R v Ezegbe [2012] NSWDC 292

District Court New South Wales

Medium Neutral Citation: R v Ezegbe [2012] NSWDC 292 Hearing dates: 4 June 2013 Decision date: 04 June 2012 Before: Berman SC DCJ Decision: Application is refused Catchwords: CRIMINAL LAW - Application to reverse plea of guilty - No jurisdiction once jury put in charge of accused Legislation Cited: Criminal Procedure Act Crimes Act Cases Cited: R v Ross [1994] NSWCCA Unreported 20 April 1994 R v Houra [2001] 121 A Crim R 472 R v Kaewklom (No 2) [2012] NSWSC 1117 Ghurung v R [2012] NSWCCA 2001 Category: Interlocutory applications Parties: The Crown Gabriel Ikechukwa Ezegbe Representation: Mr J Clarke - Crown Mr P Naughtin - Applicant Director of Public Prosecutions File Number(s): 2011/333564

Judgment 1HIS HONOUR: I have before me an application by Mr Ezegbe to withdraw his plea of guilty. It is important of course to examine the circumstances in which that plea was entered. 2His trial was listed to commence before her Honour Judge Tupman on Tuesday 27 November 2012. The jury were empanelled the following day, Wednesday 28 November 2012, and a not guilty plea was entered in the jury's presence. The accused was then put in charge of the jury. The trial followed the normal course. The prosecution case commenced. It concluded on Monday 3 December 2012 and then the accused, Mr Ezegbe, gave evidence. 3During the course of his cross-examination the trial was adjourned. 4The following morning, 4 December 2012, following an indication from Mr Ezegbe's counsel that Mr Ezegbe wished now to plead guilty, he was rearraigned in the presence of the jury. Her Honour accepted that plea and discharged the jury. It is in those circumstances that the plea of guilty is now sought to be withdrawn. 5Mr Naughtin relies on affidavits indicating the circumstances which he says explain why there was a change of plea to guilty during the course of the trial. He submits that it would be in the interests of justice for the plea of guilty to be withdrawn. The Crown however relies on s 157 of the Criminal Procedure Act and says that I have no jurisdiction to allow the plea of guilty to be withdrawn. 6It is important to understand the history behind s 157. In what I will call the olden days, once a jury had been put in charge of an accused after a plea of not guilty and the accused changed his or her plea to guilty, it was the jury who delivered the verdict of guilty. What usually happened is that the accused would be rearraigned in the presence of the jury, the accused would enter the plea of guilty, the judge would say to the jury something along the lines of "I cannot direct you to find the accused guilty, but given the plea of guilty that is what you should do," and hopefully the jury would oblige by returning the verdict of guilty. Clearly, the accused, having been found guilty, and I emphasise the word "found" guilty by a jury, could not seek to overturn that verdict by seeking to withdraw the plea of guilty he had entered before them. It was a verdict of a jury based on the evidence that the jury had heard. 7The procedure was always fraught with the potential for something to go wrong, (see for example R v Ross [1994] NSWCCA unreported 20 April 1994), so s 399A of the Crimes Act was introduced. It later became s 92 of the Criminal Procedure Act and even later became s 157 of the Criminal Procedure Act, where it is today. Section 157 provides that, "(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." 8The important part for present purposes is the phrase "the finding has effect as if it were the verdict of the jury." What the section means is that although it is the judge who finds the accused guilty, it is as though the jury had returned a verdict of guilty, so there would be no jurisdiction for the judge, or any other judge, to later entertain an application for the accused to withdraw the plea of guilty. That this is the result was confirmed in R v Houra [2001] 121 A Crim R 472, and in R v Kaewklom (No 2) [2012] NSWSC 1117. 9The Courts have until recently spoken with only one voice about this issue, although it would be remiss of me not to mention a recently published decision of the Court of Criminal Appeal, Ghurung v R [2012] NSWCCA 2001. That case does suggest it is possible for an accused to withdraw a plea of guilty, even where it had been entered and accepted by a judge, on the second day of her trial and after she had been put in charge of the jury following her plea of not guilty. It does not appear from the judgment that s 157, much less either of the authorities that I have referred to, was drawn to the court's attention and, as the judgment makes clear, the Court was under pressure of time. Ghurung I regret to say is wrong. It is inconsistent with an earlier decision of the Court of Criminal Appeal, Houra, and a judgment of a single judge of the Supreme Court, Kaewklom, and so it should not be followed. It does not bind me given that there are inconsistent decisions of the Court of Criminal Appeal. 10The result is that the Crown's argument should be accepted. There is no jurisdiction to allow the plea of guilty to be withdrawn. Section 157 is clearly not a section which gives a discretion to the judge as to how the judge should treat a finding of guilt in the circumstances of this trial. 11It has not been necessary for those reasons to consider any of the matters raised in the affidavits as to the things that would ordinarily be considered when there is an application to withdraw a plea of guilty such as the accused's understanding of what was happening, whether his will was overborne, and things of that kind. Those matters are irrelevant because I simply do not have jurisdiction to do what Mr Ezegbe asks me to do. 12The application is therefore refused. The matter will be listed before her Honour Judge Tupman on Thursday 6 June for her Honour to, I expect, sentence Mr Ezegbe.