A man accused of undertaking legal work despite not being a practitioner has had convictions set aside because the circumstances behind his sentencing were found to be a miscarriage of justice.
The Supreme Court of Western Australia set aside the convictions and sentence recorded against Nillo Piccinin, a man who was charged – but ultimately cleared – of engaging in legal practice by undertaking legal work, despite not being an Australian practitioner.
In her recent judgment, Justice Amanda Forrester said Piccinin was the victim of a miscarriage of justice due to a “series of somewhat unfortunate events”, including his absence at the final 2023 hearing.
“The appellant could not have reasonably been aware … that he was in jeopardy of conviction if he failed to appear,” Justice Forrester said.
“Further, it was clear, at all material times, that he had intended to defend the charges if given the opportunity to do so.”
Piccinin first appeared in the Magistrates Court in October 2022, where he raised an issue with the jurisdiction of the court to deal with the charges, despite not specifying what the issue was.
The magistrate said that if he wished to dispute the jurisdiction, Piccinin should enter a plea to that effect and have the matter set down to hearing. Assurances were made to hear the jurisdictional issue.
The prosecution incorrectly recorded that guilty pleas were entered.
The matter returned before a different magistrate in January 2023, who told Piccinin the jurisdiction “was not an issue” and continued to maintain this position when Piccinin attempted to push back.
After an argument that Piccinin had not mounted a defence because he believed he would be dealing with the jurisdictional issue, the matter was adjourned until May of that same year.
It was listed before the magistrate who heard the matter in October, despite the fact that the sentencing was part-heard before the other.
Piccinin was not in attendance.
When the prosecution said he understood a conviction had been recorded in October, the magistrate said he was “not sure” that ever occurred.
However, the prosecution said that, given Piccinin had not appeared, it sought to proceed under section 55 of the Criminal Procedure Act 2004. This was granted, and the conviction was recorded.
Justice Forrester traced the errors to the prosecution’s pleas of guilty.
“From that point onwards, the appellant was given to understand, in clear terms, that he had been convicted and was simply awaiting sentence,” Justice Forrester said.
“Accordingly, regardless of what was stated by the notices … [under] the Criminal Procedure Act, the appellant could not reasonably have been expected to understand that he was in jeopardy of being convicted of the charges if he failed to appear [in] May 2023.”
While the May magistrate could not have known about the conviction or that the sentencing was part-heard, “it was nonetheless a miscarriage of justice for the appellant to have been convicted”.
“In the absence of a plea of guilty, the appellant was entitled to have the charge against him proved beyond reasonable doubt.
“As no evidence was adduced at first instance, it is not possible for the court to find that no substantial miscarriage of justice has occurred. Further, and in any event, I am satisfied that there was such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded,” Justice Forrester added.
The Legal Practice Board of Western Australia conceded there had been a miscarriage of justice and did not press for a re-trial.
“The respondent is to be commended for taking a proactive and sensible approach to the resolution of the matter,” Justice Forrester said.
No re-trial was ordered, and further submissions will be made as to the reimbursement of Piccinin’s expenses.
The case: Piccinin v Legal Practice Board of WA [2025] WASC 300.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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