Citation: R v Black (No 1) [2021] NSWSC 73
Court: Supreme Court of New South Wales
Date: 1 February 2021
Judge: Cavanagh J
Background
The accused stood trial for the murder of a man at Port Macquarie on 4 May 2018. The indictment also included an alternative charge of manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW). The Crown alleged that the accused had stabbed the deceased, who was in a relationship with the accused's former partner, during a visit to the couple's premises two days after the accused was released from custody.
At arraignment in July 2019, the accused entered a plea of not guilty to murder and a plea of guilty to the alternative manslaughter charge. The Crown did not accept the guilty plea in full discharge, meaning the matter proceeded toward trial. The accused's regular counsel, Mr Evers, was not present at the arraignment; another counsel appeared, and the accused participated by way of an audio-visual link from a crowded holding cell with limited communication.
In January 2021, shortly before the trial was due to commence, the accused filed a motion seeking leave to withdraw his guilty plea to manslaughter. He maintained throughout that he had acted in self-defence and that the plea was entered under a mistaken belief about its nature and effect.
Legal Issues
- Whether the accused should be granted leave to withdraw his guilty plea to manslaughter entered at arraignment in 2019
- Whether evidence from the licensee of a local hotel should be admitted in the Crown's case
- Whether the accused's parents could be compelled to give evidence, having regard to s 18 of the Evidence Act 1995 (NSW)
Decision
Withdrawal of the guilty plea
Cavanagh J granted leave to withdraw the guilty plea to manslaughter. The court noted that while leave to withdraw a plea at this late stage requires the accused to establish sufficient grounds, there is no absolute prohibition on doing so. The applicable principles, drawn from R v Wilkes, require the court to consider whether the plea was attributable to a genuine consciousness of guilt, whether the legal advice was appropriate, and whether a real question about guilt exists.
The court was satisfied on several grounds that leave was warranted. The accused had operated under the mistaken belief that pleading guilty to manslaughter was part of a conditional negotiation: he understood the plea would only stand if the Crown withdrew the murder charge, and that if the Crown did not accept it, everything would proceed to trial. He had not been advised that a guilty plea at arraignment amounts to an admission of the elements of the offence for all purposes, including at trial. The court also accepted that the accused's ability to communicate meaningfully at the arraignment was seriously compromised by the conditions in the holding cell.
Critically, the accused had consistently maintained from his earliest ERISP interview onward that he acted in self-defence. The court found no consciousness of guilt at the time the plea was entered. In these circumstances, the factors identified in R v Wilkes and the broader principles in Thalari v R supported granting leave.
Suppression order
Because the trial was due to commence the following day, Cavanagh J also made a suppression order under ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibiting publication of any information that might reveal the accused had previously entered a guilty plea to manslaughter. The order was made to prevent prejudice to the proper administration of justice ahead of jury empanelment.
Hotel licensee evidence and parental testimony
The second and third pre-trial issues resolved without formal rulings. The Crown withdrew its intention to call the hotel licensee. On the question of the accused's parents, the Crown no longer sought to call the accused's mother. The accused's father appeared in court, confirmed he had obtained independent legal advice, and stated directly that he did not object to giving evidence. The accused also raised no objection. No preliminary ruling under s 18 of the Evidence Act was therefore required.
Orders Made
- Leave granted to the accused to withdraw his guilty plea to the charge of manslaughter
- Suppression order made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting publication or disclosure of information tending to reveal the prior guilty plea, on the basis that publication would prejudice the proper administration of justice under s 8(1)(a) of that Act
Key Takeaways
- A guilty plea constitutes an admission of the elements of the offence, as confirmed by the Court of Criminal Appeal in R v SL [2004] NSWCCA 397, and courts approach attempts to withdraw such pleas with considerable caution given the public interest in finality of proceedings.
- Leave to withdraw a guilty plea may nonetheless be granted where the accused was operating under a mistaken belief about the conditional or negotiated nature of the plea and had no genuine consciousness of guilt at the time it was entered.
- Where an accused enters a plea without being advised that it constitutes an unconditional admission for all purposes, that failure in legal advice is a relevant factor supporting withdrawal, consistent with the framework in R v Wilkes [2001] NSWCCA 97.
- Practical circumstances at arraignment, including crowded holding conditions, limited audio-visual communication, and the absence of the accused's regular counsel, can be relevant to whether the plea was truly informed and voluntary.
- Suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) are available to protect the integrity of imminent jury trials from prejudice arising out of interlocutory proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18
- Evidence Act 1995 (NSW), s 18
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a)
Cases
- R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310
- R v SL [2004] NSWCCA 397
- Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170