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Supreme Court 17 July 2000

REGINA v. LULHAM

[2000] NSWSC 687

Homicide
CRIMINAL LAW PLEA OF GUILTY APPLICATION TO WITHDRAW NO FACTORS VITIATING PLEA.

Citation: Regina v Lulham [2000] NSWSC 687
Court: Supreme Court of New South Wales (Criminal Division)
Date: 17 July 2000
Judge(s): Greg James J

Background

The offender had been charged with the murder of a man at Beechwood, New South Wales, on 12 November 1998. The prosecution case was that the offender acted as an accessory before the fact to a killing carried out by a co-accused, having driven the co-accused back to the location of the deceased after the two had returned home to drink. A signed confession the offender had sent to the co-accused while in custody later came to light and featured in proceedings against the co-accused.

After initially entering a not guilty plea at arraignment, the offender changed his plea to guilty of murder on 24 August 1999 at the Newcastle Supreme Court. He was convicted on 7 December 1999. His original counsel subsequently sought leave to withdraw, and new lawyers took over with a view to applying to vacate the guilty plea.

The application to withdraw the plea was made in March 2000. Affidavit evidence was filed by the offender, his original instructing solicitor, and his original counsel. The offender also gave oral evidence, asserting he was not guilty, and original counsel was cross-examined.

  • Whether the offender's plea of guilty to murder should be permitted to be withdrawn
  • Whether the plea had been entered with adequate awareness of the elements of the offence, particularly the mental element required for liability as an accessory before the fact
  • Whether any factor vitiated the integrity of the plea, including alleged inadequacy of legal advice, claimed threats to the offender's mother, or anticipated sentencing discount
  • Whether the distinction between matters constituting the offence and matters going only to culpability affected the validity of the plea

Decision

Greg James J found that the offender had been properly advised of the serious nature of a guilty plea to murder and of the relevant elements of the offence, even if that advice was not given with the utmost precision. Both the original solicitor's affidavit and original counsel's affidavit and oral evidence established that the offender had possession of the relevant facts and a sufficient awareness of the charge before entering the plea. No adverse finding was made as to counsel's credibility or competence.

The court drew a clear distinction between matters that go to whether an offence was committed and matters that go only to the degree of culpability. The offender's emerging wish to contest how much responsibility he bore relative to the co-accused, and whether he was the prime mover in the killing, amounted to a dispute about culpability rather than a denial of the offence itself. This kind of dispute does not provide a basis for vacating a plea.

The court also rejected the suggestion that anticipated pressure from the availability of a sentencing discount could taint a plea. The law does not require that a plea be withdrawn simply because an accused later seeks to assert matters minimising his role, or because he contemplated receiving a discount.

For the plea to be vacated, there must be something that vitiates the plea as a genuine admission of the relevant circumstances. No such matter was established here. Nothing in the material raised an arguable issue for trial or called into doubt the integrity of the plea as a genuine expression of consciousness of guilt.

Orders Made

  • Application to withdraw the plea of guilty dismissed.

Key Takeaways

  • A plea of guilty will not be vacated merely because an accused later raises matters that go to the degree of culpability, such as the relative roles of co-offenders, rather than matters that deny the elements of the offence itself.
  • Sufficient legal advice need not be perfect or given with the utmost precision; what is required is that the accused had adequate awareness of the nature of the charge and the relevant elements before entering the plea.
  • Anticipated receipt of a sentencing discount does not constitute unacceptable pressure capable of vitiating a guilty plea.
  • To succeed on an application to withdraw a plea, there must be something that genuinely taints the proceedings or raises an arguable issue for trial; a bare assertion of not guilty, unsupported by evidence going to the mental element of the offence, is insufficient.
  • The Supreme Court confirmed that the integrity of a plea is assessed by reference to whether it represented a genuine expression of consciousness of guilt at the time it was entered, not by reference to subsequent shifts in the offender's position.

Legislation and Cases Referenced

Cases Cited:
- Liberti (1991) 55 ALR 120
- Davies (CCA, unreported, 16 December 1993)
- Ganderton (CCA, unreported, 17 September 1998)
- Chiron (1980) 1 NSWLR 218

Legislation: No specific legislation was cited in the judgment.