Supreme Court New South Wales Medium Neutral Citation: R v Black (No 1) [2021] NSWSC 73 Hearing dates: 1 February 2021 Date of orders: 1 February 2021 Decision date: 01 February 2021 Jurisdiction: Common Law - Criminal Before: Cavanagh J Decision: Leave is granted for the accused to withdraw the earlier plea of guilty to the charge of manslaughter. Catchwords: CRIMINAL PROCEDURE — Withdrawal of plea — Manslaughter — Leave Legislation Cited: Evidence Act 1995 (NSW), s 18 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 Crimes Act 1900 (NSW), s 18 Cases Cited: R v SL [2004] NSWCCA 397 R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 Category: Procedural rulings Parties: Regina Benjamin John Black Representation: Counsel: J Stanhope (Crown) A Evers (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Offender) File Number(s): 2018/143212 Publication restriction: None REVISED EX TEMPORE Judgment 1. Pursuant to the indictment dated 21 June 2019, Benjamin John Black is standing trial for the murder of Jacob John King said to have taken place at Port Macquarie on 4 May 2018. He is also charged with the alternative or lesser charge that he did unlawfully kill Jacob John King, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). 2. I am dealing with a number of pre-trial matters on 1 February 2021 prior to the empanelment of the jury which is due to take place on 2 February 2021. 3. The three issues raised for pre-trial determination are: 1. Whether the accused should be permitted to withdraw his plea of guilty to the charge of manslaughter; 2. Whether evidence sought to be adduced by the Crown from the licensee of a local hotel should be admitted; and 3. Whether the accused's parents should be required to give evidence having regard to s 18 of the Evidence Act 1995 (NSW). Withdrawal of plea 1. By way of a motion dated 28 January 2021, the accused seeks to withdraw his earlier guilty plea to the charge of manslaughter. The accused relies on his own affidavit, affirmed on 1 February 2021, and the affidavit of his solicitor, Shalini Perera affirmed 28 January 2021. 2. The Crown did not object to this evidence but cross-examined the accused on the content of his affidavit. After that cross-examination the Crown indicated that he did not wish to be heard on the application. I received submissions from Mr Evers of Counsel on behalf of the accused. Thereafter I granted leave to the accused to withdraw his earlier plea of guilty to the charge of manslaughter. These are the reasons for that decision. 3. As the trial was to commence on the next day, I also made an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting any publication or disclosure of information which might tend to reveal that the accused had previously entered a plea of guilty in respect of manslaughter. 4. Having regard to the potential for publicity in respect of the interlocutory application made on 1 February 2021 and on the basis that the trial was to commence on 2 February 2021 with empanelment of the jury, I did so on the basis that such an order was necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(1)(a) of the Court Suppression and Non-publication Orders Act. 5. The Crown alleges that the accused did murder Mr King on 4 May 2018. It is alleged that at the time of his death, the deceased was in a relationship with Ms Amanda Quinlan with whom the accused had formerly been in a relationship. 6. Two days prior to the death of the deceased, the accused had been released from the Mid North Coast Correctional Centre in Kempsey after spending a relatively short period in custody. It seems that it will be alleged that the accused and Ms Quinlan had been in a relationship at the time that the accused entered custody, but that shortly prior to his release, Ms Quinlan had informed the accused that she had formed a new relationship, that is, with the deceased. 7. During a visit by the accused to the premises where Ms Quinlan and the deceased were residing on 4 May 2018, the deceased died as a result of a knife wound. Mr Evers says that the essential issue in the trial will be whether the accused was acting in self-defence at the time. The accused maintains that he was so acting in self-defence and that he should be acquitted on this basis. 8. Mr Evers also suggests that the partial defence of self-defence with excessive force may be left to the jury (which would lead to a finding of manslaughter but not murder). However, it is the accused's primary position that he should not be found guilty of either charge. 9. The matter came before Fullerton J in the arraignment list on 12 July 2019. At that time, Mr Evers was not available. Another counsel appeared. The indictment was presented. 10. Her Honour asked counsel whether the accused was in a position to be arraigned. Her Honour then read out the two charges which she said were in the alternative and he was invited to enter a plea of guilty and not guilty to each of those charges. He was asked whether he understood that and he said he did. He entered a plea of not guilty to the charge of murder. In respect of the alternative charge, he said "Is that the manslaughter?" On this being confirmed, he entered a plea of guilty. Counsel said that they were his instructions. 11. The Crown did not accept the plea of guilty in full discharge. 12. Her Honour then asked whether he understood that he would be required to go to trial on the murder charge and enter a plea of not guilty before a jury. He said he understood that. However, in his affidavit he says that: 1. He instructed his lawyers that he wished to plead not guilty to murder as he acted in self-defence. 2. He was advised by his lawyers that he could negotiate with the prosecution to seek a lesser charge and he instructed his lawyers that he would plead guilty to a charge of manslaughter based on excessive self-defence if the prosecution withdrew the charge of murder. 3. He understood that if the Crown did not accept the plea offer, he would go to trial. 4. He understood that by offering a plea of guilty to manslaughter prior to committal and if the jury found him not guilty of murder but guilty of manslaughter, he may still be entitled to a discount on any sentence imposed for manslaughter. 5. He says that he did not have the chance to talk to his barrister (Mr Evers) about what plea to enter when the charge of manslaughter was read to him. He says his barrister was not in Court that day. 6. He remembers speaking to a solicitor by phone but he was in a cell with other inmates, the volume of the phone was turned down and he couldn't hear his solicitor very well. He added to this during cross-examination. He said there were about 50 people in the cell and that the AVL link was only on for a short period. 1. As emerged during cross-examination for the purposes of the application, the accused seemed to have difficulty hearing and seeing what was going on. It was his understanding that he was informing the Court that if the charge of murder was withdrawn, he would plead guilty to manslaughter but if the murder charge was not withdrawn, he would go to trial on everything. 2. He says that he never discussed with his lawyers not trying for a full acquittal. Further, he says that it was not his intention to admit that he acted unlawfully in stabbing the deceased when he entered the plea of guilty. 3. His evidence is consistent with the evidence of Ms Perera. She recalls speaking to the accused on the morning of the arraignment. She confirms that the accused did not have an opportunity to discuss the indictment with Counsel. The accused had instructed her that he entered a guilty plea of manslaughter, expecting the Crown to reject the plea and to proceed with the murder charge, but wanting to maintain his plea offer and the discount it would attract. The accused has always maintained his instructions that he acted in self-defence. She says that he was not advised that if he entered a plea of guilty at arraignment, the plea could be used in his trial as an admission that he acted unlawfully. 4. Mr Evers submits that I would be satisfied that the plea was not attributable to any real consciousness of guilt on the part of the accused and, further, that it was entered on the basis of some mistaken belief by the accused as to effect or consequences. 5. A plea of guilty is an admission of the ingredients of the offence. [1] 6. Further, it may be that in some circumstances a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. [2] 7. In R v Wilkes, [3] Wood CJ at CL (Giles JA and Simpson J agreeing) said: "[20] The principles established by these decisions are now settled. As a consequence, the present appeal hinges 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. [21] Before parting from these principles, I observe that in Liberti (1991) 55 A Crim R 120 Kirby P observed 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.'" 1. Plainly, there is no prohibition on the accused withdrawing his plea of guilty even at this late stage. However, he requires leave to do so and must establish that leave should be given. 2. In my view, the circumstances justify leave being given to withdraw his plea of guilty to the charge of manslaughter. 3. Whilst the full nature and extent of the advice given to him prior to the plea remains a little unclear, I am satisfied that: 1. The accused was acting under the mistaken belief that, by entering a plea of guilty to manslaughter, he was involved in some sort of bargaining process, subject to the Crown withdrawing the charge of murder. 2. The accused was labouring under difficulties when the matter was called up in the arraignment list in the sense that he was in a crowded cell with only limited communication and understanding of what he should be doing. 3. The accused had always maintained that he acted in self-defence. It was agreed between the parties that he said so at the time of his original ERISP interview. 4. The accused did not understand and had not been advised that by entering a plea of guilty to manslaughter, he was admitting to the elements of the offence for all purposes. Indeed, it is clear that he had no consciousness of guilt at the time that he entered the plea. 1. In the circumstances, I am satisfied that leave should be granted for the accused to withdraw the plea of guilty to the charge of manslaughter and I grant leave to do so. The second and third issues 1. Although the second and third issues were raised for pre-trial determination, after further discussions, the parties have essentially agreed on those issues. The Crown no longer seeks to adduce evidence from the licensee of the local hotel. 2. In terms of the evidence of the accused's parents, the Crown no longer seeks to adduce evidence from the accused's mother. 3. The accused's father was in Court on 1 February 2021. He had obtained independent legal advice as to whether he wished to object to giving evidence in the Crown case. He said to me directly that he did not object to giving evidence. Further, Mr Evers indicated that the accused did not object to him giving evidence. In the circumstances, no preliminary ruling was required from me. ********** Endnotes 1. R v SL [2004] NSWCCA 397 at [51] (Giles JA, Buddin J and Smart AJ agreeing). 2. Thalari v R (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [35]. 3. [2001] NSWCCA 97; 122 A Crim R 310 at [20]–[21]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021