Weston (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0062

BURT NORWOOD WESTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	REDLICH, WHELAN and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 October 2015
DATE OF JUDGMENT:	17 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 354
JUDGMENT APPEALED FROM:	DPP v [Weston] (Unreported, Victorian County Court, Judge Meredith, 6 June 2014)

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CRIMINAL LAW – Conviction – Appeal – Indecent act with a child under 16 – Sexual penetration of a child under 16 – Reliability of complainants – Whether convictions unsafe and unsatisfactory – Age of complainants relevant to jury assessment of reliability – Conviction reasonably open to jury – Application for leave to appeal refuse.

CRIMINAL PROCEDURE – Change of Plea – Whether judge erred in not accepting change to plea of guilty prior to sentencing – Test to be applied in change of plea applications is whether there would be a miscarriage of justice, R v Middap (1989) 43 A Crim R 362, applied – Whether ‘genuine consciousness of guilt’ separate question under test, Maxwell v The Queen (1996) 184 CLR 501, Meissner v The Queen (1995) 184 CLR 132, Kumar v The Queen [2014] VSCA 102, considered – No issue as to applicant’s belief of guilt raised – Whether proof of belief in guilt required – Review of authorities on change of plea – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Emma Turnbull Lawyers
For the Crown	Mr B L Sonnet	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA:

Overview

The applicant seeks leave to appeal against his conviction and sentence on two separate indictments. Following a trial in relation to the first indictment,[2] the applicant was found guilty by a jury on 22 November 2013 on one charge of indecent act with a child under 16 (charge 1), and one charge of sexual penetration of a child under 16 (charge 4). These charges related to offending against different complainants, JW (aged between 11 and 13 years at the time of the offending)[3] was the complainant on the charge of indecent assault and DC (aged between 3 and 5 years at the time of the offending)[4] was the complainant on the charge of sexual penetration. The applicant was found not guilty on two other charges in relation to JW. The applicant seeks leave to appeal against his convictions on the ground that the verdicts on charges 1 and 4 are unreasonable or cannot be supported having regard to the evidence (ground 1).
[2]Indictment D10417360.1.2 (‘first indictment’).
[3]The pseudonym ‘JW’ was given to the complainant at Trial, and has been adopted by this Court.
[4]The pseudonym ‘DC’ was given to the complainant at Trial, and has been adopted by this Court.

Three days after the jury verdict on the first indictment, the applicant pleaded guilty on 26 November 2013 to four charges of attempted incest and one charge of incest against different complainants on the second indictment.[5] On 21 February 2014, the applicant made an application to change his pleas to not guilty on the second indictment in relation to the five charges. On 24 February 2014, the sentencing judge refused the application. The applicant seeks leave to appeal against these convictions on the sole ground that the learned trial judge applied the wrong test in rejecting his application to change his plea of guilty to a plea of not guilty (ground 2).
[5]Indictment D10417360.2 (‘second indictment’).

For the reasons that follow, I would refuse leave to appeal on ground 1. I would allow leave to appeal on ground two, but dismiss the appeal.

Ground 1 – the verdicts on charge 1 and 4 of the first indictment were unreasonable and cannot be supported by the evidence

The applicant alleges that the verdicts of the jury on charges 1 and 4 were unreasonable or cannot be supported having regard to the evidence.[6] The principles that apply to such a ground are well established, namely whether on the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.[7] The question is whether, on the whole of the evidence adduced, the jury must, as distinct from might, have had a reasonable doubt as to the accused’s guilt.[8]
[6]Criminal Procedure Act 2009 s 276(1)(a).
[7]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v R (2011) 243 CLR 400, 405 [11] (French CJ, Gummow and Kiefel JJ).
[8]R v Klamo (2008) 18 VR 644.

Factual background – charge 1 (indecent act)

JW was born on 28 February 1998. The offending took place on a date between 1 January 2009 and 31 December 2012.

In support of this charge, the Prosecution relied on a VARE interview conducted with JW on 13 February 2013 which was played to the jury at trial. The prosecution also relied on a Special Evidence Hearing with JW, which was then played to the jury during the trial.

During his VARE, JW told police that he knew the applicant through the applicant’s son and daughter, and would go around to the applicant’s house quite a lot to see them. JW said that he would go to the applicant’s house every couple of days and would leave if the applicant’s children weren’t at home. JW did recall that there were one or two occasions where he was there alone with the applicant.

The factual basis which formed the offending the subject of charge 1 was described by JW as an occasion when he had been at the applicant’s house, and was play wrestling with the applicant’s son in the lounge room. The applicant’s son had then left the room, and thus was not present in the room during the offending.

JW said that as he had stood up to walk out the door, the applicant ‘bailed [him] up’ and ‘sorta grabbed’ him. JW told police he was touched in the groin and bottom area, which included his ‘nuts and [his] penis and stuff’. JW said that the applicant had grabbed and fiddled with his groin area and that, in response, JW had tried to push him away, said ‘Stop’ and ultimately ran out the door, got on his bike, rode away and did not return for two to three weeks.

During the special hearing, JW confirmed that what he had said in the VARE was the truth.

The defence case at trial was that the incident occurred in the context of innocent playing and, therefore, did not occur in indecent circumstances. The defence told the jury that JW’s evidence was riddled with inconsistencies and was unreliable.

Analysis – charge 1

The essence of the applicant’s submission is that there was insufficient evidence to be satisfied that any acts of indecency occurred. At trial, there was no real dispute that general events may have occurred, however, the issue for the jury was whether the events occurred intentionally and in indecent circumstances.

The applicant submits that the evidence with regards to the occasion, as described by JW, suffers from such deficiencies that charge 1 cannot be supported. The applicant relies on what he describes as a number of ‘significant inconsistencies’ in the evidence of JW given at the VARE and Special Hearing, to demonstrate that the verdict in relation to charge 1 was unsafe.

First, it was submitted that there were inconsistencies in JW’s recollection of the first time the indecent touching occurred, that is, when the offending the subject of charge 1 took place. At JW’s VARE, the offending the subject of charge 1 was described in the following terms:

Q Tell me about that.
AWell, on, the first time he touched my bottom I sorta got freaked out and ran out the door and ran home.

Q Yeah.
AI didn't wanna tell mum 'cause I thought it might be a bit frustrating and I'll start crying and sorta stuff.

Q Yeah.
AYeah. When I, when I first, when he first did it at, I just kept to meself, I just didn't wanna bother it, anybody else and ‑ ‑ ‑

Q                   All right. So where did he, where did he touch you that time?
A                   He touched me on the groin and my bottom and stuff.
Q                   All right. So, and what did the groin include?
A                   Like, my nuts and my penis and stuff.
Q                   Right. And when you say he touched, how did he touch?
A                   Like, grabbed and ‑ ‑ ‑
Q                   All right.
A- - - fiddled with them a bit, and I hated it too. I tried pushing him away with me shoulders ‑ ‑ ‑

Q Yep.
A- - - and as I got him away I sorta run forward and turned around.

Q Yep.
AAnd I said, Stop, 'cause I don't like it. And he sorta tried coming at me again so I sorta dodged it and ran out the door and got on my bike and rode away and didn't go back for at least two to three weeks.

It is clear from the VARE evidence, that JW was alleging the incident relating to charge 1 was the first time the applicant inappropriately touched him; that there was touching involving his ‘groin and [his] bottom and stuff’; and that after the touching JW fled the lounge room and did not return for some weeks.

One of the inconsistencies relied upon by the applicant, is that subsequently, during the special hearing, when asked whether he had a clear memory of the first time the indecent touching happened, JW answered ‘no’. Immediately prior to providing that answer JW had identified the incident itself:

So after the first time it happened he - you didn't go around for at least two or three weeks?---Exact.

The applicant suggests there are inconsistencies between JW’s answer in the VARE that the applicant had touched his ‘groin and [his] bottom and stuff’, and his answer to questions at the special hearing as to whether the applicant had touched him in the groin. He replied yes to some questions, and no to others. Owing to the way in which the questions were put, it is not clear as to whether all of the questions related to the specific incident involved in charge 1, or ‘play fighting’ more broadly.

Second, the applicant relies on a number of uncertain answers provided in the special hearing which, he submits, demonstrate a number of shortcomings apparent in JW’s evidence. For example, at the special hearing, JW said that he could ‘barely remember’ his VARE, and that in response to a suggestion that the applicant did not touch him on the groin, he replied ‘Um I don’t know’. JW also said that he had a ‘mind like a sieve’, and that the timing of the events was unclear.

Third, the applicant relies on JW’s poor recall as to dates and ages. At the special hearing, JW said he found it ‘real hard’ to arrive at figures as to dates and times, and that he was ‘not real good’ at working out the ages at which the offending occurred.

The applicant does not submit that this is a case in which inadequate directions were given by the trial judge, with such shortcomings of the complainant’s evidence summarised by the trial judge during his charge:

In particular the defence argued that in addition to honesty being in issue here, the reliability of the complainant's evidence is in issue. In relation to [JW] the defence say, in effect, his evidence is riddled with inconsistencies and is unreliable. For example, reliance was placed on different aspects of [JW]'s evidence such as the following; for example, at 228 in the transcript he was asked: ‘Do you have a clear memory of the first time it happened?’ He responded ‘No’ and that is a reference to the conduct amounting to Charge 1. At 229 in the transcript he was asked ‘Can I suggest to you that if he was touching you in the groin area or the bottom or your penis and testicles that perhaps you wouldn’t keep going around there, what would you say to that?’ He responded ‘Ah, I wouldn’t have a clue really.’ It was then said ‘All right, what I need to suggest to you is that he didn’t touch you on the groin, what would you say to that?’ He responded ‘Um I don’t know.’

The Crown submits that when read as a whole, the effect of the complainant’s evidence is that he was certain that the events occurred, regardless of any confusion as to when or how they occurred. The Crown submits that any memory difficulties in relation to the time at which it occurred or confusion as to the precise detail of offending, fell well short of a conclusion that his account is unsafe and unsatisfactory.

The frailties in the complainant’s evidence were exposed to the jury during cross-examination during the special hearing, and by the trial judge’s charge. In my view, none of the matters set out by the applicant are sufficient to establish that it was not open to the jury to enter a conviction in relation to charge 1.

While it is true that there were inconsistencies as to the sequence of events and what type of touching occurred on different occasions, it was quite clear from the special hearing and the VARE that JW claimed that the first occasion of indecent touching was that alleged in charge 1. JW’s account did not provide an obstacle to the jury concluding that the indecent touching had been established. The jury were able to fully assess the weight to be properly given to the evidence, and to consider the impact that any deficiencies may have had on such evidence. The inconsistencies surrounding the circumstances and order of such touching, did not render the verdict unsafe.

It has not been demonstrated that the verdict in relation to charge 1 is unsafe and unsatisfactory.

Factual background – charge 4 (sexual penetration)

DC was born on 24 November 2006. The offending took place on a date between 6 May 2010 and 6 May 2012. The complainant was aged 6 at the time of giving a VARE and special hearing.

In support of this charge, the prosecution relied on a VARE interview conducted with DC on 28 January 2013 which was played to the jury at trial. The prosecution also relied on a special evidence hearing with DC completed prior to the trial which was then played to the jury during the trial.

During his VARE, DC told police that a man had sucked his dick. He said the man lived in a house near where his father, who had since passed away, had been living. He described circumstances in which he had been lying on the man’s bed in the man’s bedroom and the man said ‘[d]o you want your dick big’ to which DC said he had replied ‘No’. DC said the man pulled DC’s dick out of his pants and then put it back in when he was finished and that while his dick was out of his pants it went in the man’s mouth. DC said he did not see the man’s dick and described the man as having ugly skin and whitey-blond hair. DC provided the police with a drawing of the man sucking his dick.

During his special hearing, DC said that what he had said in the VARE had been the truth except that one of the parts were ‘mixed up’. After some prompting from the prosecutor, DC identified the part he said he got mixed up as:

That he made me because I didn’t actually know that — that — that because I forgot because that was a long time ago.

DC then said, having been asked to think about the rest of what he had said about the man, that he thought the rest was true. DC also confirmed that he made the drawing referred to in the VARE, which was showed to him during the special hearing. In cross-examination, DC recalled a boy called ‘AB’ (the applicant’s son),[9] whom he remembered playing with and who lived next-door to his father. With respect to the alleged offending, DC said he remembered being in ‘[the man’s] bedroom’ and laying down with his legs straight. DC said that his memory was ‘stuffed up’ and when he was asked whether he knew whether that [the offending] actually happened or whether he was a little bit not sure he replied that he was not quite sure. When defence counsel said ‘Maybe it couldn’t have happened’ DC responded ‘No, it actually did’.
[9]We have given the applicant’s son a pseudonym, for the purposes of anonymity.

Defence counsel asked DC whether he knew exactly who it was that did this in the bedroom and DC said ‘Yeah’ but was unable to answer whether he knew if it was AB’s father or not. In re-examination, DC said there was nobody other than him and the man in the bedroom at the time the incident happened and described the man as old, with white hair (bald up top and hair at the sides) and red dots around his skin. DC referred to the man as ‘the man that lived next door’. DC said he had seen the man before, that the man had been to DC’s house and that the man lived next door with a boy and a girl.

The applicant did not give evidence and no other witnesses were called on his behalf.

The defence case at trial, with respect to this charge, was that there was no act of sexual penetration and that it was a matter for the jury as to whether the person identified by DC in his evidence was, indeed, the applicant. The defence told the jury that DC was unreliable.

Analysis – charge 4

The issue at trial in relation to the evidence of DC, was whether the alleged event occurred and, if it did, whether it was committed by the applicant. The applicant submits that there are three aspects of significant inadequacy in DC’s evidence which render the verdict in relation to charge 4 unsafe.

The first was an inconsistency relating to the evidence given by DC as to when the offending occurred. The Crown case was that the offences occurred while DC was living with his father. Early during the VARE, DC said that he was living with his mother at the time of the offending. Later in the VARE he said that the offending occurred while his father was alive, it being common ground between the parties that DC had been living with his father for approximately two years before his death. The applicant points to this inconsistency as going to the heart of the alleged offending, thus rendering the evidence unreliable.

The second combination of defects relates to DC’s statement during the VARE that he did not know what it meant to tell a lie, and his failure to confirm the truth of the contents of the VARE at the conclusion of the VARE but instead gave inaudible answers and nodded his head. Further, the complainant was often non-responsive in his answers during the VARE, and had difficulty maintaining focus.

The third relates to inconsistency in the evidence given by DC in his VARE in relation to him telling his grandmother about the offending. In the VARE, DC is not able to directly answer any leading questions relating to his grandmother, nor any questions relating to him complaining to his grandmother:

Q                  … Did you tell anyone about what had happened?
A                   Yeah, just [GRANDMOTHER].
QYou told [GRANDMOTHER]. And [GRANDMOTHER] is your grandmother.

A                   Yeah, I don't know.
Q                   All right. And when did you tell [GRANDMOTHER]?
A                   When it's night‑time.
Q                   Was that last night?
A                   (NO AUDIBLE REPLY)
Q                   Was that last night you told [GRANDMOTHER]?
A                   Nuh.
Q                   When was that?
A                   I don't know.

Further, the applicant submits that there are a number of circumstances in the special hearing where DC expresses doubts about his memory of the offending, rendering his evidence so fragile that it could not be relied upon. For example, during the special hearing, DC claims that it is ‘difficult to remember’ what happened and that his memory is slightly ‘stuffed up’:

So do you now have a clear memory or is it still a little bit — that you can't remember?---No, it's stuffed up.

It's stuffed up?---Yes.
All right. Do you know that it actually happened or are you a little bit not quite sure?---Not quite sure.

The Crown submits that when read as a whole, it was open to the jury to accept that the offending did occur, and that the applicant was the offender. It points to other parts of DC’s evidence, and demonstrates that when invited to give further evidence of the offending, DC was able to give the following coherent account:

Now with that disgusting thing, do you have a clear memory of what happened? Like if - excuse me. When you think about it - - -?---Yes.
- - - carefully, do you have a clear memory of what happened, or is it more like a dream and it's difficult to remember?---It's difficult to remember.
It's difficult to remember, all right. So when you say - when you told police that something happened in the bedroom, do you - - -?---Yes.
- - - remember anything happening in the bedroom or could it have been somewhere else?---It - I remember.
You remember?---When I was in his bedroom.
So now you remember? You remember when you're in the bedroom?

---Yes.
Now were you standing up or sitting down?---Laying down.
Laying down?---My legs were just straight.
Your legs were straight and you were laying down?---Yes.

The Crown submits that whilst some details of the offending were forgotten or muddled, when specifically asked to give a factual account of what in fact DC did recall, or when pressed about whether the event occurred at all, he maintained that the sexually abusive event occurred. When asked in cross examination whether the offending could not have happened, he answered ‘No it actually did’. Similarly, the Crown submits that DC was able to provide specific details that gave greater weight to the reliability of DC, such as that the offending occurred in the bedroom, that no one else was in the room, that he was lying down and his legs were straight, and that the man had white hair and red dots around his skin.

In my opinion any deficiencies in DC’s account in his interview or at the special hearing were not beyond those to be expected from a person of his age. His account, viewed as a whole did not provide an obstacle that precluded the jury from convicting the applicant. The deficiencies relied upon by the applicant were insufficient to demonstrate that the verdict returned in respect of charge 4 was unsafe or unsatisfactory.

As it has not been demonstrated that the verdict on charge 1 or 4 was not reasonably open to the jury, I would refuse leave to appeal on this ground.

Ground 2 – the learned judge erred in his application of the test to change the plea of guilty to a plea of not guilty

The applicant contends under ground 2 that although the trial judge addressed the question of whether the guilty plea was made freely and voluntarily, his failure to address the question whether the applicant intended by his plea to accept guilt for an offence of which he truly believed himself to be guilty was an error which requires the discretionary judgment to be set aside.[10]
[10]Kumar v The Queen [2014] VSCA 102, [17].

Factual background – change of plea application

On 24 February 2014, the sentencing judge refused an application for the applicant to change his pleas of guilty on the second indictment to pleas of not guilty. This application was brought by a different firm of solicitors on behalf of the applicant than his solicitors for his trial on the first indictment.

The applicant contended on the application that his pleas had not been made freely and voluntarily as he did not understand what he was pleading guilty to and that he was experiencing a degree of personal turmoil at the time his pleas were entered.[11]
[11]DPP v [Weston] (Unreported, County Court of Victoria, Judge Meredith, 24 February 2014) [6] (‘Ruling’).

At the change of plea application hearing, four affidavits were relied upon — three by the prosecution, and one by the applicant. The prosecution tendered affidavits of the applicant’s previous Counsel and legal advisors, and the applicant relied on his own affidavit. The applicant’s previous Counsel and lawyer, Dr Marich and Dr Fitzgerald were cross examined, as was the applicant. The final prosecution affidavit was not subject to cross examination.

The evidence in chief of the applicant was that contained in his affidavit. He deposed that following the guilty verdict in the trial of the first indictment, he felt ‘stunned’ and ‘shell-shocked’, and that Dr Marich advised him that he had another trial the following week. The following week, the applicant said that he had a conversation with Dr Marich where she advised him that he ‘would best [sic] to plead guilty to other offences that were coming up’ and that, in explaining this, the solicitor had said that if he entered plea of guilty, ‘those charges would just be gotten rid of’ and that if the applicant pleaded guilty he ‘would only be convicted of what [he] was found guilty’. This presumably was intended to reflect the fact that the Crown would not proceed with all the charges. He said further, that she advised that he would only get ‘a little bit more’ for the charges that were subject of the plea, and that if he did not plead guilty that he faced a prospect of a ‘long time in jail’, where he may ‘die in jail given [his] age.’

The applicant also deposed that he remembered arguing with another solicitor, of the same firm, about pleading guilty and that he felt like there was a lot of pressure on him and that he did not have much of a choice at all. However significant parts of the applicant’s answers in cross examination undermined the assertions in his affidavit that he did not understand the nature of the allegations to which he pleaded guilty or that he felt under pressure and had little choice but to plead guilty.

Following this conversation with Dr Marich, the applicant said that he then spoke with Dr Fitzgerald on the day of his scheduled arraignment, with whom he argued about pleading guilty. The applicant said that he did not want to plead guilty, and that he wanted to fight the charges. The applicant said that he felt a great deal of pressure on him, especially given that both lawyers had made it ‘very clear that [his] best option was to plead guilty’, and that he felt as if he did not have ‘much of a choice at all.’

The applicant said that he had felt ‘exhausted’ throughout the whole process, and given that he had been up early due to being taken in the prison transport to Court in the morning, and that just before there was a ‘rush to go up to court’, he agreed to plead guilty. The applicant then said that roughly 10 minutes before court was scheduled to begin, he signed a document and was immediately taken up to court.

The applicant’s affidavit then set out that whilst he remembered pleading guilty, he could not recall what the charges to which he was pleading guilty involved, and that the only reason he had pleaded guilty was based on the advice given by his lawyers. The applicant said that his lawyers had not explained to him what the charges were, and that he was not shown any documentation which set out the charges.

The negotiated plea resulted, significantly, in the abandonment of the two charges which concerned a third complainant; the applicant’s daughter. Although the applicant in his evidence did not distinctly admit that he was aware that that he was not asked to plead guilty to those charges, the trial judge was satisfied that he was aware of the nature of the charges which he originally faced and those charges to which he pleaded guilty.

During the change of plea application, the applicant relied on the rushed nature of the conference between his legal team and himself, and his lack of understanding of what the charges were, to demonstrate that a miscarriage of justice would result if the applicant were refused. Counsel for the applicant at the application said:

… the difficulty here is that within the space of a ten to 15 minute conference, or five to ten minute conference, you’ve got this bloke saying, ‘I didn’t do this,’ to a point where he’s prepared to accept some responsibility; no-one has ever taken the time, it seems, and I’m not being critical of anyone, but the fact is here that no-one has ever taken the time to read this indictment out to him or explain to him properly what the allegations are that he’s pleading to …

As summarised by His Honour, with the concurrence of Counsel for the applicant at the hearing, the ‘nub’ of the application, was that ‘there was a lack of understanding on [the applicant’s] behalf of what he was pleading to’, due to the rushed nature of the conference, and the emotional circumstances in which it took place.

Defence counsel accepted that ‘there was still some propriety of the plea, notwithstanding what the man said about how he felt’, but that looking at the matter more objectively it was the change in his position over a 15 minute period. The trial judge did not accept that the applicant had been persuaded in the 10–15 minute pre-arraignment conference to change his plea to guilty. His Honour concluded that it was ‘the totality of the circumstances’ over an extended period that gave rise to such a plea being entered.

Defence counsel on the application referred to the basis of the application a number of times. It was not submitted as a reason for granting leave to amend the plea that the applicant did not believe himself to be guilty at the time of the plea, or that there was an absence of a genuine consciousness of guilt. Following the conclusion of evidence, Counsel for the applicant summarised the matters he relied on as:

… the nature of the charge – what’s relied on as the nature of the charge, and effectively this rushed conference that occurred that produced the instructions to plead.

Further, counsel for the applicant eschewed any suggestion that the applicant was under undue pressure by the applicant’s former counsel:

[DEFENCE COUNSEL]: No, I’m not saying he’s overborne. I don’t think it’s the conduct of the legal practitioners, Your Honour, I think it’s the — it’s not so much the conduct of the legal practitioners, it’s the circumstances in which the instructions came about, and in this rushed conference they’ve given advice and he’s take it, it seems.
[HIS HONOUR]: Is that it?
[DEFENCE COUNSEL]: That’s it.

In his ruling refusing leave to change his plea, the trial judge began by referring to the Victorian Court of Appeal decision in R v Middap,[12] where the Court said:

The only test which is to be applied is whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant. Each case must be examined on its own particular facts and merits, and there is no question but that the judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter, which must be exercised judicially and having regard to the test to which I have referred.[13]

[12](1989) 43 A Crim R 362 (‘Middap’).

[13]Ibid 364.

The trial judge then summarised the applicant’s application as follows:

[The applicant] contends that his plea was not made freely and voluntarily as he did not understand what he was pleading guilty to and that he was experiencing a degree of personal turmoil at the time his plea was entered.[14]

[14]Ruling [6].

The trial judge rejected the applicant’s evidence that he did not adequately understand what he was pleading to or that his emotional turmoil was of such nature that it denied the plea its voluntary character.[15] Further, his Honour did not accept that the decision to plead guilty was the result of a ‘rushed’ conference, rather, it was the result of considered legal advice received over a significant period of time. The trial judge accepted the evidence of Dr Fitzgerald and Dr Marich, that based on various discussions and instructions, the applicant had understood the substance of the charges alleged. The ‘short’ conference on the day of the arraignment had in fact followed a ‘significantly lengthier’ conference with Dr Fitzgerald the day before. The sentencing judge accepted the evidence of the applicant’s previous legal practitioners wherever inconsistency existed between their evidence and that of the applicant.[16] The judge rejected the applicant’s evidence that he did not adequately understand what he was pleading to or any suggestion that his emotional turmoil was such as to deny his plea of guilty its voluntary character.[17] His Honour found the applicant’s evidence inconsistent on a number of topics, and found it was generally illogical and unconvincing.[18] He refused to allow the application.[19]
[15]Ibid [20], [23].
[16]Ibid [16].
[17]Ibid [23].
[18]Ibid [16].
[19]Ibid [24].

It is common ground between the parties that the test to be applied is whether a miscarriage of justice would arise if the applicant was not permitted to withdraw his plea of guilty and enter a plea of not guilty. The parties differ in their submissions as to when a miscarriage of justice may arise.

The applicant submits that there were two discrete questions that arose for determination on the application. First, as the applicant contended, whether the guilty plea was free and voluntary. Second, although no such submission was made to the trial judge, the applicant submits the judge was bound to also consider whether his plea of guilty was a true admission of guilt attributable to a consciousness of guilt. The applicant relies upon the following passage from the judgment of this Court in Kumar v The Queen,[20] as supporting the obligation to separately consider the second question:

(d) If, however, an admission of guilt is freely made, the fact that it might have been motivated by hope or expectation of forensic, sentencing or other technical advantage will not deprive it of the quality of a true admission of guilt unless it be shown that the accused did not intend thereby to accept guilt for an offence of which he believed himself to be guilty.

Consequently, before a judge will entertain an application to withdraw a freely made admission of guilt on the basis that it was motivated by hope or expectation of technical advantage, the judge will need to be persuaded by evidence that the accused did not intend by the plea to accept guilt for an offence of which he believed himself to be guilty.[21]

[20]Kumar v The Queen [2014] VSCA 102 (‘Kumar No 2’).

[21]Ibid [16]–[17] (emphasis added).

The applicant submits that the failure to address the second question, whether at the time of the plea he was accepting guilt for an offence of which he believed himself to be guilty, meant that a matter relevant to the exercise of the discretion had been overlooked. Therefore error was established within the principles stated in House v The King.[22]
[22](1936) 55 CLR 499.

The Crown submits that the question of whether a guilty plea is entered freely and voluntarily, and whether it a constitutes a true admission of guilt, are in fact one and the same question; the sole test being whether a miscarriage of justice would occur if the plea were not changed. The Crown submits that the onus is on the applicant to establish any exceptional circumstances that the applicant relies upon in order to invoke the exercise of discretion.

As to the above passages at [16](d) and [17] of Kumar, the Crown submits they do not support the applicant’s contention that the judge must consider the question whether at the time of the plea the applicant believes himself to be guilty of the offence. During the hearing the Crown further submitted that if either of those passages are to be understood as meaning that the judge must allow the plea to be withdrawn if the evidence establishes that the applicant did not believe himself to be guilty at the time of the plea, they are per incuriam as they are inconsistent with a long line of authority.

Because of the course followed by the parties in oral argument, further submissions were sought from the parties, addressing the question whether there it is a separate requirement that a guilty plea must be a true admission of guilt attributable to a genuine consciousness of guilt.

I turn to an examination of authority on this question. It has required consideration of decisions not referred to by the parties. Those decisions fall into two groups. The first are appeals from a refusal of the trial judge to allow a change of plea before conviction and sentence. The second are those where the challenge to the integrity of the plea was raised for the first time on appeal. Most often it has been assumed that the principles are the same whenever the integrity of the plea is challenged. But Kumar envisages circumstances in which a withdrawal of plea will be permitted prior to conviction, in which those circumstances would not produce such a result after conviction. The Crown contends that Kumar is inconsistent with the preponderance of authority.

In R v Murphy,[23] where the appeal against conviction raised the issue of the integrity of the plea for the first time, Herring CJ and Adam J referring to R v Forde,[24] considered that leave would be refused, save in exceptional circumstances, where the plea of guilty itself has been induced by material mistake or the like. However the separate judgment of Sholl J, in Murphy, now commonly accepted to be a correct statement of principle, raised the question whether the plea of guilty was attributable to a consciousness of guilt:

Most of the reported cases can, it is true, be fitted into the principles formulated in R v Forde. ... But they should not be regarded as exhaustive of all possible cases of a miscarriage of justice. They do not cover, for example, a case where an accused person, against whom a prima facie case exists, but who denies and has never admitted his guilt, is induced by threats, e.g. of a fellow accused or of a police officer to plead guilty where otherwise he would have pleaded not guilty. In such a case there would, in my opinion, be a miscarriage of justice.
I should be disposed to agree that if she pleaded guilty through a misapprehension of the law, e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial……
But after a careful examination of the depositions and the exhibits, and a full consideration of her evidence before this Court, I am not satisfied that she did not plead guilty partly if not wholly through a consciousness of guilt. The documentary evidence points very strongly to her guilt. It is not a case, therefore, where a miscarriage of justice has been shown. Rather, it seems to me, much the most probable explanation of her plea of guilty is that it was entered in the belief that by that course she would minimize as far as practicable the punishment for offences she knew she had committed.[25]

[23][1965] VR 187 (‘Murphy’).

[24][1923] 2 KB 400, 403 (‘Forde’).

[25]Murphy [1965] VR 187, 191(citations omitted) (emphasis added).

In R v Kardogeros,[26] where the issue was again raised for the first time on appeal against conviction, Crockett and JH Phillips JJ set out an extensive passage from R v Vella,[27] in which various decisions of the Full Court of the Supreme Court of Victoria, most of which are unreported, were examined. They are all to the same effect — that Murphy should not be understood as laying down comprehensive criteria for the setting aside of a conviction based upon a plea of guilty, and that the correct principles were enunciated by Sholl J in Murphy. Those, and more recent decisions,[28] recognise that the formalistic approach in Forde,[29] relied upon by the majority in Murphy,[30] is no longer regarded as stating exhaustively the circumstances in which a change of plea may be permitted.[31] Reported cases in New South Wales over the same period reflect the same approach.
[26][1991] 1 VR 269.
[27]Unreported, Full Court, 19 December 1984.
[28]R v Parsons (Unreported, Supreme Court of Victoria Court of Appeal, Winneke ACJ, Tadgell and Ormiston JJA, 24 October 1997); R v Seyfarth, [1998] VSCA 27 (Buchanan JA with whom Brooking and Tadgell JJA agreed); Beqiri v The Queen (2013) 37 VR 219, 226 [41] (Priest JA).
[29][1923] 2 KB 400.
[30][1965] VR 187.
[31]See, eg, R v Holden [2009] VSCA 254 [68] (Neave JA, with whom Buchanan and Hansen JJA agreed); R v Stewart [2010] SASCFC 72 [42] (Doyle CJ, with whom Peek and David JJ agreed).

In Chiron v The Queen,[32] the pleas had been influenced by the wrongful admission of ‘similar fact’ evidence by the trial judge. The issue of the integrity of the plea arose for the first time on the appeal against conviction. Street CJ found that by reason of the advice given by the accused's counsel and the Judge's comments, the plea of guilty was ‘tainted’ and, accordingly was not ‘a free and voluntary confession’.[33] Both Nagle CJ at Common Law and Lee J found that the plea was freely and voluntarily given. Lee J held, dissenting, that in those circumstances there was no miscarriage of justice. Nagle CJ at Common Law, however, agreeing in the result with Street CJ but for different reasons, concluded that there was a miscarriage of justice where ‘an accused person freely and voluntarily but, nevertheless, induced by an incorrect ruling of the trial Judge as to the admissibility of material evidence’ changed his plea to guilty.[34] The principles in Chiron have been relied on in many of the subsequent cases concerning the issue of a change of plea both before conviction and when first raised on appeal. Chiron was not, however, concerned with the question whether the applicant believed himself guilty at the time of the plea.
[32]R v Chiron [1980] 1 NSWLR 218 (‘Chiron’).
[33]Ibid [5].
[34]Ibid 222 [14].

In R v Sagiv,[35] the New South Wales Court of Criminal Appeal said that the question of whether a miscarriage of justice would occur was inextricably linked to the integrity of the plea. The issues had first been addressed by the trial judge who refused to allow a change of plea. Lee J found ‘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.’[36] Where however the person is in possession of all the facts and intending to plead guilty, Lee J considered the plea to be the most cogent admission of guilt that can be made.[37]
[35](1986) 22 A Crim R 73 (‘Sagiv’).
[36]Ibid 80 (emphasis added).
[37]Ibid 80–81 (emphasis added).

Both Murphy and Sagiv were referred to with approval in R v Davies,[38] another case in which the question of the integrity of the appeal first arose on appeal. In holding that the appeal should be allowed and the guilty plea and conviction quashed, Badgery-Parker J, with whom Wood and Mathews J agreed, in the following frequently quoted passage said:

The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv) and it is not necessarily to be accorded such finality if there are circumstances which indicate that the plea ‘was not really attributable to a genuine consciousness of guilt’ per Sholl J in Murphy, supra. If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J, ``an issuable question of guilt'’ — to put it more simply, if there is a real question to be tried. 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.[39]

[38](1993) 19 MVR 481 (‘Davies’).

[39]Ibid 485 (citations omitted) (emphasis added).

In R v Cincotta,[40] the applicant was refused leave by the trial judge to withdraw a plea, based on his claim that his will was overborne by counsel. On appeal, it was found that there was no basis for interfering with the exercise of the judge’s discretion, as there were no circumstances which suggested that the plea of guilty was not really attributable to a genuine consciousness of guilt. Hunt CJ, with whom Grove and Allen JJ agreed, said that ‘there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt.’[41]
[40]Unreported, NSWCCA, 1 November 1995 (‘Cincotta’).
[41]Ibid (emphasis added).

Both the applicant and the Crown drew support from passages of the judgments of the High Court in Maxwell v The Queen[42] and Meissnerv The Queen,[43] although as both parties recognised, neither case related to an application to withdraw a plea of guilty. The principles there expressed have however been continuously drawn upon in the present setting. In Maxwell, the appellant pleaded not guilty to the murder of his wife, but guilty of manslaughter. The prosecutor accepted the plea, on the basis that the appellant was entitled to rely on the defence of diminished responsibility. Before he had been convicted and sentenced, the judge rejected the plea of guilty to manslaughter, but certified the issue as proper for determination on appeal. Two questions were addressed on appeal. The first concerned the point of time at which the appellant was convicted. The second related to the trial judge’s power to review the prosecution decision to accept a plea of guilty, and the ability of a judge to intervene in such circumstances and reject a plea.
[42](1996) 184 CLR 501 (‘Maxwell’).
[43](1995) 184 CLR 132 (‘Meissner’).

In discussing the circumstances in which a plea of guilty may be entered, Dawson and McHugh JJ said:

An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and, if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.
The plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.[44]

[44]Maxwell (1996) 184 CLR 501, 511 (citations omitted) (emphasis added).

In Meissner,[45] the applicant was charged with the common law offence of attempting to pervert the course of justice by improperly endeavouring to influence another person to plead guilty to a charge of making a false statutory declaration. In the course of finding that the use of improper means to secure a plea of guilty constituted an attempt to pervert the course of justice, the majority discussed the circumstances in which a plea of guilty may be entered. Brennan, Toohey and McHugh JJ said:

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.[46]

[45]Meissner (1995) 184 CLR 132.

[46]Ibid 141 (emphasis added).

Dawson J, though dissenting, expressed a similar position on this issue:

It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.[47]

[47]Ibid 157 (emphasis added).

The reasoning of Sholl J in Murphy, and Badgery-Parker J in Davies, that there must also be an ‘issuable question of guilt’ was affirmed in Toro-Martinez v The Queen,[48] which also concerned an appeal against conviction where the integrity of the plea was first addressed on appeal. Spiegelman CJ, with whom Newman and Adams JJ agreed, referred to the formulation by Sholl J in Murphy of ‘some other reason which enabled [one] to say that the plea was not really attributable to a genuine consciousness of guilt’,[49] describing, as to similar effect, the observations of Lee J in Sagiv of ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’;[50] the observations of Hunt CJ at CL in Cincotta that ‘there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’;[51] and the reasoning in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner, in the passage quoted above at [75]. All of these passages were said to be to the same effect.[52]
[48](2000) 114 A Crim R 533, 538 [26] (‘Toro-Martinez’).
[49]Murphy [1965] VR 187, 190.
[50]Sagiv (1986) 22 A Crim R 73, 80.
[51]Unreported, New South Wales Court of Criminal Appeal, 1 November 1995.
[52]Toro-Martinez v The Queen (2000) 114 A Crim R 533, 537–8 [21]–[24].

In R v Gadaloff,[53] the applicant had sought at trial to set aside his plea on the basis that intimidation or duress was exercised over or exerted upon him principally, although not exclusively, by his own lawyer. The Queensland Court of Appeal, drawing upon the principles in Meissner, said that it is no doubt true that the court may, without miscarriage of justice, act on a free and voluntary plea of guilty, even if the person entering it is not in truth guilty of the offence.[54]
[53][1999] QCA 286.
[54]Ibid [7].

In R v Marchando[55] the applicant sought leave to appeal two decisions in which leave to withdraw a guilty plea had been refused. The prisoner in that case, more than once in his affidavit, asserted his innocence. He claimed that the plea of guilty should not be seen as an acknowledgment of guilt, but rather was brought about by the pressure of a variety of circumstances that, in combination, led him to plead guilty to a charge of which he was innocent.[56] The trial judge formed a ‘highly unfavourable view of the applicant’s credibility,’[57] and expressly rejected the applicant's claim to have been confused about, or ignorant of, the charge; or that his plea was entered for any reason other than as an acknowledgment of guilt. Simpson J, with whom Wood CJ at Common Law and Sully J agreed, summarised the circumstances that warrant the exercise of discretion in favour of permitting the change of plea. They include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea or, more generally, a miscarriage of justice for other reasons. They said, citing Davies, that the central question in all cases is whether it has been shown — the onus lying on the applicant — that the plea was not really attributable to a consciousness of guilt.[58] Marchando raised issues similar to those the subject of this appeal. Without distinguishing between the principles applicable to the case of a refusal to withdraw the plea at trial and those cases where the issue was first raised on appeal, the Court, in dismissing the appeal, rejected the claim that the plea was attributable to circumstances other than a genuine consciousness of guilt.[59]
[55](2000) 110 A Crim R 337 (‘Marchando’).
[56]Ibid 340 [11].
[57]Ibid 341 [15].
[58]Ibid 338 [4].
[59]Ibid 347 [44]–[46].

Other interstate appellate decisions concerned with either a refusal of a change of plea at trial such as R v Moxham,[60] R v Boag,[61] McQuire,[62] R v Hura,[63] R v Wilkes,[64] and appeals raising the issue for the first time such as R v Liberti,[65] R v Kouromumalos,[66] are all to the same effect. In R v Hura,[67] Spigelman CJ summarised the circumstances that had been identified in various decisions of the New South Wales Court of Criminal Appeal as grounds to set aside a conviction following a plea of guilty. Those circumstances included where ‘the plea was not really attributable to a genuine consciousness of guilt.’[68] To the same effect, in R v Wilkes,[69] where Wood CJ at Common Law with whom Giles JA and Simpson J agreed, in relation to an argument that the plea was entered on the basis of imprudent and inappropriate legal advice said that it 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.[70]

[60](2000) 112 A Crim R 142.

[61](1994) 73 A Crim R 35 (‘Boag’).

[62](2000) 110 A Crim R 348.

[63](2001) 121 A Crim R 472.

[64](2001) 122 A Crim R 310.

[65](1991) 55 A Crim R 120, 121–2.

[66][2000] NSWCCA 453 (‘Kouromumalos’).

[67](2001) 121 A Crim R 472.

[68]Ibid 477–8 [32].

[69][2001] NSWCCA 97 (‘Wilkes’).

[70]Ibid [20].

In R v Pugh,[71] another appeal where the issue was raised for the first time, Doyle CJ recognised the objective nature of the inquiry as to whether the circumstances surrounding the plea affected its integrity in such a way that it could be said that the plea was not attributable to a consciousness of guilt.

The question of whether MrPugh’s decision to plead guilty was attributable to a consciousness of guilt is a relevant consideration. Viewing the circumstances objectively, the instructions that MrPugh gave support a finding that the plea of guilty was entered to each count as a result of a consciousness of guilt.
I am not in a position to find, one way or the other, whether MrPugh was actually guilty or not, and so I cannot decide whether he believed in his guilt. To make that finding appears to me to involve undertaking the task that would have been undertaken by the jury at his trial.
However, I am able to find, and do conclude, that the circumstances of the plea do not, viewed objectively, raise a doubt about MrPugh’s consciousness of guilt, or about the fact of guilt. I make this point bearing in mind, as Dawson J said in Meissner, and as has been said on other occasions, the court will act on a plea of guilty entered by an accused person, whether or not that person is in fact guilty, unless there are circumstances (which will be exceptional) that indicate that the ‘plea was induced by intimidation of one kind or another or by an improper inducement or by fraud’, or by other like circumstances.[72]

[71](2005) 158 A Crim R 302. .

[72]Ibid 312 [46]–[48].

Doyle CJ in R v Brooks,[73] in addressing the trial judge’s refusal to allow a change of plea, considered the three factors set out in Wilkes, and in particular the absence of a genuine consciousness of guilt at the time of plea. His Honour expressed his agreement with Hulme J (dissenting) in R v KCH,[74] that the ultimate test is whether there has been a miscarriage of justice. In KCH, Hulme J had said:

However it is clear law that a person of sound mind and understanding is entitled to plead guilty if he wishes — see Maxwell v R (1995–1996) 184 CLR 501, 511 — and ‘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 into it is not in truth guilty of the offence.’ Meissner v R[1995] HCA 41; (1994–1995) 184 CLR 132, 141. See also at 157 and Maxwell v R (1995–1996) 184 CLR 501, 511. (Whatever may have been meant by ‘technical advantage’ where used on the last mentioned page, I do not regard it as qualifying the statement I have quoted.)
The Court was pressed with statements such as those in R v Murphy[1965] Vic Rp 26; (1965) VR 187, 191, R v Davies (unreported, CCA, 16 December 1993), Boag (1994) 73 A Crim R 35, 36, R v Cincotta (unreported, CCA, 1 November 1995), R v Ganderton (unreported, CCA, 17 September 1998), R v Hura[2001] NSWCCA 61and R v Wilkes[2001] NSWCCA 97 to the effect that a plea not attributable to a genuine consciousness of guilt should be set aside. It may well be that reference to a consciousness of guilt was an appropriate test in the circumstances of those cases and obviously any conclusion that a plea was entered in circumstances other than a genuine consciousness of guilt is calculated to inspire questions whether the ingredients essential to its validity and to which the High Court referred in the cases cited were present. However, insofar as the cases to which I have referred suggest that a genuine consciousness of guilt is always necessary, and with due respect to the contrary view expressed in R v Toro-Martinez[2000] NSWCCA 216, [23–24], those decisions are inconsistent with what was said in the passage from Meissner v R which I have quoted in the immediately preceding paragraph.[75]

[73](2007) 96 SASR 478 (‘Brooks’).

[74](2001) 124 A Crim R 233, 256 [163] (‘KCH’).

[75]Ibid 255–6 [162]–[163].

It may be thought that Doyle CJ too narrowly stated the effect of Maxwell as to the need for satisfaction at the time of arraignment that the plea is genuine. But Doyle CJ, with whom Debelle and White JJ, agreed went on to say that it would be inconsistent with the observations by members of the High Court in Meissner to hold that a plea not attributable to a genuine consciousness of guilt must be set aside — the presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive. Doyle CJ further said:

The precise approach to be taken will depend upon the circumstances of the particular case. As I said in Pugh, I do not agree that the decision in R v Wilkes[2001] NSWCCA 97; (2001) 122 A Crim R 310 establishes that in every such case the question of whether there has been a miscarriage depends upon whether the advice given was or was not imprudent or inappropriate, whether the plea was or was not attributable to a consciousness of guilt, and whether the material before the Court shows that there is or is not a real question about guilt: Wilkes at [20]-[21]. They may well be relevant issues, but they are not universally applicable tests. On that point I refer to the observations of Spigelman CJ in R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [32] where his Honour summarised a number of the circumstances upon the basis of which a court has allowed an appeal against conviction not withstanding a plea of guilty. There is no suggestion in that summary that the matters identified in Wilkes are necessarily decisive….
…
The presence or absence of a consciousness of guilt is emphasised in some cases as a significant factor. And so it may be in some cases. But if the court is satisfied, as I am, that the plea of guilty was made in the exercise of a free choice and in Ms Brooks’ interests, Ms Brooks understanding the nature of the case against her and its strength, to consider whether she acted out of a consciousness of guilt is to pursue an irrelevant enquiry. The observations of the High Court in Meissner (above) explain why that will be so in such cases. Moreover, the court cannot try the issue of Ms Brooks’ guilt, and there are difficulties about using the notion of consciousness of guilt because of that: cf Murphy at 188. On this point see also R vKCH [2001] NSWCCA 273; (2001) 124 A Crim R 233, [90]–[94] Ipp AJA, at [162]–[163] Hulme J.[76]

[76]Brooks (2007) 96 SASR 478, 489 [69], 491 [80].

Doyle CJ, with whom David and Peek JJ agreed, repeated in R v Stewart[77] what he had said in Brooks:

One also must bear in mind that the presence or absence of a genuine consciousness of guilt on the part of the accused may be a relevant matter, but is not necessarily decisive. A person might be held to a plea of guilty even though the plea was entered by the person in question without any consciousness of or belief in guilt.[78]

[77][2010] SASCFC 72.

[78]Ibid [45].

Fraser JA (with whom Keane and Holmes JJA agreed) in an appeal where the issue was raised for the first time, observed in R v Carkeet,[79] after referring to the joint reasons in Meissner, that:

When a person of full age and apparently sound mind and understanding enters a plea of guilty in open court in the exercise of a free choice, the circumstances in which that person might establish a miscarriage of justice resulting from the plea must be very rare indeed. As the above quote from Meissner indicates, it is not sufficient to point to evidence that establishes that the person is in truth not guilty of the offence.[80]

[79](2008) 185 A Crim R 147.

[80]Ibid 152, [24].

In Boag,[81] Hunt CJ at Common Law, (with whom McInerney and James JJ agreed) after referring to a number of authorities including the reasons of Badgery-Parker J in Davies, emphasised that it must be demonstrated that there is some ‘circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt’.[82] Similarly in Kouromumalos Wood CJ at CL, with whom Studdert and Wheely JJ agreed, said:

What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question: Cincotta NSW CCA 1 November 1995, Ganderton NSWCCA 17 September 1998, Favero, (supra), and Vergara [1999] NSWCCA 352. However, as Kirby P pointed out in Liberti at 122:
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. 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.[83]

[81](1994) 73 A Crim R 35.

[82]Ibid 39.

[83]Kouromumalos [2000] NSWCCA 453 [19].

Similarly, in Woods v The Queen,[84] Hulme J, with whom Spiegelman CJ and Latham J agreed, framed the question for the trial judge as being one which must interrogate the integrity of the plea:

… As a guilty plea amounts to a confession of guilt and an admission to all of the elements in the offence to which the plea was offered, it is fundamental to allowing its withdrawal that it be shown that the person pleading did not entertain a genuine consciousness of guilt and that there be some factor demonstrated going to the integrity of the plea. That the second of these ingredients is necessary is demonstrated by the decision in Meissner v The Queen (1995) 184 CLR 132, 141; 80 A Crim R 308, 313 where the High Court made it clear that no miscarriage of justice arises if a person pleads guilty even if that person is not guilty providing the plea was entered in the exercise of a free choice.[85]

[84](2008) 184 A Crim R 108 (‘Woods’).

[85]Ibid 116 [36].

In R v Holden,[86] where the integrity of the plea had been raised before the trial judge, Neave JA, with whom Buchanan and Hansen JJA agreed, recognised that the public interest in restricting appeals against conviction following a deliberate plea of guilty where there is a negotiated plea and the offender has received a direct benefit is particularly powerful.[87] Neave JA also said:

In considering whether a miscarriage of justice has occurred, Victorian courts have been reluctant to find that a miscarriage of justice has occurred simply because a person who has pleaded guilty asserts that they were not in fact guilty of the relevant offence. In R v El Kotob and Hijazi O’Bryan AJA said:
I consider that an understanding, arrangement or agreement having been reached between the Crown and the appellants ..., it is not open to the appellants to withdraw from the plea agreement by applying for leave to appeal against conviction unless they satisfy the very exceptional circumstances set out in R v Stewart.[88]

[86][2009] VSCA 254.

[87]Ibid [69].

[88]Ibid [70].

In Loury v The Queen,[89] the prisoner appealed his conviction following a plea of guilty, on the ground that his pleas were not attributable to genuine consciousness of guilt, but rather, were entered by reason of inappropriate advice from his counsel and solicitor. As the prisoner did not fully appreciate the offence for which he was pleading guilty, the plea of guilty was held not to be a ‘true admission of guilt.’ Whealy J, with whom Hodgson JA and Kirby J agreed, approved the observations of Howie J in Director of Public Prosecutions v Wong,[90] that there will be no miscarriage of justice where, despite an applicant’s assertion of innocence, such a plea was entered voluntarily. The relevant question for determination was whether the integrity of the plea had been affected. Whealey J said:

What also emerges from the authorities is that a plea of guilty may be entered for reasons other than a belief in one’s own guilt. As noted by Dawson J in Meissner v R, the accused person’s exercise of free choice may ‘extend beyond that person’s belief in his guilt’ and includes situations such as the avoidance of worry or inconvenience, the protection of one’s family and even ‘the hope of obtaining a more lenient sentence than [the accused] would if convicted after a plea of not guilty’.[91]

[89][2010] NSWCCA 158 (‘Loury’).

[90]Wong v DPP [2005] NSWSC 129.

[91]Loury [2010] NSWCCA 158 [99] (citations omitted).

In Rotner v The Queen,[92] the applicant sought leave to appeal against an interlocutory decision of the District Court, which had refused his application to withdraw his guilty plea. The applicant claimed that his plea was not made out of recognition of guilt, but pressure and fear of a significant prison term. The applicant raised the argument raised in the present appeal that the trial judge in considering whether the integrity of the plea was in doubt, failed to consider whether the plea was truly attributable to a genuine consciousness of guilt.[93]
[92][2011] NSWCCA 207 (‘Rotner’).
[93]Ibid [53].

Simpson J (with whom McLellan CJ at Common Law agreed) rejected the argument that the trial judge was distracted from whether the plea of guilty was properly attributable to a genuine consciousness of guilt. Simpson J, observed that the trial judge had correctly focussed upon whether there was present a factor which went to the integrity of the plea and, citing Kouroumalos, said:

There are, in fact, two components to the test so stated — first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an ‘issuable’ question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that created a doubt about his guilt, as well as circumstances that raise a doubt about his own perception, at the time he entered the plea, of his guilt.[94]

[94]Ibid [50].

What emerges from the statements of principle in R v Rae (No 2);[95] Sabapathy v The Queen,[96] and Khamis,[97] cases where the issue was first raised as an appeal against conviction, is that any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea; not assertions of innocence. In R v Rae(No 2)[98] Giles JA, with whom Hislop and Rothman JJ agreed, said:

An accused person may plead guilty, and be held to his plea, although asserting his innocence. That is made clear in the passages in Meissner v The Queen[1995] HCA 41; (1995) 184 CLR 132 earlier noted. If the accused person is advised to plead guilty, despite his assertion of innocence, because of a perceived advantage, and he accepts the advice, the focus will be on whether he exercised a free choice in what he believed to be his interests at the time….
Underlying this is that our legal system is adversarial, in criminal litigation as well as civil litigation. With a qualification in the event of flagrant incompetence (R v Birks(1990) 19 NSWLR 677), as a general rule an accused person is bound by the way his legal representatives have conducted the litigation, as to admission of evidence, cross-examination, jury directions and wider tactical decisions (see for example R v Suresh[1998] HCA 23; (1998) 153 ALR 145; TKWJ v The Queen[2002] HCA 46; (2002) 212 CLR 124). Rarely will it be held that a miscarriage of justice lies in the accused’s forensic choice, ‘consciously elected with the prospect of perceived advantage, but the peril of risks to the accused’ (R v Suresh … per Kirby J). So also a forensic choice to plead guilty, considered by the accused to be in his best interests, will not give rise to a miscarriage of justice unless it is established that it was entered in circumstances of the kind instanced above.[99]

[95](2005) 157 A Crim R 182.

[96][2008] NSWCCA 82.

[97][2014] NSWCCA 152 (‘Khamis’).

[98]157 A Crim R 182.

[99]Ibid 189–190 [23]–[24] (citations omitted).

Hoeben CJ at CL also said in Khamis:

ordinarily, this task is not an investigation of the applicant's guilt or innocence, rather it is an examination of the integrity of the plea of guilty itself. The onus lies upon the applicant to demonstrate that leave should be granted.[100]

[100][2014] NSWCCA 152 [59] (Hoeben CJ at CL with whom McCallum and Garling JJ agreed).

In R v Mokbel,[101] Whelan J (as he then was) dismissed an application by Mokbel, the principal of a drug trafficking operation, to change his pleas of guilty. Mokbel had claimed that evidence had been illegally obtained because search warrant affidavits had not been sworn. As Spiegelman CJ did in Toro-Martinez, Whelan J referred to the need to identify circumstances which demonstrate that there is a ‘real question’ about the guilt of the accused, in order to demonstrate that the plea of guilty may not be attributable to a genuine consciousness of guilt:

It seems to me that the insistence in Toro-Martinez and in Elmir that some circumstance referrable to actual guilt, as opposed to proof of guilt, must exist before there can be a miscarriage of justice, reflects the observations in earlier cases, such as Boag, that the kind of circumstance which might constitute miscarriage must be something that indicates that the plea was not really attributable to a genuine consciousness of guilt.[102]

[101]R v Mokbel (2012) 35 VR 156.

[102]Ibid 181–182 [289].

After reviewing the authorities, Whelan J refused leave to grant the change of plea application, finding that Mokbel provided no explanation for why he had pleaded guilty, that considerable incriminating evidence was unaffected by any impropriety that existed, and that while some affidavits were unsworn, that no miscarriage of justice would occur:

In this case the applicant has failed to establish that a miscarriage of justice would occur if leave to withdraw his pleas were refused.
Most significantly, Mokbel has not produced any evidence as to why he pleaded guilty. There is no basis upon which a conclusion could be reached that his pleas were not attributable to a genuine consciousness of guilt or that there was any ‘issuable’ question about his guilt, to adopt the words used in Rotner.
It is asserted that Mokbel was induced to plead guilty by impropriety and that he was not in possession of all relevant facts. There is no evidence of his reasons for pleading guilty. The assertions made are especially inadequate given that there is considerable incriminating evidence which is unaffected by the impropriety, and given that the pleas were made after an agreement that other charges would be discontinued. The approach adopted by the applicant here is in marked contrast to cases such as Chiron, Reed, Marchando and Woods, where evidence was led explaining the circumstances of the guilty plea and addressing why the guilty plea was not, in the circumstances, attributable to a genuine consciousness of guilt.[103]

[103]Ibid 185 [302]–[304] (citations omitted).

Thus it is necessary for an applicant seeking to withdraw a plea of guilty to advert to circumstances that created a doubt about his or her guilt, as well as circumstances that raise a doubt about his or her own perception, at the time the plea was entered, of his or her guilt. Put another way, what is important is an elaboration of the circumstances that might justify a conclusion that a plea of guilty was not attributable to a genuine consciousness of guilt.

Finally, I turn to the two judgments in Kumar v R.[104] At first instance, Kumar had pleaded guilty to multiple charges relating rape and related offending by a worker at a facility of a person with a cognitive impairment. After the arraignment, but before conviction and sentence, Kumar made an application to change his plea from guilty to not guilty. That application was refused, and the sentencing judge refused to certify that her ruling was of sufficient importance to justify an interlocutory appeal. The applicant then applied to this court for a review of the decision to refuse to certify, which was dismissed by Weinberg and Coghlan JJA and Lasry AJA.[105] Kumar relied on two grounds in arguing that the trial judge’s decision to refuse certification was wrong, namely that:
[104]Kumar v The Queen [2013] VSCA 297; Kumar v The Queen [2014] VSCA 102.
[105]Kumar v The Queen [2013] VSCA 297 (Kumar No 1).

1.The trial judge erred in law in refusing the application to change the pleas:
(a)Her Honour wrongly applied the High Court decision of Meissner v R.
(b)Her Honour erred in refusing the application to change the applicant’s pleas of guilty as it appeared to her Honour that, for whatever reason, the applicant’s pleas of guilty were not genuine.

2.The trial judge erred in the exercise of her discretion by refusing the application of the applicant to change his pleas:
(a)Her Honour failed to take into account the relevant consideration of the reasons the applicant entered his plea of guilty as not being a true admission of guilt.
(b)Her Honour failed to take into account the applicant’s wish to change his plea of guilty to not guilty.

The trial judge accepted that Kumar had pleaded guilty in the belief that he would receive a ‘substantial discount’ by doing so.[106] Kumar argued that because his plea had been entered under a misconception as to the reduction in sentence he would receive, it could not be seen as a ‘genuine admission of guilt.’[107] In support of this submission, he relied on the obiter dicta of Dawson and McHugh JJ in Maxwell. However, the trial judge found that a plea, even if made solely for pragmatic reasons, could still be seen as a ‘binding admission of guilt.’[108] Judge Sexton, after careful consideration of Maxwell and Meissner, expressed the view that those decisions are to be read as consistent with each other. Her Honour noted the following in the Victorian Criminal Procedure Manual at Chapter 11.2:

The court does not need to be independently satisfied that the accused is guilty. It is only in exceptional circumstances that a court may reject a voluntary plea of guilty. [2] There is no miscarriage of justice in acting on a voluntary plea, even if the accused is not guilty of the offence charged. A person may plead guilty for various reasons unrelated to his or her guilt, including the hope of a obtaining a more lenient sentence, or to avoid worry, expense or embarrassment (Meissner v R (1995) 184 CLR 132; Maxwell v R (1996) 184 CLR 501; R v Carkeet [2008] QCA 143)….[109]

[106]Ibid [11].

[107]Ibid [12].

[108]Ibid [14].

[109]Judicial College of Victoria, ‘Victorian Criminal Procedure Manual’ (Judicial College of Victoria, as at 18 September 2013) Chapter 11.2.

And at Chapter 11.5.1:

A court should refuse leave to withdraw a plea of guilty that a person freely and unequivocally entered, even if the plea is not attributable to a genuine consciousness of guilt. The court may act on the plea despite the accused later maintaining his or her innocence, as it is not necessarily a miscarriage of justice for a person to plead guilty to a charge when he or she may be not guilty (Meissner v R (1995) 184 CLR 132; R v Brooks [2007] SASC 35; Wong v DPP [2005] NSWSC 129).[110]

[110]Ibid Chapter 11.5.1.

Weinberg JA, with whom Coghlan JJA and Lasry AJA agreed, found that there was no basis upon which the judge could properly have granted him leave to change his plea.[111] Weinberg JA stated that the trial judge had outlined clearly why a plea, even if made solely for pragmatic reasons, and only in the hope of gaining a significant sentencing discount, can, nonetheless, be regarded as a valid and binding admission of guilt.[112] Weinberg JA observed that the applicant’s arguments rested upon a misconception as to the reasoning in both Maxwell and Meissner. He considered Maxwell had nothing whatsoever to do with the principles that govern the discretion to permit an accused to change his or her plea, the remarks of Dawson and McHugh JJ having been directed towards the situation that arises from time to time whereby the plea that is offered is qualified in such a way that it effectively amounts to a traversal of a plea of guilty.[113] He also noted that while Kumar had provided many reasons as to why he should have been granted permission to change his plea, Kumar had not denied having committed the offences.[114] Leave being refused, the applicant was subsequently sentenced.[115]
[111]Kumar No 1 [2013] VSCA 297 [26].
[112]Ibid [14].
[113]Ibid [17].
[114]Ibid [23].
[115]DPP v Kumar [2013] VCC 1931.

The second appeal in Kumar,[116] addressed the same question that had been dealt with in the interlocutory appeal, that is, whether the application to withdraw his plea of guilty should have been allowed. The arguments advanced in support of the application in the second appeal were identical to those in the first.[117] The applicant again relied upon the observation of Dawson and McHugh JJ in Maxwell, that an admission may not be a true admission of guilt if it results from the desire to gain a ‘technical advantage.’ The Court did not directly address the questions raised in the first appeal; rather they disposed of the application by agreeing, for the reasons which Weinberg JA had given on the interlocutory appeal, that there was no basis on the facts of this matter for the judge to grant the applicant leave to change his plea.[118]
[116]Kumar No 2 [2014] VSCA 102.
[117]Ibid [10].
[118]Ibid [15].

In a passage of the Court’s judgment that was obiter dicta, the Court said:

In deference, however, to the submissions of counsel for the applicant, and in particular the reliance which he placed on the observation of Dawson and McHugh JJ in Maxwell that an admission may not be a true admission of guilt if it results from the desire to gain a ‘technical advantage’, we add that, like Weinberg JA, we see no inconsistency between Maxwell and Meissner.[119]

[119]Ibid [16].

At the hearing of this appeal, counsel for the respondent suggested that [16(d)]–[17] of reasons in the second appeal should be viewed as per incuriam and require some refinement as they cannot be reconciled with Meissner and the line of intermediate appellate authority in Australia to the same effect. I do not accept that is so.

First, those impugned passages were, as the Court explained, intended to address ‘the context in which Dawson and McHugh JJ referred to “technical advantage,” and the background of cases decided before Meissner as to the withdrawal of a plea of guilty before conviction.’[120] They do not apply to a challenge to the integrity of a plea after conviction raised for the first time on appeal. What appears in [16(d)] and [17] of Kumar (No 2), set out at [61] above,[121] applies to issues regarding the integrity of the plea which arise at the time of arraignment or on an application to withdraw the plea at any stage up to the time of conviction — usually being when sentence is passed.
[120]Ibid.
[121]See Ibid [16]–[17].

Some decisions have treated the principles to be applied as the same whether the issue arose prior to sentence or for the first time on appeal against conviction,[122] but on nearly all occasions no attention has been given to the distinction between the two situations and whether the same principles are to be applied without qualification. As Doyle CJ states in Pugh,[123] the joint reasons of Dawson and McHugh JJ in Maxwell were directed to the circumstances in which a trial judge on arraignment should obtain an unequivocal plea or should otherwise direct that a plea of not guilty be entered, and that the discharge of that obligation requires broad powers. Doyle CJ considered that in such circumstances, the power of the court may be wider than it is in the case of an appeal against conviction.[124] There are undoubtedly strong reasons of public policy to restrict applications for leave to appeal against conviction following a plea of guilty.
[122]See R v Sagiv (1986) 22 A Crim R 73, 80–1 (Lee J); R v Davies (1993) 19 MVR 481.
[123](2005) 158 A Crim R 302, 307 [14].
[124]Ibid.

It need hardly be said, that the administration of justice would fall into disrepute if it were thought that an offender could say that to gain a technical advantage, namely a sentencing discount, he pleaded guilty though not having a belief in his guilt, and that following conviction and sentence, he not having received the sentence he hoped for, he now wished to challenge the integrity of that plea and rely upon the absence of a belief in his guilt as constituting a miscarriage of justice. Such considerations explain the joint reasons and those of Dawson J in Meissner, and the many subsequent statements in later authority that despite an applicant’s assertion of innocence, a plea entered in order to gain a technical advantage such as a discount on sentence may not give rise to a miscarriage of justice. It was for such reasons that the impugned passages in Kumar (No 2) were confined to applications to change a plea prior to conviction.

Second, the impugned passages do not dictate a particular conclusion as to when a miscarriage of justice would arise and so require the discretion to be exercised in any particular way where the applicant relies upon an absence of a belief in guilt at the time of the plea.

For completeness, in addition to the passages referred to by the trial judge from the Victorian Criminal Procedure Manual,[125] now in Chapter 12 ‘Change of Plea During Trial’, the manual further states:

14. The accused will usually need to demonstrate both:
–that the plea was not the result of a genuine awareness of guilt; and
–that some factor operated that affected the integrity of the plea (Woods v R [2008] NSWCCA 83; Meissner v R (1995) 184 CLR 132).[126]

[125]Judicial College of Victoria, ‘Victorian Criminal Procedure Manual’ (25 February 2014) 12.5 ‘Change of Plea’.

[126]Ibid 12.5 [14]–[15].

A number of propositions, most of them not in controversy on the appeal, may be drawn from the authorities reviewed above:

General
1.The basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.[127]
[127]R v Inns (1974) 60 Cr App Rep 231, 233 (Lawton LJ).
2.The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made. Its significance rests in part upon the high public interest in the finality of legal proceedings.
3.To permit the withdrawal of a plea of guilty before conviction or the overturning of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the applicant were to be held to his plea.
4.The applicant seeking to question the integrity of his plea, whether before or after conviction bears the onus of establishing such miscarriage.[128]
[128]R v Wade [2012] 2 Qd R 31.
5.To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.[129]
[129]See, eg, the circumstances identified in R v Hura (2001) 121 A Crim R 472, 477–8 [32].
6..It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions.[130]
[130]R v Wade [2012] 2 Qd R 31, 42 [52].
7.A claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution

Integrity of plea challenged before conviction and sentence
8.Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar. Where the applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea.
9Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant establish that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.

10It is for the applicant to identify the grounds which it is claimed establish a miscarriage of justice and adduce evidence that persuades the judge that such grounds exist.

Integrity of plea challenged only after conviction
11Where the integrity of the plea is first challenged after conviction, proof of a circumstance, that compromises the integrity of the plea is necessary. Since Meissner, decisions have consistently been to the effect that a miscarriage will only arise where some objective circumstance is established that permits the judge to conclude that the plea was attributable to that circumstance and not to a consciousness of guilt.
12 Evidence that an applicant does not believe himself guilty at the time of the plea is relevant to but not decisive of the issue. Such a belief is relevant because it may inform the question whether there is some circumstance that has compromised the integrity of the plea and whether there has been a miscarriage of justice. But the belief is not decisive because, as the long line of authority since Meissner demonstrates, an accused may be bound by his plea notwithstanding a belief that he is innocent at the time of the plea.
13The expression ‘that the plea be attributable to a genuine consciousness of guilt’ has been consistently treated, particularly on appeal against conviction, as the conclusion which follows where no circumstance has been established that materially affected the integrity of the plea.[131] Where circumstances are found to exist which compromise the integrity of the admission of guilt, the inference that would otherwise be drawn from the plea, namely that it was made in recognition of guilt, is not then available. The plea is not then to be attributed to a consciousness of guilt but to some other operative cause and a miscarriage of justice may have been established. Where it has not been shown that anything has occurred that affected the integrity of the plea, no miscarriage of justice will ordinarily arise from a refusal to allow the withdrawal of the plea.
[131]Murphy [1965] VR 187; Chiron [1980] 1 NSWLR 218, Sagiv (1986) 22 A Crim R 73; Davies (1993) 19 MVR 481; Cincotta (Unreported, NSWCCA, 1 November 1995); Toro Martinez (2000) 114 A Crim R 533; Marchando (2000) 110 A Crim R 337; Boag (1994) 73 A Crim R 35; Kouromumalos [2000] NSWCCA 453.

Consideration

On appeal, the applicant submitted that the circumstances put forward on the application to withdraw his plea demonstrated that the applicant’s plea of guilty did not amount to a genuine acceptance of guilt. Those circumstances were that he had continued to maintain he was not guilty until only a few minutes before his plea; he was exhausted and emotional following the guilty verdict; he was not taken through the plea indictment charge by charge; the conference with his lawyers was rushed; and he had been advised by his solicitor that the best course would be to plead guilty. The trial judge was obliged to consider and make a finding as to whether his plea was attributable to a consciousness of guilt.

The Crown submits that the applicant’s change of plea application was founded on the basis that the plea was not made freely and voluntarily for two reasons, first as the applicant did not understand what he was pleading guilty to, and second, because he was experiencing a degree of personal turmoil at the time his plea was entered. Both reasons were addressed by the trial judge. [132] Having found that the applicant freely and voluntarily made the plea, there was no basis upon which the trial judge should have concluded that the plea was not a true admission of guilt. For these reasons, the Crown submits, there was no miscarriage of justice in declining to allow the plea to be withdrawn.
[132]Ruling [6].

The trial rejected the submission that the rushed nature of the conference; the applicant’s heightened emotional state or a lack of understanding of the nature of the charges to which he was pleading guilty demonstrated that the plea was other than free and voluntary. The applicant failed to satisfy the judge that there were aspects of the plea negotiation which disclosed that his plea was not free and voluntary. That conclusion was not the subject of challenge on appeal.

Although the applicant deposed that he was ‘not guilty of these offences’, and in cross examination said that he will ‘die in gaol and [he] will fight this to the day [he] dies’, and testified that he was ‘not a guilty man,’ the application relied only upon the circumstances that the plea was not free and voluntary as affecting the integrity of the plea. He did not in that application testify that he did not believe himself guilty at the time of the plea or ground his application upon the absence of a belief that he was guilty at the time of the plea. Significantly, it was not submitted

on that application that the judge should conclude that the applicant believed himself to be innocent at the time of the plea or that such a belief provided a discrete basis upon which to grant the application. Thus the judge did not address these questions. That is to say, the way in which the case was pursued before his Honour, did not necessitate a finding as to whether the applicant had a genuine consciousness of guilt at the time of the plea. It cannot now be the subject of complaint.

On such an application, the prosecution has no burden to prove that the applicant believed himself guilty. That will be assumed, absent proof by the applicant of circumstance sufficient to displace that assumption. The trial judge having rejected the applicant’s explanation for pleading guilty, no circumstance remained which affected the integrity of the plea. Accordingly, there were no circumstances which could give rise to the conclusion that the plea was not attributable to a consciousness of guilt. No occasion therefore arose for the trial judge to advert to the conclusion, ordinarily drawn from a plea, that it was attributable to a consciousness of guilt plea. Further, even if his Honour discretely considered the applicant’s belief in his guilt, there was no explanation which then remained as to why his Honour should have concluded that the integrity of the plea was in any sense compromised so as to require the discretion to be exercise in favour of the applicant and allow him to amend his plea.

I would grant leave to appeal on this ground but dismiss the appeal.

WHELAN JA

KAYE JA:

For the reasons stated by Redlich JA, we agree that the application for leave to appeal on ground 1 should be refused.

For the following reasons, we also agree that leave to appeal should be granted on ground 2, but that the appeal should be dismissed.

The basic submission, made on behalf of the applicant in support of ground 2, was that the trial judge erred by failing to address the issue of whether the applicant’s plea of guilty was attributable to a genuine consciousness of guilt. That submission was based on [16(d)] and [17] of this Court’s decision in Kumar No 2.[133]
[133]Kumar No 2 [2014] VSCA 102.

In our view, for the reasons that follow, the applicant has not made out the underlying premise in that argument, namely, that the judge did not address the issue of whether the plea was attributable to a consciousness of guilt on behalf of the applicant.

The test, whether a trial judge should grant leave for an accused to change his or her plea from guilty to not guilty, is whether a miscarriage of justice would ensue if such leave were denied to the applicant. In determining that question, the judge has a discretion which must be exercised judicially in the circumstances.[134] In order to enliven the discretion, the applicant must establish sufficient circumstances that would justify the exercise of the discretion in his or her favour.
[134]Middap (1989) 43 A Crim R 362, 364 (Crockett, O’Bryan and Gray JJ).

In the present case, in essence, the applicant, while claiming to be not guilty, said that he only pleaded guilty for three reasons, namely, first, because, he was given flawed advice by his legal practitioners, secondly, because of his fraught emotional state after the shock of the jury verdicts in the first trial, and, thirdly, because of the pressure that he felt resulting from the firm advice given to him by his legal practitioners. The judge, having received evidence from both the applicant, and his former legal practitioners, rejected each of those three explanations advanced by the applicant for the guilty plea that he made to the charges on the second indictment.

In particular, the judge, first, rejected the applicant’s evidence as to the nature and circumstances of the advice given to him by his legal practitioners. The judge accepted the evidence of the applicant’s former lawyers. Thus, the judge accepted the evidence of Dr Fitzgerald that, on the day before the applicant pleaded guilty, he conferred with the applicant for more than half an hour, in the course of which he gave advice to the applicant as to the benefits, and disadvantages, of pleading guilty or not guilty, as the case may be, to the charges on the second indictment. In his affidavit, Dr Fitzgerald stated that he was conscious that the applicant met the diagnostic criteria for borderline intellectual functioning, and, accordingly, he outlined the advice that he gave to the applicant in a written tabular form for the purposes of simplicity.

Secondly, the judge was satisfied on the evidence that the applicant’s plea of guilty was not tainted by any pressure, or lack of understanding of the charges. In particular, the judge expressly rejected the applicant’s evidence that he did not adequately understand what he was pleading to.

Thirdly, the judge found that there was no suggestion that the applicant lacked understanding of the arraignment process. The judge expressly found that the applicant entered an informed plea of guilty to the charges.

In light of those findings, the judge rejected the three reasons relied on by the applicant for pleading guilty to the charges. The finding by the judge, that the applicant understood the charges to which he pleaded guilty, and that he made an informed plea to them, necessarily meant that the judge was satisfied that the applicant intended to admit and accept his guilt of the offences that were the subject of the charges to which he pleaded guilty. Thus, the applicant failed to persuade the trial judge that any circumstance existed which would impugn the integrity of his guilty plea, or which could have indicated that his guilty plea was attributable to a circumstance other than a consciousness by him of his guilt.

Accordingly, the applicant has failed to establish any error by the judge in the exercise of his discretion not to permit the applicant to change his plea of guilty to the charges that were on the second indictment.

For those reasons, we would grant the application for leave to appeal on ground 2, but dismiss that appeal.

In those circumstances it is not necessary to consider the question, raised by the applicant, and discussed by Redlich JA, at [61]–[115] above, whether it was necessary for the judge to determine whether the applicant believed himself to be guilty of the offences to which he pleaded. It is, however, appropriate to observe that we have reservations as to the literal correctness of the propositions stated by this Court, in summary form, in [16(a)], [16(d)] and [17] of Kumar (No 2). Insofar as those paragraphs might be read as suggesting that a judge must consider whether an applicant is ‘truly guilty’ and whether he ‘believed’ himself to be guilty, that would seem to be inconsistent with a number of the authorities referred to by Redlich JA including Sagiv, Cincotta, Gadaloff, Brooks (adopting Pugh), Stewart, Wong, Woods, Holden and Rotner, and with the High Court’s dicta in Meissner (although not directly applicable to these applications), even if what was said is confined to applications before conviction. Those propositions, on analysis, might also be found to constitute an unwarranted addition to, or qualification upon, the applicable test which is simply whether a miscarriage of justice would occur if the guilty plea was not permitted to be withdrawn.

An explanation of Kumar (No 2) is suggested by Redlich JA. That explanation is based upon a distinction being drawn between applications made before conviction and after. We are unpersuaded that the suggested explanation based upon the distinction between applications made before and after conviction is to be found in existing authority. In each case (before and after conviction) the test is the same — miscarriage of justice — although its application will often be different on an appeal after conviction than on an application to the trial judge before conviction, for obvious reasons. These questions will have to be determined on an application which requires such a determination. We do not consider this to be such a case.

- - -

[2015] VSCA 354

17 December 2015