Application to set aside the pleas of guilty
16 Before the Court will go behind a plea of guilty, and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Chiron (1980) 1 NSWLR 218 at 231. That may occur for example, where in offering a plea, the applicant did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged: Liberti (1991) 55 A Crim R 120 at 121-122, and see also Foley (1963) 80 WN 726 and Caruso (1988) 37 A Crim R 1.
17 It might also occur where an accused has entered a plea of guilty after a trial Judge has erroneously decided to admit evidence that would be fatal to the defence, as was the case in Chiron; or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Murphy (1965) VR 187 at 190; or where an accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives; Favero [1999] NSWCCA 320 and Whitehead [2000] NSWCCA 400, or by the Court: Davey NSWCCA 3 March 1995.
18 This is not an exhaustive statement of the circumstances in which pleas of guilty may be set aside, but it encompasses those of potential relevance for the present case.
19 What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question: Cincotta NSW CCA 1 November 1995, Ganderton NSWCCA 17 September 1998, Favero, (supra), and Vergara [1999] NSWCCA 352. However, as Kirby P pointed out in Liberti 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: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81."
20 Relevantly for the present case, it may be noted that in Sagiv (1986) 22 A Crim R 73, Lee J, said:
"the substantial general proposition which emerges from these cases is that 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 that 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 of 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 ( O'Neill ) 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. [emphasis added]"