R v Wilkinson [2008] NSWSC 1432 | Case summary

JUDGMENT (on threshold issue concerning application for leave to withdraw plea of guilty to murder - T52) 1 JOHNSON J: On 17 October 2008 the Offender, Paul James Wilkinson, appeared before me with respect to an indictment alleging two offences, murder and arson. Upon arraignment, he pleaded not guilty to murder but guilty to manslaughter. With respect to the second count of arson, he pleaded guilty. The Crown indicated that it did not accept the plea of guilty to manslaughter in full satisfaction of the indictment, and a trial date was confirmed to commence on 18 November 2008. 2 On 12 November 2008, the matter was listed before me at the request of the legal representatives for the Offender. I note that these legal representatives (both counsel and solicitor) had appeared for the Offender since July 2005. On that day, at the request of his legal representatives, the Offender was re-arraigned on the count of murder. To that charge, he pleaded guilty. The Crown then asked the Court to formally convict the Offender. Nothing was said in opposition to that application by the solicitor for the Offender, and I then said, "The accused, having pleaded guilty to the count of murder and having pleaded, on 17 October 2008, to the second count on the indictment of arson, I convict the accused of both offences". 3 The matter was then adjourned for the purpose of a sentencing hearing, with it coming back before me on 21 November 2008 and 2 December 2008, when some evidence was taken. The matter was then adjourned for the sentencing hearing to proceed in its entirety, and to completion, commencing Monday 15 December 2008. 4 During the course of the week preceding 15 December 2008, my Associate was informed by the legal representatives for the Offender that their instructions had been withdrawn. 5 On 15 December 2008, the Offender's counsel and solicitor appeared and, in due course, I granted them leave to withdraw. Mr Donnelly, solicitor, then appeared for the Offender and announced that an application was to be made for leave to withdraw the plea of guilty to the count of murder. 6 I indicated that, having regard to the history of the matter, such an application ought proceed promptly. I raised with Mr Donnelly, the legal consequences of my convicting the Offender of murder, following his plea of guilty to that offence. In due course, I stood over until today argument on a threshold question, namely, whether it is open to this Court, as the Court of trial, to entertain an application for leave to withdraw a plea of guilty where the Court has convicted the Offender following his plea, or whether it is for the Court of Criminal Appeal, on an appeal to that Court under the Criminal Appeal Act 1912, to consider such an application if made to it. 7 Today, Mr Turnbull SC has appeared for the Offender. He submits that a single judge of this Court may entertain an application for leave to withdraw a plea of guilty, even after a conviction has been entered by the judge, as long as the application is made before sentence is passed. In support of that submission, he referred to a number of authorities including the decision of the Court of Appeal in Frodsham v O'Gorman (1979) 1 NSWLR 685, and decisions of the High Court of Australia in Griffiths v The Queen (1976 1977) 137 CLR 294 and The Queen v Maxwell (1995) 184 CLR 501. 8 The Crown submits that the order of conviction made by me following the plea of guilty constitutes a final order, or final determination, so that it is not open to the Court, as the Court of trial, to entertain this application. The Crown places reliance upon the decision of the Court of Criminal Appeal in Norvenska v Director of Public Prosecutions [2007] NSWCCA 158 (particularly at [8]) and ss.2 and 5 Criminal Appeal Act 1912, together with passages in the decision of the High Court in Maxwell. 9 It has not been put that any statutory provision in the Criminal Procedure Act 1986 bears directly on this question. Section 157 of the Criminal Procedure Act 1986 does not have direct application because that section applies where there is a change of plea following the commencement of trial by jury. Section 207 of that Act has no application because that provision relates solely to summary proceedings in the Local Court. Thus, the present issue falls to be determined by consideration of general principles. 10 During the course of submissions, I have raised with counsel a number of other authorities where the meaning of the term "conviction", and its legal effect, has been considered. These cases include R v Holton [2004] NSWCCA 214 and R v Stone (2005) 64 NSWLR 413. These cases have considered and applied the decisions of the High Court in Griffiths and Maxwell, and contain some analysis of the judgments in Maxwell. Counsel have not had an opportunity to consider those cases to the extent that they shed light on the issue to be determined on the present application. 11 The present issue is a significant one for the administration of criminal justice in this State. Today counsel, as I have said, have not had an opportunity to consider the further authorities to which I have referred for the purposes of making submissions on this question. I am hearing this argument on the last day of term for 2008. I have already determined that this matter will proceed on 29 and 30 January 2009, that is, in the week before the commencement of the next Law Term, either by way of the hearing of the application to withdraw the plea of guilty or, if I determined that there was no power to entertain such an application, by way of sentencing hearing. 12 The present question involves a significant legal issue which ought to be determined carefully, and ought not be determined on the run. In my view, further submissions of the parties will assist in the determination of that question. 13 I also have regard to the current state of these proceedings. They have been on foot for some time. They have been before me for various purposes since the middle of October this year. There is an expectation that the issues in these proceedings ought be determined as expeditiously as possible, at the same time as the parties having a proper opportunity to make submissions on important legal questions to assist the Court. 14 What I propose to do is to adjourn the hearing of the present application until 29 and 30 January 2009. At that time, I will hear the application to withdraw the plea of guilty in its entirety. I emphasise that the present legal question remains open, and it will be determined in the light of fuller submissions than those which have been made today. It is important that that issue be determined expeditiously and only after proper hearing, and that process ought be coupled with the hearing of the application to withdraw the plea itself, so that the Court may move directly to that issue. 15 I will give directions shortly for the Offender to file and serve any evidence to be relied upon for the purpose of this application. It is for the Offender to satisfy the Court, firstly, that it is legally open to entertain this application and, secondly, if it is legally open, to seek to establish that the relevant discretion ought be exercised in favour of the withdrawal of the plea of guilty. Thus, evidence will need to be filed and served by the Offender bearing upon that issue, so that on the next occasion this aspect of the matter can be heard and determined in the manner that I have foreshadowed. [For discussion as to future progress of the matter, see transcript]

R v Wilkinson

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Judgment (14 paragraphs)

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Cited By (2)