Citation: R v Ezegbe [2012] NSWDC 292
Court: District Court of New South Wales
Date: 4 June 2012
Judge: Berman SC DCJ
Background
The accused stood trial before Judge Tupman. A jury was empanelled, a not guilty plea was entered, and the accused was put in charge of the jury. The prosecution case concluded and the accused gave evidence in his own defence.
During cross-examination the trial was adjourned overnight. The following morning, counsel indicated that the accused wished to change his plea. He was rearraigned before the jury, entered a plea of guilty, and the jury was discharged. The judge accepted the plea pursuant to the process contemplated by s 157 of the Criminal Procedure Act.
The accused subsequently sought to withdraw the guilty plea. The Crown opposed the application, arguing the court lacked jurisdiction to entertain it once s 157 had been engaged.
Legal Issues
- Whether the District Court had jurisdiction to allow the accused to withdraw a guilty plea entered and accepted after the jury had been put in charge, in circumstances governed by s 157 of the Criminal Procedure Act.
- Whether a recent Court of Criminal Appeal decision, Ghurung v R, altered the established position on this question.
Decision
Berman SC DCJ traced the legislative history of s 157, explaining that in earlier practice a guilty plea entered mid-trial was converted into a jury verdict: the jury themselves returned the verdict of guilty, which could not subsequently be unpicked by withdrawing the plea. Section 399A of the Crimes Act (later re-enacted as s 157 of the Criminal Procedure Act) was introduced to streamline this process and avoid the procedural risks that the older approach generated.
Under s 157, where an accused pleads guilty after being put in charge of the jury and the court accepts that plea, the court discharges the jury and finds the accused guilty. Critically, s 157(2) provides that this finding "has effect as if it were the verdict of the jury." His Honour held that this deeming provision removes any jurisdiction for a judge to later entertain an application to withdraw the plea, just as no such jurisdiction would exist to unwind an actual jury verdict.
His Honour acknowledged the Court of Criminal Appeal's decision in Ghurung v R, which appeared to permit withdrawal of a plea entered in similar circumstances. However, he declined to follow it. Neither s 157 nor the established authorities appeared to have been drawn to the Court's attention in Ghurung, and the judgment noted the Court had been under time pressure. Because Ghurung was inconsistent with the earlier Court of Criminal Appeal decision in Houra and a Supreme Court judgment in Kaewklom, it did not bind the District Court, and his Honour held it was plainly wrong.
The application was refused. Because there was no jurisdiction to entertain it, the circumstances set out in the accused's affidavits, going to matters such as understanding and voluntariness, were irrelevant and did not require consideration.
Orders Made
- The application to withdraw the guilty plea was refused.
- The matter was listed before Judge Tupman on 6 June for sentencing.
Key Takeaways
- Under s 157(2) of the Criminal Procedure Act, a guilty plea accepted after a jury has been put in charge produces a finding that "has effect as if it were the verdict of the jury," stripping the court of any jurisdiction to allow that plea to be withdrawn.
- No discretion arises under s 157: once the section applies, the finding of guilt is treated as a jury verdict and is not amenable to challenge through a withdrawal application.
- Ghurung v R [2012] NSWCCA 2001, which appeared to permit withdrawal in comparable circumstances, was declined to be followed on the basis that it was inconsistent with the earlier Court of Criminal Appeal decision in R v Houra and the Supreme Court's decision in R v Kaewklom (No 2).
- Where a District Court faces conflicting decisions of the Court of Criminal Appeal, the earlier and more fully reasoned decision may be preferred.
- The accused's subjective circumstances, including questions of understanding and whether will was overborne, become irrelevant when the court has no jurisdiction to grant the relief sought.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act (NSW), s 157 (formerly s 92; previously s 399A of the Crimes Act)
- Crimes Act (NSW), s 399A (historical)
Cases:
- R v Ross [1994] NSWCCA (unreported, 20 April 1994)
- R v Houra [2001] 121 A Crim R 472
- R v Kaewklom (No 2) [2012] NSWSC 1117
- Ghurung v R [2012] NSWCCA 2001