Reversing a Previously Submitted Guilty Plea
date added : 26 February, 2010
At times, a client pleads guilty to an offence without receiving appropriate or adequate advice, or not receiving any advice at all.
A court has the power to reverse a previously entered guilty plea.
We will deal with the position in relation to summary matters only. We rely on the decision of R V Wilkinson (No.4) [2009] NSWSC 323, 21 April 2009.
Section 207 of the Criminal Procedure Act states:
(1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.
(2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.
An accused person can apply to have the plea of guilty withdrawn at any time up until sentence is passed: Frodsham v O'Gorman [1979] 1 NSWLR 683. A miscarriage of justice needs to be demonstrated: Boag v R (1994) 73 A Crim R 35, R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97.
Wilkinson (No.4) suggests or otherwise confirms the general position, namely;
A well-recognised discretion exists for a person to be given leave to withdraw a plea of guilty at any time before sentence is passed.
The applicant must demonstrate that leave must be granted and the onus lies upon him in this regard.
In citing R v Liberti (1991) 55 A Crim R 120 (in Wilkinson above and at paragraph 43) the courts, although not reluctant to reverse a previously submitted and accepted guilty plea, should approach any such application , to reverse a previously accepted guilty plea with “caution bordering on circumspection”.
At paragraph 48 the court cited, presumably, with approval, the comments of Spigelman CJ , in R v Hura [2001] NSWCCA 61, the court considered the circumstances surrounding this type of application. Factors include:
- The appellant “did not appreciate the nature of the charge to which the plea was entered”: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233;
- The plea was not “a free and voluntary confession”: R v Chiron [1980] 1 NSWLR 218;
- The “plea was not really attributable to a genuine consciousness of guilt”: R v Murphy [1965] VR 187;
- 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 R (1996) 184 CLR 501 at 510–11; and
- 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”: R v Davies (1993) 19 MVR 481.
In Meissner v R (1995) 184 CLR 132 Dawson J stated at CLR 157:
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 and 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.
Application to reverse a previously imposed guilty plea is not to be confused with the court refusing to accept a guilty plea.
In DPP V Mohamad Hossein ARAB & Anor [2009] NSWCA 75 Beazley JA stated , at paragraph 36:
“Section 207 allows an accused person “after conviction” but “before the summary proceedings are finally disposed of” to withdraw a plea of guilty. The final disposition of summary proceedings, where there has been a finding of guilt after a hearing or a plea of guilty, must mean after sentence has been imposed and recorded. There is no other “final disposition”. Should there be any doubt about that, Mr Arab would, in any event, have had a common law right to withdraw the plea: see Frodsham v O’Gorman; S (an Infant) v Recorder of Manchester.”
Handley AJA stated at paragraph 46:
The Local Court had jurisdiction to entertain his application to withdraw his pleas of guilty either at common law or pursuant to s207 of the Criminal Procedure Act.
