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Court of Criminal Appeal 16 March 2001

REGINA v HURA

[2001] NSWCCA 61

Also reported as (2001) 121 A Crim R 472
Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW WITHDRAWAL OF GUILTY PLEA S91 CRIMINAL PROCEDURE ACT 1986 FINDING OF GUILTY MADE MISCARRIAGE OF JUSTICE NO MISCARRIAGE OF JUSTICE

Citation: Regina v Hura [2001] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 16 March 2001
Judge(s): Spigelman CJ, Simpson J, Carruthers AJ

Background

The appellant faced five charges in the District Court arising from incidents at his family home in June 1999. The charges included assault occasioning actual bodily harm to his de facto partner and son, an act of indecency, and two counts of sexual intercourse without consent. He pleaded guilty to the first count from the outset and not guilty to the remaining four.

Midway through trial, after the complainant had given substantially complete evidence, the appellant changed his plea and pleaded guilty to all five counts. The trial judge accepted those pleas, discharged the jury, and commenced a sentencing hearing.

When sentence proceedings resumed some weeks later, the appellant sought to withdraw his guilty pleas on the four counts he had changed during trial. The District Court judge determined he had no jurisdiction to permit the withdrawal under s 91(2) of the Criminal Procedure Act 1986. The appellant appealed, also contending that the acceptance of his guilty pleas constituted a miscarriage of justice.

  • Whether the District Court had jurisdiction to allow withdrawal of the guilty pleas after the judge had accepted them during trial, having regard to s 91(2) of the Criminal Procedure Act 1986.
  • Whether the acceptance of the guilty pleas constituted a miscarriage of justice.

Decision

Jurisdiction to withdraw the plea. Section 91(1) of the Criminal Procedure Act 1986 provides that once a court accepts a guilty plea entered after a jury has been empanelled, it must discharge the jury and find the accused guilty. Subsection (2) removes any power to allow withdrawal of the plea once a "finding" of guilt has been made. The court held that the word "finding" should not be given an overly technical meaning.

Spigelman CJ found that the trial judge's acts, taken together, plainly constituted a "finding" for the purposes of s 91(2): the judge accepted the pleas, discharged the jury, and stated in terms that the pleas were "all that the law requires in order to establish his guilt." There was no remaining jurisdiction to entertain an application to withdraw the pleas.

Miscarriage of justice. The court examined the circumstances in which the plea was entered. It found that the appellant had harboured a hope, or perhaps an expectation, that the complainant would give evidence that exculpated him. When that hope was dashed during the adjournment, he chose to plead guilty in order to obtain such sentencing benefit as remained available. The court accepted the complainant's evidence that she had given no basis for any such expectation, and that she had been pressured to retract her police statement.

The court concluded that the plea represented a genuine recognition of guilt. No miscarriage of justice had occurred, and nothing in the surrounding circumstances cast doubt on the integrity of the plea.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 91(2) of the Criminal Procedure Act 1986, once a court has made a "finding" of guilty following acceptance of a mid-trial guilty plea, no jurisdiction remains to allow withdrawal of that plea.
  • The word "finding" in s 91(2) carries a practical rather than technical meaning: accepting the plea, discharging the jury, and stating on the record that the plea establishes guilt are collectively sufficient to constitute a finding.
  • A plea entered in response to the tactical reality of trial evidence, rather than under any vitiating circumstance, represents a genuine recognition of guilt and does not, without more, amount to a miscarriage of justice.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that evidence potentially useful for cross-examining a complainant on credit does not, of itself, cast doubt on the integrity of a guilty plea freely entered.
  • No miscarriage of justice arose where the court found the complainant's account credible and the appellant's motive for pleading guilty was strategic rather than the product of any improper pressure or misunderstanding.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 91 (formerly s 399A of the Crimes Act 1900)
- Crimes Act 1900 (NSW)
- Crimes Legislation Amendment (Procedure) Act 1997 (NSW)

Cases
- Maxwell v The Queen (1995) 184 CLR 501
- Griffiths v The Queen (1977) 137 CLR 293
- Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257
- R v Toro-Martinez [2000] NSWCCA 216
- R v Davies, NSWCCA, 16 December 1993 (unreported)
- R v Favero [1999] NSWCCA 320
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Sagiv (1986) 22 A Crim R 73
- R v Chiron (1980) 1 NSWLR 218
- Director of Public Prosecutions v McCoid [1988] VR 982
- R v Murphy [1965] VR 187
- R v Jerome & McMahon [1964] Qd R 595
- R v Cincotta, NSWCCA, 1 November 1995 (unreported)
- R v Ganderton, NSWCCA, 17 September 1998 (unreported)
- R v Ross, NSWCCA, 20 April 1994 (unreported)