Citation: R v Susan SAMY [2008] NSWDC 377
Court: District Court of New South Wales
Date: 23 June 2008
Judge(s): Cogswell SC DCJ
Background
The accused had pleaded guilty on 11 May 2007 to a charge of malicious wounding arising from an incident at Yagoona on 6 October 2006. The prosecution alleged she had armed herself with knives and attacked several people, wounding the complainant, Chandra Pal, in the process.
More than a year after entering her plea, the accused filed a Notice of Motion seeking to withdraw it. She gave evidence that at the time of pleading guilty she had told her then-legal representative she did not know how the complainant had been injured, because by the time he became involved she was already pinned face-down on the ground. She said she was repeatedly told her conduct could be characterised as reckless and was directed to sign instructions to plead guilty, which she did without fully understanding the advice.
The core dispute was factual: the witness statements and an unsigned document described as agreed facts recorded that the complainant was wounded when the accused swung a knife at him before being subdued, while the accused maintained she was already restrained on the ground at that point.
Legal Issues
- Whether the court should exercise its discretion to set aside a guilty plea entered in open court
- Whether the accused had discharged the burden of demonstrating that the plea was not truly attributable to a genuine consciousness of guilt
- How the applicable principles from the Court of Criminal Appeal authorities bear on the exercise of that discretion
Decision
Cogswell SC DCJ confirmed the well-established legal framework governing applications of this kind. A guilty plea by a person in possession of all the relevant facts is treated as the strongest possible admission of guilt, and courts approach withdrawal applications with caution bordering on circumspection. The burden of satisfying the court that leave should be granted rests on the applicant. Successful applications are described in the authorities as exceptional and ordinarily involve a miscarriage of justice.
The court identified the most relevant ground as whether the plea was genuinely attributable to a consciousness of guilt. The accused's account, given in her affidavit and in oral evidence, was that she had maintained her innocence to her legal representative on the day of the plea but signed the instructions because she was told to do so and did not understand the legal concept of recklessness being applied to her conduct. Her account, if accepted, was not merely inconsistent with guilt but affirmatively inconsistent with having committed the offence.
The court acknowledged it was in the accused's interest to give a self-serving account, and approached her evidence with appropriate caution. Nevertheless, the court found there was an arguable factual dispute about the sequence of events, some confusion in the evidence about the number and identity of knives involved, and a possible alternative explanation for the complainant's wound. Taken together, those circumstances were sufficient to satisfy the court that the plea was not reliably attributable to a genuine consciousness of guilt.
Orders Made
- The accused, Susan Samy, was granted leave to withdraw her plea of guilty entered on 11 May 2007 to the charge of malicious wounding of Chandra Pal at Yagoona on 6 October 2006.
- The proceedings were stood over for a directions hearing at Campbelltown District Court on 27 June 2008.
- An order was made under section 77 of the Crimes (Administration of Sentences) Act 1999 directing the Commissioner for Corrective Services to produce the accused at Campbelltown District Court by 10:00 am on 27 June 2008.
- Bail was refused.
Key Takeaways
- Applications to withdraw a guilty plea are treated by the courts as exceptional and must be approached with caution; the applicant bears the burden of proof throughout.
- A guilty plea will ordinarily be treated as an unequivocal admission of all legal elements of the offence, and courts give significant weight to the public interest in the finality of proceedings.
- Where an accused can establish, on the available material, an arguable factual dispute that creates doubt about guilt, and can show the plea was not genuinely driven by a consciousness of guilt, leave to withdraw may be granted even where the accused's account is self-serving.
- Relevant circumstances recognised in the authorities as potentially warranting withdrawal include pleas entered under ignorance, duress, mistake, or where the plea was not truly voluntary.
- The unsigned and undated nature of the agreed facts document, combined with inconsistencies in the evidence about the events, contributed to the court's conclusion that sufficient doubt existed to justify granting leave.
Legislation and Cases Referenced
Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 77
Cases
- Maxwell v The Queen (1996) 184 CLR 501
- Regina v Hura (2001) 121 A Crim R 472
- Regina v Liberti (1991) 55 A Crim R 120
- Regina v Sagsagiv (1986) 22 A Crim R 73
- Regina v Wilkes (2001) 122 A Crim R 310