In What Circumstances Can I Change My Plea of Guilty to Not Guilty in NSW?

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Scott Johnson

A man who unexpectedly pleaded guilty to murdering American Scott Johnson in 1988, has had his conviction quashed on appeal and will now face trial for murder in the Supreme Court of New South Wales.

Scott Johnson’s naked body was found on rocks at the foot of cliffs at Blue Fish Point in North Head near Manly, New South Wales, on 10 December 1988. At the time, police ruled the death as suicide, despite push back from the young man’s family. 

Since then, three inquests have resulted in three different findings: one found Mr Johnson took his own life, another returned an open finding while the third ruled his death was the result of a gay hate crime.

It’s a crime that has mystified Australians for 35 years and recently been made even more intriguing by a number of interesting judicial processes. 

In January this year, during a pre-trial hearing, Scott White pleaded guilty to Mr Johnson’s murder, surprising his legal team because prior to this he had unequivocally protested his innocence. 

Immediately following the hearing, Mr White’s lawyers held a conference during which Mr White told them he was not guilty. 

In May this year, he was sentenced to twelve years in prison for murder by reason of “reckless indifference to human life”, under lower penalties that applied to this category of offence in the 1980s. 

Plea traversal 

However, in the “interests of justice”, Mr White has now been granted a ‘plea traversal’ which is a mechanism which enables a defendant who has entered a plea of guilty to change it to not guilty. 

There a number of factors to be considered by the court before changing the plea have been set out by the Court of Criminal Appeal, and these specifically relate to whether or not a miscarriage of justice has occurred. The burden is on the applicant to prove that a miscarriage of justice has occurred. 

The law does not state a definitive list of circumstances in which a plea traversal will be accepted by the court, but the court will take into consideration elements such as: 

  • Where the plea was not a ‘free and voluntary confession’,
  • Where there has been a ‘mistake or other circumstances affecting the integrity of the plea as an admission of guilt’,
  • Where the person who entered the plea was not aware of all the facts and ‘did not entertain a genuine consciousness of guilt’,
  • Where an accused did not understand the nature of the charge, and
  • Where a lawyer has given imprudent or inappropriate advice 
  • Where an accused person is placed under ‘improper pressure’ to enter a plea of guilty.

Threshold higher when defendant is represented

The threshold for plea traversal is generally higher where the defendant entered their plea of guilty after obtaining advice and representation from a lawyer. In the present case, the NSW Director of Public Prosecutions, Sally Dowling SC submitted to the court: 

“There is no suggestion … that the applicant was not very ably legally represented at every stage of this proceeding”.

Plea of convenience

Mr White’s lawyers have submitted to the court that his original guilty plea was “a plea of convenience”.

“The bottom line in this case is that before and after, he has insistently asserted that he is not guilty, and he has never asserted anything else, and that none of the reasons that he gave for pleading guilty were good reasons,” his legal team asserted to the court. 

Mr White has also been described as, “a man with significant mental difficulties.” 

Conviction quashed

The New South Wales Court of Criminal Appeals has overturned Mr White’s conviction and decided that White’s application to withdraw his guilty plea should be considered. 

In reaching the decision, the court remarked:

“In the present case, we are unable to conclude that no substantial miscarriage of justice actually occurred because, although the matter might be thought to be finely balanced, we are not persuaded that the result would have been the same had the interest of justice test been applied to the White’s application for leave to withdraw his plea of guilty,” the court said in a statement. 

“This is not a situation where “the case against the accused is overwhelming”, or in which, if the matter proceeded to trial, a guilty verdict for the murder charge would be a foregone conclusion. 

The possibility of a lesser conviction, of manslaughter, for example, or indeed complete acquittal, cannot be ruled out.” 

The case will return to court in December 2022, after which a date will be set for a jury trial in the Supreme Court of New South Wales.

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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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