R v Wilkes [2001] NSWCCA 97

Reported Decision : 122 A Crim R 310

New South Wales Court of Criminal Appeal

CITATION : R v Wilkes [2001] NSWCCA 97 revised - 27/04/2001 FILE NUMBER(S) : CCA 60279/00 HEARING DATE(S) : 21 March 2001 JUDGMENT DATE : 21 March 2001

PARTIES : Regina Stephen John Wilkes JUDGMENT OF : Giles JA at 52; Wood CJ at CL at 1; Simpson J at 53

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL Adams J OFFICER :

COUNSEL : Crown R.D. Cogswell SC with Ms B. Baker Appellant: T. Game SC SOLICITORS : S.E. O'Connor (DPP) D.G. Humphries (LAC) CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - murder - refusal to allow withdrawal of plea of guilty - plea entered in circumstances amounting to a miscarriage of justice - advice of trial Counsel to enter plea of guilty imprudent and inappropriate Criminal Appeals Act 1912 s 6 LEGISLATION CITED : Criminal Law Procedure Act 1986 s 91 Evidence Act 1995 s 38 DECISION : Conviction set aside; New trial ordered

IN THE COURT OF CRIMINAL APPEAL

No. 60279 of 2000

GILES JA WOOD CJ at CL SIMPSON J 21 March 2001 Regina v Wilkes JUDGMENT

The appellant was indicted on one count of murder. He pleaded not guilty. On the second day of the trial, his brother was cross-examined by the Crown pursuant to s 38 Evidence Act 1995. The brother gave evidence that he saw the appellant strike the deceased with a wooden paling. Following this evidence, trial Counsel advised the appellant that they would lose the case and suggested that he enter a plea of guilty to save some years off his sentence. Shortly after this conversation the appellant advised the Court he wished to change his plea, and a plea of guilty was formally entered. When the appellant next appeared for sentence he sought leave to withdraw his plea, having been advised in the meantime by trial Counsel that he considered his earlier advice to have been incorrect.