Supreme Court New South Wales Medium Neutral Citation: R v Kaewklom (No. 2) [2012] NSWSC 1117 Hearing dates: 17 September 2012 Decision date: 17 September 2012 Before: Johnson J Decision: The Court does not have jurisdiction to hear and determine an application for leave to withdraw the Offender's plea of guilty Catchwords: CRIMINAL LAW - murder - jury trial commences - partial defence of substantial mental impairment is sole issue in trial - Accused changes plea to guilty of murder during trial - procedure under s.157 Criminal Procedure Act 1986 - jury discharged - finding of guilty by Court - Accused convicted - proceedings adjourned for sentencing hearing - Accused informs his counsel and solicitor that he wishes to apply to withdraw plea of guilty - whether Court has jurisdiction to entertain application for leave to withdraw plea of guilty where s.157 procedure followed - no jurisdiction to entertain application - sentencing hearing adjourned Legislation Cited: Criminal Procedure Act 1986 Cases Cited: R v Kaewklom (No. 1) [2012] NSWSC 1103 R v Hura [2001] NSWCCA 61; 121 A Crim R 472 R v Wilkinson (No. 2) [2008] NSWSC 1432 R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20 Category: Procedural and other rulings Parties: Regina (Crown) Kukiat "Gang" Kaewklom (Offender) Representation: Counsel: Ms GM O'Rourke (Crown) Mr KH Averre (Offender) Solicitors: Director of Public Prosecutions (Crown) Brenda Duchen (Offender) File Number(s): 2011/50515 Judgment (on question whether it was open to Offender in law to seek leave to withdraw his plea of guilty) 1JOHNSON J: On 5 September 2012, the trial of the Accused, Kukiat "Gang" Kaewklom, commenced before a jury upon a charge that, on 25 February 2011 at Liverpool in the State of New South Wales, he did murder Frederick McGregor. 2A jury having been empanelled, the trial proceeded until 10 September 2012. 3At the commencement of proceedings on Monday, 10 September 2012, Mr Averre, counsel for the Accused, indicated a desire to confer with his client during the course of the morning (T73). I indicated that a longer than usual morning tea adjournment would be taken, to accommodate the conference which Mr Averre and his instructing solicitor, Ms Duchen, wished to have with their client. 4After the morning tea adjournment, Mr Averre informed the Court that (T101): "As a result of some discussions I had between nine and 9.30 this morning I thought it appropriate to have a conference with the accused. The result of those discussions, the accused would now change his plea and would plead guilty to the murder on the indictment." 5I pause for a moment to observe that the circumstances of this trial were somewhat unusual. The nature of the charge brought against the Accused was referred to in my decision on pretrial matters: R v Kaewklom (No. 1) [2012] NSWSC 1103. As I observed in that judgment (at [3]-[6]), the physical attack by the Accused upon Mr McGregor, in a courthouse cell adjacent to the Liverpool Local Court, was captured on closed-circuit television. The images depicted showed the Accused (an 18-year old man) grabbing hold of the deceased (a 69-year old man) and throwing him to the ground and then repeatedly stomping and jumping with his two feet on his head and upper chest area. 6As the judgment on pretrial issues also made clear, application was made by the Accused for leave to adduce evidence of substantial mental impairment outside the time permitted by statute. The judgment in R v Kaewklom (No. 1) addressed associated pretrial rulings concerning evidence. 7The real issue in the trial concerned the partial defence of substantial mental impairment. The opening addresses of both the Crown and Mr Averre confirmed this understanding. 8It was the case, in circumstances described in R v Kaewklom (No. 1), that Dr Bruce Westmore, forensic psychiatrist, had provided reports concerning the Accused, the third of which, dated 10 August 2012, indicated that the partial defence of substantial mental impairment was open. 9The Crown retained Professor David Greenberg, who prepared a report after examining the Accused on two occasions, on 25 and 31 August 2012 at the Metropolitan Remand and Reception Centre at Silverwater. That report indicated that the Accused did not have available to him a partial defence of substantial mental impairment. 10It was a clear inference that the circumstances which gave rise to the desire of defence counsel to confer with his client on 10 September 2012, were that Dr Westmore had altered his view in light of the report of Professor Greenberg. I adverted to that understanding (T103). Further, a report of Dr Westmore dated 11 September 2012, which was provided to the Court and served on the Crown in advance of the sentencing hearing scheduled for today, confirms that Dr Westmore altered his position in light of Professor Greenberg's opinion. 11Accordingly, an appropriate understanding of the context in which the Accused came to revisit the question of his plea, was that the psychiatric evidence, which had provided some foundation for a partial defence of substantial mental impairment, had gone. What was left was the fatal event recorded on film, with no other apparent available defence or trial issue for the Accused. 12In those circumstances, it would be entirely understandable that counsel for the Accused, and his solicitor, would seek to revisit with their client, the question of the plea when the view of Dr Westmore was made known to them. 13I return to the chronology of events on 10 September 2012. Having been informed by Mr Averre of his client's intention to change his plea, there was some discussion, in the absence of the jury, concerning the appropriate next step. Express reference was made to s.157 Criminal Procedure Act 1986 as providing the statutory framework for what was to happen next (T101). 14The jury returned to Court. At the request of counsel for the Accused, the Accused was arraigned again upon the charge of murder, to which he pleaded guilty. There was then some discussion in the presence of the jury as to the impact of this step on the trial and its legal consequences (T102-103). 15Section 157 Criminal Procedure Act 1986 provides as follows: "157 Change to guilty plea during trial (1) If an accused person pleads 'guilty' to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence. (2) The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly." 16I proceeded to discharge the jury and to state that the Accused had pleaded guilty to the charge. I stated that, for the purposes of s.157(1) Criminal Procedure Act 1986, I found the Accused guilty of the offence, and that he was convicted of that offence (T103). 17I did not state expressly that the Court accepted the plea. However, acceptance of the plea was part and parcel of the approach taken by the Court on that occasion. The nature of the charge, the nature of the Crown case, the available partial defence, were well known to the Court and, accordingly, I had no hesitation in accepting the plea of guilty in those circumstances. 18The sentencing proceedings were adjourned until today, 17 September 2012. Mr Averre indicated that a further report of Dr Westmore was to be provided. As I have mentioned, that report was furnished to the Crown and to the Court on 12 September 2012. As expected, that report confirmed that there was no partial defence of substantial mental impairment available to the Accused, with Dr Westmore having altered his opinion in the light of the considered and detailed opinion expressed by Professor Greenberg. 19When the sentencing hearing commenced today, Mr Averre rose and indicated that he wished to make an application for leave to withdraw from the proceedings, the Accused having indicated a desire to withdraw his plea of guilty. He indicated, during the course of the application, that the application extended to Ms Duchen as well. The Crown had no real notice that such an application was to be made, and nor did the Court. 20After some discussion concerning the basis of the application, and what it was that the Offender wished to happen, I took an adjournment for the purpose of reading the decision of the Court of Criminal Appeal in R v Hura [2001] NSWCCA 61; 121 A Crim R 472. Having considered that decision, and a number of other decisions which may have some bearing on the question, the hearing then resumed. 21The Crown submission is that the decision in R v Hura is directly on point in the present circumstances. It was submitted that the legal consequence of application of the mechanism in s.157 Criminal Procedure Act 1986 was that it is not open to the Court, as a matter of jurisdiction, to entertain an application for leave to withdraw the plea of guilty. 22Mr Averre, who has continued to be of assistance to the Court, has acknowledged that s.157 represents a legal difficulty for the Offender. 23I considered that it was appropriate to make a ruling on this issue without further delay, so that an assessment could be made as to what was to happen next in these proceedings. 24I have adverted to the fact that the application by defence counsel for leave to withdraw is based upon the Offender's instructions concerning what happened last Monday. 25I should observe that the last psychiatrist who, to the knowledge of the Court, has examined the Offender was Professor Greenberg on 25 and 31 August 2012 in, no doubt, extensive consultations for the purpose of a detailed report. There is nothing in the report of Professor Greenberg which suggests that there was any issue as to the fitness of the Offender to be tried or to enter a plea. Further, my observation of the Accused, during the course of the trial, did not give rise to any issue as to his fitness in my mind. Finally, and importantly, experienced counsel and solicitor for the Accused took the course which I have already mentioned, on 10 September 2012, against the background which I have also indicated. 26In my view, s.157 Criminal Procedure Act 1986, as construed by the Court of Criminal Appeal in R v Hura, places a direct jurisdictional impediment in the way of any application by the Offender for leave to withdraw his plea of guilty. 27As Spigelman CJ said in R v Hura at 474 [12], the effect of the mechanism now contained in s.157 is to give rise to a "deemed jury verdict". The Chief Justice observed, at 474 [13], that once the jury has returned a verdict, the trial Judge has no discretion to permit an accused person to withdraw a plea of guilty. 28Accordingly, the short answer to any submission that the Offender should have an opportunity to seek leave to withdraw his plea of guilty is that this course is not legally available to him. 29The position is to be distinguished from that where, in advance of trial, and before a jury is empanelled, an accused person enters a plea of guilty. It is well recognised, as a matter of legal principle, that a person who has pleaded guilty before trial by jury has commenced, may seek leave to withdraw the plea of guilty. 30That was the situation in R v Wilkinson (No. 2) [2008] NSWSC 1432 where it was observed, at [9], that s.157 had no application to that case. An application for leave to withdraw the plea of guilty proceeded, but was ultimately rejected (R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20), where it was observed again, at 27 [40], that s.157 had no application. There was a discretionary determination to be made in that case and there was, in addition, competing psychiatric opinion. In the end, leave to withdraw the plea of guilty was refused. 31I mention R v Wilkinson to contrast the position in the present case. Here, s.157 does apply and the law places a clear barrier in the way of application being made to the trial Judge for leave to withdraw the plea of guilty. 32Accordingly, the appropriate course is that I record the legal position which has been reached, and then proceed with the sentencing hearing, or if there is an application to adjourn the sentencing hearing, to entertain that application. 33I find that it is not open in law to the Offender to make application to withdraw his plea of guilty, which has given rise to a verdict of guilty entered against him by way of s.157 Criminal Procedure Act 1986. 34The next step then is to consider what is to happen with the sentencing hearing. [Note: The counsel and solicitor for the Offender were granted leave to withdraw and the sentencing proceedings were adjourned to permit new legal representatives to be retained by the Offender.] ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2012