WITHDRAWING A PLEA OF GUILTY16-Oct-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 16/10/2010
Changing your mind about pleading guilty after entering the plea? Unfortunately, withdrawing a plea of guilty once entered and before sentence is not an easy task; particularly if you were legally represented. An accused person entering a plea must do so understanding and intending by that plea, that he/she is admitting guilt to the offence, this is because, "....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." (Meissner v R (1995) 184 CLR 132). Hence, entering a plea of guilty constitutes an admission to all elements of the offence without any need for further evidence to be produced.
An application to withdraw a plea of guilty is an interlocutory procedure that requires evidence as to the reason for the plea to be withdrawn. It is incumbent upon the applicant to establish, a good and substantial reason for the court to allow such an application. As to what amounts to a good and substantial reason is whether a miscarriage of justice would arise if the court acted upon the plea to convict and sentence the defendant. A miscarriage of justice is not simply because an accused person entered the plea due to convenience – however, a miscarriage of justice will arise where the accused can show that the integrity of the plea of guilty is in question; such as through misunderstanding or threat.
A useful summary as to the principles where the court will consider such applications is set out by His Honour, Howie J in Ming Yuk (Raymond) Wong v The Director of Public Prosecutions  NSWSC 129 (3 March 2005) at para 15:
15 There are a number of decisions of the Court of Criminal Appeal that have considered the basis upon which that Court will entertain such an application made by an accused person in indictable proceedings in the District or Supreme Court. The principles laid down in those cases apply equally to an application made by an accused before the District Court and they apply with as much force to an application by a defendant in the Local Court. The relevant principles were summarised in R v Van (2002) NSWCCA 148 as follows:
48 What is necessary to be shown before an appeal might be successful from a conviction entered up as a consequence of a plea of guilty, has been variously expressed. See Regina v Boag (1994) 73 A. Crim. R. 35; Regina v Meissner  HCA 41; (1995) 184 CLR 132; Regina v Maxwell  HCA 62; (1995) 184 CLR 501; Regina v Ross (NSWCCA, unreported 20 February 1994); Regina Liberti (1991) 55 A. Crim. R. 120 and the cases referred to by Spigelman, CJ. in Regina v Houra  NSWCCA 61 at paras.32-33. The principles have been conveniently summarised in the applicant's submissions taken from Houra (supra) as follows:-
"Where the appellant 'did not appreciate the nature of the charge to which the plea was entered' (Regina v Ferrer-Esis (1991) 55 A. Crim. R. 231 at 233).
Where the plea was not 'a free and voluntary confession' (Regina v Chiron (1980) 1 NSWLR 218 at 220 D-E).
The 'plea was not really attributable to a genuine consciousness of guilt' (Regina v Murphy  VR 187 at 191).
Where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt' (Regina v Sagiv (1986) 22 A. Crim. R. 73 at 80).
Where the 'plea was induced by threats or other impropriety when the appellant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt' (Regina v Concotta (NSWCCA, 1 November 1995, unreported)).
The 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt' (Maxwell v The Queen (supra) at 511).
If 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt' (Regina v Davies (NSWCCA, 16 December 1993, unreported)). See also Regina v Ganderton (NSWCCA, 17 September 1998, unreported) and Regina v. Favero  NSWCCA 320."
49 To the cases cited should be added reference to Regina v Iral  NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v Wilkes  NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v McLean  NSWCCA 58 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of justice; Regina v KCH  NSWCCA 273 involving improper pressure by counsel and Regina v Becheru (CCA, unreported 6 April 2001) and Regina v Toro-Martinez  NSWCCA 216; (2000) 114 A. Crim. R. 533. 16
38 An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison  QCA 125; (2003) 138 A Crim R 378 at 384 under the heading “I am not guilty but I’ll plead guilty”. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.
39 I should also point out that not only does a defendant bear the onus of proof in relation to an application to withdraw a plea of guilty, he must establish “a good and substantial reason for the Court taking that course”: Sewell at . It goes without saying that the fact that the defendant asserts he is not in truth guilty of the offence is not itself a “good and substantial reason” for allowing the application.
These principles as to what will constitute a miscarriage of justice have also been recently re-affirmed in the case of Loury v R  NSWCCA per Whealy J (Hodgson and Kirby JJ agreeing):
97 The principles of law relevant to this appeal are not in dispute and were not contested by counsel. The Court has power to hear an appeal notwithstanding that the appellant pleaded guilty before the sentencing court. It will allow the appeal where a miscarriage of justice may have occurred (R v Chiron  1 NSWLR 218).
98 In determining whether a miscarriage of justice has occurred, Giles JA (with whom Hislop J and Rothman J concurred) examined the circumstances where a plea has been entered in R v Rae (No 2)  NSWCCA 380; (2005) 157 A Crim R 182. The ultimate question was not, his Honour stated, the guilt or innocence of the accused person, but rather the integrity of the plea itself (at 188). As Giles JA notes in the later judgment of Sabapathy v The Queen  NSWCCA 82 at , there will be no miscarriage of justice where the court acts upon a plea of guilty “entered in the exercise of a free choice in what the accused believes to be his interests at the time” and “where there is a genuine consciousness of guilt”. Similarly, Hulme J stated in Woods v The Queen (2008) 184 A Crim R 108 at 116, not only must it be shown that the person entering the plea did not entertain a “genuine consciousness of guilt” but also that there must be “some factor demonstrated going to the integrity of the plea.”
99 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 The Queen  HCA 41; (1995) 184 CLR 132, 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” (at 157). However, as Howie J made clear in Wong v Director of Public Prosecutions (NSW)  NSWSC 129; (2005) 155 A Crim R 37 at , there will be no miscarriage of justice in situations where a plea of guilty has been entered for the purpose of gaining some perceived advantage, despite maintaining one’s innocence, so long as the plea was entered in the exercise of a person’s free choice or in his or her own interests.
100 In Hura v The Queen  NSWCCA 61; (2001) 121 A Crim R 472, Spigelman CJ sets out a number of circumstances in which the court has set aside a conviction following a plea of guilty. These include the appellant’s lack of appreciation of the nature of the charge for which he has entered the plea, the appellant not being in possession of all the facts, and the appellant not entertaining a genuine consciousness of guilt when entering the plea. It extends to situations where the plea has been induced by threats or impropriety when the applicant would not otherwise have pleaded guilty (at 478). Added to these circumstances are a number of further examples provided by Grove J in Sauer v The Queen  NSWCCA 81 at . In that case questions arose regarding the quality and propriety of legal advice leading to the entering of a guilty plea (R v Wilkes  NSWCCA 97; (2001) 122 A Crim R 310; R v KCH  NSWCCA 273; (2001) 124 A Crim R 233).