custody.
19. Mr Camp did not advise the applicant:
    (a) a plea of guilty would amount to an admission of the elements of each offence and an acceptance of the necessary facts underpinning them;
    (b) he would be unable to contest, or advance alternative facts that contradicted, the facts that underpinned the elements of each offence;
    (c) that the account he had provided as part of his instructions would not be the basis on which he would be sentenced as it would be inconsistent with his pleas of guilty; and
    (d) that unless he obtained the leave of the court, he would be unable to change his plea of guilty to one of not guilty at a later point in time.
20. On 1 October 2024 when the applicant pleaded guilty in the Magistrates Court he did so because he ‘wanted to get it over and done with’. He entered his pleas of guilty on an
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    understanding that he would be sentenced that day and there was a legitimate prospect of him receiving a suspended sentence. Both beliefs were erroneous, and both beliefs were caused by the advice he had received from Mr Camp as discussed above at [142(18)].
21. After pleading guilty to the three charges, the applicant was remanded in custody to the District Court to be sentenced.
22. Contrary to what the applicant deposes in his affidavit,124 but consistent with what the applicant accepted in his evidence,125 I am satisfied there was at least one further conversation between the applicant and Mr Camp after the pleas of guilty had been entered in the Magistrates Court and prior to the sentencing proceedings on 17 February 2025. That conversation took place for the purposes of preparing a bail application on 18 December 2024 when the applicant was to appear before the District Court on the Initial Sentencing Mentions List, notwithstanding there would be no capacity for the registrar presiding over that list to hear such an application. Nevertheless, that conversation resulted in the second page of Mr Camp’s notes.126
23. On 28 October 2024 the applicant was interviewed for the purposes of the preparation of the PSR. During that interview there would have been some discussion of the facts alleged by the prosecution. The applicant did not accept those facts and maintained the version he had provided to Mr Camp as part of his initial instructions. This resulted in the author of the PSR expressing the opinion that the applicant had ‘notably minimised his actions … [h]e engaged in significant victim blaming, claiming that the victim provoked him, and consistently framed himself as the victim’.127
24. On 17 February 2025 when the applicant appeared for sentencing before Egan DCJ the facts relied upon by the prosecution were read aloud. I am satisfied this was the first time the applicant had heard in any level of detail the facts. Further, when Mr Camp advised the court the applicant
    124 Exhibit 1, par 14.
    125 ts 150.
    126 Exhibit 4.3, page 2.
    127 Pre-sentence report, undated, page 1.
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    accepted those facts, this was not an accurate reflection of the applicant’s instructions. This was also when the applicant began to appreciate he was to be sentenced on the prosecution facts.
25. I accept the applicant’s evidence that at the time of the sentencing he understood Mr Camp would ‘[m]ake a case for me, try to fight for … my case’.128 I am satisfied at the time of being sentenced he understood Mr Camp would advance the applicant’s account of what had taken place. This was the basis for the applicant’s confusion on 20 February 2025 when he interrupted his Honour’s sentencing remarks.129
26. When the applicant told his Honour ‘I just want to get this over and done with’ it was not an indication of wanting to be sentenced on a version of events that were different to what the applicant was maintaining. I am satisfied the applicant was expressing an understandable reluctance to experience additional time in custody by further delaying the sentencing proceedings. These words were said by the applicant in the context of an absence of any advice about the availability of him applying to change his plea.
    Disposition
    143
    There is good reason for the level of circumspection that a court will adopt when considering an application to change a plea of guilty following conviction: there is a strong public interest in the finality of proceedings and because a plea of guilty is taken to be an admission by the person of the necessary ingredients of the offence.130
    144
    Where the accused is represented by counsel at the time of making the plea of guilty, the court is ordinarily entitled to rely upon counsel having explained to the accused the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty.131
    145
    Where a lawyer, as part of that advice, provides reasoned argument or advice not amounting to improper pressure or harassment, no matter how strongly given, it will not amount to improper means and so it does not detract from the voluntariness of the accused’s choice to plead guilty.132
    128 ts 149.
    129 ts 24.
    130 Snook v The State of Western Australia [No 2] [2015] WASCA 29 104.
    131 Lim v Bateman [2001] WASCA 307 [41].
    132 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 (Meissner).
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    146
    Further, it is recognised the courts must be wary of the possibility that a person who pleads guilty may later regret their decision and wish to falsely attribute blame to bad or inadequate advice, or improper pressure, for what was otherwise a voluntary plea.133
    147
    However, as Lonsdale DCJ observed in Rerekura v The State of Western Australia134 the fact an accused is represented by experienced counsel is not the end of the matter. If there is evidence to suggest the accused was not properly advised, then the court should not proceed on the basis the accused received adequate legal advice, regardless of the level of experience held by counsel. With respect, her Honour’s reasoning is, in my view, sound. A similar approach also appears to have been adopted by Staude DCJ in The State of Western Australia v Matahiki.135
    148
    For the reasons expressed in Snook, there are good reasons why a court may act with caution before conducting an enquiry into the quality and accuracy of the legal advice given by a legal representative to an accused as part of an application by a disaffected accused to change their plea.
    149
    However, I do not take this to mean that where there is reliable evidence to suggest the accused’s legal representative’s advice may have caused, or contributed to, the accused holding a material misunderstanding as to the charge or caused the accused to plead guilty when the accused did not intend to do so, that the evidence ought to be ignored, particularly where to do so would result in a miscarriage of justice.
    150
    Further, the kind of advice referred to at [149] could not be said to be ‘reasoned argument or advice’. It is reasoned argument or advice, when given, that Meissner suggests will not amount to improper conduct. It makes no mention of argument or advice that is not reasoned. Arguably, where argument or advice that is not reasoned may have had a contributing effect upon the voluntariness of the accused’s choice to plead guilty, that argument or advice may still be relevant, regardless of whether it amounted to ‘improper pressure or harassment’.
    133 Snook [105].
    134 Rerekura v The State of Western Australia [2019] WADC 16 [77].
    135 The State of Western Australia v Matahiki [2020] WADC 33.
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    151
    In the present matter, I am satisfied the advice Mr Camp provided to the applicant prior to the applicant entering his pleas of guilty in the Magistrates Court on 1 October 2024 could not be said to be ‘reasoned argument or advice’. On the basis of the findings I have made at [142(12)] through to [142(19)] clearly it was materially deficient.
    152
    In any event, even though ‘strong advice’ may not amount to improper pressure, the advice Mr Camp provided to the applicant went beyond that. As I have noted at [142(15)], Mr Camp told the applicant he had ‘no choice’ but to plead guilty. This advice was fundamentally wrong. The serious implications of this erroneous advice were further compounded by the manner in which Mr Camp conveyed his assessment as to the strength of the prosecution case, in the way I have discussed above at [142(16)].
    153
    It is well accepted that an accused may enter a plea of guilty for reasons other than a belief in their guilt.136 A plea of guilty entered in the hope of obtaining a more lenient sentence137 or simply to ‘get it over with’138 will still be valid if the plea is unequivocal and where it cannot be shown a miscarriage of justice will occur if the conviction is not set aside.
    154
    During his evidence the applicant accepted the prospect of obtaining a suspended sentence was important to him and that he wanted to ‘get it over with’ so he could get out of custody. Superficially, it is difficult to see how the applicant’s position is dissimilar to what the court was considering in Wilhelm v The State of Western Australia and Windie v The State of Western Australia.
    155
    However, in my view the material point of distinction is what I have outlined above at [152]. The applicant’s hope to obtain a suspended sentence and to ‘get it over with’ arose in circumstances where he was led to believe by his legal representative that conviction was inevitable.
    156
    Notwithstanding the applicant providing an account to Mr Camp that was arguably capable of providing a ‘defence’ to all three charges, the advice Mr Camp provided to the applicant suggested conviction was an inevitability and that the applicant’s own lawyer did not
    136 Meissner.
    137 Wilhelm v The State of Western Australia [2013] WASCA 188 [51] (Mazza JA) (Wilhelm).
    138 Windie v The State of Western Australia [2012] WASCA 61 (Windie).
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    consider his account to be credible. Necessarily this would have left
    the applicant with two material misunderstandings:
    (a) he had ‘no choice’ but to plead guilty when, in reality, he was capable of challenging the prosecution case and putting the prosecution to proof; and
    (b) even on his own version of events he was guilty of the offences he had been charged with, when in fact if his account caused a doubt then he would be capable of being acquitted.
    157
    In the context of having received that advice, the applicant’s ‘hope of obtaining a more lenient sentence’ and to ‘get it over with’ did not arise from a forensic assessment that by accepting guilt, even where he maintained he was not guilty, he would obtain the benefit of a more lenient sentence. Rather, it arose from a material misunderstanding caused by Mr Camp’s advice that he had no choice as, even on the version of events the applicant was advancing, he was guilty.
    158
    It follows that I am satisfied the material misunderstanding caused by Mr Camp’s advice resulted in the applicant pleading guilty when he did not in fact intend to admit guilt.
    159
    Having concluded the applicant’s pleas of guilty made in this court on 17 February 2025 were done when the applicant was under a material misunderstanding and in circumstances where the applicant did not intend to admit guilt, I am satisfied a failure by this court to set aside those convictions would occasion a miscarriage of justice. Accordingly, I order the convictions entered by this court on 17 February 2025 are set aside.
    160
    As noted above at [2] the applicant was originally committed to this court pursuant to s 99 of the CPA to be sentenced. There is no dispute that the criteria contained in s 99(1) are met and so, having set aside the convictions that were previously entered, the procedure provided for in s 99 will now apply.
    161
    Section 99 of the CPA relevantly provides:
    …
    (3) If the accused pleads guilty to the charge in the indictment then, unless subsection (5) applies, the superior court must accept the plea of guilty and deal with the accused according to law.
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    …
    (5) Irrespective of whether the accused does or does not plead guilty to the charge in the indictment, the court, despite subsections (3) and (4), may enter a plea of not guilty on behalf of the accused if –
    …
    (b) having considered any evidence the court decides to admit, the court is satisfied that the plea before the lower court was made under a material misunderstanding at to the charge, the plea or the purpose of the proceedings.
    162
    Having pleaded guilty to the indictment on 17 February 2025, s 99(3) will operate unless I am satisfied either s 99(5)(a) or s 99(5)(b) apply. There is no suggestion that s 99(5)(a) applies. If I am satisfied s 99(5)(b) applies then, notwithstanding the use of the word ‘may’ there is no discretion conferred and a plea of not guilty must be entered.139
    163
    For the same reasons I have outlined above at [155] – [158] I am satisfied at the time of making the plea in the lower court on 1 October 2024 the applicant was under the same material misunderstanding as to the pleas he was making to the three charges. Having concluded s 99(5)(b) applies, I must enter pleas of not guilty on the applicant’s behalf to the three counts contained in the indictment.
    Conclusion
    164
    For the reasons I have outlined, I am satisfied it would cause a miscarriage of justice if the convictions entered on 17 February 2025 in this court were not set aside.
    165
    Pursuant to s 99(5)(b) of the CPA I enter pleas of not guilty on the applicant’s behalf.
    139 Birch [214] (Mazza JA).
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    I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
    EO
    Associate to Judge Astill
    28 JULY 2025