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Withdrawing a Plea of Guilty

Updated: Nov 19, 2023


Withdrawing Plea of Guilty

Published by Geoff Harrison | 6 July 2023


The law allows for a change of plea when a person is committed from the Local Court to a higher court as per section 103 of the Criminal Proecdure Act 1988 set out below. However, in all other caes the common law applies. The case of White v R below sets out the test to be applied in regards to an accused person withdrawing their plea of guilty to a charge before the court; namely whether it is in the interest of justice to do so. A useful summary of examples where the court has allowed pleas of guilty to be withdrawn in the interest of justice was set out in Ming Yuk (Raymond) Wong v The Director of Public Prosecutions [2005] NSWSC 219 by Howie J at [48]:


What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v. Boag (1994) 73 A. Crim. R. 35; Regina v. Meissner [1995] HCA 41; (1995) 184 CLR 132; Regina v. Maxwell [1996] HCA 46; (1995) 184 CLR 501; Regina v. Ross (NSWCCA, unreported 20 February 1994); Regina Liberti (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regina v. Houra [2001] NSWCCA 61 at paras.32-33. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:-


"• Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' (Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233).


• Where the plea was not 'a free and voluntary confession' (Regina v. Chiron (1980) 1 NSWLR 218 at 220 D-E).


• The 'plea was not really attributable to a genuine consciousness of guilt' (Regina v. Murphy [1965] VicRp 26; [1965] VR 187 at 191).


• Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' (Regina v. Sagiv (1986) 22 A. Crim. R. 73 at 80).


• Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' (Regina v. Concotta (NSWCCA, 1 November 1995, unreported)).


• The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' (Maxwell v. The Queen (supra) at 511).


• If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' (Regina v. Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v. Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero [1999] NSWCCA 320."


Other Sources:


Other cases:


__________________________________________________________________


Extracted Legislation:


Section103Criminal Procedure Act1988 - Change to not guilty plea in higher court


(1) If an accused person brought before the District Court or the Supreme Court under section 97 or this Division changes to not guilty the plea to the offence on which the accused person was committed to the Court, the Judge must direct that the accused person be put on trial for the offence.


(2) On the direction being given, the accused person is taken to have been committed for trial for the offence. The Judge may make the same orders and do the same things (including dealing with the accused person) as a Magistrate can on committing an accused person for trial.


(3) The Judge may give directions as to matters preliminary to the trial as the Judge thinks just.


(4) A direction may not be given under subsection (1) if the offence is punishable by imprisonment for life, but the Judge may make an order under section 101.


(5) Despite subsection (1), the Judge may make an order under section 101 instead of giving a direction under subsection (1), if of the opinion that such an order should be made.


__________________________________________________________________


White v R [2022] NSWCCA 241 (18 November 2022)


Last Updated: 18 November 2022


Court of Criminal Appeal


Supreme Court

New South Wales

Case Name:

White v R

Medium Neutral Citation:

[2022] NSWCCA 241

Hearing Date(s):

25–26 October 2022

Date of Orders:

18 November 2022

Decision Date:

18 November 2022

Before:

Bell CJ; Button J; N Adams J

Decision:

1. Grant leave to appeal.


2. Appeal allowed.


3. Set aside the conviction and sentence of the Applicant.


4. Set aside the primary judge’s dismissal of the Applicant’s application to withdraw the plea of guilty.


5. Remit the matter for mention before the Chief Judge at Common Law at 9.30am on 1 December 2022.


Catchwords:


CRIME – appeals – appeal against conviction – circumstances in which Court of Criminal Appeal may quash a conviction entered after a plea of guilty – where accused entered unexpected guilty plea at arraignment – where accused made application to primary judge for leave to withdraw guilty plea very shortly after it was entered – where application was refused and accused was convicted and sentenced – correct legal test to be applied by judge on an application for leave to withdraw a guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – whether leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed




CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied by judge on application for leave to withdraw guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) s 394A


Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 5F, 6


Criminal Procedure Act 1986 (NSW) ss 103(1), 153, 157


Criminal Procedure Act 2009 (Vic) s 276(1)(b)


Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 41

Cases Cited:

Attorney-General (SA) v Kitchen and Roberts [1989] SASC 1471; (1989) 51 SASR 54


Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; [2022] HCA 36


Boag v R (1994) 73 A Crim R 35


Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22


BWM v R (1997) 91 A Crim R 260


Daire v Lauss (1984) 35 SASR 508


De Kruiff v Smith [1971] VicRp 94; [1971] VR 761


Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28


Evans v Bartlam [1937] AC 473


Ex parte Stanton [1928] NSWStRp 25; (1928) 28 SR (NSW) 516


Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22


Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29


Frodsham v O'Gorman [1979] 1 NSWLR 683


Garcia-Godos v R (Cth) [2015] NSWCCA 144


Gardner v Jay [1885] UKLawRpCh 60; (1885) 29 Ch D 50


Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36


Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61


Kanakaradnam v R [2018] NSWCCA 282


Lawson v The Queen (2011) 206 A Crim R 557; [2011] NSWCCA 44


Layt v R [2020] NSWCCA 231


Liberti v R (1991) 55 A Crim R 120


Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21


Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46


Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41


Middap v R (1989) 43 A Crim R 362


Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17


Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44


Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284


R v Chiron [1980] 1 NSWLR 218


R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep)


R v Clayton (1984) 35 SASR 232


R v Clouter and Heath (1859) 8 Cox CC 237


R v Davies (1993) 19 MVR 481


R v Favero [1999] NSWCCA 320


R v Ferrer-Esis (1991) 55 A Crim R 231


R v Foley [1963] NSWR 1270


R v Guest, Ex parte Anthony [1964] 1 WLR 1273


R v Jerome & McMahon [1964] Qd R 595


R v Khan [2002] NSWCCA 521


R v Martin [1904] NSWStRp 113; (1904) 21 WN (NSW) 233


R v McNally [1954] 1 WLR 933


R v Miller [1990] 2 Qd R 566


R v Murphy [1965] VicRp 26; [1965] VR 187


R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291


R v Odgers [1843] EngR 485; (1843) 2 Mood & R 479; (1843) 174 ER 355


R v Plummer [1902] UKLawRpKQB 105; [1902] 2 KB 339


R v Roach (1990) 54 SASR 491


R v Sewell [2001] NSWCCA 299


R v Sid Zaiter [2005] NSWCCA 61


R v Webb and Hay (1992) 64 A Crim R 38


R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97


S (an infant) v Recorder of Manchester [1971] AC 481


Sagiv v R (1986) 22 A Crim R 73


Samandi v R [2020] NSWCCA 217


Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16


Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129

Category:

Principal judgment

Parties:

Scott Phillip White (Applicant)


The Crown (Respondent)

Representation:

Counsel:




T Game SC with G Huxley (Applicant)


S Dowling SC with E Nicholson (Respondent)


Solicitors:


Maria Walz Legal (Applicant)


Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/141305

Publication Restriction:

N/A (see [92]–[94])

Decision under appeal:


Court or Tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law — Criminal

Citation:

[2022] NSWSC 11

Date of Decision:

13 January 2022

Before:

Wilson J

File Number(s):

2020/141305

HEADNOTE


[This headnote is not to be read as part of the judgment]


On 10 December 1988, the body of Scott Johnson (the deceased) was found at the base of the headland at Blue Fish Point in Manly, New South Wales. In 2017, a coronial inquest concerning the deceased concluded that his death was caused by actual or threatened violence by an unidentified person (or persons), which resulted in him breaching the cliff edge and falling to his death. On 12 May 2020, Mr Scott Phillip White (the Applicant) was arrested and charged with the murder of the deceased at Manly, between 7 and 11 December 1988.


On 10 January 2022, around 11.00am, the Applicant appeared for arraignment before Wilson J (the primary judge) on the charge of murder of the deceased. During the 20-month period between his arrest and his arraignment, including at a conference held at 9.40am on 10 January 2022, the Applicant repeatedly instructed his legal representatives that he intended to plead not guilty. However, despite those instructions, the Applicant entered a plea of guilty to murder when arraigned before the primary judge.


Following the Applicant’s entirely unexpected plea of guilty, the Court adjourned to permit a conference to take place between the Applicant and his legal representatives (the post-arraignment conference). During that conference, the Applicant signed a statement that he “maintain[ed] that [he] didn’t cause Scott Johnson’s death; [he] want[ed] to confirm [his] plea of not guilty; and [he] want[ed] to go ahead with [his] hearing and [his] trial”. The Applicant also stated that he was confused, stressed and worried about his former wife “coming after [him]” when he entered the guilty plea.


Following the conclusion of the post-arraignment conference around 11.40am, the Applicant sought leave of the primary judge to withdraw the plea of guilty. The Applicant did not give evidence on the application, which was heard over two days. On 13 January 2022, the primary judge refused to grant the Applicant leave to withdraw his guilty plea. Her Honour was not satisfied that, on the balance of probabilities, “to permit the plea of guilty to stand would constitute a miscarriage of justice”.


On 3 May 2022, the primary judge sentenced the Applicant to 12 years and 7 months’ imprisonment, with a non-parole period of 8 years and 3 months.


The Applicant sought leave to appeal against his conviction, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).


The principal issues on appeal were:


(1) whether the correct legal test was applied to the application to withdraw the plea of guilty prior to conviction (the correct legal test); and


(2) whether, even if the wrong legal test had been applied, no substantial miscarriage of justice would occur if the appeal were dismissed (the proviso).


The Court held (Bell CJ, Button and N Adams JJ), granting leave to appeal, allowing the appeal, setting aside the conviction and sentence of the Applicant and remitting the matter to the Common Law Division:


As to the correct legal test


(1) The relevant authorities confirm that the proper test to be applied where an accused seeks leave to withdraw a guilty plea prior to conviction is whether the “interests of justice” require that course to be taken. Decisions applying the test of whether a miscarriage of justice would occur if the guilty plea was not permitted to be withdrawn should not be followed where an application is made for leave to withdraw a guilty plea prior to conviction: [60]–[61].


Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46; Attorney-General (SA) v Kitchen and Roberts [1989] SASC 1471; (1989) 51 SASR 54; R v Webb and Hay (1992) 64 A Crim R 38; S (an infant) v Recorder of Manchester [1971] AC 481; R v McNally [1954] 1 WLR 933; R v Odgers [1843] EngR 485; (1843) 2 Mood & R 479; (1843) 174 ER 355; R v Foley [1963] NSWR 1270; Sagiv v R (1986) 22 A Crim R 73, applied.


R v Sewell [2001] NSWCCA 299; Lawson v The Queen (2011) 206 A Crim R 557; [2011] NSWCCA 44, discussed.


Boag v R (1994) 73 A Crim R 35; BWM v R (1997) 91 A Crim R 260; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129; Garcia-Godos v R (Cth) [2015] NSWCCA 144, not followed.

(2) There is a real or material difference between the “interests of justice” test and the “miscarriage of justice” test. For example, it may be in the interests of justice to grant leave to withdraw a guilty plea if there is a risk of a miscarriage of justice: [64].


Attorney-General (SA) v Kitchen and Roberts [1989] SASC 1471; (1989) 51 SASR 54, approved.

(3) The test to be applied differs where an applicant seeks to go behind a guilty plea for the first time on appeal, following conviction and sentence. In those circumstances, the Court of Criminal Appeal may quash a conviction entered upon a plea of guilty only if it is demonstrated that a miscarriage of justice has actually occurred: [58], [62]–[63].


Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61; R v Chiron [1980] 1 NSWLR 218; R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97; Samandi v R [2020] NSWCCA 217; Kanakaradnam v R [2018] NSWCCA 292, discussed.

(4) An accused seeking leave to withdraw a guilty plea prior to conviction and sentence does not bear a “substantial” or “heavy” onus of proof. To impose such a burden is apt to fetter the discretion, which is broad and to be exercised judicially, and not only “in clear cases and very sparingly”: [68]–[69].


Attorney-General (SA) v Kitchen and Roberts [1989] SASC 1471; (1989) 51 SASR 54; R v Webb and Hay (1992) 64 A Crim R 38, approved.


Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22; Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21; Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17; Evans v Bartlam [1937] AC 473; Gardner v Jay [1885] UKLawRpCh 60; (1885) 29 Ch D 50, considered.


Liberti v R (1991) 55 A Crim R 120; S (an infant) v Recorder of Manchester [1971] AC 481, not followed.

(5) The “interests of justice” test is broader than the “miscarriage of justice” test and may focus on matters going beyond the integrity of the plea, although that will generally be the focal point of the inquiry. A non-exhaustive list of factors affecting the interests of justice is set out at [65].


R v Martin [1904] NSWStRp 113; (1904) 21 WN (NSW) 233; Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46; R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep); R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97; Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61, considered.

As to the proviso


(6) It could not be concluded that there would be no substantial miscarriage of justice if the appeal were dismissed. There was a real possibility that, had the correct “interests of justice test” been applied on the application, leave to withdraw would have been granted. If leave was granted, then there was a triable issue raising a real question of the Applicant’s culpability for the murder of the deceased. The possibility of a lesser conviction or acquittal could not be ruled out: [74]–[75], [87].


Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16; Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44; R v Khan [2002] NSWCCA 521; Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61; R v Davies (1993) 19 MVR 481, considered.

(7) The refusal of leave to withdraw the Applicant’s guilty plea was not inevitable on the application of the “interests of justice” test, taking account of various relevant considerations, including that the guilty plea was sought to be withdrawn almost immediately after the Applicant’s arraignment; the Applicant was cognitively impaired; the Applicant’s stated reason for entering the plea did not necessarily serve his interests; the Applicant had not discussed the sentencing consequences with his legal representatives; the guilty plea was entirely unexpected, such that the Applicant had not received the explanations mandated by r 41 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW); and the Crown had not articulated precisely how it was putting its case as at the time of the Applicant’s arraignment: [76], [78], [80]–[82]; [85].


JUDGMENT


THE COURT: On the morning of 10 December 1988, the body of Scott Johnson was found at the base of the headland at Blue Fish Point in Manly. His clothing and some personal possessions were found above, near the edge of the cliff. Mr Johnson’s death has since been the subject of three coronial inquests. An initial inquest in 1989 concluded that Mr Johnson died by suicide. A second inquest, conducted in 2012, returned an open finding. In 2017, a third inquest concluded that Mr Johnson’s death was caused by actual or threatened violence by unidentified persons that led to him leaving the cliff edge and falling to his death.

On 10 January 2022, at approximately 11.00am, Scott Phillip White (the Applicant) was arraigned before Wilson J (the primary judge) upon an indictment charging him with the murder of Mr Johnson between 7 December 1988 and 11 December 1988, at Manly in the State of New South Wales.

When arraigned, the Applicant entered a plea of guilty to the charge, although he had instructed his lawyers both that morning, prior to arraignment,[1] and indeed previously over the course of the almost two years since he was charged that he intended to plead not guilty. In fact, the evidence from the pre-arraignment conference was that he thought he had already done so.

The proceedings had principally been listed on the day of the arraignment for the purposes of a voir dire as to the admissibility of certain evidence that the Crown was proposing to adduce in its case. This listing was predicated on a common understanding that the Applicant intended to plead not guilty to the charge of murder. Indeed, the matter had been fixed for trial on 2 May 2022.

The arraignment proceeded as follows:

“ASSOCIATE: Scott White, you stand charged by that name for that you, between 7 December 1988 and 11 December 1988 in Manly, in the State of New South Wales, did murder-

APPLICANT: Guilty


ASSOCIATE: Scott Johnson.


APPLICANT: I’m guilty


ASSOCIATE: How do you plead, guilty or not guilty?


APPLICANT: Guilty


HER HONOUR: Ms Rigg?


APPLICANT: Yes, guilty.”


The primary judge subsequently recorded that:[2]

“The plea was entered in a loud clear voice, and in an emphatic and determined manner. To the Court’s observation, the applicant did not appear distressed, agitated, or anxious during the arraignment, at least not to an extent beyond what might be expected and is commonly seen when an accused person is arraigned in an open court upon a very serious charge. He stood upright and still, and did not move his hands or gesture in any way. He looked directly at my Associate as the plea was entered. His voice did not tremble or waver.”

Following the entirely unexpected plea of guilty, the Court adjourned at approximately 11.15am to permit a conference to take place between the Applicant and his legal team (the post-arraignment conference).[3] A file note of this conference is reproduced at Annexure B to these reasons.

By 11.35am, the Applicant had signed a statement (the Applicant’s Signed Statement) in the following terms:

“10/1/22

Today I was confused.


I was worried about Helen [the Applicant’s former wife] coming after me.


I was stressed.


I’ve had no food, no sleep, no shower.


I saw the brother of the deceased in court.


I saw police pointing at me.


I was worried Helen was going to come after me.


I maintain that I didn’t cause Scott Johnson’s death.


I want to confirm my plea of Not Guilty.


I want to go ahead with my hearing and my trial.


SCOTT WHITE


[SIGNATURE] 10/1/22 11.35am


King St Cells


Belinda Rigg, Bill Neild, L.S [Louise Sutherland]”.


The post-arraignment conference, at which this statement was obtained, concluded at approximately 11.40am and the Applicant and his legal representatives returned to Court shortly thereafter.

Upon the resumption of the proceedings an application was made for the arraignment to be repeated or, if that course was not permitted, for the Court to hear an application to vacate the plea of guilty.

The primary judge inquired of the Applicant’s senior counsel whether the plea had been made in error to which she responded, in what would appear to be carefully chosen language, that it was “not a plea that [the Applicant] maintains”. The primary judge took this to be an indication that it was not contended that the plea had been made in error. No reference was made on this occasion to the Applicant’s Signed Statement, which has been reproduced at [8] above, nor to its contents.

The primary judge recorded in her subsequent judgment that “[s]ince the plea was deliberately entered, I was not prepared to simply re-arraign the applicant, and instead the matter was adjourned until the following day for hearing of the application for leave to vacate the plea of guilty.”[4]

That application was opposed by the Crown and was supported by an Affidavit of Ms Louise Sutherland, the Applicant’s solicitor. The Affidavit referred, inter alia, to a file note of the pre-arraignment conference (at which the Applicant had confirmed to his legal representatives that he would be pleading not guilty),[5] and a file note of the post-arraignment conference,[6] which has already been referred to at [7]–[9] above, and annexed the Applicant’s Signed Statement. Also annexed was a series of four reports by experts who had previously assessed the Applicant, namely:

(1) two reports of Dr Molly Schafer, neuropsychologist, dated 26 May and 25 June 2021;

(2) a report of Dr Richard Furst, psychiatrist, dated 31 May 2021; and


(3) a report of Dr Katie Seidler, psychologist, dated 12 October 2021.


On 13 January 2022, following two days of evidence, including cross-examination and oral argument, the primary judge dismissed the application and refused to grant the Applicant leave to withdraw his guilty plea, holding that she was “not persuaded that the applicant has established on balance that to permit the plea of guilty to stand would constitute a miscarriage of justice.”[7] No appeal was brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).

On 3 May 2022, the Applicant was sentenced by the primary judge to 12 years and seven months’ imprisonment, commencing on 12 May 2020, with a non-parole period of eight years and three months.[8]

The Applicant seeks leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act. He relies upon two related grounds of appeal:

“Ground One: A miscarriage of justice has occurred in respect of the applicant’s conviction.

Ground Two: Her Honour erred in refusing the applicant leave to withdraw his guilty plea.”


The circumstances in which the Court of Criminal Appeal may allow an appeal against conviction are set out in s 6(1) of the Criminal Appeal Act, and were recently explained by N Adams J in Tomlinson v R as follows:[9]


“In addition to allowing a conviction appeal if the court is of opinion that the verdict of the jury is unreasonable (‘the first limb’), or that there has been a wrong decision of any question of law (‘the second limb’), the court may also allow an appeal against conviction if of the opinion ‘that on any other ground whatsoever there was a miscarriage of justice’ (‘the third limb’). Section 6(1) goes on to provide that the court may, even if it is of opinion that ‘the point or points raised by the appeal’ might be decided in favour of the appellant, dismiss the appeal if it considers that ‘no substantial miscarriage of justice’ has actually occurred. This is commonly referred to as ‘the proviso’.”

The Applicant’s case on appeal developed significantly between the filing of his written submissions-in-chief (on 28 April 2022) and those in reply (filed 21 October 2022) to the Crown’s written submissions. As shall be seen, an argument was introduced as to the proper test to be applied on an application for leave to withdraw a plea of guilty before conviction and sentence, which differed from what may be referred to as the “miscarriage of justice” test applied by the primary judge (and accepted by counsel for the Applicant and the Crown Prosecutor at first instance): see [14] above.

On the second morning of the hearing of the appeal, Mr Game SC, who appeared with Ms Huxley for the Applicant, provided a document to the Court which sought to particularise and consolidate the legal and factual arguments advanced the previous day. That document was in the following terms:

“Particulars

Ground 1: A miscarriage of justice has occurred in respect of the applicant's conviction. (3rd Limb of s6(1) of the Criminal Appeal Act)


i. The circumstances in which a miscarriage of justice will have occurred are not closed and extend beyond the circumstances described in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.


a. Examples of those circumstances are described in Layt v R [2020] NSWCCA 231 at [27] and Hura v R [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32]; see Applicant's Written Submissions (AWS) at [7]).


b. The focus of the inquiry is on the integrity of the plea. If there is a real question about the guilt of the accused then the trial judge must set aside the plea of guilty (Layt at [28], Hura v R at [33] quoting from Davies (1993) 19 MVR 481).

ii. The applicant's conviction constitutes a miscarriage of justice arising from the following circumstances:

a. The applicant's intellectual disability (see, AWS [11]-[14] and, in particular, Dr Schafer at [7.15], [7.18] as to the significance of his legal representatives in assisting him);


b. The applicant's state of mind on the day of the arraignment was compromised (AWS [15]-[16], [18]);


c. The applicant has consistently denied any involvement in the deceased's death including immediately after the entry of the guilty plea (AWS at [22]);


d. The applicant has, despite raising the prospect of changing his plea, adhered to his plea of not guilty in the past (AWS at [23]);


e. The applicant's plea was unexpected (AWS at [19]);


f. The applicant had not informed his legal representatives that he would plead guilty which meant that he had not been advised in accordance with Rule 41 (AWS at [20]).[[10]] This diminishes the weight that can be placed on the evidence that it was not a ‘split decision’. Nor had the applicant been advised as to the best course of action to adopt in negotiating a plea with the prosecution, such as agreeing on the legal basis for murder;


g. The applicant immediately gave instructions to his legal representatives that he wanted to plead not guilty to the charge (AWS at [21]). The applicant was not persuaded to seek to withdraw his guilty plea by his legal representatives (Ex VD1);


h. The case against the applicant in the Crown Case Statement was insufficiently particularised both as to the legal basis of liability and the factual basis of liability. In these circumstances it cannot be discerned what the applicant pleaded guilty to (see AWS at [25]-[26]; Crown Case Statement; R v White [2022] NSWSC 525 at [62]- [75]).


i. The reasons the applicant gave for entering the plea were matters extraneous to any belief in guilt and not good reasons for pleading guilty to murder, the most serious offence in the criminal calendar (see AWS at [27]-[30]).

iii. If the Court is satisfied there is a question about the guilt of the applicant, then there has been a miscarriage of justice.

Ground 2: Her Honour erred in refusing the applicant leave to withdraw his guilty plea (2nd Limb of s6(1) of the Criminal Appeal Act).


i. The applicant contends her Honour made the following errors:


a. Applied a miscarriage of justice test as opposed to an interests of justice test (Judgment at [72]; see Applicant's Reply).


b. In the alternative to (a), applied an erroneously narrow view of the miscarriage of justice test in the context of withdrawal of a guilty plea (Judgment at [72]; see above at [i]).


c. Finding that the applicant had ‘full knowledge of the facts when he deliberately entered his plea’ when the Crown case had never been particularised (Judgment at [82], [86]; [120](7); AWS at [25]-[26]).


d. Isolating and considering separately, the applicant's cognitive impairment (Judgment at [88]; see AWS at [17]).


e. Findings made as to the applicant not warning his legal representatives about his decision to change his plea and speculation as to why he may have done so and that he had to be persuaded to change his plea in the post arraignment conference (Judgment at [92]-[99], [103], [117]-[118]; [120](6), (8)-(10); AWS at [21]).


f. Finding that ‘I didn't. I didn't do it’[[11]] was hardly an emphatic assertion of innocence (Judgment at [101]; AWS at [22]).


g. Finding that some of the applicant's comments at the post arraignment conference negate a contention that the plea entered at arraignment was not a true acknowledgement of guilt (Judgment at [104] AWS at [29]).


h. Finding that the applicant's apparent remorse amounts to some acknowledgement of personal responsibility and remorse for Dr Johnson's death (Judgment at [105]; AWS at [29]).


i. Finding that the fact that the applicant was fit to be tried was ‘largely determinative’ of the question of whether the applicant's disability undermines the validity of the plea (Judgment at [112]; [120](1); AWS at [14]).


j. That the principle of finality remains a relevant consideration in the circumstances of this case (judgment at [116]-[119]; AWS at [21]).


k. That the applicant had not persuaded the Court that to permit the plea of guilty to stand would constitute a miscarriage of justice (Judgment at [121]).


The proviso

i. If the Court is satisfied (under the 2nd limb) that the trial judge erred in refusing the application to withdraw the guilty plea and is satisfied that leave should have been granted to withdraw the guilty plea then the appeal should be upheld. If the Court is satisfied (under the 3rd limb) that the resulting conviction was a miscarriage of justice then the appeal should be upheld. Under either ground, this necessarily entails the proposition that the applicant should be permitted to contest his guilt and that is a matter is [sic] such importance that the proviso could not apply.”

After the conclusion of the hearing of the appeal, the Director of Public Prosecutions, Ms Dowling SC (who appeared with Ms Nicholson for the Crown), provided supplementary written submissions in reply to the Applicant’s particulars document extracted above (the Director’s Supplementary Submissions). Those submissions will be referred to in due course.


When approaching questions of miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act, Gageler J’s observations in Hofer v The Queen (Hofer)[12] supply a valuable starting point. His Honour said:

"In the application of the miscarriage of justice ground, there is no principled reason for treating ‘an error in strict law’ differently from another error or irregularity in the conduct of a trial. The miscarriage of justice in a particular case might arise from a singular error or irregularity, or it might arise from a cumulation of errors or irregularities some or all of which might or might not be connected and some or all of which might or might not be capable of being characterised as errors of law. Whether or not some or all of them might be characterised as errors of law, the consideration required to be given to their individual or cumulative consequence remains the same. An inconsequential error, including an inconsequential error of law, is not a miscarriage.” (footnotes omitted)

Underpinning aspects of both grounds of appeal as particularised at [18] above was a full-frontal attack on the legal test applied by the primary judge on the application for leave to withdraw the plea of guilty. In short, it was contended that her Honour applied the wrong legal test, namely the “miscarriage of justice” test, and that the question whether leave to withdraw a plea should be granted before conviction should simply be determined by reference to what the interests of justice require. The differences (if any) between the two tests will be explored below, but what is significant for present purposes is that the Director accepted that if the wrong legal test had in fact been applied (which she did not accept), then this Court would find that there had been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act,[13] subject to any issue under the proviso in that sub-section.

This concession was properly made. As was stated by Gageler J in Hofer,[14] “[w]hat is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial.” Although the present appeal does not concern an irregularity in the course of a trial, as did Hofer, Gageler J’s formulation is equally apposite in the case of an appeal against conviction after the entry of a guilty plea. As is explained below at [72]–[85], in the context of the proviso, there is a real chance (or a “meaningful potential or tendency”) that the application of the “interests of justice” test proposed by Mr Game would have produced a different outcome on the application for leave to withdraw the Applicant’s guilty plea, with the consequence that the Applicant’s conviction for the murder of Scott Johnson could not be said to have been inevitable.[15]

Although the particulars to the appeal set out at [18] above include a number of specific criticisms of the primary judge’s largely inferential findings, it is convenient to commence with the question of whether the correct legal test was applied to the application to withdraw the plea of guilty prior to conviction.

The correct legal test to be applied


One important point of context that was stressed throughout the argument on appeal was the need to differentiate between, on the one hand, an application for leave to withdraw a plea of guilty prior to conviction (the first scenario) and, on the other hand, an appeal from conviction notwithstanding a plea of guilty on the basis that, at that [appellate] stage, the Court should go behind the plea and, if necessary, permit it to be withdrawn for some good reason (the second scenario).

On this second scenario, once and because a conviction has occurred, it may only be set aside if one of the grounds of appeal in s 6(1) of the Criminal Appeal Act is established. Those grounds include, of course, “that on any other ground whatsoever there was a miscarriage of justice”, the so-called third limb of the sub-section.

In respect of the application for leave to withdraw the plea of guilty in the present case, the primary judge said at PJ [71]–[73] that:

“71 The law that relates to the question of the vacation of a plea of guilty is well settled. It may be found stated and restated in decisions such as Liberti v R (1991) 55 A Crim R 120; Boag v R (1994) 73 A Crim R 35; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41; Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46; R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61; R v Sewell [2001] NSWCCA 299; Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129; Kennedy v R [2017] NSWCCA 193; Thafer v R [2019] NSWCCA 143; and Samandi v R [2020] NSWCCA 217, to cite but a very few of the very many cases on this issue.

72 A summary of the principles can be conveniently extracted from the last named of those decisions, Samandi, which itself refers to Kanakaradnam v R [2018] NSWCCA 282; Fuller v R [2021] NSWCCA 194 [sic]; Wong, and Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326. At [30] – [32] Johnson J, with the concurrence of Bell P and Rothman J, said:


In Kanakaradnam v R [2018] NSWCCA 282, with the concurrence of Simpson AJA and N Adams J, I said at [17]-[18]:


‘17 In the case of an appeal against conviction following a plea of guilty, the ultimate question for this Court is whether it has been demonstrated that a miscarriage of justice will occur if the Applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the Applicant came to enter his plea: R v Rae (No. 2) (2005) 157 A Crim R 182; [2005] NSWCCA 380 at 188 [20].


18 In R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170, the Court said at 312-313 [32]-[35]:

“32 This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea: R v Boag (1994) 73 A Crim R 35 at 36; R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229; Elmir v R [2009] NSWCCA 22 at [33] ff.


33 The onus lies upon the Appellant to demonstrate that leave should be granted: R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 at 338 [4]; R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 at 536-537 [16]- [23]. The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea: R v Sewell [2001] NSWCCA 299 at [39]; Wong v Director of Public Prosecutions [2005] NSWSC 129; (2005) 155 A Crim R 37 at 46 [39]. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection: R v Liberti (1991) 66 A Crim R 120 at 122; R v Parkes [2004] NSWCCA 377 at [48].


34 The plea of guilty itself is a cogent admission of the ingredients of the offence: R v SL [2004] NSWCCA 397 at [51]. Indeed, it has been described as the most cogent admission of guilt that can be made: Charlesworth v R [2009] NSWCCA 27 at [25].


35 A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157; Wong v Director of Public Prosecutions at 45-46.”’

The judgment of Howie J in Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 has been applied regularly by this Court in decisions where application is made to go behind a plea of guilty entered at first instance: Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [33], [35]; Khamis v R [2014] NSWCCA 152 at [57]- [59]; Kennedy v R [2017] NSWCCA 193 at [45]; Kanakaradnam v R at [19]. Howie J said in Wong v Director of Public Prosecutions (NSW) at [33]-[39]:


‘33 A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea “is not in truth guilty of the offence”: Meissner at 141. Justice Dawson stated the following at 157 (footnotes omitted):

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

34 There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell, above. Smart AJ, with whom the other members of the Court agreed, at [39] pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty “within one verbal formula”.


35 If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff’s antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.


36 If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty: Sewell above at [34].


37 But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner in the passage quoted above, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.


38 An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison [2003] QCA 125; (2003) 138 A Crim R 378 at 384 under the heading “I am not guilty but I’ll plead guilty”. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.


39 I should also point out that not only does a defendant bear the onus of proof in relation to an application to withdraw a plea of guilty, he must establish “a good and substantial reason for the Court taking that course”: Sewell at [39]. It goes without saying that the fact that the defendant asserts he is not in truth guilty of the offence is not itself a “good and substantial reason” for allowing the application.’


In Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326, the Court (at [54]-[55]) noted the following further principles where application is made to withdraw a plea of guilty:


‘54 ... when a person enters a plea of guilty, that person admits to all of the elements of the offence (at least to the minimum level necessary for a conviction) and the conviction will not be set aside unless it can be shown that a miscarriage of justice has occurred; R v Chiron [1980] 1 NSWLR 218.


55 The rarity with which this Court grants leave to withdraw the plea of guilty at trial is, in part, caused by the public interest in the finality of proceedings and because the plea, itself, is an admission of all the minimum elements of the offence: Reg. v O’Neill [1979] 2 NSWLR 582. Ordinarily, a change of plea will be allowed only where the plea itself is impugned.’

73 Those are the principles that the Court must apply in determining the application for leave to vacate the plea of guilty entered on 10 January 2022.”

At PJ [120], the primary judge summarised 12 features to which her Honour had regard in determining the application for leave to withdraw the guilty plea, noting that those features did not bear the same weight in her Honour’s consideration. The relevant features were as follows:

“(1) the conclusion of the relevant experts that the applicant is fit to be tried, and understands the process and consequences of entering a plea, being able to decide for himself which plea he should enter, even when anxious and distressed;

(2) the care with which the applicant’s lawyers have informed and advised the applicant; from May 2020 and leading up to January 2022;


(3) that the applicant’s distress on the morning of 10 January 2022 was principally directed to the conditions of his custody, and not the court proceedings;


(4) the fact that the applicant was well supported prior to arraignment and when entering his plea of guilty;


(5) the applicant’s calm presentation in court when he entered his plea, and the clear and emphatic manner in which the plea was entered by him;


(6) the fact that he had thought about changing his plea previously, and his decision to do so was not one taken in haste or on the spur of the moment;


(7) the fact that the plea was not entered by mistake, but intentionally, and in full knowledge of the nature of the charge, the evidence to be led against him, and the defence that he could make;


(8) the consideration he gave to informing his lawyers of his decision to plead guilty prior to entering the plea, and subsequent failure to do so, the overwhelming inference being that that was by choice;


(9) the applicant’s reluctance to discuss his change of plea with his lawyers thereafter, with a need for him to be persuaded to do so;


(10) the applicant’s need to apologise to his lawyers for his changed plea, implicitly and inferentially because he believed they would be disappointed or disapproving;


(11) the fact that the applicant did not raise or assert his innocence to his lawyers at the after-plea conference until it was first raised by his representatives; and


(12) the considered reasons the applicant advanced for the plea he had entered, being reasons with both a flavour to them of remorse for and acceptance of responsibility for [Mr] Johnson’s death, and reasons that reflect self-interest, including a belief that a reduced sentence would follow, and a wish to avoid the stress of trial proceedings.”


At PJ [121], the primary judge expressed her conclusion on the application for leave to withdraw the guilty plea in the following terms:

“Having carefully considered all of those features, the evidence and submissions, I am not persuaded that the applicant has established on balance that to permit the plea of guilty to stand would constitute a miscarriage of justice.” (emphasis added)

On appeal, Mr Game contended that her Honour’s application of what is conveniently described as the “miscarriage of justice” test was wrong and inapposite in the context of an application to withdraw a plea before conviction (the first scenario) or was otherwise too narrowly stated. Moreover, to the extent that there were authorities to the effect that the “miscarriage of justice” test applied in the first scenario, such authorities conflated the position where an appellant asked the Court to go behind his or her plea for the first time on appeal, a context in which it was appropriate to address the issue in terms of what was required to avoid a miscarriage of justice. It was submitted that some of the summaries of authority relied upon by the primary judge, and other decisions of this Court, did not adequately differentiate between what we have identified as the first and second scenarios: see [23] above. Further, a number of the cases referred to in PJ [71] were second scenario cases.

Mr Game contended that an application for leave to withdraw a plea of guilty prior to conviction (the first scenario) required a discretionary decision, with the discretion to be exercised judicially, by reference to the “interests of justice”. He submitted that this was a broader test than the “miscarriage of justice” test, which was not logical to apply prior to conviction. He also submitted that this was consistent with what had been said by Gaudron and Gummow JJ in Maxwell v The Queen (Maxwell).[16]

Further, it was put that this Court’s decisions in Hura v R (Hura);[17] R v Sewell (Sewell)[18] and Layt v R (Layt)[19] supported a broader approach to applications for leave to withdraw a plea than a requirement that an applicant establishes, on the balance of probabilities, that not to permit the withdrawal of a plea of guilty would result in or produce a miscarriage of justice. A test so framed, he submitted, would preclude the grant of leave to withdraw a guilty plea where it could only be established, for example, that there was a non-negligible risk of a miscarriage of justice.

The Director countered by contending that the “miscarriage of justice” test as stated and applied by the primary judge was correct, that the decision in Maxwell was to be distinguished on the facts and that the passages in that decision relied upon by Mr Game were at best obiter dicta. In the alternative, she submitted that the interests of justice test was, in effect, synonymous or interchangeable with the “miscarriage of justice” test and, as such, nothing turned on the primary judge’s application of the “miscarriage of justice” test.[20] She also submitted that, if a miscarriage of justice was found to have occurred, there was no substantial miscarriage of justice and the proviso in s 6(1) of the Criminal Appeal Act applied.

Maxwell and relevant authorities


Maxwell was not a case involving an application by an accused to withdraw a plea of guilty. Rather, it concerned the circumstances in which the prosecution could withdraw its acceptance of a plea of guilty. That having been said, there are a number of passages in the three judgments in Maxwell that bear upon the present question of the discretion to permit the withdrawal by an accused of a plea of guilty prior to conviction.

Although Mr Game rested his argument principally on the joint judgment of Gaudron and Gummow JJ in Maxwell, he also sought to place reliance on the joint judgment of Dawson and McHugh JJ, in which their Honours held that the since-repealed s 394A of the Crimes Act 1900 (NSW)[21] did not deny the prosecution’s entitlement, before sentence, to withdraw its acceptance of a plea of guilty if the interests of justice so required.[22] Ms Dowling pointed out, correctly, that their Honours’ remarks were not directed to an accused’s application for leave to withdraw a plea of guilty. Mr Game countered that coherence required that the same criterion, namely the interests of justice, should mediate the question of leave to withdraw a plea on the application of an accused as that which regulates the ability of the prosecution to withdraw its acceptance of a plea of guilty.

The argument as to coherence finds favour in the judgment of Dawson and McHugh JJ in Maxwell, as their Honours stated that “[a]n accused may with leave withdraw a plea of guilty at any time before sentence or other disposal of the case and there is no reason why the prosecution should be placed in a lesser position with regard to its acceptance of a plea.”[23]

Toohey J delivered a separate judgment which was not the focus of significant attention during the course of argument in the present appeal, although there is much in it that is relevant to the matters in issue. His Honour noted that “[t]he court has the power to allow a plea of guilty to be withdrawn at any time before sentence”,[24] and that this power existed “[w]hether on a trial by indictment or in summary proceedings”,[25] citing S (an infant) v Recorder of Manchester [1971] AC 481 (Recorder of Manchester), which his Honour noted had been followed in a series of Australian cases.[26] Recorder of Manchester will be referred to in more detail below. Toohey J also noted that a “defective plea of guilty” may be withdrawn and a conviction set aside on various non-exhaustive grounds, which included that “the accused did not understand the charge or did not intend to admit guilt or on the facts admitted on the plea he could not in law have been guilty of the offence”, or that “the plea was induced by intimidation, improper inducement or fraud”.[27]

Most importantly for present purposes, Toohey J then observed that “[t]his is part of the inherent jurisdiction of courts to see that justice is done”,[28] citing R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291 at 298 per Lord Parker CJ.

It was the following passage from the joint judgment of Gaudron and Gummow JJ in Maxwell upon which Mr Game placed principal reliance:[29]

“There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require.” (emphasis added; footnotes omitted)

In support of the italicised portion of this passage, their Honours cited R v Webb and Hay (Webb and Hay),[30] with “see also” references to Middap v R[31] and Boag v R (Boag).[32]


The report of Webb and Hay is a report of various interlocutory rulings made by Debelle J in the course of a murder trial. One such ruling related to an application to withdraw a plea of guilty which had been entered in the presence of the jury after the trial had commenced and in circumstances where the accused had previously pleaded not guilty.[33] His Honour observed:[34]

“The burden of persuasion rests upon the accused who seeks to change his plea especially where it is an informed and deliberate plea after having received legal advice: Clayton at 234; A-G v Kitchen and Roberts at 55; Roach (1990) 54 SASR 491 at 494-495. It does not seem the discretion should be exercised only in clear cases and very sparingly but that is not to say the discretion should be exercised liberally: per Bollen J in A-G v Kitchen and Roberts at 63; see also Roach at 495. The observations of Wells J in Clayton at 234 suggest that, if the trial judge has real misgivings whether or not a plea is an informed plea, he should permit a change of plea ...

The discretion must be exercised judicially and for sufficient reason: see A-G v Kitchen and Roberts, per Bollen J at 63. As White J observed in A-G v Kitchen and Roberts at 57, what is paramount is the interests of justice.” (emphasis added)


Attorney-General (SA) v Kitchen and Roberts (Kitchen)[35] (which had also been cited by Toohey J in Maxwell) was a decision of the Full Court of the Supreme Court of South Australia. It concerned an application for judicial review of the exercise of the discretion of a District Court judge to permit an accused who had been represented at all relevant times to withdraw his plea of guilty on the very morning when he was due to make submissions on sentence. The short facts of relevance for present purposes were that the accused pleaded guilty to 10 counts of various fraud and dishonesty offences and a date had been set for his sentencing a fortnight later. A change of counsel shortly before the day appointed for sentencing resulted in the prosecution being informed on the day of the sentence hearing that the accused’s (Mr Roberts’) counsel would be making an application to withdraw the guilty plea on the basis of changed instructions. This was explained in the following passage from White J’s judgment:[36]

“Mr Stretton said that for the last two months the same solicitor had been acting for Roberts. He said that Roberts wanted ‘more formal advice’ to be given to him as to his plea. It is not unknown that counsel will give different advice from that formerly tendered. Mr Stretton continued:

‘I was engaged last week to act as counsel and in conference last week these charges were gone through in detail and he was advised fully as to what the law was. His (subsequent) instructions were (that he wished him to change his plea to “Not Guilty”). He was asked (by me) why he had pleaded “Guilty” and he said he was under an enormous amount of stress and strain, that his family was too, therefore he (had) wanted to get all the matters out of the way. I then explained to him the difficulty that it puts his legal advisers in and he was asked to consider exactly what he wished to do finally. He has instructed us this morning that he wishes to contest the charges on the basis of those instructions I have in general terms conveyed to this Court.’” (emphasis removed)

Separate judgments were delivered by each of White J, Matheson J and Bollen J. White J, after referring to the observation of Lord Upjohn in Recorder of Manchester that “[i]t is hardly necessary to add that this discretionary power [to allow withdrawal of a plea] is one which should only be exercised in clear cases and very sparingly”,[37] expressed his conclusion as follows:[38]

“Mr Lindsay [for the Attorney-General (SA)] relied heavily upon that statement of restriction upon the discretion. Decisions of the House of Lords are to be accorded the greatest respect. However, the discretion involved here is a general discretion. The way in which criminal justice is administered from State to State and from country to country may vary. It may be influenced by the extreme pressure on court resources in more populous places. What is paramount is the interests of justice. It is true that this accused disclosed his change of mind at the last minute. In all cases, and in such a case in particular, great care must be exercised to guard against manipulation by cunning offenders of the court system, forum shopping, and like abuse of process. A plea of guilty in open court after advice is a solemn acknowledgment of guilt. This defendant entered such a plea but without the advice of counsel. He vacillated for a long time. He did not seek counsel's separate and independent advice until a very late stage. It is not clear how much of that is due to his fault and how much of this shilly-shallying was due to his psychiatric state and to restrictions upon legal assistance within the legal aid system. He was not and is not a well man. All in all, I think that the circumstances and the information furnished from the bar table were sufficient to persuade a judge to allow a change of plea.” (emphasis added)

It is to be noted that although, in this dispositive passage of his judgment, White J contemplated that the broad criterion for the exercise of the discretion was the “interests of justice”, earlier in his reasons[39] his Honour had affirmed his agreement with Wells J’s statement in R v Clayton (Clayton) that:[40]


"There is every reason why an informed and deliberate plea should be treated as final, and that, after entry of such a plea, the prisoner should face the necessity of persuading a trial judge that, in effect, a miscarriage of justice would result if he were bound by his plea." (emphasis added)

Bollen J identified a test of “sufficient reason” as “a much more accurate way of describing the way in which various courts have decided how to exercise this discretion in the past.”[41] His Honour went on to observe that:[42]

“I do not think it right in South Australia to say that the judge considering a request is confined on each occasion to allowing it only in a clear case and that he must be ‘very sparing’ in considering the matter. I think that there may well be ‘borderline cases’ where a sound exercise of discretion would, in the interests of justice, point to the allowing of a change of plea. That idea will be seen to be inherent in other remarks of other judges. The idea of caution and justice were well mixed by Wells J in R v Clayton (at 234). His Honour said:

‘There is every reason why an informed and deliberate plea should be treated as final, and that, after entry of such a plea, the prisoner should face the necessity of persuading a trial judge that, in effect, a miscarriage of justice would result if he were bound by his plea.’

I note the clear idea emerging from these remarks that the trial judge should strive to avoid a possible miscarriage of justice.” (emphasis added)

Later in his reasons, upholding Judge Kitchen’s exercise of the discretion to permit the withdrawal of the plea, Bollen J said that “Mr Stretton's [counsel for the accused’s] remarks revealed a real risk of a denial of justice to Roberts if the pleas of guilty stood.”[43]

Matheson J, the third member of the Full Court, agreed that the application for judicial review should be dismissed, and endorsed the passage from the decision of Wells J in Clayton that was also endorsed by White J and Bollen J respectively, which has been set out above.

Reference should be made at this point to the decision of the House of Lords in Recorder of Manchester,[44] which was cited in Maxwell,[45] Sewell[46] and Kitchen. In that case, the accused, who was cognitively impaired, consented to being tried summarily and pleaded guilty to a charge of attempted rape. It later came to light that he had a history of confessing to criminal offences which he had not in fact committed, and his solicitor applied to withdraw his guilty plea. The presiding magistrates, although considering it in the interests of justice to permit the withdrawal of the guilty plea, were bound by authority to the effect that a court of summary jurisdiction had no such power after the acceptance of a guilty plea and before sentence.

In the course of the various judgments that were delivered in that case, a number of their Lordships referred to the discretionary basis, before conviction had been entered, for the withdrawal of a plea of guilty. Thus, Lord Reid, delivering the leading judgment, said that “[i]t has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise”,[47] citing R v Clouter and Heath[48] as an example.

His Lordship then considered the decision of R v Guest, Ex parte Anthony,[49] in which it had been held that magistrates in summary proceedings had no power to allow the withdrawal of a guilty plea after it had been accepted, for example, by a direction that a conviction be entered. After expressing the view that that case was wrongly decided, Lord Reid concluded:[50]

“I can find no reason for there being a different rule in magistrates' courts from the rule in cases tried on indictment that the accused can apply at any time before sentence to change his plea of guilty and that it is for the court then to decide whether justice requires that that should be permitted.” (emphasis added)

Similar references to the requirements or interests of justice were made by Lord MacDermott and Lord Morris. Lord MacDermott discussed the circumstances where a plea of guilty may be entered although “the legal ingredients of the offence charged may not be fully understood by the accused”.[51] After noting in this context that “quite a number of modern statutory offences are sufficiently complex in their make-up to confuse both the lay and the learned”, his Lordship continued:[52]

“Once made, a mistaken plea may be properly accepted and the mistake may never stand revealed. But if, as can happen, the truth comes to light during [sentencing] proceedings, when the question of what to do with the accused is under consideration, why should it not be acted upon and a changed plea of not guilty allowed where the interests of justice so require? There is no good reason for thinking that such a course would create an administrative problem or open the door to a widespread abuse of process. As respects trials on indictment, including trials before justices at quarter sessions, the attitude of the common law on this matter has been clear for generations. Such a change may, at the discretion of the court, be allowed at any time before the case has been disposed of by sentence.” (emphasis added)

To similar effect, Lord Morris, discussing an application for leave to withdraw a guilty plea before the imposition of sentence, said the following:[53]

“The court will ... have great concern if any doubt exists as to whether a confession was intended or as to whether it ought really ever to have been made. When, in the present case, the court, on June 20, heard the reasons for the application made to them, they felt, and rightly felt, that the proper course in the interests of justice would be to accede to it. It would be a grave defect in our law and system if there is some rule which thwarts the course which the interests of justice prompt.” (emphasis added)

His Lordship also acknowledged that in a trial on indictment, a plea may be withdrawn after arraignment but before sentence “in the discretion of the court”,[54] citing R v McNally (McNally).[55]


In McNally, Lord Goddard CJ, delivering the judgment of the Court, said that:[56]

“We only put this case into the list as an appeal ... in order that this court might have an opportunity of stating what is the position with regard to a prisoner who desires to change his plea after arraignment. The question whether a plea may be withdrawn or not is entirely a matter for the trial judge. If the court came to the conclusion that there was a question of mistake or misunderstanding, or that it would be desirable on any ground that the prisoner should be allowed to join issue, no doubt the court would allow him to do it. For example, it has been known for a prisoner charged with receiving stolen goods to acknowledge that he received them, and to plead guilty, adding ‘but I did not know that they were stolen’. In such a case the trial judge might well allow the prisoner to change his plea, but it is entirely within the discretion of the judge.” (emphasis added)

The decision of the House of Lords in Recorder of Manchester was in accordance with much older English authority. In R v Odgers (Odgers),[57] Cresswell J had said that:

“It is ... clearly in the discretion of the Judge whether a prisoner should be allowed to withdraw his plea; and I think that for the purposes of substantial justice such withdrawal should be allowed, but not for a mere technical objection like this. In the proper exercise of this discretion I ought not to allow him to withdraw his plea in this case.” (emphasis added)

Odgers was cited with approval by (Sir Philip) Street CJ in Ex parte Stanton[58] and by this Court (Herron ACJ, Sugerman and Nagle JJ) in R v Foley (Foley).[59] Both of these cases had in turn been cited by Toohey J in Maxwell.[60]

Foley was a decision of this Court in relation to an application by the accused, prior to sentence, for leave to withdraw his plea of guilty (a first scenario case). That application had been refused at first instance, but the Court allowed the appeal, overturned the discretionary judgment refusing the withdrawal of the plea and quashed the conviction that had been entered following the initial refusal of leave to withdraw the plea. The Court, immediately prior to its citation of the passage from Odgers set out at [50] above, observed:[61]

“There can be no doubt from the above summary of events that the unhappy position in which the appellant now finds himself is a result of his own deliberate and considered action. It was he who decided to forego a trial by jury and it would appear that he arrived at this decision after consultation with his counsel and solicitor. This Court has been informed by counsel that he at that stage had had full conferences with all the witnesses involved, including the two witnesses who have now indicated their willingness to give evidence for the appellant. Also, a previous opportunity of hearing the matter had been foregone as a result of the appellant’s request for an adjournment. It is obvious that prevarication and indecision such as this have resulted in great loss of time by the Crown and, no doubt, inconvenience to Crown witnesses. Litigation must come to an end at some stage and this Court should not be over-ready to grant appeals such as the present. However, it does seem to me that the desirability of an accused person being tried by a jury, if requested, is of fundamental importance in the administration of justice and that this exercise of discretion of the learned Chairman of Quarter Sessions should be closely examined before deciding against the appellant.” (emphasis added)

That what is involved in the grant of leave to withdraw a plea before conviction and sentence is the exercise of a broad discretion where “justice so requires” is also supported by the decision of Lee J in Sagiv v R (Sagiv),[62] where his Honour said:

“... it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.” (emphasis added)

The “interests of justice”, as a broad criterion for the exercise of a discretion to permit withdrawal of a plea of guilty prior to conviction, also gains support from the 2001 decision of this Court in Sewell. Significantly, that case also involved the “first scenario” of an application for leave to withdraw a plea of guilty prior to sentence. The leading judgment was given by Smart AJ (with whom Heydon JA and Simpson J agreed). His Honour made reference to the decision of this Court in Boag, in which Hunt CJ at CL endorsed the “miscarriage of justice” test.[63] At [38] of Sewell, Smart AJ also referred to an argument propounded by reference to Foley, namely that it stood for a broader principle than the “miscarriage of justice” test endorsed in Boag. In a significant paragraph of his reasoning, Smart AJ said that:[64]

“Foley is not a departure from principle but an illustration of a case where the addition of further material made a compelling case for leave to be granted. The interests of justice required it. Foley also illustrates the variety of circumstances which may arise and the difficulty in trying to fit all cases within one verbal formula. An accused seeking leave to withdraw a plea of guilty prior to conviction must establish a good and substantial reason for the Court taking that course. The cases reveal many specific examples of when an accused is permitted to withdraw his plea of guilty prior to conviction and I have mentioned some of them. The categories are not closed. The general statement that an accused must show that a miscarriage of justice will occur if he is not given leave to withdraw his plea of guilty or that an accused must show that it is in the interests of justice that leave be granted provide a useful principle against which to evaluate new categories or new factual situations.” (emphasis added)

Four points may be made about this passage. First, his Honour correctly identified the re-exercise of the discretion in Foley as having been undertaken by reference to the interests of justice. Secondly, his Honour recognised the unwisdom of attempting to shoehorn all of the cases within one verbal formula. In this context, appellate courts have regularly counselled about the risk of such an approach, which fetters what may otherwise be intended to be a broad discretion, to be exercised judicially.[65] Thirdly, his Honour did not regard the “miscarriage of justice” test or formulation as being the sole test. The “interests of justice” test was not advanced as a synonymous formulation, but as an additional test or formulation. Fourthly, although Sewell was referred to by Howie J in Wong v Director of Public Prosecutions (NSW) (Wong),[66] in a passage that was in turn picked up by Johnson J in Samandi v R (Samandi),[67] the summary of principles proffered by Johnson J in the latter case appeared to favour the “miscarriage of justice” test.

Something should also be said about Boag, the case to which Smart AJ referred at [37] of Sewell and which was also referred to in PJ [71] and the various cases extracted in Samandi at [30]–[32].[68] Boag was a “first scenario” case involving an appeal, brought pursuant to s 5F of the Criminal Appeal Act, against the refusal of an application for leave to withdraw a plea of guilty prior to sentence. Hunt CJ at CL (with whom McInerney and James JJ agreed) said that:[69]

“In stating the test to be applied in determining whether the applicant should be permitted to withdraw his plea of guilty, the judge correctly said that such a course should be allowed where it has been shown that a miscarriage of justice has occurred: Ondrovcik (unreported, Court of Criminal Appeal, NSW, 4 November 1977) at pp 4-5; Chiron [1980] 1 NSWLR 218 at 235; Ferrer-Esis (1991) 55 A Crim R 231 at 232.”

One problematic feature of this passage is that the cases referred to were all “second scenario” cases, that is, where the attempt to withdraw the plea first occurred on appeal, following conviction and sentence.[70] A similar conflation may be detected in Wong, a first scenario case which, as with Boag, appears to endorse the “miscarriage of justice” test;[71] and in Garcia-Godos v R (Cth) (Garcia-Godos),[72] which was a s 5F appeal brought by a self-represented applicant in which Boag and Wong were applied and followed. The Crown also pointed to another “first scenario” case where the “miscarriage of justice” test had been applied,[73] but this case simply followed Boag and did not consider the point of principle.[74] The decision in Lawson v The Queen (Lawson),[75] a first scenario case cited in Garcia-Godos at [50], referred to the “miscarriage of justice” test but also cited Lee J’s observations in Sagiv[76] with approval.[77] In other words, Lawson, a little like Sewell, did not confine the applicable principles to the “miscarriage of justice” test. Finally, Hunt CJ at CL perpetuated the “miscarriage of justice” approach that he had followed in Boag in obiter comments when Maxwell was remitted to the Court of Criminal Appeal.[78]


It should be noted that Johnson J’s summary of principles in both Samandi and Kanakaradnam v R[79] was given in the context of second scenario cases, where the plea of guilty was only sought to be withdrawn on appeal after conviction and sentence. As such, there was nothing problematic about that summary per se; what was problematic in the present case was the transposition of that summary of principles to a “first scenario” case, a course of conflation which had also occurred in Boag and Wong.

Consideration


The proposition that the Court of Criminal Appeal may quash a conviction entered upon a plea of guilty only if it is demonstrated that a miscarriage of justice will occur if the plea is not permitted to be withdrawn is unimpeachable in the context of what we have described as a second scenario case. That is because, in such a scenario, the Court at first instance has simply accepted the plea and proceeded to convict and sentence the appellant; it has not been called upon to make any decision on a question of law that may be “wrong”, so as to attract what has been described as the “second limb” of s 6(1) of the Criminal Appeal Act. Only the third limb of that section (“miscarriage of justice”) is available to an appellant in such circumstances and so it is entirely apposite to speak of the need to establish a miscarriage of justice in the second scenario, as that is the criterion that must be satisfied if an appeal is to succeed following conviction upon a plea.

But it does not follow that the language of miscarriage is apposite in what we have described as the first scenario cases, namely where leave has been sought to withdraw a plea prior to entry of conviction (and sentence). That is so both as a matter of authority and as a matter of principle. Unlike in second scenario cases, the “miscarriage of justice” test has no “statutory root”[80] when applied in the context of a first scenario case.

We are comfortably satisfied from our review of the authorities that, although there has been a conflation of tests in some cases and some summaries of authority, the proper test to be applied where an accused seeks leave to withdraw his or her plea of guilty prior to conviction (a first scenario case) is whether the interests of justice require that course to be taken.

The judgments of at least Toohey J and Gaudron and Gummow JJ in Maxwell support this conclusion and, even if strictly dicta, are “seriously considered” in the sense referred to in Farah Constructions Pty Ltd v Say-Dee Pty Ltd.[81] It follows that the decisions in Boag, Wong and Garcia-Godos must be regarded as wrongly decided and should not be followed in a case where an application is made for leave to withdraw a plea of guilty before conviction.

A sensible distinction is to be drawn between allowing a plea to be withdrawn before conviction and going behind a guilty plea that has led to a conviction on appeal.[82] The distinction between the two scenarios is brought home by consideration of the concept of finality, which is frequently mentioned in cases involving applications to withdraw a plea, as it was in the present case. Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea and, in the case of the Crown, to withdraw its acceptance at any time until the formal recording of a conviction and sentence. That was what Maxwell was all about.[83]

Indeed, the distinction between the two scenarios goes to jurisdiction. Hura confirmed, for example, that, once the District Court of New South Wales has accepted a plea of guilty (entered mid-trial) and discharged the jury, the plea may not be withdrawn thereafter.[84] In R v Chiron,[85] it was also held that there was no jurisdiction to permit withdrawal of a guilty plea once a jury had returned a verdict and been discharged.[86] In these cases, an accused seeking to go behind his or her plea of guilty could only do so on appeal against conviction, in which to succeed a miscarriage of justice would need to be established.[87] That is why in Hura, Spigelman CJ dealt with the matter under the heading “[m]iscarriage of justice”.[88]

We would respectfully reject the Director’s fallback submission that there is no real or material difference between the interests of justice test and the “miscarriage of justice” test. A positive conclusion on the balance of probabilities that there would be a miscarriage of justice if a plea was not permitted to be withdrawn is, no doubt, the paradigm case where it will be in the interests of justice to permit withdrawal of a plea. But equally, it may also be in the interests of justice to permit a plea to be withdrawn if there is a risk of a miscarriage of justice, provided that the risk is a real and not fanciful one.[89]

The interests of justice test is broader and may focus on matters going beyond the integrity of the plea, although that will very often be the focal point of the inquiry. A non-exhaustive list of factors affecting the interests of justice will include:

the circumstances in which the plea was given;

the nature and formality of the plea, involving as it does the admission of all the formal elements of the offence;

the importance of the role of trial by jury in the criminal justice system;

the time between the entry of the plea and the application for its withdrawal;

any prejudice to the Crown that might arise from the withdrawal of the plea;

the complexity of the elements of the charged offence;

whether all of the relevant facts upon which the Crown intended to rely were fully known to the accused;

the nature and extent of legal advice received by the accused before entering the plea;

the seriousness of the alleged offending and thus the likely consequences in terms of penalty;

the subjective circumstances of the accused;

any intellectual or cognitive impairment suffered by the accused, notwithstanding their fitness to plead;

any reason to suppose that “the accused [was] not thoroughly aware of what he [or she was] doing”;[90]

any extraneous factors that bore upon the making of the plea at the time it was made, including inducement by threats, fraud or other impropriety;[91]

whether the accused has been persuaded to enter a plea by reason of imprudent and inappropriate advice tendered by his or her legal representatives;[92]

any explanation that has been proffered by the accused for the application to withdraw their guilty plea;

any consequences to victims, witnesses or third parties that might arise from the withdrawal of the plea; and

whether, on the material before the Court, there is a real question about the accused’s guilt to the charge in respect of which the plea has been entered.[93]

In relation to this last matter, we reject the submission advanced by the Crown that consideration of whether there is a “real question about the guilt of the accused” should be a discrete element or stage of the inquiry.[94] The preferable approach, in our opinion, is that it is a factor to be weighed, where relevant, in all the circumstances of the case.

Whether or not an accused goes into evidence to explain the reasons for his or her application to withdraw a plea may be relevant, but it is not necessarily determinative.[95] One clear example where it would not be necessary for the accused to do so is where, on the facts, it can be demonstrated that the offence to which the accused pleaded guilty could not legally be made out even with the benefit of the admission of all elements inherent in the plea itself. Another example may be where there is other evidence which bears upon the accused’s reasons for the attempt to withdraw the plea, such as the Applicant’s Signed Statement in the present case.[96] That statement was admitted into evidence without objection as an annexure to Ms Sutherland’s Affidavit.[97] Although it was of a hearsay nature and could have been objected to on that basis, once admitted it became evidence before the primary judge of the Applicant’s reasons for seeking leave to withdraw his plea, albeit evidence that was not able to be tested by cross-examination of the Applicant.[98]

The onus of persuading a judge to permit the withdrawal of a plea of guilty is on the accused. Although there are statements to the effect that courts should approach attempts at trial or on appeal (after conviction and sentence) to withdraw a plea of guilty “with caution bordering on circumspection”,[99] it is important that the undoubted discretion which exists in what we have described as a first scenario case should not be fettered.[100] In this context, we are in agreement with the observations of White J and Bollen J in Kitchen[101] that the language used by Lord Upjohn in Recorder of Manchester, namely that the discretion should be exercised only in “clear cases and very sparingly”, is neither necessary nor desirable. It is apt to fetter the exercise of the discretion. It is notable that none of the other Law Lords in Recorder of Manchester proffered such a view. So too, in Webb and Hay, Debelle J said that “[i]t does not seem that the discretion should be exercised only in clear cases and very sparingly but that is not to say the discretion should be exercised liberally”.[102]

For similar reasons, we would reject the argument advanced in the Director’s Supplementary Submissions that an accused seeking leave to withdraw a guilty plea bears a “substantial” or “heavy onus” of proof.[103] While the onus of proof is certainly borne by the accused in an application for leave to withdraw a guilty plea, there is no principled basis for this Court to treat that onus as any “heavier” than in other circumstances where a party seeks to persuade a court to exercise a discretion in the interests of justice.

Each case will necessarily turn on its own facts but examples of cases where the interests of justice will warrant the withdrawal of a plea of guilty include those listed by Spigelman CJ in Hura[104] and by Payne JA in Layt[105] (also being cases where a miscarriage of justice would occur). These include cases where:

the nature of the charge to which the plea has been entered is not appreciated;[106]

the plea is not “a free and voluntary confession”;[107]

the “plea [is] not really attributable to a genuine consciousness of guilt”;[108]

there has been a “mistake or other circumstances affecting the integrity of the plea as an admission of guilt”;[109]

the plea has been “induced by threats or other impropriety” and the applicant would not otherwise have pleaded guilty;[110]

the plea is not unequivocal or is made in circumstances suggesting it is not a true admission of guilt;[111] and

"the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt".[112]

It should also be noted that where a plea of guilty is entered during committal in the Local Court and the accused is then committed to the District Court or Supreme Court for sentence (which is, of course, not this case), s 103(1) of the Criminal Procedure Act appears to contemplate that, for offences other than those attracting life imprisonment, an accused may withdraw the plea without leave of the Court and the judge must direct that he or she be put on trial for the offence. In cases where the offence is punishable by life imprisonment, the judge has a general discretion to make an order remitting the matter back to the Local Court, where the committal proceedings will continue as if the accused had not pleaded guilty. The absence of any statutory criteria for the exercise of this discretion is consistent with it being exercisable judicially, where the interests of justice so require.

Conclusion and the proviso


It follows from our analysis that the wrong legal test was applied to the application for leave to withdraw the Applicant’s plea of guilty. As recorded earlier in these reasons,[113] the Director properly accepts that a conviction and sentence passed on the basis of a plea of guilty that was not permitted to be withdrawn in circumstances where the wrong legal test was applied to that issue will amount to a miscarriage of justice, subject to the application of the proviso. For that reason, it is not necessary for us to deal directly with other aspects of the Applicant’s argument which attacked critical of aspects of the primary judge’s reasoning.

In Filippou,[114] French CJ, Bell, Keane and Nettle JJ said, in relation to the proviso, that:

“By ‘substantial miscarriage of justice’ what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure from a trial according to law that warrants that description. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making ‘the wrong decision of [a] question of law’, the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate.” (emphasis added; footnotes omitted)

In the present case we are unable to conclude that no substantial miscarriage of justice actually occurred because, although the matter might be thought to be finely balanced, we are not persuaded that the result would have been the same had the interests of justice test been applied to the Applicant’s application for leave to withdraw his plea of guilty. In other words, there was a real possibility that, had this test been applied on the application, it would have been granted. Plainly enough, if this had occurred, the Applicant could not have been convicted without going to trial. As we explain below, it was not in contention (and indeed it was conceded by the Crown) that there was a triable issue raising a real question of the Applicant’s culpability for the murder of Scott Johnson.[115]

Our reasons for rejecting the Crown’s contention in relation to the proviso, namely that “the same outcome was inevitable” had the “interests of justice” test been applied[116] — a contention upon which the Crown bore the onus — may be stated relatively shortly.

First, notwithstanding the primary judge’s observations about the apparent clarity of the plea,[117] it was sought to be withdrawn almost immediately. Within around 30 minutes of it having been given, the Applicant had signed the statement reproduced at [8] above in which he referred to having been “confused” and “stressed”, and stated that he was tired and hungry (other evidence being to the effect that he had been awake since 4.00am and had only eaten some cornflakes in that period),[118] that the police had been pointing at him in Court whilst the proceedings were delayed and that he was conscious of the presence of Mr Johnson’s brother in the courtroom — “I can see the brother there, the police pointing me out. It's too much.”[119] The Applicant’s Signed Statement also contained the unequivocal words:

“I maintain that I didn’t cause Scott Johnson’s death.

I want to confirm my plea of Not Guilty.


I want to go ahead with my hearing and my trial”.


The speed with which the plea was sought to be withdrawn has a number of consequences. It is consistent with confusion on the part of the Applicant. In this context, it is very important to note that, although the expert medical and psychological evidence was to the effect that the Applicant was fit to plead, on the other hand, it indicated that the Applicant was intellectually impaired, a matter that the Crown properly accepted. The expert evidence in this regard was summarised at PJ [25]–[42] and [61]–[65], and was to the effect that:

(1) the Applicant was assessed by Dr Schafer (a neuropsychologist) as satisfying the criteria for an alcohol-induced major neurocognitive disorder;

(2) the Applicant was described by Dr Schafer as functioning “in the range of someone with an intellectual disability of mild severity”, placing him in the first percentile of the population for cognitive function;


(3) the Applicant’s immediate and delayed verbal memory performance, language skills, and the speed with which he processed information were each assessed by Dr Schafer to fall in the “extremely low” range; as a result of which


(4) Dr Schafer recommended that the Applicant receives assistance from a support worker from the Justice Advocacy Service, and additional time for his legal representatives to explain proceedings to him and to obtain instructions;


(5) the Applicant was assessed by Dr Furst (a psychiatrist) as satisfying the criteria for alcohol dependence, a persistent alcohol-induced neurocognitive disorder, and a borderline personality disorder or traits thereof;


(6) the Applicant was assessed by Dr Seidler (a psychologist) as suffering from reduced neurocognitive function due to years of alcohol abuse, with a history of generalised anxiety disorder and post-traumatic stress disorder. Dr Seidler also considered that the Applicant would likely meet the criteria for a personality disorder; and


(7) the Applicant was assessed by Dr Martin (a psychiatrist) as likely experiencing some cognitive deficits as a result of alcohol use disorder, although Dr Martin opined that a diagnosis of a neurocognitive disorder was “tenuous”.


While the assessments of each of the experts differed, all were in agreement that the Applicant suffered from cognitive deficits. In this context, after noting at PJ [111] that “a fully informed consideration of the precise level of the applicant’s impairment [was] impossible” on the available evidence, the primary judge said the following:

“What can be readily concluded ... is that the applicant is cognitively impaired; whether by an intellectual disability or through alcohol related brain damage, or a combination of both is immaterial for present purposes. I accept that he functions socially and intellectually at a level well below that of most people in the community and he is thereby disadvantaged.”

Having regard to the Applicant’s intellectual impairment, in combination with the circumstances surrounding the entry of his guilty plea (including what was said at the pre-arraignment and post-arraignment conferences, as recorded at Annexures A and B to these reasons), it is arguable that the “true admission of guilt” said to be manifested by the Applicant’s guilty plea could be characterised as equivocal.[120]


Another consequence of the speed of the attempt to withdraw the plea was that no prejudice would have been occasioned had leave been granted, nor would the important consideration of finality have been impaired in any real or substantive sense. As we have previously noted, to the extent that finality is of relevance in a first scenario case, it can scarcely be material in a case such as the present when the attempt to withdraw the plea was made almost immediately.

Secondly, the post-arraignment conference file note, which is Annexure B to these reasons, is also instructive. It suggests that the Applicant’s principal motivation in pleading guilty was to be “safe” from his former wife, who had claimed that the Applicant had confessed to the killing of Mr Johnson. Thus, he is recorded as saying “I can't handle it. If I get out she'll just come after me again, I can't do it I just can't I'm sorry. I am better off in here. I'm safe in here. This is too much stress.” This observation was quickly followed by the statement “I didn't do it, but I'm saying I did it, you know what I mean.”[121] Notwithstanding what was said by Dawson J (in dissent) in Meissner v The Queen (Meissner), in relation to an accused pleading guilty “for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence”,[122] there is an intractable and uncomfortable tension between refusing to permit withdrawal of a guilty plea so motivated and a court’s consideration of whether a plea constitutes a “genuine recognition of guilt”[123] or a “true admission of guilt”.[124] Whilst it is correct that, in Meissner, Brennan, Toohey and McHugh JJ said that:[125]

"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence" (emphasis added; footnotes omitted),

a court hearing an application to withdraw a plea of guilty must be vigilant to ensure that the plea in truth is being proffered in the interests of the person entering it. That will be most unlikely if the stated reasons for entering it are not rational or fully informed. Again, questions of an accused’s intellectual capacity and the extent of any advice he or she has received and properly understood may arise in application of the interests of justice calculus.


Thirdly, the post-arraignment file note also suggests that the Applicant held a view as to the sentence he would receive if he pleaded guilty (10 years’ imprisonment). However, it was clear from the context that that was not the view of his senior counsel and that it had plainly not been discussed with the Applicant before the guilty plea was entered because of the understanding of his legal advisers that he was proposing to plead not guilty.

Fourthly, the guilty plea was entirely unexpected. Although there was evidence before the Court[126] that the Applicant had previously (many months beforehand) had some discussions with his legal advisers about the possibility of pleading guilty, the Applicant had never given instructions that he would do so and his consistent stance, to which he immediately returned after the plea, was that he was not guilty. This stance had been maintained for almost two years since he was charged and had been reiterated on the very morning of the plea during the pre-arraignment conference.[127] This was, accordingly, a circumstance in which his legal advisers had no notice of the Applicant’s intention to change his plea. His counsel therefore had no occasion to take the important and protective steps of providing the explanations mandated by r 41 of the Barristers Rules.[128]

That was significant because, early in the post-arraignment conference, Ms Rigg SC explained to the Applicant, in the language of r 41(a), that the effect of pleading guilty was to admit guilt to “the whole world that you killed Scott Johnson, and that you intended to kill him, or cause him really serious harm”, following which the Applicant gave written instructions to apply to withdraw the plea. This suggested that, had the Applicant first informed his legal advisers that he was intending to change his plea, he would similarly have revised his view. It should be observed, however, that the Applicant’s reply “yep” to Ms Rigg after her r 41 explanation[129] was also capable of being construed as indicating some appreciation of the effect of the plea he had just given. It certainly impressed the primary judge in that way,[130] but in our view, in the overall context, it was at the very least equivocal.

This example is illustrative of the fact that, at least in respect of some of the evidence that was before the primary judge, reasonable minds could differ as to the inferences to be drawn from certain statements made by the Applicant to his legal advisers. Another example arises from the fact that, as recorded by the primary judge,[131] the Applicant did not initially appear willing to go to the cells following his plea in order to confer with his legal advisers. There could have been a number of reasons for this, including that the Applicant was simply seeking to “get this over and done with”[132] because he was overwhelmed by what was his first physical appearance in Court.

Fifthly, although the primary judge held that the Applicant was fully aware of the facts, the Crown had not articulated precisely how it was putting its case as a matter of law as at the time of the Applicant’s arraignment. Thus, although a Crown Case Statement had been prepared and served, and to that extent the Applicant was aware of the facts upon which the Crown relied,[133] it did not identify the basis or bases of liability upon which the Crown would rely to establish murder. That is, it did not specify whether it was alleged that the Applicant intentionally drove Mr Johnson off a cliff, whether he acted with reckless indifference to human life, or whether, for example, the case was put on the basis of constructive murder. Mr Game illustrated this matter by pointing out that the Applicant was eventually sentenced on the basis of reckless indifference to human life, which was not a way in which the Crown had ever articulated its case prior to the plea.[134]

To be clear, the Crown was not being criticised for not having particularised the legal basis upon which it advanced its case at the point in time at which the plea was made; rather, the point was that if the Crown had not at that stage settled upon how it put its case, it may legitimately be doubted how a person of extremely limited intellect could meaningfully plead to the charge and thereby admit the elements of the offence in a sufficiently informed way.

Without going into the detail of the Crown Case Statement in any way, which would not be appropriate, we are comfortably satisfied for the purposes of the proviso that it cannot be said that no substantial miscarriage of justice would arise if the appeal were to be dismissed. As noted above,[135] it was conceded by the Crown that, but for the plea, there was a triable issue raising a real question of the Applicant’s culpability for the murder of Scott Johnson. The corollary of that concession is that this is not a situation where “the case against the accused is overwhelming”,[136] or in which, if the matter proceeded to trial, a guilty verdict for the murder charge would be a foregone conclusion. The possibility of a lesser conviction, of manslaughter for example, or indeed complete acquittal, cannot be ruled out.

It follows that the Applicant’s conviction and sentence must be quashed, the primary judge’s dismissal of the application to withdraw the plea of guilty should be set aside and the matter remitted to the Common Law Division.

The Applicant still requires leave to withdraw his plea of guilty, although it is possible that the Director will reconsider her opposition to his application in light of these reasons, the proper test to be applied on such an application and the considerations germane thereto. That is a matter for the Director.

If opposition to the withdrawal of the plea is itself withdrawn, the matter should proceed to trial. Otherwise the application for leave to withdraw the plea should be re-determined expeditiously.

Orders


As a result of the foregoing analysis, the following orders should be made:

(1) Grant leave to appeal.

(2) Appeal allowed.


(3) Set aside the conviction and sentence of the Applicant.


(4) Set aside the primary judge’s dismissal of the Applicant’s application to withdraw the plea of guilty.


(5) Remit the matter for mention before the Chief Judge at Common Law at 9.30am on 1 December 2022.


The Applicant sought a non-publication order in respect of these reasons and those of the primary judge, including her Honour’s sentencing judgment.

It is not appropriate to make such an order at this stage. The current status of the matter following the Applicant’s conviction appeal is that, subject to the position adopted by the Crown following publication of these reasons, there is an extant plea of guilty and an application for leave to withdraw that plea which remains to be determined in accordance with the proper legal test as outlined in these reasons.

If the plea is permitted to be withdrawn or the Crown consents to that course, an application for non-publication orders in relation to these reasons and those of the primary judge may be made prior to empanelment of any jury, assuming that the Applicant is tried by a jury as opposed to a judge alone. In that way, the public interest in open justice (which includes the exposure of this Court’s reasons for judgment) can be balanced with the need for a fair trial. The general practice of the Court when a retrial is ordered and there is a concern that previous judgments of the Court would be potentially prejudicial to the accused if accessed by a jury member notwithstanding the usual instructions to, and obligations on, members of the jury not to engage in extraneous research, is to remove such judgments from the Caselaw website shortly prior to empanelment for the duration of any subsequent trial, thus suspending their electronic availability.

**********


ANNEXURE A — FILE NOTE OF PRE-ARRAIGNMENT CONFERENCE


“Belinda Rigg (BR), Bill Neild (BN), Louise Sutherland (LS) – conference with client in cells before court 9.40am

LS: How are you Scott?


SW: Terrible. Up since 4. Nothing to eat, not even a cup of coffee. I lost my glasses just now, in truck.


BR: Confirmed hearing ready to start, before we discuss anything else, want to confirm that during her opening address, she will touch on the issue of Scott having told police he was gay. His brother is intending to dial in. Is client ok with that, with those submissions being made with his brother listening?


SW: I don't want him here?


LS: Do you want me to tell him not to dial in, or get Allyson to?


SW: No, he can dial in – that's fine – just not in person, he is not vaccinated.


LS: OK, so you are ok with him hearing those submissions.


SW: Yes


SW: (Asked question about Helen – what is all this about something I said to her?


LS: Remember in her statement, Helen said that you told her that you did something, to an American guy at North head – she says you admitted to it.


SW: OK I'm confused.


LS clarified, HW's evidence not being discussed today.


BR: Need to head up to court shortly. Discussed arraignment process. Judge's associate will ask, how you plead.


SW: Thought this had already happened?


LS: We have told the court you are pleading not guilty, this is a formality – for you to confirm / say it. On record.


BR: Explained process.


SW: OK.


BR: Confirmed – what will you say?


SW: Confirmed that he will say ‘Not guilty’


Louise Sutherland”.


ANNEXURE B — FILE NOTE OF POST-ARRAIGNMENT CONFERENCE


“File note – conference with Scott White – King Street cells 11.15-11.40am 10 January 2022

Belinda Rigg, SC [BR], Bill Neild, Louise Sutherland [LS], Scott White [SW]


Client seen in cells after indicating, without any prior notice, unanticipated plea of Guilty on arraignment.


SW: I'm really sorry to all of you, I appreciate all your work, but I can't handle it. If I get out she'll just come after me again, I can't do it I just can't I'm sorry. I am better off in here. I'm safe in here. This is too much stress.


BR: You told us before court you were going to say Not Guilty and you have told us consistently that you didn't do it.


[SW]: I didn't. I didn't do it, but I'm saying I did it, you know what I mean. I'm saying that. 10 years, I'll take that.


BR: No, the Judge isn't going to give you 10 years Scott, it won't be anything that low. You need to understand that if you plead guilty, you are telling the whole world that you killed Scott Johnson, and that you intended to kill him, or cause him really serious harm.


SW: Yep


BR: But you've said you didn't do it.


SW: I didn't. But it's the only way. She's going to come after me.


LS: (clarified ‘she’ being Helen – SW confirmed yes)


BR: We are very confident, and have done a lot of work, to show that she (Helen) has been vindictive towards you and is, not a reliable witness.


SW: This isn't a split decision; I've had 4 occasions ... you look on the system ... (Note – taken this to mean occasions where client has contacted Legal Aid either directly or via a family member in a state of distress about big decisions in his case and his plea – LS).


SW: I can see the brother there, the police pointing me out. It's too much.


SW: I have had no sleep, no shower, 4 hours in a cell. I just want to get this over and done with.


BR: It is no doubt a very stressful day.


SW: No, please ...


BR: When we spoke to you in the morning, why didn't you tell us?


SW: I was thinking about it but I didn't. Was going to tell Louise in court. I just want it to be put to rest, for Scott (victim), for the brother, he needs to let this go, he needs to understand he can't do this, it isn't right. Gay people, are private (unintelligible), did he (brother) ever think about why he (Scott) came over here, why he was here for 5 years? Why can't he understand how he might have been feeling? About being attracted to other blokes. Gay people are clean, immaculate, private (unintelligible). He (Scott) wouldn't want this, dragging his name through all of this.


BR: Those may be good points but there might be someone out there who did do it.


LS: The last thing the would want is for you to say you did it when you didn't.


BR: We have a good argument, that your admissions are not reliable and that Helen is not a reliable witness.


SW: What do we do now?


BR: We will need to start again. If you want to do that. Read out the charge again in court and say not guilty.


SW: OK


BR: IT may be that we can't start again straight away and may have to make a more formal application probably tomorrow. If we do start again, just to be clear (or confirm), what will you say?


SW: Not guilty. Ok go ahead. You can keep going. I'm sorry about all of this, you don't know what it's like, she took my kids, took them away, cut me off.


BR: That must have been terrible, I can't imagine.


Drafted instructions for client to sign in presence of client, outlining why he said ‘guilty’ in court, and confirming that he wants to say ‘not guilty’


BR: You will be ok, you were living in a stable way in the community for a long time before all of this, you will have support, you are linked in with all these support groups now who will help you.


SW: I am not that type. I don't ask for help. I have been forced to look after myself from a young age. I don't rely on other people.


BR: Have you really still had nothing to eat?


SW: I had some cornflakes at 4.00am


Instructions read out loud by client as best he could in presence of myself and both Counsel, prior to signing. Client signed instructions.


Conference ended 11.40am. LS countersigned instruction document.


Louise Sutherland


File note prepared by Louise Sutherland, at 2.30pm 10 January 2022, on basis of recollection of conference and rough notes taken during conference (attached).”


[1] A file note of this conference is reproduced at Annexure A to these reasons.


[2] R v White [2022] NSWSC 11 at [19] (primary judgment or PJ).


[3] Parenthetically, it should be noted that the primary judge subsequently recorded that “[i]t is clear to the Court that Ms Sutherland [the Applicant’s solicitor] and counsel have at all times and most conscientiously sought to preserve and protect the applicant’s interests, and to fulfil their duties both to him and to the Court”: PJ [123].


[4] PJ [22].


[5] Annexure A to these reasons.


[6] Annexure B to these reasons.


[7] PJ [121].


[8] R v White [2022] NSWSC 525 at [73] (sentencing judgment or SJ).


[9] (2022) 107 NSWLR 239; [2022] NSWCCA 16 at [121]. See also Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [9]–[15] (Filippou).


[10] Rule 41 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) provides: “Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister: (a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world in respect of all the elements of the charge, (b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence, (c) must be satisfied that after receiving proper advice the client is making a free and informed choice to plead guilty, and (d) may otherwise continue to represent the client.”


[11] Uttered by the Applicant at the post-arraignment conference; see Annexure B to these reasons.


[12] (2021) 95 ALJR 937; [2021] HCA 36 at [116].


[13] Appeal transcript, 25 October 2022 at 52.10–19.


[14] At [118]. See also Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 at [74] per Edelman and Steward JJ.


[15] See Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; [2022] HCA 36 at [39] (Awad).


[16] (1996) 184 CLR 501 at 531; [1996] HCA 46.


[17] (2001) 121 A Crim R 472; [2001] NSWCCA 61.


[18] [2001] NSWCCA 299.


[19] [2020] NSWCCA 231.


[20] Director’s Supplementary Submissions at [26].


[21] Succeeded by s 153 of the Criminal Procedure Act 1986 (NSW).


[22] Maxwell at 515.


[23] Maxwell at 515.


[24] Maxwell at 522, citing R v Plummer [1902] UKLawRpKQB 105; [1902] 2 KB 339; Ex parte Stanton [1928] NSWStRp 25; (1928) 28 SR (NSW) 516; R v Foley [1963] NSWR 1270.


[25] Maxwell at 522, fn 78.


[26] De Kruiff v Smith [1971] VicRp 94; [1971] VR 761 at 765; Frodsham v O'Gorman [1979] 1 NSWLR 683 at 688 per Hope JA (Moffitt P agreeing), 690 per Mahoney JA; Daire v Lauss (1984) 35 SASR 508; Attorney-General (SA) v Kitchen and Roberts [1989] SASC 1471; (1989) 51 SASR 54; R v Miller [1990] 2 Qd R 566.


[27] Maxwell at 522, fn 81.


[28] Maxwell at 522 (emphasis added).


[29] Maxwell at 531.


[30] (1992) 64 A Crim R 38.


[31] (1989) 43 A Crim R 362.


[32] (1994) 73 A Crim R 35 at 36–37.


[33] See Webb and Hay at 45–53.


[34] Webb and Hay at 52–53.


[35] [1989] SASC 1471; (1989) 51 SASR 54.


[36] Kitchen at 56.


[37] Recorder of Manchester at 507.


[38] Kitchen at 57.


[39] Kitchen at 55.


[40] (1984) 35 SASR 232 at 234.


[41] Kitchen at 63.


[42] Kitchen at 63.


[43] Kitchen at 65 (emphasis added).


[44] [1971] AC 481.


[45] Maxwell at 509 per Dawson and McHugh JJ, 523 per Toohey J, 530 per Gaudron and Gummow JJ.


[46] Sewell at [32].


[47] Recorder of Manchester at 488. This passage was cited in the judgment of Dawson and McHugh JJ in Maxwell at 509.


[48] (1859) 8 Cox CC 237.


[49] [1964] 1 WLR 1273.


[50] Recorder of Manchester at 491.


[51] Recorder of Manchester at 493.


[52] Recorder of Manchester at 493.


[53] Recorder of Manchester at 501.


[54] Recorder of Manchester at 502.


[55] [1954] 1 WLR 933.


[56] McNally at 934.


[57] [1843] EngR 485; (1843) 2 Mood & R 479 at 480; [1843] EngR 485; (1843) 174 ER 355 at 356.


[58] [1928] NSWStRp 25; (1928) 28 SR (NSW) 516 at 517–518.


[59] [1963] NSWR 1270 at 1273.


[60] Maxwell at 522, fn 78.


[61] Foley at 1273.


[62] (1986) 22 A Crim R 73 at 80.


[63] Boag at 36–37.


[64] Sewell at [39].


[65] See, for example, Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 77; [1978] HCA 22; Mallet v Mallet (1984) 156 CLR 605 at 608–609; [1984] HCA 21; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 533–534; [1986] HCA 17; Evans v Bartlam [1937] AC 473 at 488–489; Gardner v Jay [1885] UKLawRpCh 60; (1885) 29 Ch D 50 at 58.


[66] (2005) 155 A Crim R 37; [2005] NSWSC 129 at [34].


[67] [2020] NSWCCA 217. Paragraphs [30]–[32] of Samandi were extracted by the primary judge in the passage reproduced at [25] above.


[68] See PJ [72] at [25] above.


[69] Boag at 36–37.


[70] In R v Chiron [1980] 1 NSWLR 218, the accused applied to the trial judge for leave to withdraw his guilty plea before sentence, but it was held that, in the circumstances of that case, the trial judge had no power to permit such withdrawal: see [63] below. The case may therefore be considered a “second scenario” case for present purposes.


[71] See Wong at [16].


[72] [2015] NSWCCA 144 at [52].


[73] R v Sid Zaiter [2005] NSWCCA 61.


[74] R v Sid Zaiter at [38].


[75] (2011) 206 A Crim R 557; [2011] NSWCCA 44.


[76] See [53] above.


[77] Lawson at [32]–[36].


[78] BWM v R (1997) 91 A Crim R 260 at 263.


[79] [2018] NSWCCA 282 at [17]–[19].


[80] Cf, Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [101].


[81] (2007) 230 CLR 89; [2007] HCA 22 at [134], [158].


[82] R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97 at [18].


[83] See also R v Jerome & McMahon [1964] Qd R 595 at 604 per Gibbs J, cited with approval by Gaudron and Gummow J in Maxwell at 529; cf, Liberti v R (1991) 55 A Crim R 120 at 122, where Kirby P did not appear to distinguish between the relevance of finality at trial and on appeal.


[84] See Criminal Procedure Act, s 157.


[85] [1980] 1 NSWLR 218 at 226–227.


[86] See also R v Wilkes at [11]–[13].


[87] See [58] above.


[88] Hura at [32] ff.


[89] See, for example, Kitchen at 65.


[90] R v Martin [1904] NSWStRp 113; (1904) 21 WN (NSW) 233 at 235, quoted with approval by Dawson and McHugh JJ in Maxwell at 511.


[91] See R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep).


[92] R v Wilkes at [18].


[93] Hura at [69].


[94] Director’s Supplementary Submissions at [2], [15].


[95] Kitchen at 57, 58, and 65.


[96] See [8] above.


[97] Transcript, 11 January 2022 at 12.15.


[98] Of course, had it been objected to on that basis in the application in the present case, defence counsel may have decided to call the Applicant.


[99] Liberti v R at 122 per Kirby P.


[100] See [55] above, in particular fn 65.


[101] See [40]–[41] above.


[102] At 52, citing Kitchen at 63 per Bollen J; R v Roach (1990) 54 SASR 491 at 495.


[103] Director’s Supplementary Submissions at [37], [54].


[104] Hura at [32].


[105] Layt at [27].


[106] R v Ferrer-Esis (1991) 55 A Crim R 231 at 233.


[107] R v Chiron at 220.


[108] R v Murphy [1965] VicRp 26; [1965] VR 187 at 191.


[109] Sagiv at 80.


[110] R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep).


[111] Maxwell at 511.


[112] R v Davies (1993) 19 MVR 481 at 485; R v Favero [1999] NSWCCA 320.


[113] See [20] above.


[114] Filippou at [15]. See also more recently Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [20], [41] per Kiefel CJ and Keane J, and, albeit in the different statutory context of s 276(1)(b) of the Criminal Procedure Act 2009 (Vic), Awad at [39] per Kiefel CJ and Gleeson J, [76]–[79] per Gordon and Edelman JJ.


[115] Appeal transcript, 25 October 2022 at 6.23.


[116] Director’s Supplementary Submissions at [37]; see also at [39].


[117] See [6] above.


[118] See Annexure B to these reasons.


[119] See Annexure B to these reasons (emphasis added).


[120] Cf, Maxwell at 511 per Dawson and McHugh JJ.


[121] See Annexure B to these reasons.


[122] [1995] HCA 41; (1995) 184 CLR 132 at 157; [1995] HCA 41.


[123] R v Davies at 485, quoted by Spigelman CJ in Hura at [33].


[124] Maxwell at 511 per Dawson and McHugh JJ.


[125] Meissner at 141.


[126] Following waiver of privilege for the purposes of the argument on appeal.


[127] See Annexure A to these reasons.


[128] See fn 10 above.


[129] See Annexure B to these reasons.


[130] PJ [101]–[103].


[131] PJ [45].


[132] See Annexure B to these reasons.


[133] Subject to objections to certain evidence which were to be determined on the same day as the arraignment.


[134] SJ [73].


[135] See [74] above.


[136] R v Khan [2002] NSWCCA 521 at [27], citing R v Davies and Hura.


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