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)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: FRANCISCO JAVIER GOMEZ

Respondent

Judges: Gray, Madgwick and Cowdroy JJ

Date: 21 September 2007

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This is an appeal by the Director of Public Prosecutions against a decision by Higgins CJ to allow the respondent to withdraw a plea of guilty to a charge of possessing a trafficable quantity of heroin for the purpose of supply to another person.

Circumstances of the alleged offence

2. On 12 October 2004 police observed the respondent participate in two short meetings outside his residence. The first was with a couple, the Bells, in a car, at about 12.15 pm. The second was with an unidentified man. Within minutes of the meeting with the couple in the car, police found the car in a nearby car park. Inside it was a syringe full of heroin. There was strong circumstantial evidence to connect the respondent with that heroin.

3. At about 1.30 pm police executed a search warrant at the respondent’s residence. They found water balloons, small plastic bags, scales and over $12,000 in cash. Two of the plastic bags contained a trafficable quantity of “rock powder” heroin. Analysis showed that it consisted of 3.672 grams of pure heroin. The trafficable quantity was 2 grams (Drugs of Dependence Act 1989 (ACT) s 3; Drugs of Dependence Regulation 2005 (ACT) reg 5; Criminal Code Regulation 2005 Sch 1 Pt 1.2).

4. The respondent was arrested on 28 October 2004 and was committed for trial on 28 January 2005.

5. An indictment was presented on 27 July 2005 charging him with having on 12 October 2004: i) possessed a trafficable quantity of heroin for the purpose of supply; ii) possessed heroin (this count was intended as an alternative to the first); and iii) sold heroin to Stephen Bell (one of the occupants of the car).

6. A “case statement” was also then presented by the Crown. It indicated that the case against the respondent relied, among other things, on: · the statutory presumption that possession of the indicated quantity of heroin was for the purpose of supply; · surveillance evidence of the respondent having met the Bells; · the evidence of Stephen Bell; · evidence of the finding of the items found in the car and in the respondent’s home and bedroom; and · telephone records of calls between the respondent and the Bells.

7. Further evidence came to light from Ms Sheree Hovi. At a Basha inquiry conducted before Connolly J on 19 August 2005, she gave evidence that as at 12 October 2004 she had been in a relationship with the respondent and very often stayed at his home. She had done so on the evening of 11 October 2004. She identified the paraphernalia in the respondent’s bedroom as his and said he used the scales “to weigh up heroin”. She identified the bags of heroin as the respondent’s. She said that they both used heroin on the morning of 12 October.

8. During the Basha inquiry, she was cross-examined to show that she was a heroin addict, that the respondent had provided her with heroin and that, by supplying her, he was helping her to control and limit her heroin intake, with a view to gradually lowering it and, ultimately, to “come off” heroin. Ms Hovi said that they had been following that plan only for a week or so. She said “I didn’t touch it [the heroin] or have any control over it, it wasn’t mine”, a statement not challenged. Nor was it suggested that she had alone or jointly with the respondent purchased any of the heroin found in the house.

9. After Ms Hovi gave her evidence, there was some discussion, in the context of a bail application, between the presiding judge and counsel. It was made clear that the Crown would allege that the respondent had the heroin for “commercial” supply to third parties as well as to Ms Hovi but would concede that he might use some of it himself. His Honour, in our view correctly, made observations to the effect that there appeared to be no basis for any conclusion that the heroin had been jointly purchased by the respondent and Ms Hovi. His Honour also indicated a prima facie view that if a man had heroin to give to his girlfriend, then for sentencing purposes the situation would be, to that extent, less serious than to the extent that he intended commercial supply to others. The decision to plead guilty

10. Four days after the Basha inquiry, on 23 August 2005, and six days before the date fixed for trial, namely Monday 29 August 2005, the respondent conferred with his counsel, Mr Livingston. He indicated that he would plead guilty to the first count, (possession of a trafficable quantity for the purposes of supply) if the prosecution would (i) accept that his purpose was to supply Ms Hovi and (ii) not proceed further with the second count, the alleged actual supply to Mr Bell.

11. During the afternoon of Friday, 26 August the Crown Prosecutor indicated to Mr Livingston that the appellant would accept a plea of guilty to the first count in full satisfaction of the indictment but only on the basis that the respondent would admit, as part of the facts in relation to that count, that he had actually supplied heroin to Mr Bell.

12. Mr Livingston gave evidence that he was “unable to advise Mr Gomez of the [Crown’s] proposal … until he returned a telephone call to me at about 9.00 am on 29 August”, the day fixed for trial. Counsel arranged to see the respondent at 9.30 am.

13. Mr Livingston had known Mr Gomez over a number of years and considered that, during the conference that then ensued, “his conduct and demeanour [were] out of character. He appeared to be on edge and upset, which from my experience of him in such circumstances, was unusual”.

14. The respondent indicated to his counsel that he would accept the prosecution proposal provided that the proceedings could be adjourned and he was granted bail. He expressed a desire to return to his mother’s home to assist her. It appears the mother had a degree of disability. Counsel advised that a bail application after a plea of guilty might be unsuccessful, and that a plea could not be made on a conditional basis. The respondent indicated he would plead guilty and this was conveyed to the Crown Prosecutor.

15. Mr Livingston was, at the time, well experienced in criminal cases. The respondent was an experienced criminal litigant who had faced drug charges before and had served a number of periods of imprisonment. He was 46 years of age.

16. The respondent’s case was called for hearing a little after 10.30 am. A revised statement of facts had been prepared by this time. The respondent, as had been envisaged, pleaded guilty to the first count and the plea was accepted by the Crown in full satisfaction of the indictment. The revised statement of facts was tendered without objection. In the revised statement, otherwise little different from the original case statement, the following additions were made: · “The accused admits supplying Stephen Bell with heroin”. · “At the time of the incident the accused was in a relationship with Sheree Hovi. Ms Hovi was at that time addicted to heroin. The accused supplied heroin to Ms Hovi to support that addiction”.

17. There is no suggestion that these revisions were not appropriately brought to the attention of the respondent.

Events following the plea

18. The respondent applied for bail and gave evidence in support of that application. He said he was caring for his mother and received a carer’s pension. His mother, aged 75, was present in court. He indicated that his mother was frail and needed help. He sought bail to look after her. He referred to dangers he faced in the prison system, and to his efforts at rehabilitation.

19. In the course of this, the respondent observed to his Honour, “I realise that a custodial sentence must be going through your mind”.

20. The respondent was cross-examined. Towards the end of the cross-examination the following evidence was given: So the only thing that you admit is that you were engaged in supplying heroin in October of 2004?

…

I sincerely was trying to bring down my girlfriend off from a habit, and I didn’t really see it as a supply situation. There is an isolated situation where I did give somebody else a small amount of heroin. I was coerced into that …but I honestly didn’t see it to be as serious as it is, because I – I just thought I was helping somebody. … I wasn’t trying to earn any money or anything, I was trying remove somebody from a lifestyle that was causing her a lot of grief and trying to get her away from drugs ….

21. The presiding judge ordered that a “conviction be recorded” in respect of the first count and refused to allow bail.

22. Within about a week, the respondent had a change of heart about his plea and, it is to be inferred, no longer required Mr Livingston’s services. On 6 September 2005 he swore an affidavit in support of an application to be permitted to withdraw his guilty plea. He made the following claims: · “I was advised to plead guilty 10 minutes before the commencement of my trial, placing me under extreme pressure while I was suffering immense stress and confusion.” · “I was advised that the risk was great that I may be convicted by a Jury and despite my insistence that there was no commercial enterprise entered into, the potential sentence I might receive would be considerably less following a plea of guilty.” (Emphasis added.) · “I don’t believe that my legal advice was in my better interest.” · “I have always denied my guilt.”

23. Connolly J heard this application on 14 September 2005. The respondent represented himself. The transcript records that, additionally to the considerations urged in his affidavit, the respondent said from the bar table “… with reference to my girlfriend’s situation, … she put part of the money … (inaudible) …”.

24. Connolly J disposed of the application upon the basis that, as a conviction had been recorded, he had no jurisdiction to allow the withdrawal of the guilty plea.

25. The sentencing hearing resumed on 23 September 2005. The Crown called Ms Hovi. Her evidence was more adverse to the respondent than earlier. It was to the effect that she was paying for the heroin he gave her by having sex with him. She minimised to “a few times” occasions when he and she tried limiting her intake to two rather than three injections of heroin per day.

26. In cross-examination, she was asked: And sometimes you gave Jav money to help him buy drugs? ---Hardly. Sometimes? ---Hardly. What does, “hardly” mean, that means, “yes”, doesn’t it? ---M’mm. Not really. Like there was a few times when – not even, there was probably a couple of times when he would be low on money and we would use my money so we both could get some. So you pooled your resources? MR MORTERS: I object, your Honour. That’s not what she said. HIS HONOUR: Well, I think that’s legitimate from that last answer. I’ll allow the question. MR O’KEEFE: You pooled your resources?---Sorry? You put your money together?---Yes, we put our money together from lots of places.

27. The re-examination was as follows: MR MORTERS: You were asked a question about your contribution to the purchase of heroin, do you remember that?---Yes. How often did that happen?---Like once or twice, maybe three times. How much money did you contribute on those occasions?---Well, there was one time, when I went and probably borrowed 1 or $200 off someone that I knew. That was probably about it. All right. And why did you have to do that?---To support my – and so I could get a hit of heroin and Jav too. Do you know why it was that Mr Gomez couldn’t provide you with free heroin on that occasion?---It would have been when – after the raid when there was no money or drugs. Before the raid did you ever assist Mr Gomez to purchase heroin?---No.

28. On 28 October 2005 Connolly J sentenced the respondent to four years’ imprisonment with a non-parole period of two years.

29. In the course of his remarks on sentence his Honour said: As I understand it, it’s been put to some extent in mitigation, that much of this supply was for the purposes you say of assisting a then girlfriend to get off heroin addition. That’s a touching and heart rending story, but I’m afraid I regard it as a story. I’ve heard Ms H and I’ve seen her give evidence under oath and being cross-examined. Her version of the events was rather that she was a young girl working as a prostitute, she came into contact with you and within the day of coming into contact with you a more commercial style relationship was established, wherein you would supply her with heroin and she would provide you with sexual gratification and that continued for a period of some many months and you regularly supplied her with considerable quantities of heroin. It’s clearly a matter of some concern, I’m entitled to draw this inference from the evidence that’s been led before me in this sentencing proceeding that over a period of many months you were supplying her with a very substantial quantity of heroin. I’m also aware on the facts before me that on the premises was a large quantity of cash and scales that showed evidence of having been used for weighing heroin. And on the statement of facts there is the acknowledgement of one supply of heroin for cash to a third party. It’s not proper for me to take into account to aggravate any sentence the circumstances of Ms H’s dealings with you, and I expressly indicate that I’m not doing that. But I do say that I have no regard at all to what’s been put before Dr Stevens that this was really a kind hearted effort by you to somehow wean this poor woman off heroin. I don’t accept that in mitigation at all. I prefer the version of events given to me under oath and subject to cross-examination by Ms H. And that is a version of events that results in no mitigation at all.

30. The respondent appealed against his conviction and sentence. The Court of Appeal held that Connolly J had had jurisdiction to permit the change of plea and the appeal against conviction was upheld. The matter was remitted to Connolly J who disqualified himself and the case then came before Higgins CJ. The proceedings before the primary judge

31. A further application for leave to withdraw the plea was made before the learned primary judge. The stated grounds of the application were: 1. The accused was given only a short time to consider a plea bargain proposed by the DPP and made the decision to plead guilty under considerable pressure;

32. At the time he pleaded guilty the accused was in a state of emotional turmoil and was also concerned about his mother.

33. The application was supported by affidavits from Mr Livingston (as indicated above, the respondent’s former counsel) and his solicitor. The latter said that the accused relied on the same grounds as submitted to the Court on 14 September 2005.

34. Higgins CJ ordered that the respondent be allowed to “withdraw” his plea of guilty entered on 29 August 2005. The case was decided on the papers, without any oral evidence. His Honour gave judgment ex tempore and it is proper that this Court should do its best to understand his Honour’s actual reasons, allowing for some informality in their expression. His Honour’s reasoning and findings, we think, were: (i) the onus is on an accused person to show why the Court should permit a guilty plea to be withdrawn; (ii) it is an essential condition that there is an arguable defence; (iii) the respondent’s plea had been “effectively a plea of convenience in emotional circumstances”; (iv) if there were grounds shown for an arguable defence, a plea made in such circumstances should not stand in the way of the respondent’s being able to resile from it; (v) there was an arguable defence as to two elements of the charge namely possession, and the alleged purpose and supplying; (vi) as to possession, “evidence might be given … that Ms Hovi had obtained the heroin, and all that the accused was doing was preventing her access to it”. It would be at least arguable that such a version would mean that the respondent was not in possession of the heroin; (vii) as to supply, it was possible that the hypothesis might emerge that the heroin had been in the joint possession of the respondent and Ms Hovi and that he simply restricted her access to it. On such a hypothesis it was arguable that there was no intent to supply her; (viii) those possibilities were of such weight that, in the circumstances, “they ought to be … given a chance to be run”. The contentions

35. The appellant Director says that the primary judge did not apply the correct test in considering the application. It was also argued that his Honour had misunderstood the facts.

36. The respondent argued that: (i) he entered the guilty plea in circumstances of “emotional turmoil” (a phrase picked up by Higgins CJ) so that he had not had a “consciousness of guilt” (a phrase used in some of the authorities); (ii) therefore the “integrity of the plea was questionable”, and (iii) there would be a miscarriage of justice if the respondent were not permitted to withdraw his plea, unless the respondent was unable to demonstrate an arguable defence. Consideration (i) Legal principles relevant to permitting withdrawal of a guilty plea

37. The circumstances in which accused persons have been permitted to withdraw pleas of guilty and in which trial judges have determined not to accept such pleas are so various that it is not surprising that many formulations of the supposed tests to guide such decisions have been essayed. Sometimes phrases apt to the case at hand have not been illuminating when sought to be fitted to the facts of other cases.

38. Often there has been thought to be a twofold test – firstly, was there something to affect the integrity of the plea and, secondly, was there a “real question” to be tried as to the accused’s guilt: see, for example, R v Pugh (2005) 158 A Crim R 302 at [198] per Gray J.

39. In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge. In Meissner v The Queen (1995) 184 CLR 132 at 157, Dawson J said: It is true that a person may plead guilty upon 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 that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. (References omitted.)

40. Conformably with Dawson J’s analysis which, with respect, is in our opinion unimpeachable, expressions suggesting that a plea may be withdrawn where there is not a “consciousness of guilt”, e.g. Marchando (2000) 110 A Crim R 337 at [4], must be read with some care: that phrase must be understood as meaning a voluntary and otherwise tolerable acceptance of guilt.

41. In general, the legal principles have been recently usefully summarised by the NSW Court of Criminal Appeal in Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [21]-[27]. We reproduce what Basten JA, Grove and Howie JJ said in Appendix A.

42. Consistently with principle, it is not in every case that it must be shown that the accused has a fairly arguable defence or that there is a “real question” of his guilt to be tried. Two examples will make this point. Firstly, if a plea is shown not to have been made voluntarily then, without more, there would be a miscarriage of justice if the plea were permitted to stand. Secondly, if an accused who has pleaded guilty nevertheless asserts a version of the facts quite inconsistent with guilt before the sentencing judge, the plea should not be accepted, because the integrity of the legal process will have been undermined. In both examples, the necessity for integrity of the process compels the result even if the case for the Crown is otherwise overwhelming.

43. There may be other cases where the judge considers that, although the actual integrity of the plea is not compromised, nevertheless there are some unsatisfactory features of it and there is also such a potential for reasonable doubt to be held about the truth or validity of the prosecution case that it would affirmatively be against the interests of justice to require the plea to stand. That is to say, there would be a miscarriage of justice unless the judge intervened. It is in such cases that it is convenient to see the test as having a twofold character.

44. It is generally understood that a plea of guilty is a serious matter that normally has consequences, sufficing to dispose of the question of guilt. When an accused person voluntarily pleads guilty with the benefit of legal advice not shown to be incompetent or negligent, it will be an unusual case in which a judge will consider permitting its withdrawal.

45. In such a case, if there is no real question to be tried, in the sense of no fairly arguable reason to doubt the prosecution case, then, notwithstanding any less than wholly desirable circumstances surrounding the decision to plead guilty, there will be no miscarriage of justice if leave is not given to withdraw the plea. (ii) Discretionary decision

46. Because of the difficulty that may attend the judgment of these matters – underlying circumstances surrounding the plea and the weight of the case for the prosecution and of any affirmative case for the accused – decisions about them have been properly regarded as being “discretionary”, that is, immune from appeal except for the familiar grounds recognised in House v The King (1936) 55 CLR 499, 505: express or implicit error of principle or misapprehension of the facts. For example, in R v Sagiv (1986) 22 A Crim R 73 at 80-81, Lee J (with whom McInerney and Campbell JJ agreed) said: … it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and … each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.

It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence … and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings.

(iii) Conclusion

46. The respondent was an experienced criminal litigant who was advised by experienced counsel. Nothing has emerged to suggest that counsel’s advice was wanting in skill or sagacity. The respondent had ample time to consider his position: he did not ask for more time.

47. It may be accepted that he was unusually distressed and that this was on account of concerns for his mother’s well-being should he be incarcerated. He may also have had specific fears of maltreatment by other prisoners. Nothing emerges from his or his counsel’s account of matters to suggest that a relaxation of the weight to be given to the plea was thereby called for. There is no suggestion that he or experienced counsel considered his emotional condition to be such that an adjournment of the proceedings, short or otherwise, was called for. No such application was made to the trial judge. It is frequently the case that decisions as to how to plead are made in emotional circumstances and when the accused may feel that he or she is under pressure. However, there was no rush, no excessively forceful advice from counsel, no misunderstanding as to the nature of the charge, no inability of the respondent to comprehend and consider his options.

48. So much would be enough to dispose of this case: having regard to the foregoing matters, there does not appear to be a real basis for concern about the circumstances of the respondent’s plea of guilty. Accordingly, there was in our opinion, no occasion to investigate whether there was any real question to be tried as to the respondent’s guilt. In any case, there was in our view, no such question.

49. The respondent’s case in relation to Ms Hovi, until the very heel of the hunt before Connolly J, always appeared to be that he had the heroin to supply her with it on a controlled basis in order to reduce her dependency on it. It is clear that the respondent had the view that possession of heroin for such a purpose was qualitatively different from possessing it for sale. (He appears to have had the opinion that such conduct ought not to be criminally punishable and it appears to be that view which accounts for his protestations of innocence.) On any view, however, such conduct was criminally punishable. Another purpose of the respondent, the prosecution accepted, was to use some of the heroin himself. The respondent admitted the sale to the Bells from the heroin he had. At no point did the respondent deny that he had put up at least part of the money to buy the heroin. He gave no explanation as to his other purposes to negate the overwhelming inference from his possession of the typical trappings of a heroin dealer including scales, balloons and a large quantity of cash.

50. Connolly J, who had the advantage of having twice heard and seen the respondent, and of having heard and seen Ms Hovi, give evidence, rejected the respondent’s story that he was, in effect, misguidedly trying to help Ms Hovi. Connolly J was in the best position to judge the merits of the respondent’s protestations. This Court is in no worse position than Higgins CJ in that respect.

51. Even if a jury might be inclined to take a more benevolent view of the respondent’s evidence than Connolly J did, there is simply no suggested innocent explanation for the respondent’s possession of at least some of the heroin. Nothing pointed to exculpatory possession of enough of it to reduce the remainder to less than a trafficable quantity. On any view, the respondent gave no reasonable arguable version of the facts that might justify his acquittal of possessing a trafficable quantity of heroin. There was, in short, no real question of his guilt.

52. In our view the central contentions of the appellant have been made good. In this case it may be fairly said that the respondent’s “emotional circumstances” to which Higgins CJ referred were not such as to raise any reasonable misgiving about the respondent’s voluntary, well-considered and well-advised decision to accept his guilt as charged. It is also quite clear that there was no reasonably arguable basis for exculpatory hypotheses. The key consideration is whether a miscarriage of justice would have occurred if the respondent’s plea stood. On the respondent’s own assertions and the objective evidence – to say nothing of Ms Hovi’s evidence and Connolly J’s findings – there was no basis for a conclusion in the respondent’s favour on that issue.

53. The appeal should be upheld and the matter remitted to Higgins CJ to sentence the respondent.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 21 September 2007

Counsel for the Appellant: Mr R Refshauge SC

Solicitor for the Appellant: ACT Director of Public Prosecutions

Counsel for the Respondent: Mr R Thomas

Solicitor for the Respondent: S & T Lawyers

Date of hearing: 30 April 2007

Date of judgment: 21 September 2007

APPENDIX A

Extract from Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158

21. A plea of guilty to a criminal charge is undoubtedly a serious matter. Nowadays it is accepted as a basic requirement of a fair system of criminal justice that, at least in serious cases, and wherever reasonably practicable, an accused person should have access to legal advice before entering a plea. Nevertheless, the bulk of cases are dealt with on a plea of guilty and it is likely that the system would cease to operate in a timely fashion, were that to change. No doubt many people plead guilty without legal advice.

22. Where advice is obtained, it will often be accepted, although sometimes with reluctance. There are two cases where guilty pleas may eventuate despite a difference of view between lawyer and client. In one category, the accused insists on pleading guilty, despite the advice of the lawyer that he or she is likely to be acquitted if the matter proceeds to a trial. The other category is where the lawyer is convinced that the client is unlikely to be acquitted and that it is in the client’s best interest to plead guilty, but the advice is not accepted. Whatever the circumstances, the person charged may later seek to change a plea.

23. It has long been established that, even after conviction, a plea may be changed and the conviction set aside if it be established that the appellant “did not appreciate the nature of the charge or did not intend to admit he was guilty of it”: see R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VR 187 at 188. Where the accused is legally represented, the court will usually be entitled to rely upon a plea as having been given with an appreciation of the nature of the charge and with an understanding of what was being done. But there may be evidence which contradicts that presumption.

24. The circumstances in which a plea of guilty may be withdrawn were considered in Maxwell v The Queen (1995) 184 CLR 501, but in a context where the primary issue was the right of the trial judge to reject a plea to a lesser offence than that charged. At 510-511, Dawson and McHugh JJ stated:

An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.

25. Read in context, it may be seen that these principles were expressed in relation to the power of the trial judge to reject a plea, rather than as to the circumstances in which an accused may withdraw a plea. The latter point was more directly addressed in the joint judgment of Gaudron and Gummow JJ at 531, in the following terms:

There is more to the grant of leave to withdraw a plea than alteration of the record. Ordinarily, it involves a consideration of the circumstances in which the plea was made, with leave being granted if it resulted from a mistake of fact or a misunderstanding of the law, inability to obtain legal representation or if the interests of justice otherwise require.

26. … these principles have been stated from time to time in differing language. However, it is not necessary to address the variations in expression. Many of the cases involved an appeal from conviction based on a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea. In principle, no stricter test should be applied to an application before conviction: see R v Middap (1989) 43 A Crim R 362 at 364 (CCA, Vic) and R v Parkes [2004] NSWCCA 377 at [49] (Hodgson JA).

27. It is also common to note the “principles of restraint” identified by Kirby P (Grove and Newman JJ agreeing) in Liberti (1991) 55 A Crim R 120 at 122:

For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ... .

In some circumstances, the circumspection may be based upon a concern that changes in plea may involve an attempt to manipulate the system to delay a feared conviction and sentence. However, no such issue arose in the present case and the matter should be approached on the basis that if the trial judge should have been satisfied by the applicant that he had been inappropriately advised and did not understand the charge, a miscarriage might well eventuate from an insistence on adherence to the plea.

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