3. Set aside the conviction and sentence of the Applicant.
4. Set aside the primary judge’s dismissal of the Applicant’s application to withdraw the plea of guilty.
5. Remit the matter for mention before the Chief Judge at Common Law at 9.30am on 1 December 2022.
Catchwords:
CRIME – appeals – appeal against conviction – circumstances in which Court of Criminal Appeal may quash a conviction entered after a plea of guilty – where accused entered unexpected guilty plea at arraignment – where accused made application to primary judge for leave to withdraw guilty plea very shortly after it was entered – where application was refused and accused was convicted and sentenced – correct legal test to be applied by judge on an application for leave to withdraw a guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – whether leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed
CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied by judge on application for leave to withdraw guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
White v R [2022] NSWCCA 241
Case
[2022] NSWCCA 241
Decision Date
CaseChat Overview and Summary
In the case of White v R, the appellant, White, entered a guilty plea to murder at his arraignment but subsequently applied to the primary judge to withdraw the plea. The application was refused, and White was convicted and sentenced. White appealed against his conviction, arguing that the primary judge applied the wrong legal test when determining his application to withdraw the guilty plea, which resulted in a miscarriage of justice. The appeal was heard by the Court of Criminal Appeal, which was tasked with determining the appropriate legal test for a judge to apply when considering an application to withdraw a guilty plea before conviction and sentence, as well as the circumstances under which such an application may be granted.
The primary legal issue before the Court of Criminal Appeal was whether a defendant must demonstrate that a miscarriage of justice would occur if leave to withdraw a guilty plea is refused. The Court examined the distinction between an application to withdraw a guilty plea prior to conviction and an attempt to go behind the plea for the first time on appeal. The Court also considered whether certain previous authorities had misapplied the law and whether leave to withdraw a guilty plea should be granted when it is in the interests of justice to do so. Furthermore, the Court examined the considerations that should bear upon the “interests of justice” test in the context of an application to withdraw a guilty plea prior to conviction and sentence.
The Court of Criminal Appeal held that the correct legal test to be applied by a judge when considering an application to withdraw a guilty plea before conviction and sentence is whether it is in the interests of justice to grant leave. The Court found that it was not necessary for the defendant to demonstrate that a miscarriage of justice would occur if leave were refused. The Court distinguished between an application to withdraw a guilty plea prior to conviction and an attempt to go behind the plea for the first time on appeal, holding that the former requires a different approach. The Court also concluded that certain previous authorities had misapplied the law and that leave to withdraw a guilty plea should be granted when it is in the interests of justice to do so. In this case, the Court found that the application of the wrong legal test to the appellant’s application to withdraw his guilty plea resulted in a miscarriage of justice. The Court further held that the “interests of justice” test in the context of an application to withdraw a guilty plea prior to conviction and sentence should consider factors such as the defendant’s understanding of the consequences of the plea, the fairness of the proceedings, and the potential impact on the victim and their family.
The Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a retrial. The Court found that it was not established under the proviso in s 6 of the Criminal Appeal Act that no substantial miscarriage of justice would occur if the appeal were dismissed.