Garcia-Godos v R; MH v R

1. [1]

   This judgment concerns two appeals which both arise as a result of the recent decision of this Court in White v R [2022] NSWCCA 241. In both matters, the applicants had pleaded guilty to offences, but had subsequently sought leave to withdraw those pleas before they were sentenced. In each case leave to withdraw the pleas was refused on the basis that each applicant had not demonstrated a miscarriage of justice occurred by the entering of the pleas.

2. [2]

   This Court in White held at [23] and [60] that in cases, of which the present two cases are an example, where the applicant has not been convicted or sentenced:

3. [3]

   Accordingly, each of the applicants submits that this Court should grant them leave to appeal against the refusal of the application to withdraw the guilty pleas and, following White, should allow the pleas to be withdrawn and remit the proceedings to the District Court for trial. The respondent to each application submits that White was plainly wrong and should not be followed by this Court, and that, accordingly, the applications should be dismissed.

4. [4]

   Each of the applicants requires an extension of time to make his application.

5. [5]

   For the reasons which follow, although we consider that there is some force in a number of the criticisms levelled at the reasoning in White by the Crown in each appeal, we are not satisfied that White is plainly wrong and, therefore, that we should not follow it. We also consider that it would be inappropriate to reach a conclusion that White is plainly wrong when the outcome of the two present appeals would be the same whichever of the two tests is employed. For that reason, both applications will be dismissed. However, in response to the lengthy submissions that were made concerning the correctness of White, we will explain why we do not consider that it is plainly wrong.

The appeal by Garcia-Godos

1. [6]

   On 20 May 2011 the applicant pleaded guilty before Judge Solomon in the District Court to two offences as follows:

2. [7]

   There was also taken into account on a s 16BA schedule with respect to count 1 a further offence of dealing in proceeds of crime worth $100,000 or more contrary to s 400.4(1) of the Criminal Code (Cth).

3. [8]

   At an unspecified date, seemingly late in 2012, and prior to being convicted and sentenced, the applicant sought leave to withdraw his guilty pleas. After a hearing that took place over seven days, Judge Toner SC dismissed the application: R v Louis Alberto Gonzalo Garcia-Godos (District Court of NSW, Toner SC DCJ, 28 February 2013) In doing so, his Honour said:

4. [9]

   The applicant sought leave to appeal to this Court pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) (“the CAA”) against that dismissal. On 17 June 2015 this Court dismissed the appeal: Garcia-Godos v R (Cth) [2015] NSWCCA 144 “Garcia-Godos 2015”).

5. [10]

   On 18 November 2022 this Court delivered its judgment in White.

6. [11]

   As a result of the judgment in White the applicant by a Notice of Appeal filed 30 November 2022) seeks leave to appeal against his conviction on the following ground:

The appeal in MH

1. [12]

   The applicant in this matter pleaded guilty before Judge Frearson SC on 2 November 2017 to the following offences:

2. [13]

   The applicant then applied for leave to withdraw his pleas of guilty. The application was heard by Judge Frearson SC on 12 April 2018. On 11 May 2018 Judge Frearson SC refused the application.

3. [14]

   The applicant was sentenced by Judge Frearson SC on 1 June 2018. Subsequently he sought leave to appeal against the sentence imposed, but his appeal was dismissed: MH v R [2022] NSWCCA 287. None of the grounds of appeal concerned the refusal of Judge Frearson SC to permit the applicant to withdraw his pleas of guilty.

4. [15]

   The applicant by a Notice of Appeal dated 12 January 2023 seeks leave to appeal against his conviction on the following ground:

Departing from earlier authority

1. [16]

   The principal issue argued at the hearing of the appeal was the correctness of this Court’s decision in White. In each case the applicant submitted that White was correctly decided and that, in such circumstances, the refusal by the primary judge to permit the applicant to withdraw his plea should be set aside and leave should be given to the applicant to withdraw his plea. That was because the reliance by the judge in each case on the wrong test constituted a miscarriage of justice.

2. [17]

   In the application by Garcia-Godos, the respondent was the Director of Public Prosecutions for the Commonwealth, and in the application by MH the respondent was the Director of Public Prosecutions for New South Wales. Both Directors submitted that White was wrongly decided and should now not be followed. If that result ensued, each Director submitted that the applicant in each case should not be permitted to withdraw his plea. Each Director submitted that, even if White was correctly decided, each application should be dismissed on the basis that, whatever test was applied, the applicant did not establish that he should be allowed to withdraw his plea, and the proviso to s 6 of the CAA should be applied because there was no substantial miscarriage of justice.

3. [18]

   It is necessary, first, to consider the circumstances in which it would be appropriate for the Court, as presently constituted, to depart from the decision of this Court in White.

4. [19]

   The matter was considered at length by the Court of Appeal (Allsop P, Beazley & Basten JJA) in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76. The Court of Appeal said:

5. [20]

   In Totaan v R [2022] NSWCCA 75, Bell CJ (with whom, Gleeson JA, Harrison, Adamson & Dhanji JJ agreed) said:

6. [21]

   Accordingly, we should only depart from White if we are of the view that it is plainly wrong and, having identified the error, we find that there are compelling reasons to depart from it. The fact that reasonable minds may differ on the issue is not sufficient. We would need to have a strong conviction that the judgment was erroneous.

The decision in White

1. [22]

   The Court in White stressed at the outset (at [23]) that an important point of context was the need to differentiate between, on the one hand, an application for leave to withdraw a plea of guilty prior to conviction (described as 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 (described as the second scenario). The Court said (at [24]), on the second scenario, once and because a conviction had occurred, it could only be set aside if one of the grounds of appeal in s 6(1) of the CAA was established. Those grounds included, as the third limb of the sub-section, that “on any other ground whatsoever there was a miscarriage of justice”.

2. [23]

   The Court concluded (at [58] and [60]) from its examination of the cases that the proper test for the first scenario was a consideration of the interests of justice, whereas the test for the second scenario, for the reason just given, was that a miscarriage of justice had occurred. The Court identified at [70] the width of the matters that might inform the interests of justice.

3. [24]

   The Court placed particular emphasis on what had been said in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46. The Court acknowledged (at [32]) that 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.

4. [25]

   In Maxwell, the applicant, who was charged with murder, pleaded guilty to manslaughter, and that plea was accepted in satisfaction of the indictment on the basis of the applicant’s diminished responsibility. Subsequently, and prior to sentence, material was placed before the trial judge concerning the applicant’s psychiatric condition. Counsel for the applicant and the prosecutor addressed the Court in relation to sentence, and the judge adjourned the matter to consider the evidence. Sometime later, in giving judgment, the judge expressed doubt about whether he could accept the plea of not guilty to murder but guilty of manslaughter on the basis of diminished responsibility.

5. [26]

   The prosecutor submitted that the judge should reject the plea of guilty, but the prosecutor did not seek leave to withdraw his acceptance of the plea. The trial judge then made an order rejecting the plea and formulated two questions for the consideration of the Court of Criminal Appeal. The first was whether the prosecution could withdraw acceptance of the plea after it was accepted, and the second was whether the judge had power to reject the plea after it had been accepted by the Crown. The Court of Criminal Appeal answered both questions in the affirmative. From that determination, the applicant obtained special leave to appeal to the High Court.

6. [27]

   The High Court accepted that the events under consideration took place prior to any conviction or sentence. The Court held, in answer to the second question, that the judge had no power to reject the plea.

7. [28]

   In relation to the first question, the joint judgment of Dawson and McHugh JJ said (at 515):

8. [29]

   Although Toohey J dissented by holding that the judge had the right to reject a plea, his Honour otherwise agreed with the majority in relation to the withdrawal by the Crown of acceptance of a guilty plea. His Honour said (at 522):

9. [30]

   The joint judgment of Gaudron and Gummow JJ said (at 531):

10. [31]

    Significantly, three cases were cited (in footnote 118) for the reference to “the interests of justice” in the judgment of Gaudron and Gummow JJ. Those cases were R v Webb & Hay (1992) 64 A Crim R 38; R v Middap (1989) 43 A Crim R 362; and R v Boag (1994) 73 A Crim R 35 at 36-37. Those cases were discussed by the Court in White and, importantly, the case of Boag (together with Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 and Garcia-Godos) was held to have been wrongly decided and should not be followed where an application was made for leave to withdraw a plea of guilty before conviction.

Submissions

1. [32]

   Since the principal issue on the appeals was the correctness of White, and it was the Directors in each case contending that it was wrongly decided, submissions were heard first from the Directors, with counsel for the applicants responding.

2. [33]

   The Director submitted that the Court in White had conducted a flawed analysis of a number of decisions including R v Clayton (1984) 35 SASR 232, Middap and Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54.

3. [34]

   The Director submitted that in Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, Brennan, Toohey and McHugh JJ used the language of “miscarriage of justice”. The Director submitted that Meissner had been accepted in New South Wales and elsewhere in Australia as authoritative guidance as to the circumstances in which a plea of guilty should be permitted to be withdrawn. The Director submitted that the Court in White did not devote any substantial consideration to the dicta of the majority in Meissner.

4. [35]

   The Director submitted that the statement of the Court in White that nothing was final before conviction even if a guilty plea had been entered, did not have proper regard to the majority in Meissner where it was said that the “the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt”.

5. [36]

   The Director submitted that the Court in White did not devote any substantial consideration to the reasoning in BWM v R (1997) 91 A Crim R 260, which was the decision of this Court on the remittal of Maxwell for redetermination after the High Court’s decision. The Director submitted that in BWM, the Court considered and rejected the argument that Maxwell suggested that there should be equivalence in the tests for withdrawal of a guilty plea by an offender and the withdrawal by the Crown of acceptance of a guilty plea, and the Court held that the “interests of justice” test outlined in Maxwell was not the test to be applied on an application to withdraw a plea.

6. [37]

   The Director submitted that the question of whether the same test applies at the pre-conviction stage and on appeal has been the subject of consideration by this Court and other intermediate appellate courts in coordinate jurisdictions. The Director submitted that this Court and those other courts have held that the same principles apply, irrespective of whether the plea is sought to be withdrawn prior to conviction or on appeal. Reference was made to R v Davies (1993) 19 MVR 481 at 482; R v Parkes [2004] NSWCCA 377 at [49]; and Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [26]. The Director submitted that the Court in White did not undertake any analysis of those authorities in coming to its view that different tests applied at different stages in the proceedings.

7. [38]

   The Director submitted that the distinction between first and second scenario withdrawal applications was said by the Court in White to arise by virtue of whether the applicant brings the application before or after conviction. The Crown submitted, however, that this did not take account of what was said by Dawson and McHugh JJ in Maxwell, that what amounts to a conviction admits of no single comprehensive answer.

8. [39]

   The Director submitted that there is no one test or verbal formula depending on when an application is made. The Director submitted that as the Court in White acknowledged, there are authorities that do not apply a single test. Whilst miscarriage of justice has developed as the accepted verbal formula or general statement to reflect the applicable common law principles on plea withdrawals, the emphasis is always on the circumstances attendant on the entry of the plea and its integrity.

9. [40]

   The Director submitted that many of the cases referred to by the Court in White provide examples of different verbal formulae, but each has at its heart that the Court is responsible for doing justice, and for avoiding a miscarriage of justice. The Director submitted that the judgments in Maxwell further illustrate that there may be a flexibility about the verbal formula used to reflect the principles on such applications, noting that Toohey J referred to the inherent jurisdictions of courts “to see that justice is done”, Gaudron and Gummow JJ referred to the “interests of justice”, but the cases in footnote 118 in support of that statement applied a “miscarriage of justice” test.

10. [41]

    The Director submitted that what was said in White at [65] (that the “interests of justice” test may focus on matters going beyond the integrity of the plea) would suggest that the integrity of the plea is no longer a necessary focal point. However, the reasoning by the Court in White does not address how such a test is reconciled with what is said in Meissner, and with the importance and finality that the law attaches to a plea of guilty as a solemn acknowledgment of the elements of the offence.

11. [42]

    The Director adopted the submissions made by the State Director. In addition, he submitted that the reason the miscarriage of justice enquiry in scenario two cases is narrowly focused on the integrity of the plea is because of the significance of a guilty plea, independently of, and regardless of whether, any conviction has been entered and sentence imposed consequent upon the guilty plea. The Director submitted that, while a plea of guilty does not bring the proceedings wholly to an end, it brings to an end that part which is concerned with liability, and the Court will proceed accordingly. That was enough to attract the principle that some defect in the integrity of the plea must be shown before it can be withdrawn. The Director submitted that it is the concern with finality which justifies a focus upon there being some defect in the integrity of the plea as the touchstone for granting permission to withdraw the plea.

12. [43]

    The Director submitted that the Court in White was correct to discern the existence of two different scenarios, and correct to discern that the two scenarios differed in terms of who was making the decision (the trial judge or an appellate court), and whether finality was trenched upon to the extent of even undermining a conviction and sentence. However, the Director submitted that what the miscarriage of justice test recognised is the significance of a guilty plea from the moment it is made and accepted.

13. [44]

    The Director submitted that, because a plea of guilty is “the most cogent admission of guilt that can be made” (relying on Charlesworth v Regina [2009] NSWCCA 27 at [25] and other cases), that is no doubt why the miscarriage of justice test has been applied, deliberately and advertently, in deciding whether to permit a person to withdraw his or her guilty plea in New South Wales and other jurisdictions in cases not referred to by the Court in White.

14. [45]

    The Director submitted that whilst it is true that no statute requires a court to apply the miscarriage of justice label in first scenario cases, what matters is not the label but the chain of reasoning to be applied in deciding whether to grant leave to withdraw a guilty plea. While s 6(1) of the CAA dictates that a miscarriage of justice must be demonstrated, it leaves it to the courts to determine how a miscarriage of justice is to be demonstrated. The focus on the integrity of the plea is unrelated to the language of s 6(1), making that language, and the absence of any similar statutory mandate for first scenario cases, a peripheral issue.

15. [46]

    The Director submitted that the language of s 6(1) cannot be determinative (or even important) because, in appeals against conviction in summary proceedings after the accused pleads guilty, the miscarriage of justice test is applied even though appellate intervention is not confined in the manner of s 6(1). Reference was made to ss 12(1), 16, 18 and 20 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CARA”).

16. [47]

    The Director submitted that what was said in Maxwell did not provide support for the conclusion in White because what Gaudron and Gummow JJ meant by the interests of justice could be seen from examining footnote 118 which their Honours referenced. The three cases in that footnote, Webb & Hay, Middap and Boag all spoke of the “miscarriage of justice” test.

17. [48]

    Thereafter, the Director, in his written submissions, analysed the approach that the Court in White took to a number of decisions which had been used by the Court to support its conclusion on first scenario cases, and to cases which the Court in White had concluded were wrongly decided and should not be followed.

18. [49]

    In oral submissions, the Director drew attention to a number of cases in this Court and other intermediate appellate courts in Australia, which were not considered by the Court in White and applied a “miscarriage of justice” test, whether they could be said to be first or second scenario cases.

19. [50]

    The submissions on behalf of the applicants focused principally on the issues of the integrity of the plea, and the issue of finality.

20. [51]

    The applicants submitted that what was said in Meissner by Dawson J at 157 allowed for considerations other than the integrity of the plea to be relied upon to withdraw a plea. In that way, something less than a miscarriage of justice need only be shown in order for the plea to be withdrawn.

21. [52]

    The applicants submitted that there was no relevant finality until the Court accepts and acts upon the plea, presumably by conviction and sentence. The applicants submitted that, as a matter of principle, there is no finality on the making of the plea, and the interests of justice might dictate that leave should be given to withdraw the plea before conviction and sentence although no miscarriage of justice is shown.

22. [53]

    The applicants supported the holding in White that, although a miscarriage of justice must be shown for second scenario cases by reason of s 6(1) of the CAA, it did not follow that such a test was required for first scenario cases where there was no statutory basis for such a test.

23. [54]

    The applicants submitted that Maxwell supported the “interests of justice” test. In that regard, the applicants pointed to references in a number of cases to the exercise of discretion when considering whether to permit a plea to be withdrawn. The applicants submitted that reference to a discretion was not consistent with the application of a “miscarriage of justice” test.

24. [55]

    The applicants submitted that the Court would not have a strong conviction, for the foregoing reasons, that White was plainly wrong.

Consideration

1. [56]

   The principal basis on which the decision in White is founded is the division the Court made between what it called first scenario cases (pre-conviction applications) and second scenario cases (post-conviction appeals). The division was based on the timing of the application, and its relationship with the principle of finality in the criminal process. The Court thereafter examined a large number of cases involving applications to withdraw pleas, and categorised those cases as falling either within the first scenario or the second scenario.

2. [57]

   A second basis for the division came about because of the requirement in post-conviction appeals for applicants to establish a miscarriage of justice to bring them within s 6(1) of the CAA. The Court then concluded that in relation to applications made prior to conviction and sentence, the “miscarriage of justice” test had no “statutory root”, taking the phrase from Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [101] in rather different circumstances.

3. [58]

   It does not appear to us, on an analysis of the cases referred to in White, that the division between first scenario and second scenario cases had ever been made prior to the decision in White. That, in itself, brought about the difficulty of being able to classify prior cases in one or other group. That bifurcation was made more difficult because a number of the cases examined used the expressions “miscarriage of justice” and “interests of justice” together or interchangeably.

4. [59]

   An example of this can be shown from the reliance by the Court in White on what was said in the joint judgment of Gaudron and Gummow JJ in Maxwell (at 531) is set out above at [30]. Their Honours used the term “interests of justice” and in doing so referred in a footnote (as noted above at [31]) to Webb & Hay, Middap and Boag.

5. [60]

   Webb & Hay was a decision by Debelle J which dealt, inter alia, with an application by the accused to withdraw his plea of guilty after he had been convicted (see at 64 A Crim R 47). Justice Debelle said (at 50):

6. [61]

   A little further on his Honour said this (at 52):

7. [62]

   This portion of Debelle J’s judgment was set out in White at [38] but what was omitted from it was the quotation from Wells J in R v Clayton (1984) 35 SASR 232 at 234 (above). The omission of what was said by Wells J, was significant because the third paragraph of the extract from Clayton suggests that Wells J considered that the test was miscarriage of justice, and Debelle J’s comment upon it suggests that the “interests of justice” was another way of describing the same test.

8. [63]

   The second decision referred to in the footnote in Maxwell was Middap where the Court of Criminal Appeal in Victoria said (at 364):

9. [64]

   The third case referred to in the footnote was that of Boag, a decision of this Court where the principal judgment was given by Hunt CJ at CL. His Honour said (at 36):

10. [65]

    It will be observed that each of those three cases posited a “miscarriage of justice” test, although they had been referenced as authority or support for “if the interests of justice otherwise require”.

11. [66]

    The Court in White noted that the decision in Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54 was cited by Toohey J in Maxwell as an authority for his statement (at 522) that:

12. [67]

    Kitchen was an application by a defendant to change his plea of guilty to not guilty on the morning when he was due to make submissions before being sentenced. In White, the Court set out various portions of the judgments in Kitchen where reference was made to the “interests of justice”, but the Court acknowledged the fact that White J had expressed agreement with Wells J in Clayton, where he made reference to the need to show a miscarriage of justice. The Court in White did not, in rejecting the Crown’s submission that there was no real or material difference between the two tests (at [64]), provide any explanation for the apparent interchangeability of the two expressions throughout the judgment in Kitchen or, for that matter, the reliance by Gaudron and Gummow JJ on three decisions in footnote 118, suggesting that there was no real difference between the two tests. Further, what was said R v Sewell [2001] NSWCCA 299 by Smart AJ (Heydon JA and Simpson J agreeing), and adopted in White at [54]-[56], might be taken as an elision of the two tests, although that is not how the Court in White understood what Smart AJ was saying.

13. [68]

    Nevertheless, when Maxwell was remitted to the Supreme Court, and came subsequently to this Court in R v BWM (1997) 91 A Crim R 260, Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) was of the opinion that a test of “interests of justice” (held to be the test for the withdrawal by the Crown of acceptance of a plea) was a different test from “miscarriage of justice” (the test for withdrawal of a plea by an accused) and involved different considerations. That provides some support for the rejection in White of the notion that the two tests were not materially different.

14. [69]

    As noted earlier, the State Director was critical of what was said to be the failure of the Court in White to give any substantial consideration to what was said by the High Court in Meissner. This submission highlights one of the difficulties for any conclusion that the Court’s decision in White is plainly wrong. The remarks made in both Meissner and Maxwell were all obiter dicta, although we accept that they are “seriously considered” as referred to in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134] and [158]. Neither case was directly concerned with applications to withdraw pleas. Nor is it clear from what is said in Meissner by Brennan, Toohey & McHugh JJ (at 141-2) whether the remarks are directed to the situation where the person who entered the plea has been convicted and sentenced, but what appears at 142 might suggest that that is so. If that is correct, Meissner provides some support for what was said in White concerning second scenario cases, but says nothing at all about first scenario cases.

15. [70]

    Certainly, the remarks in Maxwell were made in the clear context of an accused who had not been sentenced at the time consideration was being given to the status of the plea he had entered. Nor is it easy to reconcile what appears to be an “interests of justice” test in the judgment of Gaudron and Gummow JJ with their reliance on three cases which suggest the test is ultimately a “miscarriage of justice”.

16. [71]

    There is also force in the reliance in White on the concept of finality and the issue of the jurisdiction of the District Court, as explained at [62]-[63] of that decision, to justify the distinction between the two categories of cases. The submissions of the Directors suggesting that regard was not had in White to the issue of finality, as identified in Meissner, is answered by those paragraphs. Moreover, we note the submission of the Commonwealth Director that the Court in White was correct to discern the existence of two different scenarios.

17. [72]

    Even this relatively brief analysis of some, but not all, of the relevant cases on withdrawal of pleas indicates that no firm conclusion can be reached trhat the Court in White was incorrect in making the distinction between the two categories of cases. The cases are dependent on obiter dicta remarks in two High Court cases where the present issue was somewhat removed from what the High Court was considering. Maxwell and cases in this Court and other intermediate appellate courts do not always speak clearly in distinguishing between “interests of justice” and “miscarriage of justice”, or even in having regard to the circumstances in which the applications to withdraw have been made. The Court in White acknowledged at [60] that a number of the cases had conflated the tests. For those reasons, we cannot say that the Court in White was plainly wrong in making the distinction it did between the two categories of cases.

18. [73]

    In relation to the need to demonstrate a “miscarriage of justice” in second scenario cases by reason of s 6(1) of the CAA, the Court concluded that this test was not apposite for first scenario cases as a matter of principle because it had no “statutory root”. We doubt that a statutory root must be found to apply the “miscarriage of justice” test, because the term is employed far more widely than in conviction appeals in accordance with s 6(1) of the CAA. For example, the term is frequently used in sentence appeals where it is sufficient to show error, and there is no necessity to demonstrate a “miscarriage of justice”: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Barnes v R [2022] NSWCCA 140 at [25]. Further, as the Commonwealth Director pointed out, the miscarriage of justice test is employed without any statutory basis in appeals from magistrates to the District Court under the CARA.

19. [74]

    The term is also used in civil proceedings in certain circumstances without any statutory basis; for example, in relation to staying civil proceedings pending determination of criminal proceedings: McMahon v Gould (1982) 7 ACLR 202 at 206-207; Niven v SDS [2006] NSWCA 338 at [26]; and in determining whether or not negligence has been established: Tcaciuc v Broken Hill Pty Co Ltd (1961) 62 SR (NSW) 687; Hobana Pty Limited & Anor v Richard Gremmo [2006] NSWCA 261 at [18].

20. [75]

    In the light of the more widespread use of “miscarriage of justice” than its application by reason of s 6(1) of the CAA, we doubt that the Court in White was suggesting that the term was not relevant except where it had a statutory basis. The matter is certainly not clear from what the Court said at [59]. This uncertainty means that we cannot conclude that the Court in White was plainly wrong in this regard.

21. [76]

    Our ultimate conclusion in both of these applications is not based on any view that the two tests are in fact the same, because, as we have said, we cannot conclude that the decision in White was plainly wrong. Our conclusion is based on accepting the factors contained in White at [65] and applying them to the facts involved in the two matters.

Application by Garcia-Godos

1. [77]

   The applicant now seeks leave to appeal out of time against his conviction pursuant to s 5(1)(a) of the CAA . He relies on White at [60] – [61], where the Court stated that:

2. [78]

   The applicant relies on one ground of appeal, that Toner SC DCJ applied the wrong legal test in refusing him leave to withdraw his pleas of guilty by wrongly applying the “miscarriage of justice” test. In the applicant’s submission, the application of the incorrect test led to his Honour approaching the evidence at the hearing with “caution bordering on circumspection”, thereby raising the bar that the applicant had to overcome. It was submitted that had his Honour applied the proper “interests of justice” test, then the applicant would not have carried such a heavy onus of proof and a different decision could have been reached.

3. [79]

   The Commonwealth Director submitted that the decision in White is plainly wrong and should not be followed and that therefore Toner SC DCJ did not err in applying the “miscarriage of justice” test. The Director submitted, in the alternative, that the proviso applies because it was inevitable that leave to withdraw the pleas would have been refused had his Honour applied the “interests of justice” test. The Director relied on his Honour’s factual findings at the hearing to argue that he could have come to no other decision.

4. [80]

   At the hearing before his Honour, the applicant relied on his affidavit dated 8 November 2012 and an affidavit of Richard Cornwell dated 22 November 2012. Both the applicant and Mr Cornwell gave evidence.

5. [81]

   In his affidavit, the applicant outlined the background of the matter. He was arrested in Peru on 11 July 2008 and was then extradited to Australia where he arrived on or about 1 March 2010. Prior to entering his guilty pleas, the applicant engaged several lawyers to act on his behalf. Eventually he engaged Victoria Havryliv who provided him with the brief of evidence and represented him on 20 May 2011 when he pleaded guilty. Ms Havryliv instructed Ms Christine Nash of counsel.

6. [82]

   On 19 July 2011, the applicant was interviewed by the Australian Federal Police (AFP) to determine whether or not he could provide them with assistance, such that he would be entitled to receive a discount on his sentence. The applicant said that on 3 August 2011 he was informed by Ms Havryliv and Ms Nash that the AFP was not prepared to provide him with a letter of comfort. He then immediately instructed them that he wished to withdraw his guilty pleas. On 2 March 2012, the applicant’s lawyers so advised the Court.

7. [83]

   At [27] of his judgment, his Honour observed that at the heart of the applicant’s case at the hearing, was the fact that he was a Spanish speaker from Peru with a limited ability to speak or understand English. The applicant also said that he had no knowledge of Australian law. His evidence was that the brief of evidence was never translated into Spanish and that when he met with his lawyers an interpreter was not always present. Furthermore, the applicant gave evidence that he felt pressured by his lawyers to plead guilty. He said that he had always maintained his innocence with respect to the importation charge. Indeed, he gave evidence that he was advised by Ms Havryliv that if he pleaded guilty, he would have an opportunity to tell his story at the sentencing hearing and the judge could then dismiss the importation charge.

8. [84]

   The applicant was assisted by an interpreter at the hearing before his Honour. In cross-examination, the Crown challenged his evidence about his understanding of English. It was put to him that he had adequately conversed in English with Ben Wills-Johnson, who was the Federal Agent tasked with arresting him and escorting him from Peru to Australia. The applicant insisted that he had communicated with Mr Wills-Johnson in single words and hand gestures.

9. [85]

   The applicant was challenged on his evidence about the circumstances that led him to instruct his lawyers to withdraw his pleas. The applicant’s evidence was that he had pleaded guilty on the advice of his lawyers and that he was under the impression that the importation charge could be thrown out after he gave evidence at a sentencing hearing. Upon learning that the AFP would not give him a letter of comfort, he said that he decided not to give evidence at sentence and he decided to withdraw the pleas. The Crown’s contention was that he decided to withdraw his pleas only after he was informed that the AFP would not be giving him a letter of comfort.

10. [86]

    In evidence before his Honour, there were a substantial number of written notes taken by the applicant’s lawyers during conferences with him, as well as written documents that had been created by Mr Cornwell during interviews with the applicant in gaol. It was put to the applicant that those documents suggested that he had told his lawyers that he had been involved in the importation of drugs into Australia to some extent, and that his real concern was that the Crown was portraying him as a principal in the offence. The applicant denied this.

11. [87]

    Mr Cornwell gave evidence on behalf of the applicant. Mr Cornwell was a fellow prisoner who was serving a long prison sentence for the importation of drugs. As noted by his Honour and in Garcia-Godos 2015, it appeared that Mr Cornwell may have been involved with persons who were the principals in the importation with which the applicant was charged. Mr Cornwell’s evidence was that he had interviewed the applicant many times in gaol in order to assist him and to help him understand the charges against him. Mr Cornwell did not speak Spanish and he said the interview process was so difficult, that at times they almost came to blows. Nevertheless, he created a number of documents outlining the conversations that he had with the applicant.

12. [88]

    In oral evidence, Mr Cornwell said that the applicant had always been clear in his denial of his involvement in the importation charge. However, some of what Mr Cornwell had written was inconsistent with his oral evidence to that effect. For example, Mr Cornwell had assisted the applicant with a Legal Aid Application, where he wrote:-

13. [89]

    Mr Cornwell’s evidence was that any inconsistencies could be explained by misunderstandings between him and the applicant and/or by mistakes in his interpretation of what the applicant had told him.

14. [90]

    The Crown relied on evidence by Ms Havryliv, Ms Nash, Ms Maria Malezos and Federal Agent Wills-Johnson. Ms Malezos was, at the time of the hearing, a solicitor working under the supervision of Ms Havryliv and her evidence was not significant.

15. [91]

    Mr Wills-Johnson’s evidence went mostly to the applicant’s ability to speak and understand English during the extradition process. He gave evidence that the applicant was able to communicate in sentences. He denied that the applicant could only use simple words and that he communicated by hand gestures.

16. [92]

    Ms Nash gave evidence about the conferences that she had attended with the applicant. She agreed that an interpreter was not always present. However, her evidence was that the applicant would often speak in English and that his responses indicated to her that he could understand her. On 6 April 2011 (the April conference), the applicant became angry at the interpreter who was present as he felt that he was not interpreting him correctly. The conference then continued in English.

17. [93]

    Ms Nash’s evidence contradicted the applicant’s account that he had always maintained that he was not involved in the importation offence. Ms Nash said that the two phrases that stood out to her at every meeting with the applicant were, “I don’t want to go to trial” and “I wasn’t the principal”. She denied that she had ever told the applicant to plead guilty. Rather, Ms Nash said that the applicant had always maintained that he was not the principal in the offence. She also gave evidence that she had informed the applicant that, while his level of involvement did not make a difference in terms of his plea, it could make a difference at sentencing.

18. [94]

    With respect to the conference notes, Ms Nash’s evidence was that the notes were an accurate and contemporaneous recording of what was said at the conferences and accurately reflected the instructions given by the applicant at those meetings.

19. [95]

    Ms Havryliv’s evidence was consistent with that of Ms Nash. She said that the applicant was able to communicate in English in full sentences, although his grammar was not always correct. She corroborated Ms Nash’s account of what had occurred with the interpreter at the April conference. She denied ever having told the applicant that he had no choice but to plead guilty and maintained that the applicant had never told her that he had no involvement with the importation charge. The applicant’s main concern, according to Ms Havryliv, was that the Crown was portraying him as a principal in the importation charge. She denied that she had ever informed the applicant that, if he pleaded guilty, the sentencing judge would be able to throw out the importation charge.

20. [96]

    His Honour applied Boag; R v Van (2002) 129 A Crim R 229; and Wong, finding that leave to withdraw a plea will only be granted when it is shown, on balance, that a miscarriage of justice has occurred. His Honour said that it was within the discretion of the court to allow a person to withdraw their guilty plea at any time prior to sentencing and especially in (these) circumstances where the applicant had not been convicted: see [17] and [18] of his judgment. At [19], his Honour noted Kirby P’s comments in R v Liberti (1991) 55 A Crim R 120 that:

21. [97]

    His Honour dismissed Mr Garcia-Godos’s application. His Honour did so on the basis that, if the conference notes and Mr Cornwell’s documents were accurate, then the applicant had been instructing his lawyers that his role in the importation charge was less than that of a principal. His Honour found that the applicant’s evidence was inconsistent with the conference notes and a great many of the documents created by Mr Cornwell. His Honour made adverse credibility findings against the applicant and Mr Cornwell and expressly preferred the evidence of the Crown witnesses.

22. [98]

    As to the applicant’s evidence, his Honour found (at paras [64] – [71]) that:

23. [99]

    With respect to Mr Cornwell, his Honour found (at para [63]) that:

24. [100]

    His Honour preferred the evidence of Ms Nash and Ms Havryliv, and found that their notes accurately reflected the instructions given to them by the applicant. Furthermore, his Honour observed that it was not put to Ms Nash that the notes were not an accurate record of the conferences and that counsel for the applicant seemed reluctant to put the proposition. His Honour concluded (at para [80]):

25. [101]

    With respect to Ms Havryliv, his Honour found that she was an impressive witness. It was not put to her that the conference notes that she made were fabricated. His Honour stated (at para [147]) that:

26. [102]

    His Honour concluded that Ms Havryliv’s evidence was not disturbed in cross-examination and that she was a credible and consistent witness. Further, he found that her evidence was consistent with that of Ms Nash.

27. [103]

    His Honour acknowledged that some criticism could be “levelled” against Ms Havryliv and Ms Nash, as some conferences were held without an interpreter being present. At para [75] his Honour stated that:

28. [104]

    The conclusions of his Honour are outlined at paras [161] – [171] of his judgment:

29. [105]

    At [169], His Honour further found that “the applicant’s contention that he was told what he asserted he was told was unlikely”. It was not explained why highly experienced lawyers would give such advice.

30. [106]

    His Honour concluded that the applicant had not demonstrated, on the balance of probabilities, that there would be a miscarriage of justice if he was not permitted to withdraw his pleas and his Honour accordingly dismissed the application.

31. [107]

    The applicant’s appeal against the order of Toner SC DCJ was dismissed by this Court in 2015. The only ground of appeal was that his Honour had erred by refusing to allow the applicant to withdraw his guilty plea in respect of the importation charge. During the hearing, at which he represented himself, the applicant sought to explain some of his statements and why his answers in cross-examination were often unresponsive. He suggested that Ms Havryliv had an agenda and that she was not cross-examined sufficiently or aggressively enough by his counsel.

32. [108]

    The Court considered that his Honour had applied the correct test. Furthermore, and significantly, the Court considered the factual findings of his Honour and found no error in the application of the law to the facts. The Court found that his Honour’s findings were made on a sound basis and were supported by the objective material before him.

33. [109]

    The applicant submits that, given the decision in White, Toner SC DCJ and the Court in Garcia-Godos 2015 applied the wrong test and that under the “interests of justice” test, the applicant could succeed in an application to withdraw his guilty pleas. The applicant argued that the proviso in s 6(1) of the CAA does not apply but that if it does, then it is not inevitable that leave to withdraw the plea would have been refused had the “interests of justice” test been applied.

34. [110]

    The applicant submitted that the factual findings of his Honour could have been influenced by the application of the incorrect principle, as his Honour approached the matter “with caution bordering on circumspection”, which wrongly put a heavy onus on the applicant. It was submitted that had his Honour exercised the discretion properly, he might have taken a more sympathetic and less sceptical view of the evidence given at the hearing. The applicant submitted that the following features of the case were unsatisfactory:

    1. (1)

       Three of four significant conferences were held without a Spanish interpreter;

    2. (2)

       Mr Cornwell assisted the applicant in gaol and had extensive conversations with him, and Mr Cornwell’s notes disclose significant admissions by the applicant to him;

    3. (3)

       Mr Cornwell was serving a long sentence for drug importation and was involved in committing that offence with some of those who may well have been the principals of the importation with which the present case is concerned, and so Mr Cornwell was not independent; and

    4. (4)

       No written instructions were ever obtained from the applicant of his intention to plead guilty and his understanding of what this entailed.

35. [111]

    The applicant submitted that the necessary question in terms of the proviso to s 6(1) is whether there could have been a different result. He submitted that this is not an appropriate case in which to apply the proviso, noting the application of the proviso is itself discretionary, as evidenced by the word “may” in s 6(1).

36. [112]

    The Director submitted that the decision in White is plainly wrong. However, in the alternative, he submitted that the proviso in s 6(1) applies and that the applicant could not succeed under the “interests of justice” test. Specifically, the Director points to his Honour’s findings at the hearing that:

    1. (1)

       Many of the applicant’s answers were unresponsive and evasive;

    2. (2)

       The applicant’s evidence was inconsistent with contemporaneous notes and no suggestion was made to any witness that the notes were inaccurate;

    3. (3)

       The applicant’s evidence was inconsistent with his own objective behaviour in seeking to co-operate with the AFP; and

    4. (4)

       The applicant’s case was inconsistent with his lawyers’ evidence, which Toner SC DCJ accepted.

37. [113]

    Furthermore, the Director submitted that an appeal against Toner SC DCJ’s decision has already been dismissed and that there is nothing to impeach the integrity of the pleas and no reason to grant leave to withdraw it.

38. [114]

    At the hearing, the Director made brief submissions about his Honour’s factual findings. It was submitted that the documentary evidence proved that it was not the case, as the applicant submitted at the hearing, that he had always maintained that he was not involved in the importation of drugs, and that his Honour had found – at length - that this was so. Counsel pointed to his Honour’s judgment and the documentary evidence supporting those findings.

39. [115]

    The Director submitted that at [34]-[35] of his judgment, his Honour had correctly identified the applicant’s argued basis for leave to withdraw his plea. His Honour referenced the applicant’s affidavit of 8 November 2012, where the applicant had stated that:

40. [116]

    At paragraphs [93], [98], [100]–[104], [115], 120], [130], [132], and [137] of the judgment, his Honour accurately referred to and extracted the content of file notes of conferences which were before him in evidence, and which have been reproduced in this appeal. Those file notes refer to conferences with the applicant’s counsel and solicitor, at least one of which was attended by a Spanish interpreter. The dates of those conferences were 17 February 2011, 22 March 2011, 6 April 2011, 8 July 2011, 2 August 2011, 24 November 2011 and 2 March 2012.

41. [117]

    The file notes are all of a similar character. In each, the applicant did not deny his involvement in the importation charge to some degree. Rather, in each he denied that he was the principal.

42. [118]

    The Director pointed to additional documentary evidence before this Court which was not extracted in his Honour’s judgment. Those documents were created by Mr Cornwell and purported to be updated written instructions to the applicant’s lawyers. They give some detail about the applicant’s alleged role in the drug importation. Significantly, there is no denial of his involvement.

43. [119]

    In our opinion, his Honour made no error in his consideration and interpretation of the documentary evidence, and on that basis he rejected the evidence of the applicant that he had always instructed his legal representatives that he had no role in the importation of drugs into Australia.

44. [120]

    In White, the Court, after considering the relevant authorities, rejected the “miscarriage of justice” test and held that, in a first scenario case, the proper test is whether the “interests of justice” require a plea to be withdrawn. Their Honours rejected the submission that there was no real or material difference between the two tests. The interests of justice test is broader. At [64] their Honours said:

45. [121]

    Although the focal point of the inquiry will generally be the integrity of the plea, the interests of justice test is broader in that it takes into account other matters (White at [65]). Their Honours provided a non-exhaustive list of factors that may assist in deciding whether the interests of justice require a plea to be withdrawn at para [65]. The relevant factors in this case are:

46. [122]

    Bearing in mind these factors, it is abundantly clear that the result before his Honour would not have been any different had the “interests of justice” test been applied.

47. [123]

    First, unlike the situation in White, there were no circumstances at the time of the entry of the guilty pleas on 20 May 2011, to question the integrity of the pleas. The applicant was represented at the time and a Spanish interpreter was present in court. The charges against the applicant were read out and interpreted in Spanish. The applicant did not deny that he understood what he was doing when he pleaded guilty, even if he may have been under a misapprehension as to the ultimate consequences at the sentencing hearing.

48. [124]

    Second, the applicant did not seek to withdraw his guilty pleas until about 9 months after he pleaded guilty. This case can be distinguished from White, where the applicant sought to withdraw his plea immediately after it was made. Furthermore, the applicant has never given any adequate or convincing explanation as to why he decided to seek leave to withdraw his guilty pleas 9 months after he pleaded. His reason was that he pleaded guilty because of flawed legal advice and a misunderstanding of the consequences of pleading guilty. A more convincing explanation (as found by his Honour at [166] of his judgment] is that he only decided to change his pleas after being informed that no discount was available for assistance to the AFP.

49. [125]

    Third, the applicant did not dispute, and in fact accepted as possible, that his lawyers (and in particular Ms Nash) went through the details of the charges against him in some detail, including with the use of a Spanish interpreter at the April conference. At this conference, Ms Nash also went through the evidence against him, including the telephone conversation recordings. During cross-examination, the applicant agreed that it was entirely possible that this occurred.

50. [126]

    Fourth, the applicant received legal advice as to the consequences of his pleas. It is true that this was a disputed point at the hearing before his Honour. The applicant claimed that he was advised that, if he pleaded guilty, he would be able to tell his story at the sentencing hearing and the judge could throw out the importation charge. However, Ms Havryliv denied that she said this, and her evidence was accepted by his Honour.

51. [127]

    Fifth, although issues of duress were raised at the hearing by the applicant in terms of the money laundering charge, these were firmly rejected by his Honour. Any threats against the applicant or his family arose out of the applicant’s involvement in the criminal enterprise and no legal defence of duress was available to him.

52. [128]

    Sixth, the applicant was not persuaded to enter into a plea by reason of imprudent or inappropriate advice given by his legal representatives. This was a live issue at the hearing, and the applicant’s evidence to this effect was rejected by his Honour. There is no reason to go behind his Honour’s findings in this respect.

53. [129]

    Finally, on the documentary material before his Honour and this court, there is little doubt that the applicant stated on numerous occasions that he was involved in the importation offence. We observe that the Court in Garcia-Godos 2015 agreed, and on the evidence before this Court it cannot be said that a different conclusion can be reached.

54. [130]

    We accept that the applicant’s competency in English was, at the relevant times, limited, as was his understanding of Australian law. His Honour rightly criticised the applicant’s lawyers for not making use of interpreters during all of their conferences with the applicant. He also rightly criticised Ms Nash and Ms Havryliv for not obtaining signed instructions from the applicant to the effect that he proposed to enter guilty pleas. Given the serious nature of the charges and the applicant’s limited English, this would have been best practice. Nonetheless, these two factors cannot overcome the considerations set out above. The applicant has not demonstrated that a different result could have been reached had the” interests of justice” test been applied by his Honour. We re-iterate that the contemporaneous documentary evidence cannot be reconciled with the evidence given by the applicant and by Mr Cornwell, against whom his Honour made adverse credibility findings. We do not accept that his Honour’s factual findings were influenced by his application of the “miscarriage of justice” test. As the Court observed in Garcia-Godos 2015 at [54] when reviewing his Honour’s process of fact finding, his Honour had the benefit of seeing and hearing the witnesses, and considerable weight must be given to his Honour’s assessment of the reliability of the witnesses who gave evidence before him: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

55. [131]

    His Honour applied the test and the principles which he understood applied at the time. However, his Honour applied the wrong test, which amounts to a miscarriage of justice, subject to the question of whether or not the proviso applies. Having regard to the analysis we have conducted, we consider that no substantial miscarriage of justice has occurred in the applicant’s case.

Application by MH

1. [132]

   In summary, the applicant contends that Frearson SC DCJ applied the wrong legal test, whether there had been a “miscarriage of justice”, and by approaching the application with “caution bordering on circumspection”, and requiring the applicant to demonstrate “good and substantial reasons” for his pleas to be withdrawn. Counsel for the applicant relied on the decision of White, that the proper test to be applied when the applicant sought leave to withdraw his pleas of guilty before conviction is whether the interests of justice required it, and that the court's discretion in deciding such applications is broad and unfettered, and an applicant does not bear a substantial or heavy onus of proof.

2. [133]

   Counsel submitted that the "miscarriage of justice" test which Frearson SC DCJ applied, and that he approached the application with "caution bordering on circumspection", placed a heavier onus on the applicant. Counsel contended that if Frearson SC DCJ had applied the "interests of justice" test and approached the application on the basis his discretion was not fettered, his Honour's findings and decision could have been different. Therefore, counsel submitted, his Honour's application of incorrect legal principles produced a substantial miscarriage of justice.

3. [134]

   The State Director submitted that leave to appeal should be refused. The Director’s position was that the decision in White was plainly wrong and should not be followed. Therefore, the Director contended Frearson SC DCJ did not err in applying the "miscarriage of justice" test. However, the Director submitted that if this Court is of the view that his Honour did so err, it was not productive of a miscarriage of justice, given the factual findings his Honour made in refusing the application before him.

4. [135]

   In the application before Judge Frearson SC, the applicant relied on a number of affidavits, including of himself and his legal representatives at the time he entered his pleas. He, his solicitor and a witness, Thamir Jajaw, gave oral evidence and were cross-examined about their affidavits.

5. [136]

   The following is a summary of his Honour's judgment, refusing the application.

6. [137]

   His Honour noted that in the procedural history of the matter, the matter came before him on 30 October 2017 with an indictment containing six counts. Following a Basha inquiry and decision by his Honour on another matter, his Honour was told there had been discussions regarding a plea. On 2 November 2017 the applicant was arraigned on a fresh indictment. A number of counts in the previous indictment had been no billed. The applicant pleaded guilty to four counts on the fresh indictment. The charges were adjourned for sentence until 16 March 2018, at which time the applicant sought to withdraw his pleas of guilty. That application was heard on 12 April 2018.

7. [138]

   The basis on which the applicant sought to traverse his pleas was that he had been threatened on a number of occasions, that he entered his pleas as a direct consequence of those threats and thus the integrity of the pleas was affected.

8. [139]

   In an affidavit, the applicant's previous solicitor said she was informed of an incident which occurred on 16 January 2018 at the applicant's home in which an intruder wielded a machete and injured another man. His Honour said there was no issue in those proceedings that such an incident occurred. The solicitor said that on 30 January 2018 the applicant told her "I should not have pleaded guilty, but they threatened my family, my daughter, and my little brother".

9. [140]

   In his affidavit, the applicant said the following. Approximately one week before his trial, which was fixed to start on 30 October 2017, his friend Thamir Jajaw called him, then came to his home and conveyed a message from some people he named. The message was to the effect that the applicant should plead guilty or there would be consequences. If he pleaded guilty they would not come to his house and start problems. But if he ran a trial, they would come and shoot his little brother, stab his family and shoot his house up. The applicant was worried because the two named people were leaders of a gang, and a witness in the applicant's trial had previously been a witness in the trial in one of those men, after which the witness was shot.

10. [141]

    On the day of the applicant's trial, his counsel and solicitor negotiated a plea offer. He spoke with some friends and found that members of the gang knew of the plea offer. On the afternoon of 30 October Thamir Jajaw contacted him and told him it was his last chance to take the deal. He felt nervous and felt like taking the deal.

11. [142]

    The Applicant did not tell his legal representatives about the threats. He decided to plead guilty on agreed facts. His Honour noted that as at 30 October, the facts had not been agreed.

12. [143]

    On 16 January 2018 the incident with the machete occurred at his home. The applicant felt that his life and his family's life were in danger so he wished to traverse his pleas.

13. [144]

    His Honour stated that there was an "obvious inherent tension" in the applicant's account, that the only reason he entered his plea was because of pressure and fear of serious danger, and as a consequence of more pressure and fear and apprehension of serious danger he decided to traverse the plea. His Honour stated that it did not make "a lot of sense, logically". His Honour also stated that he found it curious and odd that the applicant did not refer to assaults on Thamir Jajaw when he was in a wheelchair and accompanied by his carer [when the threats to the applicant were delivered to Mr Jajaw].

14. [145]

    His Honour referred to the evidence of Thamir Jajaw that he spoke to the applicant about the threats twice, the first time being in about mid October, the second on the 30th or 31st of October. His Honour said Mr Jajaw was questioned about how he could be precise about the day of the second threat, "in contrast to other imprecisions of his statements". He said he related that to the day the applicant had to attend court for trial.

15. [146]

    His Honour noted that Mr Jajaw had refused to make any statement to police about either of two assaults he experienced [at the time the threats were conveyed to him], that he did not go to the police after he was attacked in his wheelchair, and he did not report the assaults. He said that when the first threat was made he was with his carer, but he could not recall who his carer was then. His Honour stated that Mr Jajaw "did not present as an impressive witness" and there were inconsistencies between his account and the applicant's.

16. [147]

    His Honour stated that the applicant's evidence in the hearing was as follows. The gang he named was a criminal gang and charges against one of them were dismissed after a person was shot. He said he was offered a plea deal a week before the trial, but refused it. (His Honour remarked that apparently the first threat had no effect on him). He said on the first day of the trial he was offered the same deal and he was thinking about the threats. The applicant said that that day or the next day (which his Honour remarked exactly coincided with Mr Jajaw’s account of the 30th or 31st), the second threat was made. His Honour observed that if the second threat was made on 31 October, the applicant had already declined to plead on the 30th. His Honour noted that the applicant said he was worried and concerned for the safety of his family and that is why he entered the plea on 2 November and accepted the agreed facts. He felt under pressure for his family's safety.

17. [148]

    His Honour noted that the applicant did not move house despite multiple serious incidents at his house and his fear for the safety of his family. His Honour found that "a little inconsistent". His Honour referred to the applicant's evidence that when the machete attack occurred at his house he felt betrayed because he had pleaded guilty, but even after he did what the gang asked him to do, they still came and attacked his house.

18. [149]

    His Honour noted that the affidavits "chronicled the plea discussions culminating in written instructions" with "no hint of irregularity anywhere".

19. [150]

    His Honour noted the solicitor's affidavit stated that on the morning of 30 October 2017 the applicant told his solicitor he wanted the trial to proceed. On the same night, of 30 October, while working through proofs, he said he wished to "take the deal". The applicant’s solicitor said he signed instructions to offer to plead guilty to four counts.

20. [151]

    His Honour noted that the applicant's counsel's affidavit revealed that there was nothing unusual in the plea discussions with the applicant, the applicant was more engaged than usual with the detail, he was forceful and insistent about the plea negotiations and the negotiations regarding the facts, and he would request time alone to consider his instructions, at which time he was observed speaking on the phone. That was relied upon by the applicant as corroboration about the threats being made.

21. [152]

    His Honour noted counsel's view that the applicant’s "forceful insistence" as to the facts resulted in a more advantageous position for him.

22. [153]

    His Honour noted the sequence of plea offers was a written offer of 24 May 2017, repeated on 17 June, in which the applicant offered a plea to an accessory to a shooting charge and sought indemnity. The next plea offer was on 27 October 2017, and the next on 31 October, which involved offers to plead guilty to more offences. The final plea offer was made on 1 November 2017 to the charges to which pleas were entered on 2 November 2017.

23. [154]

    His Honour stated that the authorities were "not really in dispute" and both counsel had made submissions about the application of the authorities. His Honour noted that Senior Counsel for the applicant:

24. [155]

    His Honour stated:

25. [156]

    His Honour stated:

26. [157]

    His Honour stated:

27. [158]

    His Honour said:

28. [159]

    His Honour stated there was:

29. [160]

    His Honour stated that the applicant said he received information which led him to believe the same gang was responsible for the machete incident. However, his Honour found it incongruous that the applicant was going to give evidence against the same gang in a trial about an attempted murder of himself. His Honour referred to evidence of a history of conflict with the applicant, and other incidents at the house where he had lived for many years, but he had never managed to move from the house despite what his solicitor said were numerous attempts to do so.

30. [161]

    His Honour referred to the applicant's evidence that when he pleaded guilty, he instructed his lawyer to mention that the only reason he was pleading guilty was circumstances out of his control and he was not pleading guilty because he was guilty. His Honour found that that assertion did not coincide with evidence of the applicant’s solicitor. His Honour "rejected" that the applicant ever said that to his lawyer. His Honour also "rejected" an assertion by the applicant that his solicitor asked him what the circumstances were and he did not tell her.

31. [162]

    His Honour stated that the applicant said he had been involved in detailed discussions about pleas and negotiations leading up to the plea, and he agreed that he had input into the facts presented on 2 November. His Honour said:

32. [163]

    It was the applicant's case on the application that he decided to accept the plea offer and agreed facts because of threats to his family. He contended his pleas were not free and voluntary.

33. [164]

    His Honour stated:

34. [165]

    His Honour noted that the pleas were actively sought and negotiated. His Honour said:

35. [166]

    The applicant contends that the “miscarriage of justice” test applied by Judge Frearson SC limited the exercise of the judge’s discretion, and that his rejection of the credibility of the witnesses was affected by the approach his Honour took, that he had to approach the application with “caution bordering on circumspection”. Thus, counsel for the applicant contended, his Honour's assessment of the credibility of witnesses was affected by the application of incorrect legal principle including fetters on his discretion.

36. [167]

    It is clear that Judge Frearson SC was alive to, and indeed directly addressed, the issue that a plea entered as a consequence of threats and pressure would lack the appropriate integrity. His Honour did not accept the evidence of the applicant that he had received threats or he entered his pleas of guilty because of threats.

37. [168]

    The list of factors affecting the interests of justice referred to in the decision of White (at [65]) relevant to this matter are:

38. [169]

    The Court in White noted that the onus of persuading a judge to permit the withdrawal of the plea of guilty is on the accused, although the judge’s discretion is not fettered and the onus borne by the accused is not any heavier than in other circumstances where a party seeks to persuade a court to exercise a discretion in the interests of justice: [69].

39. [170]

    In the circumstances where Judge Frearson SC analysed the evidence of the applicant and his witnesses about the threats, examined the evidence about the process of the negotiation of the pleas and agreed facts and the applicant's involvement in those processes, and rejected the evidence of the applicant and his witness that his pleas had been entered because of threats, it is difficult to see how his Honour’s findings and conclusions could or would have been any different had he applied the “interests of justice” test and approached the application on the basis that his discretion was not fettered by the need for caution or circumspection. Had he applied the “interests of justice” test, being aware that the integrity of the plea was the central issue, his findings and determination would still have been based on his factual findings, and rejection of the applicant’s evidence.

40. [171]

    By applying the test and principles which he understood applied at the time he heard the application, his Honour applied the wrong legal test. As the Court recognised in White, at [72], the application by his Honour of the wrong legal test amounts to a miscarriage of justice, subject to the question of whether the proviso to s 6(1) of the CAA applies. We are not persuaded that his Honour’s assessment of the credibility of the witnesses’ evidence could or would have been different had the “interests of justice” test been applied to the factual circumstances sought to be relied upon by the applicant. Therefore we consider that no substantial miscarriage of justice actually occurred in the applicant’s case.

Conclusion

1. [172]

   In the matter of Garcia-Godos we make the following orders:

   1. (1)

      Extend time for the filing of the Notice of Appeal to 30 November 2022.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [173]

   In the matter of MH we make the following orders:

   1. (1)

      Extend time for the filing of the appeal to 12 January 2023.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.