Citation: R v Kaewklom (No. 2) [2012] NSWSC 1117
Court: Supreme Court of New South Wales
Date: 17 September 2012
Judge(s): Johnson J
Background
The accused stood trial for the murder of a 69-year-old man at a Liverpool courthouse cell. The attack was captured on closed-circuit television and was not in dispute. The sole live issue at trial was the partial defence of substantial mental impairment, supported at the outset by a forensic psychiatrist retained by the defence.
During the trial, the Crown's forensic psychiatrist produced a report concluding that the partial defence was not available. The defence psychiatrist subsequently revised his opinion in light of that report, removing the only remaining basis for a contested trial. On 10 September 2012, after conferring with counsel and his solicitor, the accused was re-arraigned before the jury and pleaded guilty to murder.
The court discharged the jury and, pursuant to s 157 of the Criminal Procedure Act 1986, formally found the accused guilty. The matter was adjourned for sentencing. When the sentencing hearing commenced on 17 September 2012, counsel for the accused indicated that his client wished to withdraw the guilty plea.
Legal Issues
- Whether the court had jurisdiction to entertain an application for leave to withdraw a guilty plea entered during trial under the s 157 procedure.
- Whether the s 157 mechanism, which creates a "deemed jury verdict," extinguishes any residual discretion in the trial judge to permit withdrawal of the plea.
Decision
Johnson J held that s 157 of the Criminal Procedure Act 1986 presented a direct jurisdictional barrier to any application to withdraw the guilty plea. Once the s 157 procedure is engaged, the court's finding of guilt has the same effect as a jury verdict. The authority for this construction was the Court of Criminal Appeal's decision in R v Hura [2001] NSWCCA 61, where Spigelman CJ described the outcome as a "deemed jury verdict" and confirmed that once a jury has returned a verdict, the trial judge has no discretion to permit withdrawal of a guilty plea.
His Honour drew a clear distinction between the present situation and cases where a plea of guilty is entered before a jury is empanelled. In pre-trial circumstances, the s 157 mechanism has no application, and an accused may seek leave to withdraw a guilty plea in the exercise of the court's discretion. The R v Wilkinson line of cases illustrated that distinction: in those proceedings, s 157 did not apply, a discretion existed, and the court exercised it (ultimately refusing leave).
Johnson J noted that nothing in the proceedings suggested any issue with the accused's fitness to plead. The accused had been examined by two experienced forensic psychiatrists shortly before the plea, experienced counsel and solicitor had conferred with him before the plea was entered, and his conduct throughout the trial gave rise to no concerns. The court recorded the jurisdictional finding and then turned to the question of how to proceed with sentencing.
Orders Made
- The court found that it was not open in law to the offender to apply to withdraw his guilty plea, which had given rise to a verdict of guilty pursuant to s 157 of the Criminal Procedure Act 1986.
- Counsel and solicitor for the offender were granted leave to withdraw from the proceedings.
- The sentencing proceedings were adjourned to allow the offender to retain new legal representatives.
Key Takeaways
- Under s 157 of the Criminal Procedure Act 1986, a guilty plea entered after a jury has been empanelled, and accepted by the court, produces a "deemed jury verdict" that is equivalent in effect to an actual jury verdict.
- Once that deemed verdict is recorded, the trial judge has no jurisdiction to entertain an application for leave to withdraw the guilty plea. This was confirmed by the Court of Criminal Appeal in R v Hura and applied here.
- A different legal position applies where a guilty plea is entered before trial by jury has commenced. In those pre-trial circumstances, s 157 has no operation and the court retains a discretion to grant or refuse leave to withdraw the plea.
- The distinction between the two regimes turns on the timing of the plea relative to empanelment of the jury, not on the nature of the offence or the circumstances in which the plea was entered.
- In finding no jurisdiction, the Supreme Court noted the absence of any evidence of unfitness to plead and emphasised that experienced legal representatives had conferred with the accused before the plea was entered.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 157
Cases
- R v Kaewklom (No. 1) [2012] NSWSC 1103
- R v Hura [2001] NSWCCA 61; 121 A Crim R 472
- R v Wilkinson (No. 2) [2008] NSWSC 1432
- R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20