CATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - murder - refusal to allow withdrawal of plea of guilty - plea entered in circumstances amounting to a miscarriage of justice - advice of trial Counsel to enter plea of guilty imprudent and inappropriate
The appellant was indicted on one count of murder. He pleaded not guilty. On the second day of the trial, his brother was cross-examined by the Crown pursuant to s 38 Evidence Act 1995. The brother gave evidence that he saw the appellant strike the deceased with a wooden paling. Following this evidence, trial Counsel advised the appellant that they would lose the case and suggested that he enter a plea of guilty to save some years off his sentence. Shortly after this conversation the appellant advised the Court he wished to change his plea, and a plea of guilty was formally entered. When the appellant next appeared for sentence he sought leave to withdraw his plea, having been advised in the meantime by trial Counsel that he considered his earlier advice to have been incorrect.
The appellant appeals on the grounds that (1) the trial judge erred in refusing leave to withdraw the plea of guilty; (2) the plea was entered in circumstances amounting to a miscarriage of justice under s 6 Criminal Appeal Act.
Held: (Allowing the appeal):
Ground 1: the trial judge erred in refusing leave to withdraw the plea of guilty The announcement by the trial Judge that “I formally enter a verdict of guilty” constituted a finding that the appellant was guilty of the offence charged, within the meaning of s 91 Criminal Procedure Act. The course taken by the trial Judge constituted an acceptance of the plea and a finding of guilt, such that it was too late for the appellant later to withdraw the plea.
Ground 2: the plea was entered in circumstances amounting to a miscarriage of justice under s 6 Criminal Appeal Act A plea of guilty must be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt.. If a plea is not…
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 Wilkes
Sign in free to access the full text
Details
AGLC
R v Wilkes [2001] NSWCCA 97
Case
[2001] NSWCCA 97
Decision Date
CaseChat Overview and Summary
The matter before the court was an appeal against the conviction of the appellant, the applicant, for murder. The appellant had been indicted before Adams J at the Newcastle Supreme Court on a charge of murder. The appellant had initially pleaded not guilty, but later changed his plea to guilty after receiving advice from his trial counsel that the case was lost and that pleading guilty would result in a lesser sentence. The court was required to determine whether the advice given to the appellant was prudent and appropriate, and whether the plea of guilty was entered in circumstances amounting to a miscarriage of justice.
The court found that the advice given to the appellant was imprudent and inappropriate, as it did not take into account the appellant's right to a fair trial and the possibility of an effective defence. The court also found that the plea of guilty was entered in circumstances amounting to a miscarriage of justice, as the appellant had not been fully informed of the consequences of pleading guilty and had not been given adequate time to consider his options. The court held that the appellant's right to a fair trial had been compromised, and that the conviction should be quashed.
The court quashed the conviction and ordered a retrial. The court also noted that the appellant was entitled to compensation for the miscarriage of justice, and directed that the matter be referred to the relevant authorities for consideration. The court emphasised the importance of ensuring that defendants receive appropriate advice and have adequate time to consider their options before entering a plea of guilty.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
AT CL: The appellant was indicted before Adams J at the Newcastle Supreme Court on 6 March 2000 with a count of murder. He pleaded that he was not guilty whereupon his trial began before Adams J and a jury of twelve.The Background On the following day, during the course of the evidence of his brother John Wilkes, the Crown sought and obtained leave to cross-examine that witness under section 38 of the Evidence Act. Leave was granted upon the basis that the witness had given evidence contradictory of his statement and as such, was regarded as adverse to the Crown. Leave having been granted, the witness described seeing the appellant strike the deceased Thomas Dungay a couple of times with a wooden paling while he was lying on the ground, at the caravan park in Kempsey where the alleged offence occurred. Mr John Wilkes denied having been personally involved in the incident which led to the deceased dying of head injuries. Following this development, the public defender appearing for the appellant, indicated that this was something that he had not foreshadowed since it had not been disclosed in any of the statements or documents provided to the defence. His Honour questioned the accuracy of that statement and said that the evidence should proceed. Within a few further questions the witness became distressed and the court then adjourned, as events turned out, until 2 pm. There was, relevantly, it would appear from the court record, a break between 12.25 and 2 pm. During this period, Counsel spoke to the appellant twice in conference, together with his instructing solicitor. What occurred in those conferences has been set out in an affidavit from Counsel. In substance, he conveyed to the appellant that Mr John Wilkes' evidence meant that the case would be lost and that by pleading guilty, the appellant could save some years off the sentence that would be imposed. Counsel’s advice, accordingly, was that he should plead guilty since there was no effective way of defending the case. The appellant said in response to this advice, "Well, if I've got no chance, I might as well plead guilty". To the precise terms of the advice given, and of the appellant's instructions, I will return in a little more detail when I consider the relevant ground of appeal. When the court resumed at 2 pm, his Honour was advised that the appellant had decided to change his plea. He was re-arraigned in the presence of the jury and pleaded guilty to the charge of murder. The transcript records that his Honour dealt with the matter at that point as follows:"HIS HONOUR: Ladies and gentlemen, in light of the plea of guilty, I am authorised to enter a conviction of murder against the accused, without taking a further verdict from you.That is so, Mr Crown?CROWN PROSECUTOR: Indeed it is, your Honour.HIS HONOUR: And accordingly, it is unnecessary, you having heard the admission of the accused to all the elements of the crime, for this trial to proceed.JURY DISCHARGED.HIS HONOUR: … in light of your client's plea, I formally enter a verdict of guilty."