AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 19 December 2002

R v Khan

[2002] NSWCCA 521

Theft & propertyPublic order & justice offences
CRIMINAL LAW LEAVE TO WITHDRAW PLEA OF GUILTY

Citation: Khan v R [2002] NSWCCA 521
Court: NSW Court of Criminal Appeal
Date: 19 December 2002
Judges: Giles JA, Sully J, Dowd J

Background

The appellant pleaded guilty to two counts of armed robbery at a District Court hearing in May 2001. He later sought leave to withdraw those pleas, claiming he had entered them not out of any genuine acknowledgment of guilt, but because he had been repeatedly attacked and threatened while in custody and hoped that pleading guilty would cause those threats to subside.

The attacks, the appellant alleged, were connected to information he had given police about members of the Etuati family, with whom he had been living at the time of the alleged offences. He claimed Islander inmates had pressured him to "take the rap" and had threatened him with stabbing if he did not. He conceded that he had not told his original legal representatives about the assaults or their supposed connection to his decision to plead guilty.

District Court Judge Latham refused leave to withdraw the pleas in November 2001. The appellant was subsequently sentenced on the two armed robbery counts and a receiving charge, and appealed against conviction on the ground that leave to withdraw should have been granted.

  • Whether the trial judge erred in refusing leave to withdraw the guilty pleas
  • Whether a guilty plea entered under duress or threats, rather than out of a consciousness of guilt, can ground an application to withdraw that plea
  • Whether an arguable doubt about guilt provides a separate, independent basis for granting leave to withdraw a guilty plea
  • Whether the trial judge's factual finding that the appellant was acting out of a consciousness of guilt was shown to be in error

Decision

The Court confirmed that the central question on an application to withdraw a guilty plea is whether the plea was entered out of a consciousness of guilt. If it was, leave will ordinarily be refused, even if the accused now asserts innocence or argues that the Crown's evidence might not have been sufficient to prove guilt at trial.

Judge Latham found that, despite the appellant's evidence about threats and attacks, the pleas had in fact been entered out of a consciousness of guilt rather than as a purely coerced response to pressure. The Court of Criminal Appeal concluded that the appellant had not demonstrated any error in that factual finding. The judge had considered the implausibility of the appellant's account, including that he had never told prison authorities the true reason for the attacks and had attributed them to entirely different people and causes at the time.

The Court rejected the submission that a real doubt about guilt could operate as a freestanding ground for leave, separate from the question of why the plea was entered. Where a plea flows from consciousness of guilt, a subsequent observation that the Crown case might have been difficult to prove does not, by itself, establish a basis for relief. The Court also noted that no submission about the weakness of the Crown case had been put to the trial judge, making it doubly inappropriate to rely on that argument on appeal.

The ultimate question in all such cases, the Court reiterated, is whether a miscarriage of justice has occurred. No such miscarriage was established here, and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A guilty plea will not readily be withdrawn where the court finds it was entered out of a consciousness of guilt, even if the accused later claims it was entered under external pressure or duress.
  • The critical factual inquiry is not merely whether threats or assaults occurred, but whether those threats were the operative cause of the plea, as distinct from an underlying recognition of guilt.
  • The burden falls on the applicant to establish a proper basis for leave to withdraw a guilty plea; unsupported assertions of innocence do not, without more, satisfy that burden.
  • No independent ground for withdrawal arises simply because the Crown's evidence might have been difficult to prove at trial; such matters go to proof of guilt rather than to whether genuine doubt about guilt exists.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that arguments not raised before the trial judge will face significant obstacles when raised for the first time on appeal, particularly where the trial judge's discretion was exercised without that argument being put.

Legislation and Cases Referenced

Cases cited:
- Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490
- Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
- R v Boag (1994) 73 A Crim R 35
- R v Chiron (1980) 1 NSWLR 218
- R v Cincotta (CCA, 1 January 1995, unreported)
- R v Davies (CCA, 16 December 1993, unreported)
- R v Hura (2001) 121 A Crim R 472
- R v Liberti (1991) 55 A Crim R 120
- R v Murphy (1965) VR 187
- R v Wilkes [2001] NSWCCA 97

Legislation: No specific legislation was cited in the provided text.