Citation: R v White [2022] NSWSC 11
Court: Supreme Court of New South Wales
Date: 13 January 2022
Judge(s): Wilson J
Background
The accused faced a charge of murder arising from the 1988 death of Dr Scott Johnson, whose naked body was found at the base of a cliff at Blue Fish Point in Manly. Three coronial inquiries had been held over the years, with the final inquest finding that Dr Johnson's death resulted from actual or threatened violence by unidentified persons. Following renewed police investigations and a public reward for information, the accused was arrested in May 2020 and had been on remand since that date.
The matter was listed on 10 January 2022 for a pre-trial hearing to determine admissibility of evidence, with a trial fixed for May 2022. On arraignment that morning, and before the Associate had finished reading the charge, the accused interrupted to plead guilty, doing so loudly, clearly, and emphatically. This plea was entered without any prior notice to, or consultation with, his legal representatives.
Senior counsel for the accused sought an immediate adjournment to speak with her client. Upon resumption, counsel could not confirm the plea had been entered by mistake, only that it was not a plea the accused maintained. The Court declined to simply re-arraign the accused and instead listed the matter the following day to hear a formal application to vacate the plea.
Legal Issues
- Whether the plea of guilty, entered without the accused's legal representatives' knowledge or consent, should be vacated
- Whether permitting the plea to stand would constitute a miscarriage of justice, having regard to the accused's cognitive functioning and the circumstances of the plea
- How the principle of finality of pleas interacts with the court's power to permit vacation of a guilty plea
Decision
The court considered the well-established principle that a guilty plea may be vacated where permitting it to stand would result in a miscarriage of justice. The accused carried the burden of establishing this on the balance of probabilities. Relevant factors included whether the plea was made in the exercise of a free choice, whether it was informed, and whether the accused had a proper appreciation of what he was doing.
Expert neuropsychological evidence was before the court establishing that the accused had some level of cognitive impairment. However, the same expert had assessed him as fit to be tried and as capable of understanding the nature of a guilty plea, the consequences of entering one, and the alternatives available to him. The accused had received extensive legal advice about the case and understood, at least in general terms, the defence available to him.
The court drew several inferences from the circumstances of the plea and from what transpired in the conference held with his lawyers immediately afterwards. These included that the accused had considered his decision before entering the plea without informing his lawyers; that he was reluctant to discuss his change of position with them and needed to be persuaded to do so; that he felt the need to apologise to his lawyers, inferentially because he believed they would be disappointed; and that he did not raise his innocence in the post-plea conference until his representatives raised it first. The reasons he advanced for pleading guilty included both an apparent acceptance of responsibility and self-interested considerations, including a belief that a reduced sentence would follow and a wish to avoid the stress of trial.
Having weighed all of these factors, Wilson J was not persuaded that the accused had established on the balance of probabilities that permitting the plea to stand would constitute a miscarriage of justice. The application was refused.
Orders Made
- The application to vacate the plea of guilty to the charge of murder, entered on 10 January 2022, is refused.
- The Notice of Motion filed on 11 January 2022 is dismissed.
Key Takeaways
- A guilty plea may be vacated only where the accused establishes, on the balance of probabilities, that permitting the plea to stand would constitute a miscarriage of justice. The onus rests on the applicant.
- Some level of cognitive impairment does not, of itself, establish that a plea was not freely and voluntarily made. Where expert evidence confirms fitness to be tried and a capacity to understand the nature and consequences of a guilty plea, this weighs against vacation.
- Circumstances surrounding the entry of a plea and the post-plea conference can be highly relevant. The Supreme Court drew inferences adverse to the application from the accused's conduct immediately after arraignment, including his reluctance to discuss the change of plea and his failure to assert his innocence until prompted.
- A deliberate plea, entered without notice to lawyers but not by mistake, will not simply be undone by re-arraignment. The court treated it as a considered act and required the accused to bring a formal application to vacate.
- Where the same legal representatives appear both at the time of the impugned plea and on the vacation application, the court may need to examine counsel's words and conduct on the record. Wilson J noted this can give rise to awkwardness but found no basis for criticism of the lawyers involved in this case.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- Liberti v R (1991) 55 A Crim R 120
- Boag v R (1994) 73 A Crim R 35
- R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61
- R v Sewell [2001] NSWCCA 299
- Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129
- McKey v The Queen (2012) 219 A Crim R 227; [2012] NSWCCA 1
- Kennedy v R [2017] NSWCCA 193
- Hunter Quarries Ltd v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326
- Kanakaradnam v R [2018] NSWCCA 282
- Thafer v R [2019] NSWCCA 143
- Samandi v R [2020] NSWCCA 217
- Fuller v R [2021] NSWCCA 194