Criminal law: December 2022

White v R [2022] NSWCCA 241

Withdrawal of a plea of guilty – before versus after conviction – interests of justice test

In this decision the Court of Criminal Appeal (‘CCA’) has held there is a different test to be applied when a defendant seeks to withdraw their plea, depending on whether the plea was entered before or after conviction. Where the plea is entered before conviction and sentence, the test is an ‘interests of justice’ test. Though the onus rests on the accused to satisfy the Court that leave should be granted, the Court’s discretion to do so is not fettered, and that burden is not so high as it has occasionally been described.

The deceased, Scott Johnson, was found at the bottom of a cliff in 1988. A 2017 inquest had concluded that the death was caused by actual or threatened violence by a person or persons unidentified. In 2020, the applicant was charged with that murder. The matter was listed for trial and in the lead up, the applicant repeatedly instructed his lawyers that he wished to plead not guilty – including confirming his intention to plead not guilty in the 30 minutes before being brought to Court. However, when he was arraigned as the formal start to the trial (the trial was starting by way of voir dire), without notice to his lawyers he unexpectedly answered the arraignment by pleading guilty. His lawyers quickly sought to speak to him in the cells, at which point the applicant told them that he was confused, scared, sleep-deprived and hungry (amongst other things), which led to his change of mind. However, despite what he had said a little while earlier (which, seemingly, had been a genuine – if fleeting – expression of his intention), he definitely wanted to plead not guilty.