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Court of Criminal Appeal 10 August 2000

R. v. BOYD

[2000] NSWCCA 110

Drugs
CRIMINAL LAW AND PROCEDURE PLEA OF GUILTY APPEAL

Citation: R v Boyd [2000] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 10 August 2000
Judges: Powell JA, Hulme J, Dowd J

Background

The appellant was charged with supplying heroin at Long Jetty on 23 June 1992. The Crown alleged police found 5.81 grams of heroin in small resealable bags in his jeans pocket. The appellant's consistent instruction to his solicitor was that the drugs had been planted by the arresting officers.

A first trial before Urquhart DCJ in 1993 ended in a hung jury after five days. A retrial was listed before McGuire DCJ in May 1994. By that time, the appellant's de facto wife had died, leaving him the sole carer of three young children.

On the first day of the retrial, during a lunchtime adjournment after the Crown's first witness had been partially cross-examined, the appellant changed his plea to guilty. He was subsequently sentenced to a non-custodial sentence. He later appealed, seeking to set aside the conviction on the basis that his plea did not reflect a true consciousness of guilt.

  • Whether the appellant's guilty plea was genuinely voluntary, given the personal pressures he faced at the time.
  • Whether the change of plea amounted to a miscarriage of justice warranting the conviction being set aside on appeal.
  • Whether fresh evidence (relating to police misconduct material apparently aired before the Police Royal Commission) could justify allowing the withdrawal of the plea.

Decision

Powell JA, with whom Hulme J and Dowd J agreed, accepted that the appellant had entered his guilty plea not out of any acknowledgment of guilt but because he feared the consequences a custodial sentence would have for his children. His solicitor's affidavit confirmed the appellant never admitted guilt throughout the proceedings. The appellant changed his plea after discussions in which a non-custodial outcome was raised.

Nonetheless, Powell JA was not persuaded that a miscarriage of justice had occurred. The plea had been entered by an adult defendant with experienced legal representation, who made a deliberate choice to accept a concession from the Crown rather than risk a custodial sentence after conviction. The fact that the decision was driven by personal circumstances, rather than remorse, did not of itself render the conviction unsafe.

The appellant also sought to rely on evidence emerging from the Police Royal Commission, suggesting the arresting officers had engaged in misconduct in other matters. Powell JA concluded that even if this material could be characterised as fresh evidence in an ordinary contested trial appeal, it could not carry the weight required here. It was the appellant's own plea of guilty, not any jury verdict, that produced the conviction.

Hulme J added that even if the plea had been entered without consciousness of guilt, allowing withdrawal would require the matter to proceed to a new trial. By 2000, some eight years had passed since the alleged offence and six years since the plea. Hulme J observed that any such trial would be materially different from one conducted in 1994, with witnesses' memories significantly diminished. His Honour noted that the delay was substantially attributable to the appellant's own deliberate decision to plead guilty in the circumstances he did.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Conviction and sentence confirmed.

Key Takeaways

  • A guilty plea entered without any acknowledgment of guilt, but made deliberately by a legally represented adult for personal reasons, does not automatically constitute a miscarriage of justice warranting the setting aside of a conviction.
  • Where an appellant seeks to withdraw a guilty plea on appeal, it is the plea itself (not a jury verdict) that must be impugned. Fresh evidence capable of undermining a jury's findings at trial does not carry the same force where conviction followed a change of plea.
  • In dismissing the appeal, the Court of Criminal Appeal noted that significant delay attributable to the appellant's own strategic decision weighs against granting relief that would require a further trial many years after the events in question.
  • The prospect of a fair retrial after substantial delay is a relevant consideration when a court weighs whether to allow withdrawal of a guilty plea, particularly where the delay flows from the appellant's own choices.
  • Sufficient personal pressure to explain why a defendant pleaded guilty does not, without more, establish that the plea was involuntary or that the resulting conviction was unjust.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply of a prohibited drug)

Cases cited:
No specific cases were cited in the portions of the judgment provided.