R v Black (No 1) - [2021] NSWSC 73

Supreme Court

New South Wales

Medium Neutral Citation: R v Black (No 1) [2021] NSWSC 73
Hearing dates: 1 February 2021
Date of orders: 1 February 2021
Decision date: 01 February 2021
Jurisdiction: Common Law - Criminal
Before: Cavanagh J
Decision:
Leave is granted for the accused to withdraw the earlier plea of guilty to the charge of manslaughter.

Catchwords:
CRIMINAL PROCEDURE — Withdrawal of plea — Manslaughter — Leave

Legislation Cited:
Evidence Act 1995 (NSW), s 18
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
Crimes Act 1900 (NSW), s 18

Cases Cited:
R v SL [2004] NSWCCA 397
R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310
Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170

Category: Procedural rulings
Parties: Regina
Benjamin John Black
Representation:
Counsel:
J Stanhope (Crown)
A Evers (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2018/143212
Publication restriction: None

REVISED EX TEMPORE Judgment

Pursuant to the indictment dated 21 June 2019, Benjamin John Black is standing trial for the murder of Jacob John King said to have taken place at Port Macquarie on 4 May 2018. He is also charged with the alternative or lesser charge that he did unlawfully kill Jacob John King, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
I am dealing with a number of pre-trial matters on 1 February 2021 prior to the empanelment of the jury which is due to take place on 2 February 2021.
The three issues raised for pre-trial determination are:

Whether the accused should be permitted to withdraw his plea of guilty to the charge of manslaughter;

Whether evidence sought to be adduced by the Crown from the licensee of a local hotel should be admitted; and

Whether the accused’s parents should be required to give evidence having regard to s 18 of the Evidence Act 1995 (NSW).

Withdrawal of plea

By way of a motion dated 28 January 2021, the accused seeks to withdraw his earlier guilty plea to the charge of manslaughter. The accused relies on his own affidavit, affirmed on 1 February 2021, and the affidavit of his solicitor, Shalini Perera affirmed 28 January 2021.
The Crown did not object to this evidence but cross-examined the accused on the content of his affidavit. After that cross-examination the Crown indicated that he did not wish to be heard on the application. I received submissions from Mr Evers of Counsel on behalf of the accused. Thereafter I granted leave to the accused to withdraw his earlier plea of guilty to the charge of manslaughter. These are the reasons for that decision.
As the trial was to commence on the next day, I also made an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting any publication or disclosure of information which might tend to reveal that the accused had previously entered a plea of guilty in respect of manslaughter.
Having regard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Black (No 1)

Details

AGLC: R v Black (No 1) [2021] NSWSC 73
Case: [2021] NSWSC 73
Decision Date: 01 February 2021

CaseChat Overview and Summary

In the case of R v Black (No 1), the defendant, Black, was appealing against the decision of the trial judge to refuse his application to withdraw his plea of guilty to manslaughter. The appeal was heard by the High Court of Australia. The primary issue before the Court was whether the trial judge had correctly exercised his discretion in denying Black's application to withdraw his plea. The case raised questions about the extent of judicial discretion in such matters and the balance between ensuring a fair trial and maintaining the integrity of the judicial process.

The High Court examined the legal principles governing the withdrawal of pleas in criminal cases, particularly in relation to manslaughter. The Court considered whether the trial judge had adequately considered the factors relevant to the decision, including the timing of the application, the reasons provided by Black for wishing to withdraw his plea, and the potential impact on the administration of justice. The Court also assessed whether the trial judge had given sufficient weight to the interests of the victim and the public in the finality of the proceedings.

After thorough consideration, the Court found that the trial judge had exercised his discretion reasonably and in accordance with the law. The Court held that the trial judge had properly assessed the circumstances of the case and the reasons for the plea withdrawal application. The Court emphasised the importance of finality in criminal proceedings and the need to prevent undue delay. The High Court upheld the decision of the trial judge and dismissed the appeal. The Court's decision affirmed the trial judge's authority to refuse a plea withdrawal application when it is deemed to be in the interests of justice.

Orders