White v R [2022] NSWCCA 241

White v R [2022] NSWCCA 241 · Read the judgment on AustLII

Catchwords: Withdrawal of a plea of guilty – before versus after conviction – interests of justice test

In this decision the Court of Criminal Appeal (‘CCA’) has held that there is a different test to be applied when a defendant seeks to withdraw their plea, depending on whether the plea was entered before or after conviction. Where the plea is entered before conviction and sentence, the test is an ‘interests of justice’ test, and though the onus rests on the accused to satisfy the court that leave should be granted, the court’s discretion to do so is not fettered, and that burden is not so high as it has occasionally been described.

The deceased, Scott Johnson, was found at the bottom of a cliff in 1988. A 2017 inquest had concluded that the death was caused by actual or threatened violence by a person or persons unidentified. In 2020, the applicant was charged with that murder. The matter was listed for trial and in the lead up, the applicant repeatedly instructed his lawyers that he wished to plead not guilty – including confirming to them his intention to plead not guilty in the last 30 minutes or so before being brought to court. However, when he was arraigned as the formal start to the trial (the trial was starting by way of voir dire), without notice to his lawyers he unexpectedly answered the arraignment by pleading guilty. His lawyers quickly sought to speak to him in the cells, at which point the applicant told them that he was confused, scared, sleep-deprived and hungry (amongst other things), which led to his change of mind. However, despite what he had said a little while earlier (which, seemingly, had been a genuine – if fleeting – expression of his intention), he definitely wanted to plead not guilty. The applicant duly sought to withdraw his plea of guilty. The Crown opposed the application, which ultimately necessitated a wholesale inquiry into the circumstances in which the plea was entered: psychiatric, neuropsychological evidence, and psychological evidence, and evidence from the applicant’s solicitor was all called on the application to withdraw the plea. The trial judge refused the application, concluding that the plea had been deliberately entered, and 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’. The applicant appealed against that decision – though not before the first instance judge sentenced him to imprisonment for 12 years and 7 months, with a non-parole period of 8 years and 3 months, which rendered this a full-blooded conviction appeal, rather than an interlocutory appeal.

Underpinning the grounds of appeal was a full-frontal attack on the legal test applied by the primary judge in determining the application for leave to withdraw the plea of guilty. At its core, the applicant asserted that the ‘miscarriage of justice’ test did not apply in circumstances where there had not yet been a conviction. Rather, it was submitted, the test before conviction is an ‘interests of justice’ test.

The Court (Bell CJ, Button and N Adams JJ), in a unanimous judgment, agreed that the wrong test had been applied. Although there had been a conflation of tests in some cases, the proper test to be applied when an applicant seeks to withdraw their plea prior to conviction is whether the interests of justice require that course to be taken (at [60]). There is a sensible distinction to be drawn between allowing a plea to be withdrawn before conviction, and going behind a plea which has led to a conviction on appeal. The explanation for that distinction lies in the concept of finality. When a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome necessarily impacts on the finality of the verdict and sentence. But when a conviction has not yet been entered despite the accused pleading 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 a formal recording of a conviction and sentence (at [62]).

There is a real or material difference between the interests of justice test and the miscarriage of justice test. A conclusion that there would be a miscarriage of justice is obviously highly relevant in cases where application is made before conviction and sentence, but it may also be in the interests of justice to allow a plea to be withdrawn if there is merely a real (and not fanciful) risk of a miscarriage of justice (at [64]).

At [65] of the judgment there are then laid out a non-exhaustive list of 17 factors which are relevant to the interests of justice test in this context. Those include the circumstances in which the plea was given, the time between entry and the application to withdraw, the complexity of the elements of the charged offence, and the subjective circumstances of the accused. However, one thing that is not a part of the interests of justice test is a separate or discrete inquiry into whether there is a ‘real question about the guilt of the accused’; this is just one factor to be weighed, in all the circumstances of the case (at [66]).

The onus of persuading a judge to allow the plea to be withdrawn is on the accused, but the onus should not be described as ‘substantial’ or as a ‘heavy onus’ (at [67]-[69]). Moreover, the discretion should not be fettered. It is not appropriate, for example, to talk about such applications being treated with ‘caution bordering on circumspection’, nor is it necessary or desirable to say that the discretion should only be exercised in ‘clear cases and very sparingly’ (at [68]). Observing that every case turns on its own facts, at [70] the Court drew from earlier authority to provide another non-exhaustive list of situations in which it will be appropriate to allow the withdrawal, such as where the nature of the charge is not appreciated, where there has been a mistake, or the plea is not unequivocal.

The wrong test had, accordingly, been applied in this case. For that and a range of other reasons (which collectively led to the conclusion that the proviso could not be applied, because the Court could not be satisfied that no substantial miscarriage of justice occurred), the appeal was allowed, the conviction and sentence quashed, and the matter was remitted to be determined below. There, the applicant will still require leave to withdraw his plea – albeit the Court observed, seemingly pointedly, that leave might not be required if the Director of Public Prosecutions changed her opposition to the application, in light of the reasons given.