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Court of Criminal Appeal 19 July 2023

Garcia-Godos v R; MH v R

[2023] NSWCCA 145

Assault & violenceDrugsFraud & dishonestyFirearms & weapons
CRIME APPEALS TWO APPEALS AGAINST CONVICTION ENTRY OF PLEAS WITHDRAWAL OF GUILTY PLEA WHETHER DIFFERENT TESTS APPLY TO PRE

Citation: Garcia-Godos v R; MH v R [2023] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 19 July 2023
Judge(s): Davies, Weinstein and Sweeney JJ

Background

Two applicants had each pleaded guilty to serious criminal offences and subsequently sought leave to withdraw those pleas before conviction and sentencing. In both cases, the primary judge refused the application, applying the "miscarriage of justice" test and concluding that neither applicant had met that threshold.

The first applicant pleaded guilty in 2011 to importing a commercial quantity of cocaine and conspiracy to deal in proceeds of crime. He sought to withdraw his pleas approximately nine months later. The primary judge found that he had only done so after his attempts to secure a reduced sentence through other avenues had failed, and rejected his claim that he had been pressured by his lawyers to plead guilty.

The second applicant pleaded guilty in 2017 to four offences, including drug supply, assault, discharging a firearm, and unlawful detention. He later sought to withdraw his pleas, giving evidence that he had been threatened into pleading guilty. The primary judge rejected that evidence, noting inconsistencies and the fact that the applicant had only sought to withdraw his pleas after a separate violent incident at his home, two months after he entered his pleas.

  • Whether the primary judges in both cases applied the wrong legal test when refusing applications to withdraw guilty pleas prior to conviction.
  • Whether the "interests of justice" test (rather than the "miscarriage of justice" test) is the correct standard for pre-conviction applications to withdraw a guilty plea, as held in the 2022 decision of White v R.
  • Whether, if the wrong test was applied, the Court of Criminal Appeal should find that a substantial miscarriage of justice occurred in either appeal.
  • Whether White v R was "plainly wrong" such that the Court of Criminal Appeal should depart from it.

Decision

On the correctness of White v R: The Court confirmed that an intermediate appellate court should only depart from one of its own earlier decisions if that decision is "plainly wrong" and compelling reasons exist to do so. While the Court acknowledged that several criticisms of White's reasoning had force, including that some of the High Court authorities cited in White as support for the "interests of justice" test actually applied a "miscarriage of justice" test, it could not conclude that White was plainly wrong. The distinction White drew between pre-conviction applications and post-conviction appeals remained open on the case law, and strong conviction of error is required before departure is warranted.

On the first applicant's appeal: The Court found that, even applying the broader "interests of justice" test from White, the outcome of the primary judge's decision would have been identical. There were no circumstances to question the integrity of the first applicant's pleas. He had received appropriate legal advice, was not under duress, and had repeatedly acknowledged his involvement in the importation offence. The Court gave considerable weight to the primary judge's credibility findings, which were made on a sound basis.

On the second applicant's appeal: The primary judge had directly rejected the applicant's evidence that threats had caused him to plead guilty. The Court reasoned that, because the integrity of the plea was the central issue under either test, the judge's factual findings and ultimate conclusion could not have been different had the "interests of justice" test been applied. Although the wrong legal test had technically been applied, the Court found that no substantial miscarriage of justice had actually occurred.

Both appeals were accordingly dismissed.

Orders Made

Garcia-Godos:
- Time for filing the Notice of Appeal extended to 30 November 2022.
- Leave to appeal granted.
- Appeal dismissed.

MH:
- Time for filing the appeal extended to 12 January 2023.
- Leave to appeal granted.
- Appeal dismissed.

Key Takeaways

  • Following White v R [2022] NSWCCA 241, the applicable test for a pre-conviction application to withdraw a guilty plea is the "interests of justice" test, which is broader than the "miscarriage of justice" test that applies on post-conviction appeals.
  • The Court of Criminal Appeal confirmed that it will only depart from one of its own previous decisions where that decision is "plainly wrong," and strong conviction of error is required; the mere fact that reasonable minds may differ is insufficient.
  • In dismissing both appeals, the Court applied the proviso that even where the wrong legal test was used below, no substantial miscarriage of justice occurs if the outcome would have been the same under the correct test.
  • A finding by a primary judge that an applicant's evidence of duress or threats lacked credibility will carry considerable weight on appeal, and an appellate court will be slow to disturb that assessment.
  • The "miscarriage of justice" concept is not confined to contexts with an express statutory basis; it has been recognised in sentence appeals, appeals from magistrates, and stays of civil proceedings pending criminal matters, among other settings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 33A, 86, 154C
- Crimes (Appeal and Review) Act 2001 (NSW) ss 12, 16, 18, 20
- Criminal Appeal Act 1912 (NSW) ss 5, 6
- Criminal Code (Cth) ss 11.5, 307.1, 400.4
- Drug Misuse and Trafficking Act 1985 (NSW) s 25

Key Cases:
- White v R [2022] NSWCCA 241
- Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Barnes v R [2022] NSWCCA 140
- Garcia-Godos v R (Cth) [2015] NSWCCA 144
- MH v R [2022] NSWCCA 287
- R v Boag (1994) 73 A Crim R 35
- Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54
- BWM v R (1997) 91 A Crim R 260