R v Mr L (a pseudonym)

Jurisdiction: Common Law - Criminal

Before: Sweeney J

Decision: (1) This Court has the jurisdiction and the power to consider Mr L’s application.

Catchwords: CRIMINAL PROCEDURE – application for withdrawal of guilty plea – separate question of whether the Court has the jurisdiction and the power to grant leave to withdraw the plea of guilty – where the applicant pleaded guilty in the Local Court to a charge of murder – where the guilty plea was affirmed in the Supreme Court Arraignments List – where the applicant has not yet been sentenced – whether the entry of a conviction in the JusticeLink system amounted to the finalisation of the proceedings – consideration of the principle of finality – the Court has the jurisdiction and the power to consider the application

Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 101, 102, 103
Supreme Court Rules 1970 (NSW) r 3M

Cases Cited: Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Delaney v R [2025] NSWCCA 76
Dickson v R (No 2) [2018] NSWCCA 183
Garcia-Godos v R; MH v R [2023] NSWCCA 145; (2023) 309 A Crim R 370
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46
R v Holton [2004] NSWCCA 214
R v Lapa (No 2) (1995) 80 A Crim R 398
Tsoumbanellis v R [2025] NSWCCA 107
White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241

Category: Procedural rulings

Parties: Mr L (a pseudonym) (Applicant)
Crown (Respondent)

Representation: Counsel:
C McGorey (Applicant)
G J Tabuteau (Respondent)
Solicitors:
Ting Legal Criminal Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/78295-1

Publication restriction: N/A

Ex-tempore JUDGMENT [revised]

1. SWEENEY J: Mr L entered a plea of guilty in the Local Court on 28 August 2024 to a charge of murder. On 6 September 2024 he appeared in the Arraignments List in the Supreme Court and adhered to his plea of guilty on that charge. He now applies for leave to withdraw his plea of guilty to that charge.

2. The Crown’s position is that the Court has no jurisdiction or power to set aside Mr L’s conviction, ordered by Wilson J in the Arraignments List on 6 September 2024, and perfected in the Court record by entry into the JusticeLink system, and therefore the Court has no jurisdiction or power to grant leave to Mr L to withdraw his plea of guilty to the murder charge.

3. The Crown asked that I deal with that issue of jurisdiction and power as a separate, preliminary question. Mr McGorey of counsel on behalf of Mr L was content to proceed in that way. Both Counsel have provided written submissions, which they emphasised in oral submissions, and I was assisted by their submissions.

4. The Crown’s submissions were as follows.

5. The transcript of the proceedings before Wilson J on 6 September 2024 recorded that when her Honour asked Mr L if he maintained his plea of guilty to the murder charge, he said he pleaded guilty. Her Honour then asked was there any reason why a conviction for the murder should not be recorded that day, counsel for Mr L said no, and her Honour stated:

“The Court formally records a conviction against [Mr L] for the murder of [CKW].”

6. An entry was then made in the JusticeLink system for the murder charge:

“A conviction is formally entered on this charge.”

7. Pursuant to Rule 3M(3) of the Supreme Court Rules 1970 (NSW) (“Supreme Court Rules”), Part 75:

… a judgment or order of the Court is taken to be entered when it is recorded in the Court’s computerised court record system.

Note—

The Court’s computerised court record system is JusticeLink.

…

This system of entering court orders in JusticeLink has superseded orders of the court being perfected by entering them on the indictment, as recognised in Tsoum**banellis v R [2025] NSWCCA 107 (“Tsoumbanellis”). The Crown also relied on the decision of the Court of Criminal Appeal in Dickson v R (No 2) [2018] NSWCCA 183 (“Dickson”), wherein the Court said, in the context of Mr Dickson seeking to have a further appeal against his conviction determined by the Court of Criminal Appeal when it had previously dismissed his appeal against conviction, at [30]:

“The orders made by the Court in 2016 in Dickson v R were formally recorded, and thus can be regarded as “perfected”. Orders once perfected can rarely be reconsidered, not least because of the principle of finality.”

The Court therein said that the orders made by the Court in the previous proceedings had been finalised and were “beyond recall” by the Court: [53].

8. The Crown accepted that the situation in that case was post-sentence and on appeal, but maintained reliance on the Court’s statement that once an order is perfected it can rarely be reconsidered because of the principle of finality. The Crown submitted that that is the situation in Mr L’s circumstances and the order of conviction made by Wilson J can only be revisited on appeal.

9. The Crown also relied on the decision of the High Court in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 (“Burrell”) at [20] that:

“… Identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.”

10. The Crown relied on the decision of the Court of Criminal Appeal in White v R (2022) 110 NSWLR 163; [2022] NSWCCA 241 (“White”) at [23] - [24] where the Court distinguished between an application for leave to withdraw a plea of guilty prior to conviction and an appeal from conviction notwithstanding the plea of guilty. The Crown submitted that the point of distinction was whether a conviction had occurred or not.

11. The Crown accepted that at paragraph [62] of the White judgment, the Court referred to conviction having been entered and sentence passed but maintained its position that the essential distinction is whether or not there has been a conviction.

12. The Crown relied on the decision of the Court of Criminal Appeal in Garcia-Godos v R*; MH v R* [2023] NSWCCA 145; (2023) 309 A Crim R 370 where, the Crown submitted, the Court accepted that a conviction was the dividing line for pre-conviction applications and post-conviction appeals.

13. The Crown submitted that that distinction was reaffirmed in Delaney v R [2025] NSWCCA 76 at [61]:

“In White v R… this Court confirmed that when an application is made to withdraw a plea of guilt after conviction and sentence, the conviction can only be set aside if it is established that a miscarriage of justice has occurred in accordance with s 6(1) of the Criminal Appeal Act 1912 (NSW).”

14. The Crown also based submissions on the terms of ss 101, 102 and 103 of the Criminal Procedure Act 1986 (NSW) (“Criminal Procedure Act”). Mr L’s application seeks an order pursuant to s 101(1)(c) of the Criminal Procedure Act that his proceedings be remitted to the Local Court. The Crown’s position is that because Wilson J dealt with Mr L, under s 102, and Mr L made no application under s 101 when he appeared before Wilson J, his time to make an application under s 101 has passed and cannot be invoked by him at this stage of the proceedings.

101 Higher court may refer accused person back to Magistrate

(1) A Judge of the District Court or the Supreme Court before whom an accused person is brought under section 97 (6) may order that the committal proceedings be continued before a Magistrate if—

(a) it appears to the Judge from the information or evidence given to or before the Judge that the facts in respect of which a court attendance notice was issued do not support the offence to which the accused person pleaded guilty, or

(b) the prosecutor requests the order be made, or

(c) for any other reason, the Judge thinks fit to do so.

(2) On the resumption of the committal proceedings, the proceedings continue as if the person had not pleaded guilty.

15. Section 97(6) provides for the magistrate to commit an accused person to the Supreme Court for sentence if the person’s guilty plea is accepted.

102 Disposal of proceedings by higher court

(1) The District Court or the Supreme Court may, on the basis of a court attendance notice, indictment or charge certificate, proceed to sentence or otherwise deal with an accused person brought before the Court under section 97 as if the accused person had on arraignment at any sittings of the Court pleaded guilty to the offence on an indictment filed or presented by the Attorney General or the Director of Public Prosecutions.

(2) An accused person who is sentenced or otherwise dealt with under this section is for the purposes of any Act or law (whether enacted before or after the commencement of this section) taken to be convicted on indictment of the offence concerned.

103 Change to not guilty plea in higher court

(1) If an accused person brought before the District Court or the Supreme Court under section 97 or this Division changes to not guilty the plea to the offence on which the accused person was committed to the Court, the Judge must direct that the accused person be put on trial for the offence.

…

(4) A direction may not be given under subsection (1) if the offence is punishable by imprisonment for life, but the Judge may make an order under section 101.

…

16. The Crown submitted that Mr L was brought before the Supreme Court on a charge certificate, which pursuant to s 102, has the same effect as an indictment, and that when Wilson J recorded a conviction her Honour was proceeding to “otherwise deal with” Mr L, in accordance with section 102, as if he had been arraigned and pleaded guilty to the offence of murder on an indictment, that being the formal effect of the charge certificate.

17. The Crown submitted that ss 101 - 103 are a code and Mr L is taken to have pleaded guilty and been convicted on indictment and her Honour dealt with Mr L pursuant to s 102 by ascertaining from him whether he maintained his plea of guilty to the murder charge, ascertaining from Mr L’s counsel if there was any reason not to formally record Mr L’s conviction that day, formally recording a conviction of Mr L for the murder, adjourning the matter for sentence and having the record of Mr L’s conviction for the murder entered in the JusticeLink system. The Crown submitted that the operation of s 102 is that her Honour having dealt with Mr L pursuant to s 102, Mr L can no longer invoke the terms of s 101, that the time to do so has passed and s 101 now has no application. The Crown submitted that in similar terms, s 103 can be invoked at the same time as s 101, but cannot be invoked once the Court has acted under s 102, as s 102 supersedes ss 101 and 103 being invoked.

18. In response to Mr L’s reliance on Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 (“Maxwell”), the Crown relied on the different circumstances of Mr Maxwell’s situation, that being a case involving the prosecution seeking to withdraw its acceptance of a plea of guilty to manslaughter, not an application by an accused to withdraw a plea of guilty. The Crown relied on the decision of Dawson and McHugh JJ at [510] that McInerney J had not disposed of the matter before him by accepting Mr Maxwell’s plea of guilty, other than for the purpose of embarking upon the sentencing process, and his Honour did not accept the plea in any way which amounted to a determination of guilt and therefore a judgment of the Court.

19. The Crown submitted that it is not uncommon that a conviction is deferred until the occasion of sentence being pronounced. The Crown submitted that Mr L’s situation was in contradistinction to that in Maxwell in that on 6 September 2024 there was an acceptance of his plea, which amounted to a determination of guilt, and therefore the decision in Maxwell does not assist Mr L.

20. The Crown relied on the decision of R v Holton [2004] NSWCCA 214 (“Holton”). In that case, Mr Holton had pleaded guilty to a charge of aggravated dangerous driving causing death and not guilty to a charge of murder. The Crown had intended to plead the former charge in the alternative to the latter, but the indictment was not drafted in those terms when Mr Holton pleaded guilty to the dangerous driving causing death charge. There was a provision of the Crimes Act 1900 (NSW) which prevented Mr Holton from being tried for murder, he having pleaded guilty to and been convicted of the dangerous driving charge. On the Crown’s application the oral order of the judge convicting Mr Holton of the dangerous driving charge was vacated, and Mr Holton was tried for and convicted of murder. He appealed against that conviction. The Court of Criminal Appeal dismissed Mr Holton’s appeal ground asserting that the trial judge had no power to vacate the conviction entered by Barr J. Smart AJ agreed with Grove J on that point. Hulme J agreed that Mr Holton’s appeal against his conviction on that basis should be dismissed. The Crown places reliance on Hulme J’s reasoning that the order of conviction made by Barr J could be vacated because it had not been perfected by being recorded in the Court records, and his Honour’s statement that until an order is perfected by its recording in the Court records there is power in the Court to reconsider, withdraw, vary or amend or add to it.

21. Counsel for Mr L submitted that Hulme J was in dissent. The Crown submitted that there was a nuance in the reasoning, but he was not in dissent in the result.

22. The Crown submitted that Mr L’s conviction was perfected by it being entered in the Court record and therefore his conviction can only be set aside by an appeal and the Court should set his matter down for sentence hearing.

23. Grove J in Holton appears to have proceeded on the basis that a plea of guilty is not accepted until sentence is passed. His Honour also took into account that it appeared there was a common expectation that Mr Holton would be tried on the charge of murder. His Honour distinguished between a provisional conviction and a final conviction. Smart AJ, agreeing with Grove J, proceeded on the same basis. Hulme J appeared to also consider that a conviction depended on a court determining the question of guilt. He disagreed that Barr J had convicted Mr Holton provisionally, although accepted that his Honour was intending that Mr Holton should still face a trial for murder. He agreed Davidson J could vacate Barr J’s order because it had not been perfected by recording it in the Court records. There is thus a difference in the reasoning of Hulme J for agreeing with Grove J and Smart AJ that Mr Holton’s conviction appeal should be dismissed. As the Crown has pointed out, that decision preceded the system of the Court’s orders being recorded in the JusticeLink system as recognised by Rule 3M of the Supreme Court Rules.

24. Mr McGorey of counsel on behalf of Mr L submitted that the fact that the order of conviction by Wilson J was entered on the record or perfected is not determinative, that the focus must be on the nature of the order.

25. He submitted, relying on the High Court’s decision in Maxwell, that the meaning of a conviction can vary and a conviction is not final until sentence has been passed. While accepting that the circumstances of Maxwell were factually different from Mr L’s application he relied on the statements of principle. He relied on the statement of Dawson and McHugh JJ that “It is the disposal of the case which results in the judgment of the court embodying a determination of guilt” and their Honours’ reference to a decision of the Privy Council in Richards v R [1993] AC 217 that a person may be permitted to withdraw a plea of guilty at any time before sentence. He submitted that on 6 September 2024 Wilson J was not required to determine facts, or any other matter in issue, and just listed the matter for sentence.

26. He relied on the judgment of Gaudron and Gummow JJ, their Honours’ having noted that in the United Kingdom there is no conviction until final adjudication by sentence, and their Honours’ statement that “… conviction only occurs when the court does some act which indicates that it has determined guilt or… has accepted that the accused is criminally responsible for the offence in question” by, for example, imposing punishment: [531].

27. Counsel relied on the decision of Grove J in Holton, and the characterisation by Grove J of Barr J’s order of conviction as provisional, not final in character. He also relied on Smart AJ’s statement, after referring to the judgment of Dawson and McHugh JJ in Maxwell*,* at [507], that:

“The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked.”

28. Counsel submitted that the Court of Criminal Appeal’s decision in White, and the two scenarios referred to by the Court at [23] - [24] must be considered in the factual context which the Court was considering, being an appeal from conviction. He relied on the Court in W**hite having referred to the English authorities that a judge may permit a person who pleads guilty to an indictment to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise: [46].

29. He relied on the statement of the Court of Criminal Appeal at [62] that:

“Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence.”

He submitted that the Court was there holding that finality depends on sentence having been passed.

30. He submitted that the decisions in Tsoumbanellis; R v Lapa (No 2) (1995) 80 A Crim R 398 (“Lapa (No 2*)*”); Dickson and Burrell were factually distinguishable. He submitted Tsoumbanellis was factually distinguishable in that it was a sentence appeal in which the issue was whether a document, not being the JusticeLink record, which recorded a discount for a plea of guilty was the Court’s record. He submitted that Lapa (No 2), Dickson and Burrell, whereby the Court had made orders disposing of conviction appeals, did invoke the principle of finality and differed from the circumstances of this application before the Court.

31. In response to the Crown’s argument in respect of ss 101 - 103 of the Criminal Procedure Act that the time has passed for Mr L to make the application he makes, because it was not made on the arraignment date, he submitted that there is no authority that supports the Crown’s proposed construction and there is no express time limitation in either ss 101 or 103. He submitted that when regard is had to the sequence of the provisions, and that s 103 points back to s 101 and the power to remit to the Local Court, that indicates that the legislature did not intend that s 103 did not have work to do after proceedings pursuant to s 102.

32. Counsel relied on the Crown’s acknowledgement that it is not uncommon for persons to plead guilty and be listed for sentence and final disposal not occur until sentence. He submitted it can be in the interests of justice for the Crown or the accused to seek the withdrawal of the plea of guilty before sentence. He submitted that the interests of justice cannot depend on whether or not a judge makes an order of conviction.

Consideration

33. Much reliance has been placed on the Court’s distinction in White between pre-conviction and post-conviction “scenarios”.

34. It is worth noting that in paragraph [59] the Court referred to “first scenario cases” as “where leave has been sought to withdraw a plea prior to entry of conviction (and sentence).” In [62] the Court said:

“A sensible distinction is to be drawn between allowing a plea to be withdrawn before conviction and going behind a guilty plea that has led to a conviction on appeal. The distinction between the two scenarios is brought home by consideration of the concept of finality, which is frequently mentioned in cases involving applications to withdraw a plea, as it was in the present case. Where a conviction has been entered and sentence passed, any attempt on appeal to disturb that outcome will necessarily impact on the finality of the verdict and sentence. On the other hand, where a conviction has not yet been entered even though the accused has pleaded guilty, nothing is final because it remains open for the Crown or the Court not to accept the guilty plea and, in the case of the Crown, to withdraw its acceptance at any time until the formal recording of a conviction and sentence.”

35. It seems clear that by invoking the principle of finality the Court was referring to conviction and sentence bringing the proceedings to finality. That is consistent with the position of Dawson and McHugh JJ in Maxwell.

36. I note the terms of Rule 3M, and the Crown’s submission that the Court’s order having been entered in the JusticeLink system and thus having been perfected, it cannot be reconsidered.

37. I note the Court’s statement in Dickson (No 2) at [30] that “Orders once perfected can rarely be reconsidered, not least because of the principal of finality.” I note that the Court said rarely, not never. That must allow for the consideration of the interests of justice. In my view an application to withdraw a plea of guilty before sentence does not offend the principle of finality.

38. The Crown’s proposed construction of ss 101 and 103, and the Crown’s submission that Mr L cannot avail himself of those provisions after he has been dealt with pursuant to s 102 imports into those sections a time qualification which is not expressed in the terms of either section. Nor do I consider that such a time limitation is imported by s 102. Section 102, in providing that a court may proceed to sentence or otherwise deal with an accused person on a charge certificate, has at least one function of giving a charge certificate the formal equivalence of an indictment, the charge certificate being a relatively recent document which the legislature clearly regarded as requiring that it be accorded that formal nature.

39. I do not read s 102 as importing a limit on an accused person’s ability to change his plea pursuant to ss 101 or 103. The provision in s 101(1)(c) “for any other reason the judge thinks fit to do so” appears to me to make provision for consideration of the interests of justice.

40. In the circumstances of this case, despite Wilson J, with the acquiescence of counsel for Mr L, having recorded a conviction against Mr L for the offence of murder which he faces, and having had that order entered in the Court record in JusticeLink, the principal of finality, in that Mr L has not yet been sentenced for the offence, does not prevent him making an application at this stage of his proceedings, and the Court considering his application, to withdraw his plea of guilty affirmed before Wilson J.

41. In my view this Court has the jurisdiction and the power to consider Mr L’s application.

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