Regina v Almirol [2006] NSWSC 898

New South Wales Supreme Court

CITATION : Regina v Almirol [2006] NSWSC 898 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 21/08/06

JUDGMENT DATE : 8 September 2006

JUDGMENT OF : James J at 1

DECISION : Application granted

CASES CITED : R v Boag (1994) 73 A Crim R 35 R v Parkes (2004) NSWCCA 377

PARTIES : Regina v Alejandro ALMIROL

FILE NUMBER(S) : SC 2004/2997

COUNSEL : T Hoyle SC - Crown W Brewer - Accused

SOLICITORS : S Kavanagh - Crown Legal Aid Commission - Accused

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

8 September 2006

2004/2997 Regina v Alejandro ALMIROL

Judgment 1 JAMES J: This is an application by Alejandro Almirol for leave to withdraw a plea of guilty made by him on 8 November 2005 before me to a charge that on 15 December 2002 at Regents Park he murdered Palatavaki Taueli, who I will refer to as "the deceased". 2 The grounds of the application are that the applicant did not intend to plead guilty and that the plea of guilty was made as a result of pressure to which he was subjected. The two grounds are interrelated and not independent of each other. In addition, it is submitted that there would be a real question to be tried as to whether the applicant is guilty of the crime to which he pleaded guilty. 3 At the hearing of the application there was no dispute about the principles I should apply in determining the application. 4 In R v Parkes (2004) NSWCCA 377 Hodgson JA, with whose judgment the other members of the Court of Criminal Appeal agreed, said at par 49:- "In the present case, the application to withdraw the plea was made before sentence and possibly before conviction … but while more caution might be required where leave to withdraw a plea is sought after conviction and sentence, the principles which apply where the application is made before conviction and sentence are to similar effect … in general, leave will be granted if the applicant for leave shows that the plea did not arise from genuine recognition of guilt (whether because of misunderstanding of the facts or of the elements of the charge, or because of pressure or because of some other reason) and that there is a real question to be tried". 5 In R v Boag (1994) 73 A Crim R 35 Hunt CJ at CL, with whose judgment the other members of the Court agreed, stated the test more generally at 36-37, as being whether a miscarriage of justice has occurred or would occur, if the applicant was not permitted to withdraw his plea of guilty. In Boag Hunt CJ at CL observed that "a miscarriage of justice may occur in many different situations if a prisoner is not permitted to withdraw his plea of guilty". Hunt CJ at CL stated that an applicant for leave to withdraw a plea of guilty bears the onus of showing that there is or would be a miscarriage of justice, if leave was not granted to withdraw the plea of guilty. 6 The applicant is not the only person who has been charged with the murder of the deceased. Prehector Trocio pleaded guilty before me on 31 March 2005 to the murder of the deceased and was sentenced by me on 17 June 2005 to a term of imprisonment of 12 years with a non-parole period of 8 years. Trocio was sentenced on the basis of a set of facts which had been agreed by the Crown and by Trocio's legal representatives, according to which the present applicant was the principal offender in the murder of the deceased and Trocio did little, if anything, more than act as a lookout. It is necessary to disregard, and I do disregard, that set of agreed facts in determining the present application. 7 The evidence on the application consisted of:-