Citation: R v Nguyen [2000] NSWSC 563
Court: Supreme Court of New South Wales (Common Law Division)
Date: 7 July 2000
Judge(s): Dunford J
Background
The applicant was an inmate at Silverwater Metropolitan Reception and Remand Correctional Centre who, along with two co-accused, repeatedly stabbed a fellow prisoner approximately 50 times. The victim died from his wounds. On 18 October 1999, represented by experienced criminal counsel, the applicant entered a plea of guilty to murder.
The co-accused stood trial separately shortly after, raised self-defence, and were acquitted by a jury on 4 November 1999. Following that verdict, the applicant changed his legal representation and sought leave to withdraw his guilty plea before sentencing, arguing that he too had acted in self-defence and in defence of his fellow inmates.
The applicant was a young man of Vietnamese background with limited English and almost no formal education, who gave his evidence through an interpreter. He had previously pleaded guilty to other serious offences and was no stranger to criminal proceedings.
Legal Issues
- Whether the applicant should be granted leave to withdraw his guilty plea prior to sentencing.
- Whether the plea was entered with full and voluntary appreciation of the issues involved, or whether it was vitiated by mistake, impropriety, lack of understanding, or some other circumstance undermining its integrity.
- Whether the applicant had demonstrated that his plea was not attributable to a genuine consciousness of guilt.
Decision
Dunford J dismissed the application. The court set out the governing principles: a court retains discretion to permit a change of plea at any time before sentence, and leave should be granted where the plea resulted from a material mistake, lack of understanding, fraud, threats, impropriety, or a miscarriage of justice. The central question in all cases is whether the applicant has shown, on the onus resting with him, that the plea was not really attributable to a consciousness of guilt.
The applicant's primary problem was evidentiary. He maintained legal professional privilege over his communications with former counsel, meaning there was no evidence about what instructions he had given them regarding self-defence, or what advice he received about how to plead. Dunford J noted that in cases of this kind, it is normally necessary for the applicant to "lift the veil" and disclose those communications. Without that evidence, two critical issues remained unresolved.
The applicant gave evidence himself, but Dunford J found him an unsatisfactory and unconvincing witness, noting inconsistencies and unanswered questions in his testimony. His Honour was not satisfied that self-defence had occurred to the applicant before his co-accused were acquitted, characterising the application as a cynical attempt to take another chance following that unexpected outcome.
The court concluded that the applicant had not discharged the onus of showing the plea was other than a voluntary recognition of guilt, entered with full appreciation of the issues after competent legal advice. No material mistake, lack of understanding, fraud, threat, or other impropriety was established.
Orders Made
- Application to withdraw the guilty plea dismissed.
Key Takeaways
- A court retains discretion to permit withdrawal of a guilty plea at any time before sentence, but the onus lies on the applicant to demonstrate the plea was not truly attributable to a consciousness of guilt.
- Circumstances justifying leave to withdraw include lack of appreciation of the charge, absence of sufficient evidence to convict, fraud or threats inducing the plea, or a miscarriage of justice such as an erroneous evidentiary ruling.
- Where an applicant relies on the inadequacy or absence of legal advice as a ground for withdrawal, it will ordinarily be necessary to waive legal professional privilege and disclose what passed between the applicant and former counsel. Maintaining privilege leaves critical factual questions unanswered and is likely to be fatal to the application.
- The acquittal of co-accused on self-defence grounds, occurring after an applicant has already pleaded guilty, does not of itself justify withdrawal of the plea. The question remains whether the plea, at the time it was entered, reflected a genuine consciousness of guilt.
- In assessing credibility, Dunford J gave weight to the applicant's prior familiarity with criminal proceedings and his failure to raise self-defence with his legal advisors at the time, treating the belated claim as lacking credibility in the absence of corroborating evidence.
Legislation and Cases Referenced
Cases cited:
- R v Marchando [2000] NSWCCA 8
- R v Boag (1994) 73 A Crim R 35
- R v Batiste (1994) 35 NSWLR 437
- R v Favero [1999] NSWCCA 320
- R v Cincotta (CCA, 1 November 1995)
- R v Griffiths (1977) 137 CLR 293
- Chow v DPP (1992) 28 NSWLR 593
- R v Sagiv (1986) 22 A Crim R 73
- R v Chiron [1980] 1 NSWLR 218
- R v Davies (1993) 19 MVR 481