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From criminal law survival kit

Withdrawing a Plea.
A plea of guilty can be withdrawn if the defendant shows that otherwise there has been/would be a miscarriage of justice: Chiron [1980] 1 NSWLR 218 at 235, Boag (1994) 73 A Crim R 35 at 36. A plea of guilty is regarded as an admission to all the legal ingredients of the offence: Sagiv (1986) 22 A Crim R 73. In order for the defendant to establish that a plea of guilty to be withdrawn, he must demonstrate that there there is some circumstance which shows that the plea was not attributable to a genuine consciousness of guilt: Boag at 37.

Circumstances which may support the withdrawal of a plea include:

• where the plea has been entered pursuant to a material mistake (Sagiv at 80, Boskovitz (1996) PD [268])
• where the defendant did not appreciate the nature of the charge (Boag at 37, Ferrer-Esis (1991) 55 A Crim R 231, Pauli (1991) 55 A Crim R 297)
• if the facts presented are different to those pleaded to (Chow (1992) 63 A Crim R 316 at 320)
• where there is no evidence upon which the defendant could have been convicted (Boag at 37)
• where fraud or threats or other impropriety caused the plea to be entered (Boag at 37)
• exceptionally where there has been an erroneous ruling on evidence leading to a plea (Chiron, Marchando [2000] 110 A Crim R 337). A plea of guilty will only be permitted to be withdrawn because of an erroneous ruling on evidence in exceptional circumstances: Toro-Martinez [2000] NSWCCA 216.
• where there has been a miscarriage of justice (Chiron)

The onus is on the accused to show that there has been a miscarriage: Boag (1994) 73 A Crim R 35.

If the plea of guilty has been entered during the course of the trial, and the judge has accepted the plea under s. 157 Criminal Procedure Act, there is no discretion in the trial judge to later allow the plea to be withdrawn: Hura [2001] NSWCCA 61.

The following is from Local Court Practice

[14.140] Can an accused person withdraw a plea of guilty?

Once a plea of guilty is entered it can be withdrawn only with the leave of the court at any time prior to the court making a finding of guilt. When considering the withdrawal of a plea of guilty the following comments from the judgment of Brennan CJ (with whom Toohey and McHugh, JJ agreed), in R v Meissner (1995) 184 CLR 132; 130 ALR 547; [1995] HCA 41; BC9506447 should be considered (at ALR 552):

A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.

Their honours also stated (at ALR 552):

If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person’s own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice.

For an analysis of the concept of “pressure” as purportedly exercised by legal advisors see R v Issa [2002] NSWCCA 206; BC200203356 .

Considerations as to the granting of leave to withdraw a plea of guilty were dealt with in Sagiv v R (1986) 22 A Crim R 73 at 80; BC8600975 where Lee J said:

There have been a number of cases in regard to withdrawal of a plea both before conviction, and on appeal and the following have been cited here: R v Foley [1963] NSWR 1270; (1963) 80 WN (NSW) 726 ; R v Plummer [1902] 2 KB 339 ; S (an infant) v Manchester City Recorder [1971] AC 481; [1969] 3 All ER 1230 ; Bone v R [1968] Tas SR (NC19) 194 ; R v James [1967] Tas SR (NC8) 264 ; Frodsham v O’Gorman [1979] 1 NSWLR 683 ; R v Murphy [1965] VR 187 ; R v Forde [1923] 2 KB 400; (1923) 17 Cr App R 99 ; R v Chiron [1980] 1 NSWLR 218 ; R v O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59 ; Durham Quarter Sessions, Ex parte Virgo [1952] 2 QB 1; [1952]1 All ER 466 ; R v Ingleson [1915] 1 KB 512 and R v Lloyd (1923) 17 Cr App R 184 .

The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.

It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (R v O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59 ) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings.

A plea may be permitted to be withdrawn if the integrity of the plea is bona fide in question, so there is an issuable question or real question to be considered by the court. The absence of legal advice about arguable defences at the time of entering the plea will generally be sufficient to raise the integrity of the plea. Cases of this nature were considered by the Court of Criminal Appeal in R v Favero [1999] NSWCCA 320; BC9906690 . The court considered the decision of R v Ganderton (NSWCCA, 17 September 1998, unreported, BC9804708) , in which the principles enunciated by the Court of Criminal Appeal in R v Davies (1993) 19 MVR 481; BC9302390 were adopted. In particular the following statements were taken from the judgment in Davies:

If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial.”

In developing that principle in its application to the given facts of Ganderton the majority opinion has these further observations to make:

Belief by the accused that he is guilty of the offence charged may arise from a mistaken or possibly mistaken understanding of the facts, as in Davies . It may also arise from a failure on the party of the accused’s legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged. Liberti v R (1991) 55 A Crim R 120; BC9101783 was such a case.

It makes no difference in principle that the omission of the legal representative was — as in the present case — to inform the accused of the existence of a possible defence in the strict sense of a defence which the accused has to establish.

If it had been appreciated that the appellant had or might have a defence under s 52A(8) , (this being the relevant source of what was alleged in Ganderton to be an arguable defence available to the applicant in that case), a report from an expert would have been obtained and the charge would have been defended. The appellant would have had an arguable case for acquittal.

There was, in these circumstances, no ‘genuine consciousness of guilt’ when the appellant pleaded guilty to the charges, and there was an ‘issuable question of guilt’ to be tried. There was, accordingly, a miscarriage of justice, and there must be a new trial: R v Favero [1999] NSWCCA 320; BC9906690 , per Sully J at [17]. Also see: R v Vergara [1999] NSWCCA 352; BC9907277 . R v Toro-Martinez (2000) 114 A Crim R 533; [2000] NSWCCA 216; BC200003548 .

In general, leave will be granted if the application for leave shows that the plea did not arise from genuine recognition of guilt (whether because of misunderstanding of the facts or of the elements of the charge, or because of pressure, or because of some other reason) and that there is a real issue to be tried: R v Parkes [2004] NSWCCA 377; BC200407412.

Leave to withdraw a plea of guilty is unlikely to be granted where the court is satisfied that the plea was genuinely entered, even if the prosecution evidence was insufficient to make out a prima facie case. The plea is said to cure those deficiencies as it is an admission of all the essential elements of the offence.

Where, however, the court is satisfied that a person pleaded guilty after receiving advice that was wrong or incomplete, leave to withdraw the plea will normally be granted. If a plea is sought to be withdrawn following a conviction and sentence, the Court of Criminal Appeal requires not only that the plea be impugned but there must also be an arguable defence. See also R v Ganderton (NSWCCA, 17 September 1998, unreported, BC9804708) where a conviction following a plea of guilty was overturned because the appellant had not been advised as to the availability of a possible defence, even though the onus was on the appellant to establish that defence.

In R v Whitehead [2000] NSWCCA 400; BC200006255 , the court applied the Davies principle:

… the court was of the view that the plea entered by the appellant to the second indictment was not entered into with a full knowledge of the facts and with the appropriate consciousness of guilt. There was clearly a real question to be tried on the facts and the due administration of justice required that the plea of guilty be set aside…

From Criminal Law News

PRACTICE AND PROCEDURE

[2154] Principles relating to applications to withdraw a plea of guilty

Piras v R [2006] NSWCCA 396; BC200610410 — 13 December 2006

Preceding P’s trial for supplying a commercial quantity of heroin was a lengthy voir dire hearing concerned with the admissibility of evidence. The trial judge made certain comments about the quality of the evidence which led to plea discussions culminating in P entering a plea of guilty to a charge of knowingly taking part in the supply of heroin. He subsequently changed his legal representation and made application to withdraw his plea. After a lengthy hearing, another judge refused the application and P appealed.

Held, per Sully J, Howie and Hall JJ agreeing (dismissing the appeal): In the light of the relevant principles there was no error in the refusal of the application.

At the outset of his judgment, Sully J conveniently set out the applicable principles:

[13] The first principle which needs to be kept carefully in mind in the present case is that it is the applicant who bears throughout the burden of establishing on the probabilities a case that is appropriate to attract a grant of leave to appeal.

[14] The second principle which needs to be borne carefully in mind is that the judgment against which the applicant now seeks leave to appeal was a discretionary judgment. That consideration brings into play principles which are usually explained by reference to the following passage taken from the joint judgment of Dixon, Evatt and McTiernan JJ in House v R (1936) 55 CLR 449 at 504, 505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[15] That the foregoing principles do in fact apply to an application of the present kind is established clearly by the decision of this court, (Herron ACJ, Sugarman and Nagle JJ), in R v Foley [1963] NSWR 1270 [(1963) 80 WN (NSW) 726]. The joint judgment of the court quotes the material in the above extract from House v R, and says at 1271(50) – 1272(5), omitting references to authorities:

“There seems little doubt that a plea of guilty may be withdrawn with leave of the court at any time before sentence, but once sentence has been pronounced the plea cannot then be withdrawn. … Whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the court and, of course, it goes without saying that this discretion will not be over-ruled by the Court of Criminal Appeal unless it is clear that the judge was ‘demonstrably wrong’ ….

[16] While dealing with Foley, it is relevant and useful to observe that in that case the court upheld an appeal against conviction following a plea of guilty; but did so upon the basis, among others, that the Court of Criminal Appeal was now “… in a much better position to weigh up the facts relating to the exercise of discretion …” than was the primary judge. The court proceeded:

“upon the question of a defence on the merits the court had placed before it two affidavits of prospective witnesses, and on the question of the bona fides of the application to withdraw the plea it has the benefit of an affidavit by a solicitor of this court. In regard to the former matter and having regard particularly to the evidence which has been placed before it on affidavit, it is of the opinion that there is in this case a defence which is other than frivolous or without merit nor is it an attempt to raise a mere technicality. [1273(35) – (45)]”

[17] I draw attention to this particular paragraph in Foley because it is clear authority in this court for the proposition that the present applicant, in seeking to persuade Judge Williams to permit him to reverse his plea of guilty, both could and should have stated clearly and frankly the substance of his proposed defence were he permitted to reverse his plea; and both could and should have put forward at least some evidence, independent of his own evidence, and which, if accepted, would have justified a finding that the application to reverse the plea of guilty was a bone fide application.

[18] It is appropriate to advert, finally, to the following statements of principle taken from the judgment of Ipp AJA, Sperling J concurring and Hulme J dissenting but not in connection with the present point, in R v KCH [2001] NSWCCA 273 [(2001) 124 A Crim R 233; BC200105633]:

Improper pressure as the basis of overturning the guilty plea: the legal principles

[31] The starting point in the inquiry is to acknowledge the circumspection or restraint with which an appellate court is required to approach an appeal grounded on the proposition that a plea of guilty which led to the conviction should be withdrawn. As Kirby P observed in Liberti (1991) 55 A Crim R 120 at 122 [BC9101783]:

“This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”

See also Boag (1994) 73 A Crim R 35 [BC9402622] and  R v Wilkes [2001] NSWCCA 97 [(2001) 122 A Crim R 310; BC200101581].

[32] An appellant will nevertheless be permitted to withdraw a plea of guilty where a miscarriage of justice would otherwise result. There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances.

[33] A valid plea of guilty is one that is entered in the exercise of a free choice: Meissner v R (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ [130 ALR 547; [1995] HCA 41; BC9506447]. The plea must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt: Maxwell v R (1996) 184 CLR 501 at 511 [135 ALR 1; [1995] HCA 62; BC9600609].

[34] There have been several expressions of the requirements which have to be met before a court will allow a guilty plea brought about by imprudent and inappropriate advice given by the convicted person’s legal representatives to be withdrawn. In R v Wilkes Wood CJ at CL with whom Giles JA and Simpson J agreed said that an argument of this kind would hinge upon three considerations:

• (a)

whether the advice given to the appellant was or was not imprudent and inappropriate;

• (b)

whether his plea was or was not attributable to a consciousness of guilt; and

• (c)

whether the material before this Court shows that there is or is not a real question about his guilt.

See also [R v] Kouroumalos [2000] NSWCCA 453 [BC200006730]; [R v ] Whitehead [2000] NSWCCA 400 [BC200006255]; [R v ] Favero [1999] NSWCCA 320 [BC9906690]; [R v ] Ganderton (unreported, NSWCCA, 17 September 1998) [Sully, Sperling and James JJ, BC9804708].