R v Susan SAMY [2008] NSWDC 377

New South Wales District Court

CITATION: R v Susan SAMY [2008] NSWDC 377

JUDGMENT DATE: 23 June 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The applicant is granted leave to withdraw her plea of guilty

CATCHWORDS: CRIMINAL LAW - application for change of plea - analysis of relevant case law - applicant bears burden of proof - application to be approached cautiously and with circumspection - factual dispute - plea not attributable to a genuine consciousness of guilt

Maxwell v The Queen (1996) 184 CLR 501 Regina v Hura (2001) 121 A Crim R 472 CASES CITED: Regina v Liberti (1951) 55 A Crim R 120 Regina v Sagsagiv (1986) 22 A Crim R 73 Regina v Wilkes (2001) 122 A Crim R 310

PARTIES: Regina Susan Samy

FILE NUMBER(S): 2007/21/3080

COUNSEL: Ms Orman-Hales (for Ms Samy)

SOLICITORS: Mr Cooley for the NSW Office of the Director of Public Proseecutions

JUDGMENT 1. The issue in this case is whether I exercise my discretion to set aside a plea of guilty entered by Ms Susan Samy to a charge of malicious wounding. On 11 May 2007 Ms Samy pleaded guilty to a charge that at Yagoona on 6 October 2006 she maliciously wounded Chandra Pal. Ms Samy now asks me through her counsel, Ms Orman-Hales, to set aside that plea of guilty. I have the undoubted discretion to set aside the plea. The question is whether I exercise that discretion or not. 2. The relevant principles are clear. In Regina v Sagsagiv (1986) 22 A Crim R 73 Lee J, as his Honour then was, speaking on behalf of the Court of Criminal Appeal said this: "The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence and is the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceeding." In Regina v Liberti (1991) 55 A Crim R 120 Kirby J, when his Honour was President of the Court of Appeal, said on behalf of the Court of Criminal Appeal that an application to set aside a plea is approached by the courts: " 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 the relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence." In Regina v Hura (2001) 121 A Crim R 472 Spigelman CJ, delivering the judgment of the Court of Criminal Appeal, noted that successful applications to set aside a plea of guilty were exceptional. Circumstances would normally involve a miscarriage of justice. His Honour identified a number of circumstances where such applications have been granted in the past. Those circumstances include where the plea was not a free and voluntary confession and where the plea was not really attributable to a genuine consciousness of guilt. In Regina v Wilkes (2001) 122 A Crim R 310 the Chief Judge at Common Law, Wood J, speaking on behalf of the Court of Criminal Appeal referred to a passage from the joint judgment of Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501. Dawson and McHugh JJ had said as follows: " The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage." 3. In this case Ms Orman-Hales argues on behalf of her client that the plea which was entered was, in the circumstances, not really attributable to a genuine consciousness of guilt. The events of 6 October 2006 may be briefly described. The allegations are that Susan Samy, armed with knives, attacked and wounded a number of people. As a result of those events she was charged with a number of offences. At least one of the offences with which she was originally charged was attempted murder. In addition she was charged with maliciously wounding Chandra Pal with intent to do grievous bodily harm. An alternative charge in respect of Mr Chandra Pal was that of maliciously wounding him. It is to that charge that she pleaded guilty on 11 May 2007.