Changing a Criminal Plea from Guilty to Not Guilty: The ‘Interests of Justice’ Test

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Guilty or not guilty

In December 1988, American mathematician Scott Johnson’s body was found lying at the base of a cliff at north Headland on Sydney’s Northern Beaches.

In 2017, a coronial inquest concluded that his death was caused by actual or threatened violence by an unidentified person (or persons), which resulted in him breaching the cliff edge and falling to his death.

Surprise plea of guilty entered in court

Scott White was eventually charged with murder early in 2020, 32 years after Scott Johnson’s body was found.

Mr White had strenuously denied during interviews with police and conferences with his legal team that he caused the death of Mr Johnson intentionally or with reckless indifference to human life – as is required to establish the criminal offence of murder.

Yet, he surprised all involved by formally entering a plea of guilty during a pre-trial hearing known as an ‘arraignment’ in the Supreme Court in January 2022.

An arraignment is where the charge or charges are read out to the defendant and he or she formally enters pleas of guilty or not guilty.

In March the same year, Mr White was sentenced to a maximum term of 12 years and seven months in prison with a non-parole period of eight years and three months.

Then in the decision known as White v R [2022] NSWCCA 241 which was delivered by a three-judge bench of the New South Wales Court of Criminal Appeal on 18 November 2022, the court allowed Mr White to reverse his plea  from guilty to not guilty.

His murder conviction was therefore set aside.

But let’s take a few steps back and look at how the result came about, and what it means for those who wish to change their pleas from guilty to not guilty in New South Wales – a procedure known as a ‘plea traversal’.

A confused plea

During the 20-months between his arrest and his arraignment, including at a conference held immediately prior to the arraignment, Mr White had repeatedly instructed his criminal defence lawyers that he intended to plead not guilty to the charge of murder.

He surprised everyone by formally entering a plea of guilty to the offence during arraignment, and the court immediately adjourned to give him the opportunity to confer with his lawyers.

During that meeting, Mr White reiterated that he wished to plead not guilty to murder, despite the events in the courtroom just moments beforehand.

He signed a statement to the effect that he “didn’t cause Scott Johnson’s death, he wanted to confirm his plea of not guilty and proceed with a trial.”

He told his lawyers that he was confused when he entered the guilty plea.

His lawyers then told the presiding judge that their client wished to change his plea to not guilty – in other words, to traverse his plea.

The matter was then set down for a hearing of the application for plea traversal, which took place over two days.

Miscarriage of justice test applied

During the plea traversal hearing, the judge considered whether a “miscarriage of justice” had occurred – which was the test her Honour thought was the correct one to apply when determining whether a plea traversal should be allowed.

Proving that such a miscarriage of justice occurred can be difficult for a defendant, as the test does not allow for the consideration of factors outside the actual event giving rise to the asserted miscarriage itself – in this case, the entering of a plea of guilty during the arraignment.

Her Honour ultimately found the defence had failed to discharge its onus of proving on the balance of probabilities that a miscarriage of justice had occurred in Mr White’s case, as he had entered the plea freely and voluntarily in circumstances whereby there was no undue influence or anything else to suggest such an injustice had indeed occurred.

The guilty plea was therefore confirmed and Mr White was ultimately sentenced to 12 years and seven months in prison for murdering Mr Johnson.

 Plea traversal – changing a plea from ‘guilty’ to ‘not guilty’

The laws relating to plea traversals in New South Wales is complex and fragmented in so far as different parts of legislation, and indeed pieces of legislation, can apply to different circumstances and stages in criminal proceedings, and these have been interpreted in varying and, at times, inconsistent ways by the courts.

That said, the Criminal Procedure Act contains a number of important provisions relating to plea traversals.

Section 103(1) of the Act, for instance, applies to situations where a defendant enters a plea of guilty at the committal stage of a criminal proceeding (which is in the Local Court) and later wishes to change that plea to not guilty when the case is in the District or Supreme Court.

The section provides as follows:

“(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.

It is evident subsection the section is contingent on the case having been referred to the higher court under section 97 of the Act, which is titled ‘Guilty pleas and committal for sentence’ and relevantly provides that:

“(1) An accused person may at any time in committal proceedings plead guilty to an offence.

 (6) If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court for sentence.”

Section 207 of the Criminal Code Act, which applies on the other hand to ‘summary proceedings’ – which are those to be finalised in the Local Court rather than committed to the District or Supreme Court.

The section provides that:

“(1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.

 (2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.”

Criminal Appeal Act relied upon

However, Mr White’s situation did not fall under either of those provisions as his plea of guilty did not relate to summary proceedings and nor did he enter it during committal proceedings.

Rather, he entered his guilty plea while his proceedings were already before a higher court and his case had in fact been finalised by way of a sentencing hearing.

So, it was necessary for his lawyers to rely on the provisions contained in section 5(1) of the Criminal Appeal Act 1912 (NSW) which relates to appeals from the District or Supreme Court to the NSW Court of Criminal Appeal.

The section provides as follows:

“A person convicted on indictment may appeal under this Act to the court— 

  • against the person’s conviction on any ground which involves a question of law alone, and
  • with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and
  • with the leave of the court against the sentence passed on the person’s conviction.”

Mr White relied on subsection 5(1)(b) above to seek the court’s leave (permission) to appeal for clarification regarding the law relating to plea traversals.

 Leave granted

Leave was granted and Mr White primarily sought clarification on the following two matters:

  1. Whether the correct legal test was applied to the application to withdraw the plea of guilty prior to conviction (the correct legal test); and
  2. Whether, even if the wrong legal test had been applied, no substantial miscarriage of justice would occur if the appeal were dismissed (the proviso).

Miscarriage of justice test is incorrect

The Appeal Court judges focused primarily on whether the original judge had made an error of law by applying the “miscarriage of justice” test to Mr White’s application to change his plea.

As stated, this test focuses on the integrity of the criminal justice process itself and typically involves a fundamental defect or failure in that regard – and this meant in Mr White’s case the judge did not take into account other factors impacting on the fairness of allowing him to change his plea.

The appeals court ultimately found that the miscarriage of justice test was the wrong one to apply to applications for plea traversals, and that the correct test is whether the defendant can establish that the interests of justice require would be served by the change being permitted.

 Interests of justice is the correct test

The interests of justice test is much broader than the miscarriage of justice test in so far as it permits a court to look beyond the integrity of the justice process itself (in this case, beyond just Mr White’s plea) and take into account a range of factors to determine whether justice requires the plea traversal be allowed.

The appeal judges helpfully explained that the following factors – in addition to any others that may be relevant – can be taken into account when deciding whether it is in the interests of justice to permit a change of plea from guilty to not guilty:

  • the circumstances in which the plea was given;
  • the nature and formality of the plea;
  • the importance of the role of trial by jury;
  • the time between entry of the plea and the application for its withdrawal;
  • any prejudice to the Crown from the plea’s withdrawal;
  • the complexity of the charged offence’s elements;
  • whether the accused knew all of the relevant facts intended to be relied upon by the Crown;
  • the nature and extent of legal advice to the accused before entering the plea
  • the seriousness of the alleged offending and likely penalty;
  • the accused’s subjective circumstances;
  • any intellectual or cognitive impairment suffered by the accused;
  • any reason to suppose that the accused was not thoroughly aware of what they were doing;
  • any extraneous factors bearing on the plea when made, including threats, fraud or other impropriety;
  • any imprudent and inappropriate advice given to the accused affecting their plea;
  • the accused’s explanation for seeking to withdraw the plea;
  • any consequences to victims, witnesses or third parties that might arise from the plea’s withdrawal; and
  • whether there is a real question about the accused’s guilt.

Test does not place a heavy onus on the defendant

 Importantly, the court in Mr White’s case rejected submissions made by the prosecution to the effect that the defendant bears a substantial onus when it comes to establishing that allowing a change of plea is in the interests of justice.

“[W]e would reject the argument advanced in the Director’s Supplementary Submissions that an accused seeking leave to withdraw a guilty plea bears a “substantial” or “heavy onus” of proof”, the court stated.

“While the onus of proof is certainly borne by the accused in an application for leave to withdraw a guilty plea, there is no principled basis for this Court to treat that onus as any “heavier” than in other circumstances where a party seeks to persuade a court to exercise a discretion in the interests of justice.”

 Applying the interests of justice test

The appeal court judges determined that had the “interests of justice test” been applied during the original application, leave (permission) to withdraw the plea of guilty would have been granted.

The court reasoned that if leave had been granted, the court would have seen a triable issue raising a real question of the applicant’s culpability for the murder of the deceased, and the possibility of a lesser conviction or acquittal could not be ruled out.

The judges found it was likely that Mr White’s mental health and anxiety issues contributed to his confusion around the entering of the guilty plea, and this was despite the fact he had received competent legal advice from his criminal defence lawyers.

The court therefore allowed the appeal and entered a plea of not guilty to murder, before remitting the case to the court for redetermination.

Reduced charge

In February 2023, Scott White formally pleaded guilty to the lesser charge of manslaughter conditional upon the murder charge being withdrawn.

He maintained he did not cause the death of Mr Johnson intentionally or with reckless indifference to human life.

He did accept, however, that his actions caused Mr Johnson’s death, despite telling police he “tried to grab” the man as he fell to his death.

In June of this year, Mr White was sentenced to 9 years in prison, with eligibility for release into the community on parole after 6 years.

Taking into account time he had already served, Mr White will be eligible for parole in 2026.

An important case

So in a nutshell, the case of White v R is important as it makes clear the correct legal test to apply in situations where a defendant wishes to change his or her plea of guilty to not guilty is whether the traversal is in the interests of justice, and that the onus borne by the defendant to convince the court of this is not a heavy or substantial one, but rather the regular onus placed on matters of proof on the balance of probabilities.

Going to court for a criminal offence?

If you wish to make an application for a change of plea, or otherwise appeal a criminal case, or if you require formidable legal representation from a long-established, specialist criminal defence law firm spearheaded by lawyers who are certified by the Law Society of New South Wales as Accredited Criminal Law Specialists and comprised of some of the nation’s best criminal lawyers, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 and let our multi-award winning team protect your rights and fight for your future, so you can move forward with what’s important in your life.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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