Supreme Court New South Wales Medium Neutral Citation: R v Naden [2013] NSWSC 541 Hearing dates: 9 May 2013 Decision date: 09 May 2013 Jurisdiction: Common Law Before: Price J Decision: Offender's plea of guilty to count 1 not rejected. Catchwords: CRIMINAL LAW - whether guilty plea should be accepted Cases Cited: Meissner v Queen [1995] HCA 41; (1995) 184 CLR 132 Wong v DPP [2005] NSWSC 129; (2005) 155 A Crim R 37 Category: Procedural and other rulings Parties: Malcolm John Naden Crown Representation: Counsel: Mr Ierace SC (Offender) Mr Tedeschi QC (Crown) Solicitors: R Wilson (Offender) File Number(s): 2012/91386 2012/91612 Judgment 1HIS HONOUR: When the offender was before me on 2 May 2013, I expressed a concern as to the offender's plea of guilty to count 1. My concern arose from reading the reports of Dr Westmore and Professor Greenberg. The reports of the psychiatrists disclose statements made to them which indicated that his plea to the sexual assault may have arisen out of convenience and was not attributable to a consciousness of guilt. 2The offender pleaded guilty to the charge on arraignment on 22 March 2013. He adhered to that plea on 24 April 2013, and he re-affirmed that plea today. 3It has been expressly stated today by Mr Ierace SC on behalf of the offender that by that plea he intends to admit his guilt of the offence being count 1. 4Both psychiatrists are of the opinion the offender is fit to be tried and there is no suggestion he was not apprised of all of the facts when he entered and adhered to the plea. He is represented by very experienced counsel. 5Mr Ierace submits, on the offender's behalf, in all of the circumstances the court ought not to reject the plea of guilty to count 1. Mr Crown supports that application. 6In Meissner v Queen [1995] HCA 41; (1995) 184 CLR 132, Brennan, Toohey and McHugh JJ said at p 141: "...A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty... A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence..." 7Dawson J stated at p 157: "...It is true that a person may plead guilty on grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud." 8It appears from the judgment of the High Court in Meissner that the acceptance of a plea of guilty entered in open court by a person of full age and apparently of sound mind and understanding, and made in the exercise of free choice in the interests of that person causes no miscarriage of justice. A miscarriage of justice will normally only arise where the offender did not understand the charge or did not intend by his plea to admit his guilt of it or upon the facts admitted by the plea he could not in law have been guilty of the offence. 9In Wong v DPP [2005] NSWSC 129; (2005) 155 A Crim R 37, Howie J observed at [33]: "A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant's own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea 'is not in truth guilty of the offence'..." 10The Crown case against the offender is strong, consisting of a very prompt complaint by a 12 year-old girl with no apparent defects in reliability, no motive to lie and in a context where he was liked and trusted by the complainant and her family up until the incident. 11Accordingly, I do not propose to reject the plea. ********** 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: 11 May 2013