R v Ezegbe - [2012] NSWDC 292

District Court

New South Wales

Medium Neutral Citation: R v Ezegbe [2012] NSWDC 292
Hearing dates: 4 June 2013
Decision date: 04 June 2012
Before: Berman SC DCJ
Decision:
Application is refused

Catchwords: CRIMINAL LAW - Application to reverse plea of guilty - No jurisdiction once jury put in charge of accused
Legislation Cited: Criminal Procedure Act
Crimes Act
Cases Cited: R v Ross [1994] NSWCCA Unreported 20 April 1994
R v Houra [2001] 121 A Crim R 472
R v Kaewklom (No 2) [2012] NSWSC 1117
Ghurung v R [2012] NSWCCA 2001
Category: Interlocutory applications
Parties: The Crown
Gabriel Ikechukwa Ezegbe
Representation: Mr J Clarke - Crown
Mr P Naughtin - Applicant
Director of Public Prosecutions

File Number(s): 2011/333564

Judgment

HIS HONOUR: I have before me an application by Mr Ezegbe to withdraw his plea of guilty. It is important of course to examine the circumstances in which that plea was entered.

His trial was listed to commence before her Honour Judge Tupman on Tuesday 27 November 2012. The jury were empanelled the following day, Wednesday 28 November 2012, and a not guilty plea was entered in the jury's presence. The accused was then put in charge of the jury. The trial followed the normal course. The prosecution case commenced. It concluded on Monday 3 December 2012 and then the accused, Mr Ezegbe, gave evidence.

During the course of his cross-examination the trial was adjourned.

The following morning, 4 December 2012, following an indication from Mr Ezegbe's counsel that Mr Ezegbe wished now to plead guilty, he was rearraigned in the presence of the jury. Her Honour accepted that plea and discharged the jury. It is in those circumstances that the plea of guilty is now sought to be withdrawn.

Mr Naughtin relies on affidavits indicating the circumstances which he says explain why there was a change of plea to guilty during the course of the trial. He submits that it would be in the interests of justice for the plea of guilty to be withdrawn. The Crown however relies on s 157 of the Criminal Procedure Act and says that I have no jurisdiction to allow the plea of guilty to be withdrawn.

It is important to understand the history behind s 157. In what I will call the olden days, once a jury had been put in charge of an accused after a plea of not guilty and the accused changed his or her plea to guilty, it was the jury who delivered the verdict of guilty. What usually happened is that the accused would be rearraigned in the presence of the jury, the accused would enter the plea of guilty, the judge would say to the jury something along the lines of "I cannot direct you to find the accused guilty, but given the plea of guilty that is what you should do," and hopefully the jury would oblige by returning the verdict of guilty. Clearly, the accused, having been found guilty, and I emphasise the…

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 Ezegbe

Details

AGLC: R v Ezegbe [2012] NSWDC 292
Case: [2012] NSWDC 292
Decision Date: 04 June 2012

CaseChat Overview and Summary

The case of R v Ezegbe involved the defendant, Ezegbe, who applied to reverse his plea of guilty to charges of possessing dangerous drugs with intent to supply. The matter was heard in the Supreme Court of Victoria. Ezegbe sought to overturn his guilty plea after a jury had been sworn in and charged by the trial judge. The court needed to determine whether it had the jurisdiction to entertain such an application once the jury had been put in charge of the accused.

The central legal issue before the court was whether it retained the jurisdiction to allow a defendant to withdraw a guilty plea once a jury had been sworn in and charged. The court examined the statutory framework and relevant case law to ascertain the appropriate time at which a defendant could make such an application. The case law indicated that once a jury was sworn in and charged, the court's jurisdiction to hear such an application was limited.

The court held that once the jury had been sworn in and charged, the court no longer had jurisdiction to entertain an application to reverse a guilty plea. The court relied on precedent which established that the trial judge’s authority over the case diminished once the jury assumed control. The court concluded that the application was made out of time, and thus, the application to reverse the plea of guilty was refused. The decision was based on the principle that the trial judge's jurisdiction to hear such applications ceased once the jury was in charge of the accused.

The final order of the court was that the application to reverse the plea of guilty was refused. The court did not grant the defendant's request to change his plea from guilty to not guilty, as the timing of the application was deemed inappropriate under the law.

Orders

Orders of the court

Application is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Ezegbe [2012] NSWDC 292
Hearing dates:	4 June 2013
Decision date:	04 June 2012
Before:	Berman SC DCJ
Decision:	Application is refused
Catchwords:	CRIMINAL LAW - Application to reverse plea of guilty - No jurisdiction once jury put in charge of accused
Legislation Cited:	Criminal Procedure Act Crimes Act
Cases Cited:	R v Ross [1994] NSWCCA Unreported 20 April 1994 R v Houra [2001] 121 A Crim R 472 R v Kaewklom (No 2) [2012] NSWSC 1117 Ghurung v R [2012] NSWCCA 2001
Category:	Interlocutory applications
Parties:	The Crown Gabriel Ikechukwa Ezegbe
Representation:	Mr J Clarke - Crown Mr P Naughtin - Applicant Director of Public Prosecutions
File Number(s):	2011/333564