I wrote in March about applications to change plea.

The Court of Appeal considered this last week in R v Holden [2009] VSCA 254.

Mr Holden was convicted of manslaughter after pleading guilty to that charge.

He applied to the Court of Appeal to set aside his guilty plea, claiming he didn’t make a free and informed choice to plead guilty because he was pressured to do so by the trial judge and his lawyers, and because of his mental state and financial circumstances. Ultimately, the Court rejected his application.

Courts will permit withdrawal of a guilty plea if the circumstances cause a miscarriage of justice.

That might occur when:

• The accused did not appreciate the nature of the plea entered; or
• There is no evidence upon which the accused could lawfully be convicted; or
• The accused did not intend to plead guilty; or
• The plea was induced by fraud, misrepresentation, inducement or impropriety. (That is, the plea was not voluntary.)

But…the applicant must satisfy the Court that the change of plea is justified. Courts are reluctant to allow changes of plea following deliberate decisions to plead guilty, when that plea reflects a consciousness of guilt by the accused.

Neave JA delivered the Court’s judgment, Buchanan JA and Hansen AJA agreeing.

Her Honour first considered Mr Holden’s claim his plea wasn’t made voluntarily.

Was the plea voluntary?

67. In R v Forde Avory J said that:

A plea of [g]uilty, having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.

68. It is now well-established that an appellate court’s power to set aside a guilty plea is not limited to the situations described in R v Forde, and that a plea may be set aside if the circumstances in which the appellant pleaded guilty have given rise to a miscarriage of justice. In KCH Ipp AJA commented that:

There is no closed catalogue of circumstances that are capable of giving rise to such a miscarriage of justice and each case depends on its own circumstances.

69. Although a plea of guilty will be set aside if it was made in circumstances resulting in a miscarriage of justice, ‘there is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty’. The public policy argument in favour of this approach is particularly powerful, where, as a result of a negotiated plea, the offender has received the benefit of a directed acquittal on a more serious offence. Both counsel conceded that if Mr Holden was presented on a trial for murder, he would be entitled to rely on the defence of autrefois acquit.

70. In considering whether a miscarriage of justice has occurred, Victorian courts have been reluctant to find that a miscarriage of justice has occurred simply because a person who has pleaded guilty asserts that they were not in fact guilty of the relevant offence. In R v El Kotob and Hijazi O’Bryan AJA said:

I consider that an understanding, arrangement or agreement having been reached between the Crown and the appellants … it is not open to the appellants to withdraw from the plea agreement by applying for leave to appeal against conviction unless they satisfy the very exceptional circumstances set out in R v Stewart.

71. In R v Murphy the Court of Criminal Appeal refused to extend time to allow the applicant to give notice of an appeal against conviction resulting from her plea of guilty. The applicant claimed that her conviction should be set aside because she was in fact innocent of the offence, but had been subjected to pressure by her counsel to plead guilty. She alleged that her counsel had led her to believe that if she pleaded not guilty she would inevitably be convicted and would lose custody of a child she hoped to adopt, but that if she pleaded guilty she would not be sent to prison and might be able to keep the child.

72. In their joint judgment Herring CJ and Adam J said that the applicant’s claim that she was in fact innocent:

… appears to be an invitation to this Court to disregard the plea of guilty and to determine for itself, without the aid of a jury, the guilt or innocence of the applicant … It would, we think, be a sufficient answer that, until grounds are shown in accordance with the rules formulated in R v Forde for disregarding the plea of guilty, it is not the function of an appellate Court to try the issue of guilt or innocence.

73. On the basis of the evidence at the committal and the evidence given by the applicant on the hearing of the application, Herring CJ and Adam J were satisfied that a prima facie case of guilt had been made out and that it would therefore have been open to a jury to have convicted the applicant. They said that even if the applicant had been motivated by her belief she would receive a non-custodial sentence and that this would assist her to adopt the child, her guilty plea should not be set aside because she had been perfectly well aware that in making it she was admitting her guilt of the offences charged. There was no fraud or duress which would provide a basis for affording her any relief.

74. Sholl J found that counsel had left the applicant ‘in no doubt that if she pleaded not guilty she would nevertheless be convicted and would in the end be very much worse off than if she pleaded guilty’. Nevertheless his Honour said that, in the end, it was the applicant’s own decision to do so. He said that if he had thought that the applicant was ‘probably innocent’ and that she had pleaded guilty without reference to any consciousness of guilt, he would consider that there had been a miscarriage of justice which required the ordering of a retrial. However, in the circumstances of the case, he concluded that the most probable explanation for the applicant’s guilty plea was that she believed that she would receive a reduced sentence.

75. The question in this case is, therefore, whether a miscarriage of justice has occurred because Mr Holden did not consider himself guilty of manslaughter, but pleaded guilty as a result of his fragile mental condition, the comments made by her Honour, the pressure brought to bear on him to plead guilty by his legal representatives and/or some combination of these circumstances. I deal with each of these matters in turn. (Footnotes excluded.)

Her Honour considered the facts argued by Mr Holden, and decided he hadn’t established that his guilty plea wasn’t made voluntarily.

Mr Holden also alleged a miscarriage of justice occurred because he wasn’t told he could ask to withdraw his guilty plea before he was sentenced.

Her Honour also rejected that claim.

131. A person who pleads guilty may apply to the court for leave to withdraw the guilty plea before he or she is sentenced. It is implicit in Mr Holden’s submission that if he had sought to withdraw his guilty plea before he was sentenced, the judge would have granted that application and that thus, a miscarriage of justice occurred. Counsel for the Crown submitted that, even if such an application had been made, it is unlikely that her Honour would have permitted the plea to be withdrawn in circumstances where it was negotiated in the context of a directed acquittal on the charge of murder.

132. In Middap, the applicant sought leave to appeal from a decision of a trial judge refusing to allow him to change guilty plea to not guilty. It was submitted on his behalf that there was a presumption in favour of granting the application. The applicant relied on a passage in The Queen v Broadbent in which O’Bryan J (giving judgment for the Victorian Court of Criminal Appeal) said that a guilty plea:

…may in the course of the trial be withdrawn. It would appear that the court has a discretion not to allow such a withdrawal but in most cases a prisoner who desires to withdraw his plea of guilty should be allowed to do so.

133. In Middap, the Crown in answer relied on a passage in the judgment of the Court of Criminal Appeal in Dauer in which it was said:

…it is not for us to rehear the material with which you are seeking to win a right to change your plea, and as no error was found on the part of the judge (and, indeed, the evidence would have to be extremely strong to persuade him to allow you to enter a changed plea) we can see no reason for interfering with what has occurred in that connection and your application for leave to appeal against conviction must therefore fail.

134. The Court (Crockett, O’Bryan and Grey JJ) said that neither of these passages should be construed as indicating that a presumption arose in favour of or against an applicant seeking leave to change his plea of guilty to one of not guilty:

The only test which is to be applied is whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant. Each case must be examined on its own facts and merits, and there is no question but that the judge has a discretion, indeed perhaps a wide discretion, to exercise in relation to the matter …

135. In Middap, it was held that no miscarriage of justice had occurred, because the trial judge had refused to allow the applicant to change his plea. The Court considered that the judge’s decision was based on the fact that the applicant’s real complaint was about the penalty that had been imposed and it was for that reason that the applicant had sought to change his plea. In those circumstances it was held that no miscarriage of justice had occurred.

136. In Boag the New South Wales Court of Criminal Appeal (Hunt CJ, with whom McInerney and James JJ agreed) rejected the submission that there is a right to a grant of leave to withdraw a guilty plea whenever the applicant has a bona fide wish to be tried by a jury. The Court held that once an accused freely pleads guilty the fact that the Crown case might not have succeeded if the jury took a particular view of the evidence did not necessarily mean that there was a miscarriage of justice if the accused was held to the plea.

137. In my view Mr Holden’s appeal against conviction was partially motivated by the fact that the sentence he received was longer than he expected. He may also have believed that he had a chance of not being convicted of any offence. While this was a matter which the trial judge could have taken into account in deciding whether he should be permitted to withdraw his guilty plea, it is not decisive.

138. The question then is whether a miscarriage of justice has occurred because he was unaware that he could apply to the trial judge to change his plea. The onus is on Mr Holden to show that such a miscarriage has occurred.

139. Counsel for the Crown submitted that even if such an application had been made it was unlikely that her Honour would have permitted a withdrawal of the plea in circumstances where it was negotiated in the context of a directed acquittal on the charge of murder.

140. In my opinion, the Crown’s submission that, if such an application had been made it was unlikely that her Honour would have accepted it, should be accepted. The plea was negotiated in a context in which Mr Holden admitted to killing Torney, but said that the killing occurred in self-defence. For the reasons discussed above the Crown case against Mr Holden was a strong one. The effect of the directed acquittal on the murder count is that Mr Holden could not be tried for that offence, even if the trial judge had permitted him to withdraw his plea of guilty to manslaughter. I have found that Mr Holden freely pleaded guilty to manslaughter. In these circumstances I do not consider that a miscarriage of justice occurred because Mr Holden was deprived of the opportunity to withdraw his guilty plea.