Garcia-Godos v R; MH v R [2023] NSWCCA 145

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Garcia-Godos v R; MH v R [2023] NSWCCA 145 Hearing dates: 26 April 2023 Date of orders: 19 July 2023 Decision date: 19 July 2023 Before: Davies, Weinstein and Sweeney JJ at [1] Decision: Garcia-Godos v R: (1) Extend time for the filing of the Notice of Appeal to 30 November 2022. (2) Grant leave to appeal. (3) Dismiss the appeal. MH v R: (1) Extend time for the filing of the appeal to 12 January 2023. (2) Grant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME – appeals – two appeals against conviction – where both applicants pleaded guilty and subsequently sought leave to withdraw their guilty pleas prior to conviction and sentence – where leave was refused as no miscarriage of justice arose – where recent decision in White v R [2022] NSWCCA 241 held interests of justice test not miscarriage of justice test applies to applications to withdraw guilty pleas prior to conviction – whether miscarriage of justice arose because wrong legal test was applied – where first applicant only sought to withdraw plea after attempts to pursue avenues to reduce sentence fell away – where second applicant's evidence of threats rejected – no circumstances to question integrity of either applicant's pleas – held result before primary judge in both appeals would have been the same whichever of the two tests were applied – no substantial miscarriage of justice occurred – both appeals 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 White was correct in drawing a distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea on appeal – whether different tests apply to pre-conviction applications and post-conviction appeals – cannot be said White is plainly wrong in making the distinction between two categories Legislation Cited: Crimes Act 1900 (NSW) ss 33A, 86, 154C Crimes (Appeal and Review) Act 2001 (NSW) ss 12, 16, 18, 20 Criminal Appeal Act 1912 (NSW) ss 5, 6 Criminal Code (Cth) ss 11.5, 307.1, 400.4 Drug Misuse and Trafficking Act 1985 (NSW) s25 Cases Cited: Attorney-General (SA) v Kitchen and Roberts (1989) 51 SASR 54 BWM v R (1997) 91 A Crim R 260 Barnes v R [2022] NSWCCA 140 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Charlesworth v Regina [2009] NSWCCA 27 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Garcia-Godos v R (Cth) [2015] NSWCCA 144 Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 Hobana Pty Limited & Anor v Richard Gremmo [2006] NSWCA 261 MH v R [2022] NSWCCA 287 McMahon v Gould (1982) 7 ACLR 202 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 Niven v SDS [2006] NSWCA 338 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 R v Boag (1994) 73 A Crim R 35 R v Clayton (1984) 35 SASR 232 R v Davies (1993) 19 MVR 481 R v Liberti (1991) 55 A Crim R 120 R v Louis Alberto Gonzalo Garcia-Godos (District Court of NSW, Toner SC DCJ, 28 February 2013) R v Middap (1989) 43 A Crim R 362 R v Parkes [2004] NSWCCA 377 R v Sewell [2001] NSWCCA 299 R v Van (2002) 129 A Crim R 229 R v Webb & Hay (1992) 64 A Crim R 38 Totaan v R [2022] NSWCCA 75 Tcaciuc v Broken Hill Pty Co Ltd (1961) 62 SR (NSW) 687 White v R [2022] NSWCCA 241 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 Texts Cited: Nil Category: Principal judgment Parties: Luis Alberto Gonzalo Garcia-Godos (Applicant) MH (Applicant) The King (Respondent) Representation: Counsel: T F Woods (Applicants) C J Tran (Commonwealth) S Dowling SC & E Nicholson (State of New South Wales)