Citation: R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310
Court: NSW Court of Criminal Appeal
Date: 21 March 2001
Judge(s): Wood CJ at CL, Giles JA, Simpson J
Background
The appellant faced a single count of murder, tried before Adams J in the Newcastle Supreme Court. He pleaded not guilty and the trial commenced before a jury. On the second day, the Crown obtained leave to cross-examine the appellant's brother under s 38 of the Evidence Act 1995. The brother then gave evidence that he saw the appellant strike the deceased with a wooden paling while the deceased lay on the ground.
Following this development, trial counsel conferred with the appellant twice during the luncheon adjournment. Counsel advised the appellant that the case would be lost because of his brother's evidence and that pleading guilty would save years off his eventual sentence. The appellant responded that if he had no chance, he might as well plead guilty. When the court resumed, he changed his plea to guilty, and Adams J formally entered a verdict of guilty and discharged the jury.
By the time the matter returned for sentencing, trial counsel had acknowledged to the appellant that he believed his earlier advice had been wrong. New counsel applied for leave to withdraw the guilty plea. Adams J refused that application, accepting the Crown's submission that once a verdict of guilty was formally entered under s 91 of the Criminal Procedure Act 1986, the plea could no longer be withdrawn. The appellant appealed against conviction on two grounds.
Legal Issues
- Whether Adams J erred in refusing leave to withdraw the guilty plea once a verdict of guilty had been formally entered under s 91 of the Criminal Procedure Act 1986
- Whether the guilty plea was entered in circumstances amounting to a miscarriage of justice under s 6 of the Criminal Appeal Act 1912, given the nature of the advice provided by trial counsel
Decision
On the first ground, the Court of Criminal Appeal accepted that the formal entry of a verdict of guilty by Adams J constituted a finding of guilt within the meaning of s 91 of the Criminal Procedure Act 1986. Consistent with the earlier decision in Chiron (1980) 2 NSWLR 218, once that step had been taken, it was too late for the plea to be withdrawn by application to the sentencing court. The first ground was therefore not established, though it had been preserved for appeal.
On the second ground, the Court confirmed that a guilty plea must be unequivocal and must reflect a genuine admission of guilt. Where a plea is not entered as a true recognition of guilt and a real question about the accused's guilt remains, the proper course is to set the plea aside and quash the conviction. The Court noted that it retains the power to go behind a guilty plea, including on appeal, where the circumstances warrant it.
The Court found that the advice given by trial counsel during the short luncheon adjournment was imprudent and inappropriate. Counsel had formed his assessment of the case without the benefit of proper reflection, and without the opportunity to test the prosecution evidence through cross-examination. The Court placed weight on counsel's own frank acknowledgment, made in affidavits before the Court, that his earlier advice had been a mistake. Given that the appellant's plea appeared to stem not from a consciousness of guilt but from a hasty assessment of hopelessness, and given that a real question about guilt remained, the appeal was allowed.
Wood CJ at CL added that decisions of such gravity should not be made under immediate hearing pressure when little, in practical terms, would have been lost by reserving the question of a plea change overnight. His Honour's comments were directed at the general importance of allowing adequate time for reflection in mid-trial plea situations, and were not framed as direct criticism of counsel, who had himself acknowledged the error in the best traditions of the bar.
Orders Made
- Appeal against conviction allowed
- Conviction set aside and a new trial ordered
Key Takeaways
- A guilty plea must be unequivocal and represent a genuine admission of guilt; where it does not, and where a real question about guilt exists, the conviction founded on that plea may be set aside on appeal.
- Once a trial judge formally enters a verdict of guilty under s 91 of the Criminal Procedure Act 1986, it is too late to withdraw the plea by application to the sentencing court, but the Court of Criminal Appeal retains jurisdiction to entertain an appeal against conviction in appropriate circumstances.
- Among the circumstances that may justify going behind a guilty plea is one where the accused was persuaded to plead guilty by imprudent and inappropriate legal advice, particularly advice given hastily without proper consideration of the state of the evidence.
- The Court of Criminal Appeal declined to dismiss trial counsel's own frank admission of error by attempting its own assessment of the prosecution brief, noting that evaluation of untested evidence is a matter properly reserved for a jury.
- Mid-trial plea decisions carry particular weight given the consequences for finality; the Court emphasised that adequate time for proper reflection is important before such a significant step is taken.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), s 91
- Evidence Act 1995 (NSW), s 38
Cases:
- Chiron (1980) 2 NSWLR 218
- Maxwell v The Queen (1996) 184 CLR 501
- R v Hura [2001] NSWCCA 61
- R v Kouroumalos [2000] NSWCCA 453
- R v Favero [1999] NSWCCA 320
- R v Whitehead [2000] NSWCCA 400
- R v Ganderton (NSWCCA, 17 September 1998)