White v R [2022] NSWCCA 241

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: White v R [2022] NSWCCA 241 Hearing dates: 25–26 October 2022 Date of orders: 18 November 2022 Decision date: 18 November 2022 Before: Bell CJ; Button J; N Adams J Decision: 1. Grant leave to appeal. 2. Appeal allowed. 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 Legislation Cited: Crimes Act 1900 (NSW) s 394A Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 5F, 6 Criminal Procedure Act 1986 (NSW) ss 103(1), 153, 157 Criminal Procedure Act 2009 (Vic) s 276(1)(b) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 41 Cases Cited: Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54 Awad v The Queen; Tambakakis v The Queen (2022) 96 ALJR 1082; [2022] HCA 36 Boag v R (1994) 73 A Crim R 35 Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 BWM v R (1997) 91 A Crim R 260 Daire v Lauss (1984) 35 SASR 508 De Kruiff v Smith [1971] VR 761 Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 Evans v Bartlam [1937] AC 473 Ex parte Stanton (1928) 28 SR (NSW) 516 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Frodsham v O'Gorman [1979] 1 NSWLR 683 Garcia-Godos v R (Cth) [2015] NSWCCA 144 Gardner v Jay (1885) 29 Ch D 50 Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 Hura v R (2001) 121 A Crim R 472; [2001] NSWCCA 61 Kanakaradnam v R [2018] NSWCCA 282 Lawson v The Queen (2011) 206 A Crim R 557; [2011] NSWCCA 44 Layt v R [2020] NSWCCA 231 Liberti v R (1991) 55 A Crim R 120 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 Middap v R (1989) 43 A Crim R 362 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Chiron [1980] 1 NSWLR 218 R v Cincotta (Court of Criminal Appeal (NSW), 1 November 1995, unrep) R v Clayton (1984) 35 SASR 232 R v Clouter and Heath (1859) 8 Cox CC 237 R v Davies (1993) 19 MVR 481 R v Favero [1999] NSWCCA 320 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Foley [1963] NSWR 1270 R v Guest, Ex parte Anthony [1964] 1 WLR 1273 R v Jerome & McMahon [1964] Qd R 595 R v Khan [2002] NSWCCA 521 R v Martin (1904) 21 WN (NSW) 233 R v McNally [1954] 1 WLR 933 R v Miller [1990] 2 Qd R 566 R v Murphy [1965] VR 187 R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291 R v Odgers (1843) 2 Mood & R 479; (1843) 174 ER 355 R v Plummer [1902] 2 KB 339 R v Roach (1990) 54 SASR 491 R v Sewell [2001] NSWCCA 299 R v Sid Zaiter [2005] NSWCCA 61 R v Webb and Hay (1992) 64 A Crim R 38 R v Wilkes (2001) 122 A Crim R 310; [2001] NSWCCA 97 S (an infant) v Recorder of Manchester [1971] AC 481 Sagiv v R (1986) 22 A Crim R 73 Samandi v R [2020] NSWCCA 217 Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37; [2005] NSWSC 129 Category: Principal judgment Parties: Scott Phillip White (Applicant) The Crown (Respondent) Representation: Counsel: