Citation: [2024] NSWDC 705
Court: District Court of New South Wales
Date: 20 December 2024
Judge(s): Priestley J SC DCJ
Background
The applicant (CW) was arrested in September 2021 and charged with four sexual offences against his natural daughter, who was under the age of 10. He consistently maintained his innocence from arrest through to his third listed trial date. The complainant was born in April 2014 and had never resided with the applicant on a full-time basis.
On 24 April 2024, the day after the third trial listing, the applicant changed his plea and pleaded guilty to two counts of sexual intercourse with a child under 10, with a sexual touching charge taken into account on a Form 1. He was remanded in custody. Critically, the written plea instructions he signed included the notation: "I accept that this is a deal that requires me to plead guilty even though I don't agree that I have committed these offenses."
Within days, and no later than 21 June 2024, the applicant sought to traverse (withdraw) his guilty plea. Because sentencing had not yet occurred, the application fell to be determined before conviction, placing it in the category the Court of Criminal Appeal in White v R described as a "first scenario" case.
Legal Issues
- Whether the applicant should be granted leave to withdraw his plea of guilty prior to conviction, applying the "interests of justice" test from White v R [2022] NSWCCA 241.
- Whether there was a real question as to the applicant's guilt, considered as one factor (not a discrete threshold requirement) in the overall assessment.
- Whether the circumstances surrounding the entry of the plea, including the conduct of the applicant's legal representatives and the adequacy of case preparation, weighed in favour of allowing traversal.
- The significance of the written instruction recording the applicant's disagreement that he had committed the offences, and whether this vitiated the plea.
Decision
The court granted the applicant leave to traverse his guilty plea. Priestley J SC DCJ applied the framework from White v R, which holds that for a "first scenario" case (plea withdrawal sought before conviction), the governing test is whether the interests of justice require the plea to be withdrawn. The onus rests on the applicant, but White made clear that this onus is no heavier than the standard required to persuade a court to exercise a discretion in the interests of justice. The discretion should not be fettered or treated as one to be exercised only "sparingly."
His Honour placed significant weight on the written plea instructions, which expressly recorded that the applicant did not agree he had committed the offences. The court considered this notation to be a powerful indicator that the plea may not have been a genuine admission of guilt, but rather an acceptance of a "deal" driven by the pressure of the imminent trial.
The court also examined the conduct of the applicant's legal representatives. The evidence revealed that the recorded interview of the complainant, which was central to the Crown case and the basis on which counsel advised the applicant to plead guilty, had not been viewed by the applicant's barrister until 22 April 2024 and was only partly shown to the applicant on 23 April 2024. The solicitor's attendance at the crucial conference on 24 April was intermittent, a matter the barrister himself had complained about to the Legal Aid Office. The overall picture was one of minimal client involvement in trial preparation across multiple listings.
Drawing on the non-exhaustive factors identified in White, and the principle from R v Foley that the desirability of an accused being tried by a jury is "of fundamental importance in the administration of justice," the court concluded that the interests of justice required that the applicant be permitted to withdraw his plea and proceed to trial.
Orders Made
- Leave was granted for the applicant to traverse his plea of guilty to the two charges under s 66A(1) of the Crimes Act 1900.
- The court indicated a bail application would follow the decision.
Key Takeaways
- The "interests of justice" test from White v R governs applications to withdraw a guilty plea before conviction, and the discretion to permit withdrawal should not be treated as one to be exercised only in "clear cases" or "very sparingly."
- A written plea instruction that explicitly records the accused's disagreement with having committed the offences may constitute strong evidence that the plea was not a genuine admission of guilt, weighing heavily in favour of traversal.
- Inadequate trial preparation by legal representatives, including late viewing of critical evidence and insufficient conferencing with the client, formed a significant part of the circumstances the court weighed in assessing whether the interests of justice favoured allowing withdrawal.
- Under the White framework, a "real question" about the applicant's guilt is not a discrete threshold element but rather one factor to be considered alongside all the circumstances, including the manner in which legal advice was given and instructions obtained.
- The fundamental importance of an accused person's right to trial by jury, as emphasised in R v Foley, remains a weighty consideration in traversal applications, particularly where the plea was entered under time pressure at the point of trial.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
Cases:
- White v R [2022] NSWCCA 241
- R v Foley [1963] NSWR 1270
- Meissner v The Queen (1995) 184 CLR 132
- Garcia-Godos v R; MH v R [2023] NSWCCA 145
- Rotner v R [2011] NSWCCA 207
- R v Clayton (1984) 35 SASR 232
- Bassett v Cameron [2021] NSWSC 207
- Legal Profession Disciplinary Tribunal Re James Glissan (a barrister) No 13 of 1990 (unreported, 25 June 1991)