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Local Court 24 February 2009

Department of Environment and Climate Change V De Jenner Holmes

[2009] NSWLC 32

Public order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE APPLICATION TO WITHDRAW PLEA OF GUILTY

Citation: Department of Environment and Climate Change v De Jenner Holmes [2009] NSWLC 32
Court: Local Court of New South Wales (Moree)
Date: 24 February 2009
Judge(s): Magistrate Richardson

Background

The defendant, a company manager, was charged by the Department of Environment and Climate Change with an offence under section 12 of the Native Vegetation Act 2003 relating to land clearance on a property known as Koramba Cotton. He entered a plea of guilty on 28 August 2008, and a view of the property was conducted in preparation for sentencing.

Shortly after the view, the defendant notified the court he wished to withdraw his guilty plea and substitute a plea of not guilty. His application was lodged in November 2008 and supported by affidavit material, with the DECC filing a responding affidavit from one of its compliance officers. Both parties gave evidence at a hearing and filed written submissions.

The defendant's position was that he did not personally carry out the land clearance. He had directed a stockman employed on the property to arrange the work and had assumed that person had obtained the necessary regulatory approvals. The defendant contended he lacked any genuine sense of personal guilt and that he entered the plea primarily to save costs and, as he mistakenly believed, to avoid a remediation order.

  • Whether the court should grant leave under section 207(1) of the Criminal Procedure Act 1986 to withdraw a guilty plea entered before conviction and sentencing.
  • Whether the defendant possessed a genuine consciousness of guilt at the time he entered the plea.
  • Whether the defendant had a sufficient understanding of the implications of pleading guilty, including the possibility of a remediation order.
  • Whether the defendant was improperly induced to plead guilty by conduct of the DECC compliance officer.

Decision

The Magistrate began by setting out the legal framework governing applications to withdraw a guilty plea. A valid guilty plea must be unequivocal, entered freely, and genuinely reflect an admission of guilt. Courts approach these applications with restraint, given the public interest in the finality of proceedings. However, where allowing a plea to stand would produce a miscarriage of justice, the court may grant leave.

The Magistrate drew on the criteria set out in R v Hura (2001) 121 A Crim R 472 and distilled in Wong v DPP [2005] NSWSC 129, which include cases where a plea was not attributable to a genuine consciousness of guilt, where the accused did not appreciate the nature of the charge, or where the plea was entered under a material misunderstanding affecting its integrity as an admission of guilt.

On the facts, the Magistrate found that the defendant did not possess a genuine consciousness of guilt when he pleaded guilty. The defendant believed the stockman, not himself, was directly responsible for the clearance, and he had assumed the necessary approvals had been obtained. He pleaded guilty for commercial reasons, not because he admitted the offence.

The Magistrate also rejected the allegation that the DECC compliance officer had improperly induced the plea. However, the court accepted that the defendant laboured under a serious misunderstanding about the consequences of his plea, particularly regarding remediation orders, and that his legal advisers had not addressed that issue with him. Those two grounds together meant that refusing the application would amount to a miscarriage of justice, and leave to withdraw the plea was granted.

Orders Made

• The application is granted to enable Holmes to change his plea of guilty

Key Takeaways

  • A guilty plea may be withdrawn before conviction and sentencing where it was not attributable to a genuine consciousness of guilt, or where the accused lacked a clear understanding of the implications of entering that plea.
  • Under section 207(1) of the Criminal Procedure Act 1986, the prospects of a successful application are enhanced where the court has not yet proceeded to conviction and sentence.
  • A commercially motivated plea, entered to reduce costs or avoid an anticipated adverse order rather than to admit guilt, does not satisfy the requirement that a plea be a true and voluntary admission of the offence.
  • Misunderstanding the consequences of a guilty plea, particularly where legal advice did not extend to significant sentencing outcomes such as remediation orders, can affect the integrity of the plea as a genuine admission of guilt.
  • Improper inducement by a prosecutor or regulator is a recognised basis for withdrawal, but the Magistrate here found the evidence did not establish that the defendant had been improperly induced; the misunderstanding arose from how he interpreted what was said to him.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 207
- Local Court Act 2007 (NSW), s 40
- Native Vegetation Act 2003 (NSW), ss 12, 38, 39

Cases
- Maxwell v The Queen (1996) 184 CLR 501
- Meissner v The Queen (1995) 184 CLR 132
- Griffiths v The Queen (1977) 137 CLR 293
- Wong v DPP [2005] NSWSC 129
- R v Van [2002] NSWCCA 148
- R v Hura (2001) 121 A Crim R 472
- R v Wilkes [2001] NSWCCA 97
- Liberti v R (1991) 55 A Crim R 120
- DPP v Arab [2009] NSWCA 75
- Frodsham v O'Gorman [1979] 1 NSWLR 683
- R v Iral [1999] NSWCCA 368
- Charlesworth v R [2009] NSWCCA 27
- Director-General, Department of Environment and Climate Change v Hudson [2009] NSWLEC 4
- DPP v Yeo [2008] NSWSC 953
- Various other NSWCCA authorities cited in the judgment