White v R

1. [1]

   THE COURT: On the morning of 10 December 1988, the body of Scott Johnson was found at the base of the headland at Blue Fish Point in Manly. His clothing and some personal possessions were found above, near the edge of the cliff. Mr Johnson’s death has since been the subject of three coronial inquests. An initial inquest in 1989 concluded that Mr Johnson died by suicide. A second inquest, conducted in 2012, returned an open finding. In 2017, a third inquest concluded that Mr Johnson’s death was caused by actual or threatened violence by unidentified persons that led to him leaving the cliff edge and falling to his death.

2. [2]

   On 10 January 2022, at approximately 11.00am, Scott Phillip White (the Applicant) was arraigned before Wilson J (the primary judge) upon an indictment charging him with the murder of Mr Johnson between 7 December 1988 and 11 December 1988, at Manly in the State of New South Wales.

3. [3]

   When arraigned, the Applicant entered a plea of guilty to the charge, although he had instructed his lawyers both that morning, prior to arraignment, [1] and indeed previously over the course of the almost two years since he was charged that he intended to plead not guilty. In fact, the evidence from the pre-arraignment conference was that he thought he had already done so.

4. [4]

   The proceedings had principally been listed on the day of the arraignment for the purposes of a voir dire as to the admissibility of certain evidence that the Crown was proposing to adduce in its case. This listing was predicated on a common understanding that the Applicant intended to plead not guilty to the charge of murder. Indeed, the matter had been fixed for trial on 2 May 2022.

5. [5]

   The arraignment proceeded as follows:

6. [6]

   The primary judge subsequently recorded that: [2]

7. [7]

   Following the entirely unexpected plea of guilty, the Court adjourned at approximately 11.15am to permit a conference to take place between the Applicant and his legal team (the post-arraignment conference). [3] A file note of this conference is reproduced at Annexure B to these reasons.

8. [8]

   By 11.35am, the Applicant had signed a statement (the Applicant’s Signed Statement) in the following terms:

9. [9]

   The post-arraignment conference, at which this statement was obtained, concluded at approximately 11.40am and the Applicant and his legal representatives returned to Court shortly thereafter.

10. [10]

    Upon the resumption of the proceedings an application was made for the arraignment to be repeated or, if that course was not permitted, for the Court to hear an application to vacate the plea of guilty.

11. [11]

    The primary judge inquired of the Applicant’s senior counsel whether the plea had been made in error to which she responded, in what would appear to be carefully chosen language, that it was “not a plea that [the Applicant] maintains”. The primary judge took this to be an indication that it was not contended that the plea had been made in error. No reference was made on this occasion to the Applicant’s Signed Statement, which has been reproduced at [8] above, nor to its contents.

12. [12]

    The primary judge recorded in her subsequent judgment that “[s]ince the plea was deliberately entered, I was not prepared to simply re-arraign the applicant, and instead the matter was adjourned until the following day for hearing of the application for leave to vacate the plea of guilty.” [4]

13. [13]

    That application was opposed by the Crown and was supported by an Affidavit of Ms Louise Sutherland, the Applicant’s solicitor. The Affidavit referred, inter alia, to a file note of the pre-arraignment conference (at which the Applicant had confirmed to his legal representatives that he would be pleading not guilty), [5] and a file note of the post-arraignment conference, [6] which has already been referred to at [7]–[9] above, and annexed the Applicant’s Signed Statement. Also annexed was a series of four reports by experts who had previously assessed the Applicant, namely:

    1. (1)

       two reports of Dr Molly Schafer, neuropsychologist, dated 26 May and 25 June 2021;

    2. (2)

       a report of Dr Richard Furst, psychiatrist, dated 31 May 2021; and

    3. (3)

       a report of Dr Katie Seidler, psychologist, dated 12 October 2021.

14. [14]

    On 13 January 2022, following two days of evidence, including cross-examination and oral argument, the primary judge dismissed the application and refused to grant the Applicant leave to withdraw his guilty plea, holding that she was “not persuaded that the applicant has established on balance that to permit the plea of guilty to stand would constitute a miscarriage of justice.” [7] No appeal was brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).

15. [15]

    On 3 May 2022, the Applicant was sentenced by the primary judge to 12 years and seven months’ imprisonment, commencing on 12 May 2020, with a non-parole period of eight years and three months. [8]

16. [16]

    The Applicant seeks leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act. He relies upon two related grounds of appeal:

17. [17]

    The Applicant’s case on appeal developed significantly between the filing of his written submissions-in-chief (on 28 April 2022) and those in reply (filed 21 October 2022) to the Crown’s written submissions. As shall be seen, an argument was introduced as to the proper test to be applied on an application for leave to withdraw a plea of guilty before conviction and sentence, which differed from what may be referred to as the “miscarriage of justice” test applied by the primary judge (and accepted by counsel for the Applicant and the Crown Prosecutor at first instance): see [14] above.

18. [18]

    On the second morning of the hearing of the appeal, Mr Game SC, who appeared with Ms Huxley for the Applicant, provided a document to the Court which sought to particularise and consolidate the legal and factual arguments advanced the previous day. That document was in the following terms:

19. [19]

    When approaching questions of miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act, Gageler J’s observations in Hofer v The Queen (Hofer) [12] supply a valuable starting point. His Honour said:

20. [20]

    Underpinning aspects of both grounds of appeal as particularised at [18] above was a full-frontal attack on the legal test applied by the primary judge on the application for leave to withdraw the plea of guilty. In short, it was contended that her Honour applied the wrong legal test, namely the “miscarriage of justice” test, and that the question whether leave to withdraw a plea should be granted before conviction should simply be determined by reference to what the interests of justice require. The differences (if any) between the two tests will be explored below, but what is significant for present purposes is that the Director accepted that if the wrong legal test had in fact been applied (which she did not accept), then this Court would find that there had been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act, [13] subject to any issue under the proviso in that sub-section.

21. [21]

    This concession was properly made. As was stated by Gageler J in Hofer, [14] “[w]hat is essential to the finding of miscarriage of justice is that the irregularity had the meaningful potential or tendency to have affected the result of the trial.” Although the present appeal does not concern an irregularity in the course of a trial, as did Hofer, Gageler J’s formulation is equally apposite in the case of an appeal against conviction after the entry of a guilty plea. As is explained below at [72]–[85], in the context of the proviso, there is a real chance (or a “meaningful potential or tendency”) that the application of the “interests of justice” test proposed by Mr Game would have produced a different outcome on the application for leave to withdraw the Applicant’s guilty plea, with the consequence that the Applicant’s conviction for the murder of Scott Johnson could not be said to have been inevitable. [15]

22. [22]

    Although the particulars to the appeal set out at [18] above include a number of specific criticisms of the primary judge’s largely inferential findings, it is convenient to commence with the question of whether the correct legal test was applied to the application to withdraw the plea of guilty prior to conviction.

The correct legal test to be applied

1. [23]

   One important point of context that was stressed throughout the argument on appeal was the need to differentiate between, on the one hand, an application for leave to withdraw a plea of guilty prior to conviction (the first scenario) and, on the other hand, an appeal from conviction notwithstanding a plea of guilty on the basis that, at that [appellate] stage, the Court should go behind the plea and, if necessary, permit it to be withdrawn for some good reason (the second scenario).

2. [24]

   On this second scenario, once and because a conviction has occurred, it may only be set aside if one of the grounds of appeal in s 6(1) of the Criminal Appeal Act is established. Those grounds include, of course, “that on any other ground whatsoever there was a miscarriage of justice”, the so-called third limb of the sub-section.

3. [25]

   In respect of the application for leave to withdraw the plea of guilty in the present case, the primary judge said at PJ [71]–[73] that:

4. [26]

   At PJ [120], the primary judge summarised 12 features to which her Honour had regard in determining the application for leave to withdraw the guilty plea, noting that those features did not bear the same weight in her Honour’s consideration. The relevant features were as follows:

5. [27]

   At PJ [121], the primary judge expressed her conclusion on the application for leave to withdraw the guilty plea in the following terms:

6. [28]

   On appeal, Mr Game contended that her Honour’s application of what is conveniently described as the “miscarriage of justice” test was wrong and inapposite in the context of an application to withdraw a plea before conviction (the first scenario) or was otherwise too narrowly stated. Moreover, to the extent that there were authorities to the effect that the “miscarriage of justice” test applied in the first scenario, such authorities conflated the position where an appellant asked the Court to go behind his or her plea for the first time on appeal, a context in which it was appropriate to address the issue in terms of what was required to avoid a miscarriage of justice. It was submitted that some of the summaries of authority relied upon by the primary judge, and other decisions of this Court, did not adequately differentiate between what we have identified as the first and second scenarios: see [23] above. Further, a number of the cases referred to in PJ [71] were second scenario cases.

7. [29]

   Mr Game contended that an application for leave to withdraw a plea of guilty prior to conviction (the first scenario) required a discretionary decision, with the discretion to be exercised judicially, by reference to the “interests of justice”. He submitted that this was a broader test than the “miscarriage of justice” test, which was not logical to apply prior to conviction. He also submitted that this was consistent with what had been said by Gaudron and Gummow JJ in Maxwell v The Queen (Maxwell). [16]

8. [30]

   Further, it was put that this Court’s decisions in Hura v R (Hura); [17] R v Sewell (Sewell) [18] and Layt v R (Layt) [19] supported a broader approach to applications for leave to withdraw a plea than a requirement that an applicant establishes, on the balance of probabilities, that not to permit the withdrawal of a plea of guilty would result in or produce a miscarriage of justice. A test so framed, he submitted, would preclude the grant of leave to withdraw a guilty plea where it could only be established, for example, that there was a non-negligible risk of a miscarriage of justice.

9. [31]

   The Director countered by contending that the “miscarriage of justice” test as stated and applied by the primary judge was correct, that the decision in Maxwell was to be distinguished on the facts and that the passages in that decision relied upon by Mr Game were at best obiter dicta. In the alternative, she submitted that the interests of justice test was, in effect, synonymous or interchangeable with the “miscarriage of justice” test and, as such, nothing turned on the primary judge’s application of the “miscarriage of justice” test. [20] She also submitted that, if a miscarriage of justice was found to have occurred, there was no substantial miscarriage of justice and the proviso in s 6(1) of the Criminal Appeal Act applied.

Maxwell and relevant authorities

1. [32]

   Maxwell was not a case involving an application by an accused to withdraw a plea of guilty. Rather, it concerned the circumstances in which the prosecution could withdraw its acceptance of a plea of guilty. That having been said, there are a number of passages in the three judgments in Maxwell that bear upon the present question of the discretion to permit the withdrawal by an accused of a plea of guilty prior to conviction.

2. [33]

   Although Mr Game rested his argument principally on the joint judgment of Gaudron and Gummow JJ in Maxwell, he also sought to place reliance on the joint judgment of Dawson and McHugh JJ, in which their Honours held that the since-repealed s 394A of the Crimes Act 1900 (NSW) [21] did not deny the prosecution’s entitlement, before sentence, to withdraw its acceptance of a plea of guilty if the interests of justice so required. [22] Ms Dowling pointed out, correctly, that their Honours’ remarks were not directed to an accused’s application for leave to withdraw a plea of guilty. Mr Game countered that coherence required that the same criterion, namely the interests of justice, should mediate the question of leave to withdraw a plea on the application of an accused as that which regulates the ability of the prosecution to withdraw its acceptance of a plea of guilty.

3. [34]

   The argument as to coherence finds favour in the judgment of Dawson and McHugh JJ in Maxwell, as their Honours stated that “[a]n accused may with leave withdraw a plea of guilty at any time before sentence or other disposal of the case and there is no reason why the prosecution should be placed in a lesser position with regard to its acceptance of a plea.” [23]

4. [35]

   Toohey J delivered a separate judgment which was not the focus of significant attention during the course of argument in the present appeal, although there is much in it that is relevant to the matters in issue. His Honour noted that “[t]he court has the power to allow a plea of guilty to be withdrawn at any time before sentence”, [24] and that this power existed “[w]hether on a trial by indictment or in summary proceedings”, [25] citing S (an infant) v Recorder of Manchester [1971] AC 481 (Recorder of Manchester), which his Honour noted had been followed in a series of Australian cases. [26] Recorder of Manchester will be referred to in more detail below. Toohey J also noted that a “defective plea of guilty” may be withdrawn and a conviction set aside on various non-exhaustive grounds, which included that “the accused did not understand the charge or did not intend to admit guilt or on the facts admitted on the plea he could not in law have been guilty of the offence”, or that “the plea was induced by intimidation, improper inducement or fraud”. [27]

5. [36]

   Most importantly for present purposes, Toohey J then observed that “[t]his is part of the inherent jurisdiction of courts to see that justice is done”, [28] citing R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291 at 298 per Lord Parker CJ.

6. [37]

   It was the following passage from the joint judgment of Gaudron and Gummow JJ in Maxwell upon which Mr Game placed principal reliance: [29]

7. [38]

   The report of Webb and Hay is a report of various interlocutory rulings made by Debelle J in the course of a murder trial. One such ruling related to an application to withdraw a plea of guilty which had been entered in the presence of the jury after the trial had commenced and in circumstances where the accused had previously pleaded not guilty. [33] His Honour observed: [34]

8. [39]

   Attorney-General (SA) v Kitchen and Roberts (Kitchen) [35] (which had also been cited by Toohey J in Maxwell) was a decision of the Full Court of the Supreme Court of South Australia. It concerned an application for judicial review of the exercise of the discretion of a District Court judge to permit an accused who had been represented at all relevant times to withdraw his plea of guilty on the very morning when he was due to make submissions on sentence. The short facts of relevance for present purposes were that the accused pleaded guilty to 10 counts of various fraud and dishonesty offences and a date had been set for his sentencing a fortnight later. A change of counsel shortly before the day appointed for sentencing resulted in the prosecution being informed on the day of the sentence hearing that the accused’s (Mr Roberts’) counsel would be making an application to withdraw the guilty plea on the basis of changed instructions. This was explained in the following passage from White J’s judgment: [36]

9. [40]

   Separate judgments were delivered by each of White J, Matheson J and Bollen J. White J, after referring to the observation of Lord Upjohn in Recorder of Manchester that “[i]t is hardly necessary to add that this discretionary power [to allow withdrawal of a plea] is one which should only be exercised in clear cases and very sparingly”, [37] expressed his conclusion as follows: [38]

10. [41]

    Bollen J identified a test of “sufficient reason” as “a much more accurate way of describing the way in which various courts have decided how to exercise this discretion in the past.” [41] His Honour went on to observe that: [42]

11. [42]

    Later in his reasons, upholding Judge Kitchen’s exercise of the discretion to permit the withdrawal of the plea, Bollen J said that “Mr Stretton's [counsel for the accused’s] remarks revealed a real risk of a denial of justice to Roberts if the pleas of guilty stood.” [43]

12. [43]

    Matheson J, the third member of the Full Court, agreed that the application for judicial review should be dismissed, and endorsed the passage from the decision of Wells J in Clayton that was also endorsed by White J and Bollen J respectively, which has been set out above.

13. [44]

    Reference should be made at this point to the decision of the House of Lords in Recorder of Manchester, [44] which was cited in Maxwell, [45] Sewell [46] and Kitchen. In that case, the accused, who was cognitively impaired, consented to being tried summarily and pleaded guilty to a charge of attempted rape. It later came to light that he had a history of confessing to criminal offences which he had not in fact committed, and his solicitor applied to withdraw his guilty plea. The presiding magistrates, although considering it in the interests of justice to permit the withdrawal of the guilty plea, were bound by authority to the effect that a court of summary jurisdiction had no such power after the acceptance of a guilty plea and before sentence.

14. [45]

    In the course of the various judgments that were delivered in that case, a number of their Lordships referred to the discretionary basis, before conviction had been entered, for the withdrawal of a plea of guilty. Thus, Lord Reid, delivering the leading judgment, said that “[i]t has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise”, [47] citing R v Clouter and Heath [48] as an example.

15. [46]

    His Lordship then considered the decision of R v Guest, Ex parte Anthony, [49] in which it had been held that magistrates in summary proceedings had no power to allow the withdrawal of a guilty plea after it had been accepted, for example, by a direction that a conviction be entered. After expressing the view that that case was wrongly decided, Lord Reid concluded: [50]

16. [47]

    Similar references to the requirements or interests of justice were made by Lord MacDermott and Lord Morris. Lord MacDermott discussed the circumstances where a plea of guilty may be entered although “the legal ingredients of the offence charged may not be fully understood by the accused”. [51] After noting in this context that “quite a number of modern statutory offences are sufficiently complex in their make-up to confuse both the lay and the learned”, his Lordship continued: [52]

17. [48]

    To similar effect, Lord Morris, discussing an application for leave to withdraw a guilty plea before the imposition of sentence, said the following: [53]

18. [49]

    In McNally, Lord Goddard CJ, delivering the judgment of the Court, said that: [56]

19. [50]

    The decision of the House of Lords in Recorder of Manchester was in accordance with much older English authority. In R v Odgers (Odgers), [57] Cresswell J had said that:

20. [51]

    Odgers was cited with approval by (Sir Philip) Street CJ in Ex parte Stanton [58] and by this Court (Herron ACJ, Sugerman and Nagle JJ) in R v Foley (Foley). [59] Both of these cases had in turn been cited by Toohey J in Maxwell. [60]

21. [52]

    Foley was a decision of this Court in relation to an application by the accused, prior to sentence, for leave to withdraw his plea of guilty (a first scenario case). That application had been refused at first instance, but the Court allowed the appeal, overturned the discretionary judgment refusing the withdrawal of the plea and quashed the conviction that had been entered following the initial refusal of leave to withdraw the plea. The Court, immediately prior to its citation of the passage from Odgers set out at [50] above, observed: [61]

22. [53]

    That what is involved in the grant of leave to withdraw a plea before conviction and sentence is the exercise of a broad discretion where “justice so requires” is also supported by the decision of Lee J in Sagiv v R (Sagiv), [62] where his Honour said:

23. [54]

    The “interests of justice”, as a broad criterion for the exercise of a discretion to permit withdrawal of a plea of guilty prior to conviction, also gains support from the 2001 decision of this Court in Sewell. Significantly, that case also involved the “first scenario” of an application for leave to withdraw a plea of guilty prior to sentence. The leading judgment was given by Smart AJ (with whom Heydon JA and Simpson J agreed). His Honour made reference to the decision of this Court in Boag, in which Hunt CJ at CL endorsed the “miscarriage of justice” test. [63] At [38] of Sewell, Smart AJ also referred to an argument propounded by reference to Foley, namely that it stood for a broader principle than the “miscarriage of justice” test endorsed in Boag. In a significant paragraph of his reasoning, Smart AJ said that: [64]

24. [55]

    Four points may be made about this passage. First, his Honour correctly identified the re-exercise of the discretion in Foley as having been undertaken by reference to the interests of justice. Secondly, his Honour recognised the unwisdom of attempting to shoehorn all of the cases within one verbal formula. In this context, appellate courts have regularly counselled about the risk of such an approach, which fetters what may otherwise be intended to be a broad discretion, to be exercised judicially. [65] Thirdly, his Honour did not regard the “miscarriage of justice” test or formulation as being the sole test. The “interests of justice” test was not advanced as a synonymous formulation, but as an additional test or formulation. Fourthly, although Sewell was referred to by Howie J in Wong v Director of Public Prosecutions (NSW) (Wong), [66] in a passage that was in turn picked up by Johnson J in Samandi v R (Samandi), [67] the summary of principles proffered by Johnson J in the latter case appeared to favour the “miscarriage of justice” test.

25. [56]

    Something should also be said about Boag, the case to which Smart AJ referred at [37] of Sewell and which was also referred to in PJ [71] and the various cases extracted in Samandi at [30]–[32]. [68] Boag was a “first scenario” case involving an appeal, brought pursuant to s 5F of the Criminal Appeal Act, against the refusal of an application for leave to withdraw a plea of guilty prior to sentence. Hunt CJ at CL (with whom McInerney and James JJ agreed) said that: [69]

26. [57]

    It should be noted that Johnson J’s summary of principles in both Samandi and Kanakaradnam v R [79] was given in the context of second scenario cases, where the plea of guilty was only sought to be withdrawn on appeal after conviction and sentence. As such, there was nothing problematic about that summary per se; what was problematic in the present case was the transposition of that summary of principles to a “first scenario” case, a course of conflation which had also occurred in Boag and Wong.

Consideration

1. [58]

   The proposition that the Court of Criminal Appeal may quash a conviction entered upon a plea of guilty only if it is demonstrated that a miscarriage of justice will occur if the plea is not permitted to be withdrawn is unimpeachable in the context of what we have described as a second scenario case. That is because, in such a scenario, the Court at first instance has simply accepted the plea and proceeded to convict and sentence the appellant; it has not been called upon to make any decision on a question of law that may be “wrong”, so as to attract what has been described as the “second limb” of s 6(1) of the Criminal Appeal Act. Only the third limb of that section (“miscarriage of justice”) is available to an appellant in such circumstances and so it is entirely apposite to speak of the need to establish a miscarriage of justice in the second scenario, as that is the criterion that must be satisfied if an appeal is to succeed following conviction upon a plea.

2. [59]

   But it does not follow that the language of miscarriage is apposite in what we have described as the first scenario cases, namely where leave has been sought to withdraw a plea prior to entry of conviction (and sentence). That is so both as a matter of authority and as a matter of principle. Unlike in second scenario cases, the “miscarriage of justice” test has no “statutory root” [80] when applied in the context of a first scenario case.

3. [60]

   We are comfortably satisfied from our review of the authorities that, although there has been a conflation of tests in some cases and some summaries of authority, the proper test to be applied where an accused seeks leave to withdraw his or her plea of guilty prior to conviction (a first scenario case) is whether the interests of justice require that course to be taken.

4. [61]

   The judgments of at least Toohey J and Gaudron and Gummow JJ in Maxwell support this conclusion and, even if strictly dicta, are “seriously considered” in the sense referred to in Farah Constructions Pty Ltd v Say-Dee Pty Ltd. [81] It follows that the decisions in Boag, Wong and Garcia-Godos must be regarded as wrongly decided and should not be followed in a case where an application is made for leave to withdraw a plea of guilty before conviction.

5. [62]

   A sensible distinction is to be drawn between allowing a plea to be withdrawn before conviction and going behind a guilty plea that has led to a conviction on appeal. [82] The distinction between the two scenarios is brought home by consideration of the concept of finality, which is frequently mentioned in cases involving applications to withdraw a plea, as it was in the present case. Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea and, in the case of the Crown, to withdraw its acceptance at any time until the formal recording of a conviction and sentence. That was what Maxwell was all about. [83]

6. [63]

   Indeed, the distinction between the two scenarios goes to jurisdiction. Hura confirmed, for example, that, once the District Court of New South Wales has accepted a plea of guilty (entered mid-trial) and discharged the jury, the plea may not be withdrawn thereafter. [84] In R v Chiron, [85] it was also held that there was no jurisdiction to permit withdrawal of a guilty plea once a jury had returned a verdict and been discharged. [86] In these cases, an accused seeking to go behind his or her plea of guilty could only do so on appeal against conviction, in which to succeed a miscarriage of justice would need to be established. [87] That is why in Hura, Spigelman CJ dealt with the matter under the heading “[m]iscarriage of justice”. [88]

7. [64]

   We would respectfully reject the Director’s fallback submission that there is no real or material difference between the interests of justice test and the “miscarriage of justice” test. A positive conclusion on the balance of probabilities that there would be a miscarriage of justice if a plea was not permitted to be withdrawn is, no doubt, the paradigm case where it will be in the interests of justice to permit withdrawal of a plea. But equally, it may also be in the interests of justice to permit a plea to be withdrawn if there is a risk of a miscarriage of justice, provided that the risk is a real and not fanciful one. [89]

8. [65]

   The interests of justice test is broader and may focus on matters going beyond the integrity of the plea, although that will very often be the focal point of the inquiry. A non-exhaustive list of factors affecting the interests of justice will include:

9. [66]

   In relation to this last matter, we reject the submission advanced by the Crown that consideration of whether there is a “real question about the guilt of the accused” should be a discrete element or stage of the inquiry. [94] The preferable approach, in our opinion, is that it is a factor to be weighed, where relevant, in all the circumstances of the case.

10. [67]

    Whether or not an accused goes into evidence to explain the reasons for his or her application to withdraw a plea may be relevant, but it is not necessarily determinative. [95] One clear example where it would not be necessary for the accused to do so is where, on the facts, it can be demonstrated that the offence to which the accused pleaded guilty could not legally be made out even with the benefit of the admission of all elements inherent in the plea itself. Another example may be where there is other evidence which bears upon the accused’s reasons for the attempt to withdraw the plea, such as the Applicant’s Signed Statement in the present case. [96] That statement was admitted into evidence without objection as an annexure to Ms Sutherland’s Affidavit. [97] Although it was of a hearsay nature and could have been objected to on that basis, once admitted it became evidence before the primary judge of the Applicant’s reasons for seeking leave to withdraw his plea, albeit evidence that was not able to be tested by cross-examination of the Applicant. [98]

11. [68]

    The onus of persuading a judge to permit the withdrawal of a plea of guilty is on the accused. Although there are statements to the effect that courts should approach attempts at trial or on appeal (after conviction and sentence) to withdraw a plea of guilty “with caution bordering on circumspection”, [99] it is important that the undoubted discretion which exists in what we have described as a first scenario case should not be fettered. [100] In this context, we are in agreement with the observations of White J and Bollen J in Kitchen [101] that the language used by Lord Upjohn in Recorder of Manchester, namely that the discretion should be exercised only in “clear cases and very sparingly”, is neither necessary nor desirable. It is apt to fetter the exercise of the discretion. It is notable that none of the other Law Lords in Recorder of Manchester proffered such a view. So too, in Webb and Hay, Debelle J said that “[i]t does not seem that the discretion should be exercised only in clear cases and very sparingly but that is not to say the discretion should be exercised liberally”. [102]

12. [69]

    For similar reasons, we would reject the argument advanced in the Director’s Supplementary Submissions that an accused seeking leave to withdraw a guilty plea bears a “substantial” or “heavy onus” of proof. [103] While the onus of proof is certainly borne by the accused in an application for leave to withdraw a guilty plea, there is no principled basis for this Court to treat that onus as any “heavier” than in other circumstances where a party seeks to persuade a court to exercise a discretion in the interests of justice.

13. [70]

    Each case will necessarily turn on its own facts but examples of cases where the interests of justice will warrant the withdrawal of a plea of guilty include those listed by Spigelman CJ in Hura [104] and by Payne JA in Layt [105] (also being cases where a miscarriage of justice would occur). These include cases where:

14. [71]

    It should also be noted that where a plea of guilty is entered during committal in the Local Court and the accused is then committed to the District Court or Supreme Court for sentence (which is, of course, not this case), s 103(1) of the Criminal Procedure Act appears to contemplate that, for offences other than those attracting life imprisonment, an accused may withdraw the plea without leave of the Court and the judge must direct that he or she be put on trial for the offence. In cases where the offence is punishable by life imprisonment, the judge has a general discretion to make an order remitting the matter back to the Local Court, where the committal proceedings will continue as if the accused had not pleaded guilty. The absence of any statutory criteria for the exercise of this discretion is consistent with it being exercisable judicially, where the interests of justice so require.

Conclusion and the proviso

1. [72]

   It follows from our analysis that the wrong legal test was applied to the application for leave to withdraw the Applicant’s plea of guilty. As recorded earlier in these reasons, [113] the Director properly accepts that a conviction and sentence passed on the basis of a plea of guilty that was not permitted to be withdrawn in circumstances where the wrong legal test was applied to that issue will amount to a miscarriage of justice, subject to the application of the proviso. For that reason, it is not necessary for us to deal directly with other aspects of the Applicant’s argument which attacked critical of aspects of the primary judge’s reasoning.

2. [73]

   In Filippou, [114] French CJ, Bell, Keane and Nettle JJ said, in relation to the proviso, that:

3. [74]

   In the present case we are unable to conclude that no substantial miscarriage of justice actually occurred because, although the matter might be thought to be finely balanced, we are not persuaded that the result would have been the same had the interests of justice test been applied to the Applicant’s application for leave to withdraw his plea of guilty. In other words, there was a real possibility that, had this test been applied on the application, it would have been granted. Plainly enough, if this had occurred, the Applicant could not have been convicted without going to trial. As we explain below, it was not in contention (and indeed it was conceded by the Crown) that there was a triable issue raising a real question of the Applicant’s culpability for the murder of Scott Johnson. [115]

4. [75]

   Our reasons for rejecting the Crown’s contention in relation to the proviso, namely that “the same outcome was inevitable” had the “interests of justice” test been applied [116] — a contention upon which the Crown bore the onus — may be stated relatively shortly.

5. [76]

   First, notwithstanding the primary judge’s observations about the apparent clarity of the plea, [117] it was sought to be withdrawn almost immediately. Within around 30 minutes of it having been given, the Applicant had signed the statement reproduced at [8] above in which he referred to having been “confused” and “stressed”, and stated that he was tired and hungry (other evidence being to the effect that he had been awake since 4.00am and had only eaten some cornflakes in that period), [118] that the police had been pointing at him in Court whilst the proceedings were delayed and that he was conscious of the presence of Mr Johnson’s brother in the courtroom — “I can see the brother there, the police pointing me out. It's too much.” [119] The Applicant’s Signed Statement also contained the unequivocal words:

6. [77]

   The speed with which the plea was sought to be withdrawn has a number of consequences. It is consistent with confusion on the part of the Applicant. In this context, it is very important to note that, although the expert medical and psychological evidence was to the effect that the Applicant was fit to plead, on the other hand, it indicated that the Applicant was intellectually impaired, a matter that the Crown properly accepted. The expert evidence in this regard was summarised at PJ [25]–[42] and [61]–[65], and was to the effect that:

   1. (1)

      the Applicant was assessed by Dr Schafer (a neuropsychologist) as satisfying the criteria for an alcohol-induced major neurocognitive disorder;

   2. (2)

      the Applicant was described by Dr Schafer as functioning “in the range of someone with an intellectual disability of mild severity”, placing him in the first percentile of the population for cognitive function;

   3. (3)

      the Applicant’s immediate and delayed verbal memory performance, language skills, and the speed with which he processed information were each assessed by Dr Schafer to fall in the “extremely low” range; as a result of which

   4. (4)

      Dr Schafer recommended that the Applicant receives assistance from a support worker from the Justice Advocacy Service, and additional time for his legal representatives to explain proceedings to him and to obtain instructions;

   5. (5)

      the Applicant was assessed by Dr Furst (a psychiatrist) as satisfying the criteria for alcohol dependence, a persistent alcohol-induced neurocognitive disorder, and a borderline personality disorder or traits thereof;

   6. (6)

      the Applicant was assessed by Dr Seidler (a psychologist) as suffering from reduced neurocognitive function due to years of alcohol abuse, with a history of generalised anxiety disorder and post-traumatic stress disorder. Dr Seidler also considered that the Applicant would likely meet the criteria for a personality disorder; and

   7. (7)

      the Applicant was assessed by Dr Martin (a psychiatrist) as likely experiencing some cognitive deficits as a result of alcohol use disorder, although Dr Martin opined that a diagnosis of a neurocognitive disorder was “tenuous”.

7. [78]

   While the assessments of each of the experts differed, all were in agreement that the Applicant suffered from cognitive deficits. In this context, after noting at PJ [111] that “a fully informed consideration of the precise level of the applicant’s impairment [was] impossible” on the available evidence, the primary judge said the following:

8. [79]

   Another consequence of the speed of the attempt to withdraw the plea was that no prejudice would have been occasioned had leave been granted, nor would the important consideration of finality have been impaired in any real or substantive sense. As we have previously noted, to the extent that finality is of relevance in a first scenario case, it can scarcely be material in a case such as the present when the attempt to withdraw the plea was made almost immediately.

9. [80]

   Secondly, the post-arraignment conference file note, which is Annexure B to these reasons, is also instructive. It suggests that the Applicant’s principal motivation in pleading guilty was to be “safe” from his former wife, who had claimed that the Applicant had confessed to the killing of Mr Johnson. Thus, he is recorded as saying “I can't handle it. If I get out she'll just come after me again, I can't do it I just can't I'm sorry. I am better off in here. I'm safe in here. This is too much stress.” This observation was quickly followed by the statement “I didn't do it, but I'm saying I did it, you know what I mean.” [121] Notwithstanding what was said by Dawson J (in dissent) in Meissner v The Queen (Meissner), in relation to an accused pleading guilty “for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence”, [122] there is an intractable and uncomfortable tension between refusing to permit withdrawal of a guilty plea so motivated and a court’s consideration of whether a plea constitutes a “genuine recognition of guilt” [123] or a “true admission of guilt”. [124] Whilst it is correct that, in Meissner, Brennan, Toohey and McHugh JJ said that: [125]

10. [81]

    Thirdly, the post-arraignment file note also suggests that the Applicant held a view as to the sentence he would receive if he pleaded guilty (10 years’ imprisonment). However, it was clear from the context that that was not the view of his senior counsel and that it had plainly not been discussed with the Applicant before the guilty plea was entered because of the understanding of his legal advisers that he was proposing to plead not guilty.

11. [82]

    Fourthly, the guilty plea was entirely unexpected. Although there was evidence before the Court [126] that the Applicant had previously (many months beforehand) had some discussions with his legal advisers about the possibility of pleading guilty, the Applicant had never given instructions that he would do so and his consistent stance, to which he immediately returned after the plea, was that he was not guilty. This stance had been maintained for almost two years since he was charged and had been reiterated on the very morning of the plea during the pre-arraignment conference. [127] This was, accordingly, a circumstance in which his legal advisers had no notice of the Applicant’s intention to change his plea. His counsel therefore had no occasion to take the important and protective steps of providing the explanations mandated by r 41 of the Barristers Rules. [128]

12. [83]

    That was significant because, early in the post-arraignment conference, Ms Rigg SC explained to the Applicant, in the language of r 41(a), that the effect of pleading guilty was to admit guilt to “the whole world that you killed Scott Johnson, and that you intended to kill him, or cause him really serious harm”, following which the Applicant gave written instructions to apply to withdraw the plea. This suggested that, had the Applicant first informed his legal advisers that he was intending to change his plea, he would similarly have revised his view. It should be observed, however, that the Applicant’s reply “yep” to Ms Rigg after her r 41 explanation [129] was also capable of being construed as indicating some appreciation of the effect of the plea he had just given. It certainly impressed the primary judge in that way, [130] but in our view, in the overall context, it was at the very least equivocal.

13. [84]

    This example is illustrative of the fact that, at least in respect of some of the evidence that was before the primary judge, reasonable minds could differ as to the inferences to be drawn from certain statements made by the Applicant to his legal advisers. Another example arises from the fact that, as recorded by the primary judge, [131] the Applicant did not initially appear willing to go to the cells following his plea in order to confer with his legal advisers. There could have been a number of reasons for this, including that the Applicant was simply seeking to “get this over and done with” [132] because he was overwhelmed by what was his first physical appearance in Court.

14. [85]

    Fifthly, although the primary judge held that the Applicant was fully aware of the facts, the Crown had not articulated precisely how it was putting its case as a matter of law as at the time of the Applicant’s arraignment. Thus, although a Crown Case Statement had been prepared and served, and to that extent the Applicant was aware of the facts upon which the Crown relied, [133] it did not identify the basis or bases of liability upon which the Crown would rely to establish murder. That is, it did not specify whether it was alleged that the Applicant intentionally drove Mr Johnson off a cliff, whether he acted with reckless indifference to human life, or whether, for example, the case was put on the basis of constructive murder. Mr Game illustrated this matter by pointing out that the Applicant was eventually sentenced on the basis of reckless indifference to human life, which was not a way in which the Crown had ever articulated its case prior to the plea. [134]

15. [86]

    To be clear, the Crown was not being criticised for not having particularised the legal basis upon which it advanced its case at the point in time at which the plea was made; rather, the point was that if the Crown had not at that stage settled upon how it put its case, it may legitimately be doubted how a person of extremely limited intellect could meaningfully plead to the charge and thereby admit the elements of the offence in a sufficiently informed way.

16. [87]

    Without going into the detail of the Crown Case Statement in any way, which would not be appropriate, we are comfortably satisfied for the purposes of the proviso that it cannot be said that no substantial miscarriage of justice would arise if the appeal were to be dismissed. As noted above, [135] it was conceded by the Crown that, but for the plea, there was a triable issue raising a real question of the Applicant’s culpability for the murder of Scott Johnson. The corollary of that concession is that this is not a situation where “the case against the accused is overwhelming”, [136] or in which, if the matter proceeded to trial, a guilty verdict for the murder charge would be a foregone conclusion. The possibility of a lesser conviction, of manslaughter for example, or indeed complete acquittal, cannot be ruled out.

17. [88]

    It follows that the Applicant’s conviction and sentence must be quashed, the primary judge’s dismissal of the application to withdraw the plea of guilty should be set aside and the matter remitted to the Common Law Division.

18. [89]

    The Applicant still requires leave to withdraw his plea of guilty, although it is possible that the Director will reconsider her opposition to his application in light of these reasons, the proper test to be applied on such an application and the considerations germane thereto. That is a matter for the Director.

19. [90]

    If opposition to the withdrawal of the plea is itself withdrawn, the matter should proceed to trial. Otherwise the application for leave to withdraw the plea should be re-determined expeditiously.

Orders

1. [91]

   As a result of the foregoing analysis, the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal allowed.

   3. (3)

      Set aside the conviction and sentence of the Applicant.

   4. (4)

      Set aside the primary judge’s dismissal of the Applicant’s application to withdraw the plea of guilty.

   5. (5)

      Remit the matter for mention before the Chief Judge at Common Law at 9.30am on 1 December 2022.

2. [92]

   The Applicant sought a non-publication order in respect of these reasons and those of the primary judge, including her Honour’s sentencing judgment.

3. [93]

   It is not appropriate to make such an order at this stage. The current status of the matter following the Applicant’s conviction appeal is that, subject to the position adopted by the Crown following publication of these reasons, there is an extant plea of guilty and an application for leave to withdraw that plea which remains to be determined in accordance with the proper legal test as outlined in these reasons.

4. [94]

   If the plea is permitted to be withdrawn or the Crown consents to that course, an application for non-publication orders in relation to these reasons and those of the primary judge may be made prior to empanelment of any jury, assuming that the Applicant is tried by a jury as opposed to a judge alone. In that way, the public interest in open justice (which includes the exposure of this Court’s reasons for judgment) can be balanced with the need for a fair trial. The general practice of the Court when a retrial is ordered and there is a concern that previous judgments of the Court would be potentially prejudicial to the accused if accessed by a jury member notwithstanding the usual instructions to, and obligations on, members of the jury not to engage in extraneous research, is to remove such judgments from the Caselaw website shortly prior to empanelment for the duration of any subsequent trial, thus suspending their electronic availability.