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Supreme Court 30 August 2002

REGINA v. BOND

[2002] NSWSC 786

Homicide
CRIMINAL LAW MURDER PLEA OF GUILTY APPLICATION TO WITHDRAW PLEA

Citation: Regina v Bond [2002] NSWSC 786
Court: Supreme Court of New South Wales (Criminal Division)
Date: 30 August 2002
Judge(s): Greg James J

Background

The accused had pleaded guilty to a charge of murder before Greg James J on 29 May 2002. Following the entry of the plea, the matter was adjourned for submissions on sentence at the request of the accused's senior counsel. The matter was relisted several times before returning before the court on 30 August 2002 for the accused's application to withdraw the plea.

In support of the application, the accused relied on a solicitor's affidavit and a psychiatric report from Dr Bruce Westmore. Both documents addressed the accused's state of mind at the time he entered the plea, and a suppression order was made over the contents of both to avoid prejudicing any future proceedings.

The Crown did not oppose the application, accepting there was an arguable basis for a defence and acknowledging that the accused's counsel had expressed reservations at the time the plea was entered.

  • Whether the accused should be permitted to withdraw his guilty plea to the charge of murder
  • Whether the circumstances surrounding the plea were such that its integrity as a genuine admission of guilt was impugned
  • Whether the accused possessed the necessary degree of composure and rational understanding to make a properly informed decision to plead guilty

Decision

Greg James J began by clarifying the applicable legal framework. The cases of Hura and Wilkes, decided by the Court of Criminal Appeal, addressed pleas entered during trial where a jury had already been empanelled and the accused formally found guilty under section 91 of the Criminal Procedure Act 1986. Once that finding was formally recorded, no power existed to withdraw the plea. The present matter fell outside that regime, as the plea had not attracted the operation of section 91 in the same way.

The test for withdrawal of a plea, as articulated in Hura and related authorities, requires examination of whether the integrity of the plea as a genuine admission of guilt has been undermined. Central to this is whether the accused had sufficient composure and understanding to reason through his situation and give proper instructions based on legal advice received.

Dr Westmore's psychiatric report identified a number of matters in the accused's history that, the accused said, bore upon his state of mind when entering the plea. Dr Westmore's view was that the accused was subjected to considerable psychological stress such that his will and ability to reason rationally may have been entirely overborne. The solicitor's affidavit corroborated this account, with consistency between what the accused told his legal advisors and what he told the psychiatrist.

The Crown neither challenged nor contested any of the material relied upon. James J was satisfied the relevant matters were established and that the integrity of the plea was impugned. He permitted the withdrawal of the plea and vacated it, leaving the accused liable to re-arraignment and trial if necessary.

Orders Made

  • The accused's plea of guilty to the charge of murder was permitted to be withdrawn and was vacated
  • The matter was relisted in the arraignment list on 6 September 2002

Key Takeaways

  • A guilty plea may be withdrawn where evidence establishes that the accused lacked the composure and rational understanding necessary to make a genuinely informed decision to plead guilty, particularly where severe psychological pressure is shown to have overborne the accused's will
  • The Court distinguished pleas entered during trial under section 91 of the Criminal Procedure Act 1986 (where no power to withdraw exists once a formal finding is recorded) from pre-verdict pleas, to which a more flexible regime applies
  • Consistency between an accused's account to legal advisors and to a treating psychiatrist was treated as supporting the credibility of the psychiatric evidence
  • Where the Crown does not oppose an application and does not challenge the supporting material, the court may proceed on the basis that the matters asserted in that material are established
  • The judgment was deliberately expressed in brief terms to avoid prejudicing future proceedings, with suppression orders in place over the underlying psychiatric and affidavit material

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 91

Cases:
- Regina v Hura [2001] NSWCCA 61
- Regina v Wilkes [2001] NSWCCA 97
- The Queen v Chiron (1980) 1 NSWLR 218
- Regina v Mitchell (NSWCCA, unreported, 25 July 1995)
- Regina v Iral [1999] NSWCCA 368
- Regina v David Lloyd Davies (NSWCCA, unreported, 16 December 1993)