Citation: R v Nguyen [2012] NSWSC 1583
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge(s): Price J
Background
The accused had pleaded guilty on 19 July 2012 to manslaughter under s 18(1)(b) of the Crimes Act 1900 and to wounding with intent to cause grievous bodily harm under s 33(1)(a), arising from a shooting incident at Bankstown on 8 September 2010. The Crown accepted those pleas in full satisfaction of an indictment that also included a charge of shooting with intent to murder, which carried a maximum of 25 years imprisonment and a standard non-parole period of 10 years. Proceedings were fixed for sentencing in October 2012.
Shortly before the sentencing date, the accused dismissed his experienced legal representatives, a senior counsel with over 25 years' criminal practice and a solicitor with 42 years' predominantly criminal experience. He then engaged new solicitors and filed a motion seeking leave to withdraw his guilty pleas and substitute pleas of not guilty to all counts.
The accused's affidavit claimed he had not understood the meaning of manslaughter, that no Vietnamese interpreter had been present at the critical initial conference, that his lawyers had pressured him into pleading guilty, and that he did not accept responsibility for the deceased's death. He argued, among other things, that issues of causation and self-defence remained open, including that the fatal shot was fired by a police officer and not by him.
Legal Issues
- Whether the accused had understood the nature of the charges to which he pleaded guilty
- Whether the pleas were free and voluntary admissions of guilt, or were the product of mistake, pressure, or misunderstanding
- Whether the circumstances were sufficient to overcome the presumption that a legally represented accused appreciates what is admitted by a guilty plea
- Whether justice required that leave to withdraw the pleas be granted
Decision
Price J reviewed the well-established principles governing withdrawal of guilty pleas, including the High Court's statement in Maxwell v The Queen (1996) 184 CLR 501 that a plea must be unequivocal and a genuine admission of guilt. His Honour also noted the "principles of restraint" identified in Liberti v R (1991), recognising the public interest in the finality of legal proceedings and the risk that applications to withdraw pleas may be attempts to delay conviction and sentence.
Price J found the accused to be an unreliable witness, describing him as "plainly dishonest and evasive" on matters of significance. He accepted the evidence of the defence solicitor's affidavit, which annexed a detailed three-page document signed by the accused on 26 April 2012, setting out his instructions to plead guilty. That document, together with evidence of six conferences with experienced legal representatives and the presence of a Vietnamese interpreter at the conference on 26 April 2012, contradicted the accused's claim of confusion and lack of understanding.
On the causation argument, Price J noted that the accused had fired a shot at the deceased, triggering a sequence of events that led to a police officer returning fire and fatally wounding the deceased. Referring to R v Pagett (1983) and Royall v The Queen (1991), his Honour observed that the police officer's response was likely not a novus actus interveniens (that is, a new intervening act sufficient to break the chain of causation). These issues of causation and foreseeability had been clearly explained to the accused by senior counsel when advising on the plea.
His Honour concluded that the accused had entered his pleas intentionally, with full appreciation of the charges and knowledge of all relevant facts. A subsequent change of mind was not a sufficient basis to allow withdrawal. The application was refused.
Orders Made
- Application to withdraw pleas of guilty entered on 19 July 2012 denied
- Matter listed in the arraignment list before Latham J on 1 February 2013 to allocate a judge and date for sentence
- Liberty granted to the parties to approach Latham J to obtain an earlier date
- Bail refused
Key Takeaways
- Where an accused is legally represented by experienced counsel, courts will ordinarily presume the plea was entered with an appreciation of the charge and as a genuine admission of guilt, though that presumption may be rebutted by contrary evidence.
- A subsequent change of mind, without more, is insufficient to justify withdrawal of a guilty plea entered with full knowledge of the facts and the nature of the charges.
- Courts approach such applications with caution, recognising both the public interest in the finality of criminal proceedings and the risk that withdrawal applications may serve as a mechanism to delay inevitable conviction.
- In assessing causation for manslaughter, a response by a third party (including police returning fire) is unlikely to constitute a novus actus interveniens where that response was a foreseeable consequence of the accused's own conduct.
- Price J's credibility finding against the accused was central to the outcome: documentary evidence of signed instructions and interpreter-assisted conferences was preferred over the accused's oral account of confusion and pressure.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 29, 33(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)/s 29
- Firearms Act 1996 (NSW), s 7(1)
Cases:
- Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
- R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
- Liberti v R (1991) 55 A Crim R 120
- Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
- Frodsham v O'Gorman [1979] 1 NSWLR 683
- R v Chiron [1980] 1 NSWLR 218
- R v Pagett (1983) 76 Cr App R 279
- R v Sagiv (1986) 22 A Crim R 73
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Murphy [1965] VR 187
- R v Davies (1993) 19 MVR 579
- R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233
- R v Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995)