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Court of Criminal Appeal 18 November 2022

White v R

[2022] NSWCCA 241

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION CRIMINAL PROCEDURE ENTRY OF PLEAS WITHDRAWAL OF GUILTY PLEA

Citation: White v R [2022] NSWCCA 241
Court: Court of Criminal Appeal
Date: 18 November 2022
Judge(s): Bell CJ; Button J; N Adams J

Background

The applicant was charged with the murder of a man whose body was found at the base of a headland at Blue Fish Point in Manly in December 1988. At arraignment on 10 January 2022, the applicant entered an unexpected guilty plea, despite having consistently instructed his lawyers over almost two years that he would plead not guilty, including on the morning of the arraignment itself.

Within approximately 30 minutes of entering the plea, the applicant signed a statement expressing confusion and stress, and stating he had not committed the offence. His lawyers promptly applied to vacate the plea. The primary judge refused that application, holding the applicant had not established on the balance of probabilities that permitting the plea to stand would constitute a miscarriage of justice. The applicant was subsequently sentenced to 12 years and seven months' imprisonment.

On appeal to the Court of Criminal Appeal, the applicant argued that the primary judge applied the wrong legal test to the application to withdraw the guilty plea, and that the correct test was whether the interests of justice required that the plea be withdrawn.

Legal Issues

  • Whether the correct legal test for an application to withdraw a guilty plea before conviction and sentence is the "miscarriage of justice" test, or the broader "interests of justice" test.
  • Whether a meaningful distinction exists between an application to withdraw a plea before conviction and an appeal against conviction after a guilty plea, and what consequences flow from that distinction.
  • Whether, if the wrong test was applied, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied so that no substantial miscarriage of justice actually occurred.

Decision

Issue 1: The correct legal test for withdrawal of a guilty plea before conviction

The Court held that the proper test for an application to withdraw a guilty plea before conviction (described as a "first scenario" case) is whether the interests of justice require that course to be taken (at [60]). This is a broader test than the "miscarriage of justice" test, which has no statutory foundation in a first scenario case (at [59]). The Court found that a positive conclusion on the balance of probabilities that a miscarriage of justice would occur is the paradigm case for withdrawal, but the interests of justice test also permits withdrawal where there is a real, non-fanciful risk of a miscarriage of justice (at [64]).

Issue 2: The distinction between first and second scenario cases

The Court drew a clear distinction between an application to withdraw a plea before conviction (first scenario) and an attempt to go behind a guilty plea for the first time on appeal after conviction has been entered (second scenario) (at [23]-[62]). In second scenario cases, the Criminal Appeal Act requires a miscarriage of justice to be established, which is why the "miscarriage of justice" language is apposite in that context (at [58]). Transposing that language to first scenario cases, as occurred in Boag, Wong, and Garcia-Godos, was an error, and those decisions should not be followed in first scenario cases (at [61]).

Issue 3: Non-exhaustive factors relevant to the interests of justice test

The Court identified that relevant considerations in a first scenario case include: the integrity of the plea itself, whether there is a real question about the accused's guilt, the prejudice to the accused if leave is refused, the absence of prejudice to the prosecution if leave is granted, and considerations of finality (at [65]-[66]). The onus rests on the accused to persuade the court, but this onus should not be treated as any heavier than that borne by a party seeking to exercise a court's discretion in other contexts (at [68]-[69]).

Issue 4: Application of the proviso

The Court rejected the Crown's submission that the same outcome was inevitable even if the interests of justice test had been applied. Several factors pointed to a real possibility that leave would have been granted: the plea was withdrawn almost immediately; the applicant had cognitive deficits and intellectual impairment; the plea was entirely unexpected; the Crown had not articulated the legal basis of its murder case at the time of arraignment; and the Crown itself conceded there was a triable issue raising a real question about the applicant's culpability (at [74]-[87]). The possibility of a lesser verdict or acquittal at trial could not be ruled out (at [87]). The Court was therefore not satisfied that no substantial miscarriage of justice occurred, and the proviso did not apply.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Conviction and sentence of the applicant set aside.
  • Primary judge's dismissal of the application to withdraw the guilty plea set aside.
  • Matter remitted for mention before the Chief Judge at Common Law on 1 December 2022.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the correct test for an application to withdraw a guilty plea before conviction and sentence is the interests of justice test, not the miscarriage of justice test. The interests of justice test is broader and may be satisfied where there is a real risk of miscarriage, even if one cannot be proven on the balance of probabilities (at [60], [64]).

  • A clear doctrinal distinction exists between a pre-conviction application to withdraw a guilty plea and an appeal against conviction after a plea has led to a conviction. The "miscarriage of justice" language in the Criminal Appeal Act is properly confined to the latter context. Conflating the two, as occurred in Boag, Wong, and Garcia-Godos, was held to be an error and those decisions should not be followed in pre-conviction withdrawal applications (at [58]-[61]).

  • Considerations relevant to the interests of justice in a withdrawal application include the integrity and circumstances of the plea, the presence of cognitive impairment, the speed with which the withdrawal was sought, the absence of prejudice to the prosecution, and whether there is a real question about the accused's guilt (at [65]-[66], [76]-[87]).

  • Although the accused bears the onus of persuading the court to permit withdrawal of a guilty plea, the Court rejected any suggestion that this onus is "heavier" or more demanding than the onus a party ordinarily bears when seeking the exercise of a judicial discretion (at [68]-[69]).

  • Application of the wrong legal test to a pre-conviction withdrawal application resulting in conviction will constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act, unless the Crown establishes under the proviso that no substantial miscarriage of justice actually occurred. In this case, the Crown could not discharge that burden (at [72], [74], [87]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 394A
- Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 5F, 6
- Criminal Procedure Act 1986 (NSW) ss 103(1), 153, 157
- Criminal Procedure Act 2009 (Vic) s 276(1)(b)
- Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 41

Cases
- Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54
- Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; [2022] HCA 36
- Boag v R (1994) 73 A Crim R 35
- Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
- BWM v R (1997) 91 A Crim R 260
- Daire v Lauss (1984) 35 SASR 508
- De Kruiff v Smith [1971] VR 761
- Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
- Evans v Bartlam [1937] AC 473
- Ex parte Stanton (1928) 28 SR (NSW) 516
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Frodsham v O'Gorman [1979] 1 NSWLR 683
- Garcia-Godos v R (Cth) [2015] NSWCCA 144
- Gardner v Jay (1885) 29 Ch D 50
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61
- Kanakaradnam v R [2018] NSWCCA 282
- Lawson v The Queen (2011) 206 A Crim R 557; [2011] NSWCCA 44
- Layt v R [2020] NSWCCA 231
- Liberti v R (1991) 55 A Crim R 120
- Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- Middap v R (1989) 43 A Crim R 362
- Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
- Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Chiron [1980] 1 NSWLR 218
- R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep)
- R v Clayton (1984) 35 SASR 232
- R v Clouter and Heath (1859) 8 Cox CC 237
- R v Davies (1993) 19 MVR 481
- R v Favero [1999] NSWCCA 320
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Foley [1963] NSWR 1270
- R v Guest, Ex parte Anthony [1964] 1 WLR 1273
- R v Jerome & McMahon [1964] Qd R 595
- R v Khan [2002] NSWCCA 521
- R v Martin (1904) 21 WN (NSW) 233
- R v McNally [1954] 1 WLR 933
- R v Miller [1990] 2 Qd R 566
- R v Murphy [1965] VR 187
- R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291
- R v Odgers (1843) 2 Mood & R 479; (1843) 174 ER 355
- R v Plummer [1902] 2 KB 339
- R v Roach (1990) 54 SASR 491
- R v Sewell [2001] NSWCCA 299
- R v Sid Zaiter [2005] NSWCCA 61
- R v Webb and Hay (1992) 64 A Crim R 38
- R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97
- S (an infant) v Recorder of Manchester [1971] AC 481
- Sagiv v R (1986) 22 A Crim R 73
- Samandi v R [2020] NSWCCA 217
- Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16
- Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129