REGINA v. BOND [2002] NSWSC 786

New South Wales Supreme Court

CITATION : REGINA v. BOND [2002] NSWSC 786 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70011 of 2002 HEARING DATE(S) : 29 May 2002; 30 August 2002 JUDGMENT DATE : 30 August 2002

PARTIES : REGINA v. William Charles BOND JUDGMENT OF : Greg James J at 1

COUNSEL : Crown: P. Lynch Acc: P. Zahra, SC. SOLICITORS : Crown: S.E. O'Connor Acc: D.J. Humphreys CATCHWORDS : Criminal law - murder - plea of guilty - application to withdraw plea - pressures on accused person such that integrity of plea impugned. LEGISLATION CITED : Criminal Procedure Act 1986 Hura [2001] NSWCCA 61 Wilkes [2001] NSWCCA 97 CASES CITED : Chiron (1980) 1 NSWLR 218 Mitchell (CCA, unreported 25 July 1995) Iral [1999] NSWCCA 368 Davies (CCA, unreported 16 December 1993) DECISION : I permit the applicant to withdraw the plea of guilty to the charge of murder. I vacate that plea.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 30 AUGUST 2002

No. 70011 of 2002

REGINA v. WILLIAM CHARLES BOND

JUDGMENT 1 HIS HONOUR: This is an application by the accused, William Charles Bond, who had pleaded guilty to murder before me on 29 May 2002 to withdraw that plea. 2 In support of the application there has been filed the affidavit of Timothy John Heenan sworn 27 August 2002 and Exhibit 1, a psychiatric report dated 20 August 2002 from Dr. Bruce Westmore. 3 On 29 May 2002, I remanded the applicant in custody for submissions on sentence. Subsequently on the application of the applicant's senior counsel, the matter was adjourned from time to time until it was re-listed before me today for the purpose of this application. 4 The learned Crown Prosecutor informs me that there is no objection to any of the material upon which the applicant relies, nor is there any challenge to any of the matters asserted in that material. Further, that it is the attitude of the Crown that the application is not opposed, although not consented to. I am informed that the Crown accepts there is an arguable basis of defence and at the time of the plea was informed of the accused's counsel's reservations. 5 It is expressly conceded by the learned Crown Prosecutor that the situation with which I now have to deal is not that considered by the Court of Criminal Appeal in Regina v. Hura [2001] NSWCCA 61 or in Regina v. Wilkes [2001] NSWCCA 97. Both of the those cases were concerned with an examination by a Court of Criminal Appeal of a trial judge's decision not to permit the withdrawal of a plea of guilty made during a trial. Those pleas necessarily attracted the operation of s.91 of the Criminal Procedure Act 1986, which section provides by subsection (1) that:- "In the event of a person wishing to plead 'guilty' to an offence at any time after having been given in to the charge of a jury and the court accepting the plea, the court is to discharge the jury from giving a verdict and the court is to find the accused person guilty of the offence. Section 81(2) provides the finding has effect as if it were the verdict of a jury and the accused person is liable to punishment accordingly." 6 It was held in those decisions that following the formal entry of that finding or verdict the trial judge has no power to permit the plea to be withdrawn. 7 The position prevailing under s 91 is not unlike that which prevailed at Common Law as is referred to in the decision of the Court of Criminal Appeal in The Queen v. Chiron (1980) 1 NSWLR 218. See also Regina v. Mitchell (NSWCCA, unreported 25 July 1995). 8 The test to be applied on an application for withdrawal of a plea has been variously expressed. It is referred to in some detail in a series of numbered propositions enunciated by the Chief Justice in Hura (supra). Clearly it is important when considering whether the integrity of the plea as an admission of guilt is impugned that there be reference to the necessity for the accused to have the relevant understanding such that the accused is able to reason with some degree of composure concerning his situation and the proper course he might take in relation to the making of the plea and the giving of instructions. That is, of course, a corollary to his having that necessary degree of composure and understanding to enable him to appreciate and make a reasoned decision about the legal advice he might receive. 9 An illustration of a circumstance in which the Court of Criminal Appeal has held that it would be appropriate to allow an accused to withdraw the plea for lack of such understanding is afforded in the decision in Regina v. Iral [1999] NSWCCA 368 in which the Court adopted the views of Badgery-Parker, J. expressed in the Court of Criminal Appeal, views with which the other members of the court agreed in Regina v. David Lloyd Davies (CCA, unreported 16 December 1993). 10 In the present matter, Dr. Westmore refers to a number of matters in the history of the applicant which the applicant told him had operated upon his mind at the time of entering the plea. Dr. Westmore refers to the applicant as being subjected to considerable psychological stress. Dr. Westmore refers to matters which indicate that the applicant was indeed in circumstances at that time such that his will and ability to reason so as to choose rationally the course he might take might well be said to be entirely overborne. That view is borne out by the material contained in the affidavit of Mr. Heenan and in particular where Mr. Heenan gives evidence concerning what the applicant said as to his reason for entering a plea. 11 There is consistency between what was said to the legal advisors and what was said to the psychiatrist. I apprehend, there being no challenge from the Crown, that I can safely proceed upon the basis that those matters are established. 12 In those circumstances I am of the view that the proper order I should make is to permit the applicant to withdraw the plea of guilty to the charge of murder and vacate that plea. That leaves the applicant liable to re-arraignment and in due course for trial, if necessary. It will be necessary then for the matter to return to the arraignment list and I note that the next date for that list is 6 September 2002. 13 I have expressed my reasons for the course that I have undertaken in this way to ensure that the publication of those reasons will not cause the consequence that might otherwise have followed a fuller exposition of the matter and would not embarrass future proceedings. In that regard, I note that I had made an order suppressing publication of the matters referred to in the solicitor's affidavit and the psychiatrist's report. 14 I permit the withdrawal of the plea and re-list the matter in the arraignment list on 6 September 2002. **********