By Paul Gregoire and Ugur Nedim
Releasing its final findings in late 2017, the third coronial inquest into the death of US mathematician Scott Johnson, whose body was found at the base of Blue Fish Point in the Sydney suburb of Manly on 10 December 1988, determined it was the result of a gay hate crime.
This incident was part of a spate of gay hate bashings and murders that took place in Sydney over the late 1970s to the early 2000s.
Scott Phillip White was subsequently arrested and charged with the murder of Johnson on 12 May 2020. And despite having maintained his innocence prior to being arraigned on 10 January last year, when White stood before the court at 11 am on that day, he entered a plea of guilty.
On hearing the unexpected plea of guilt, the court adjourned, the defence had a post-arraignment conference and by 11.35 am, a statement by White had been released, in which he cited his exhaustion and confirmed that he actually wanted to plead not guilty.
As the guilty plea was not entered by error, the court deliberated for two days on whether it should be withdrawn. And NSW Supreme Court Justice Helen Wilson refused to permit the withdrawal as it hadn’t been established that a miscarriage of justice would occur if the guilty plea was left to stand.
And on 3 May 2022, White was sentenced to 12 years and 7 months prison time, with non-parole set at 8 years and 3 months, over Johnson’s murder, which was contrary to section 18 of the Crimes Act 1900 (NSW): an offence that carries the maximum penalty of life imprisonment.
Appealing the conviction
White appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) in October 2022. He did so on two grounds. The first was that his conviction constituted a miscarriage of justice, whilst the second involved the primary judge being in error when refusing to withdraw the guilty plea.
A three-justice bench of the NSWCCA stressed that in deliberating upon the appeal it was important to differentiate between an application to withdraw a guilty plea prior to conviction and an appeal of a conviction despite a guilty plea having been entered.
An appeal post-conviction can be made under three circumstances as set out in section 6 of the Criminal Appeal Act 1912 (NSW). These involve the jury verdict being unreasonable, a wrong decision on a question of law, or that on any other ground there has been a miscarriage of justice.
The court heard that Justice Wilson had permitted the plea of guilt to stand as it did not constitute a miscarriage of justice, based on 12 points she considered, which included White’s ability to make the plea, that he was distressed on the morning of entering it and his reluctance to discuss it afterwards.
White’s barrister put it to the court that the test applied by the primary judge was inappropriate for a guilty plea entered prior to conviction, and he added that the correct test to be applied to this set of circumstances was whether the withdrawal of the plea was in “the interests of justice”.
The legal professional added that this was consistent with the High Court’s ruling in 1996’s Maxwell versus the Queen. However, the prosecution countered that the miscarriage of justice test was correct, adding that it was no different from applying the interests of justice test.
The authorities
Maxwell dealt with the prosecution withdrawing its acceptance of a plea of guilt in the interests of justice, and White’s barrister argued that as this was determined acceptable for the prosecution to do, it should also be open for the defence to do the same in these circumstances.
In Maxwell, High Court Justice John Toohey set out that the court has the power to withdraw a guilty plea at any time prior to sentencing, and that it too can be withdrawn and a conviction be set aside based on a number of grounds, including that the accused didn’t intend to plead guilty.
“This is part of the inherent jurisdiction of courts to see that justice is done,” his Honour added.
The NSWCCA also considered the SA Supreme Court’s decision regarding a judicial review of a SA District Court decision to permit the withdrawal of a guilty plea in 1989’s Attorney General versus Kitchen, which allowed withdrawal of a plea on the morning an accused was to be sentenced.
The interests of justice
NSWCCA Justices Andrew Bell, Richard Button and Natalie Adams outlined that the interests of justice test is much broader than testing for a miscarriage of justice, and it rejected the assertion that withdrawal of a guilty plea prior to conviction bears a “heavier” onus on proof.
Examples of cases where the interests of justice warrant such a withdrawal include the nature of the charge not being understood, the plea not being free and voluntary, it not being attributable to genuine guilt or the plea being made in circumstances that aren’t a true admission of guilt.
The three-justice bench found that the conviction and sentence were passed based on a refusal to allow the withdrawal of the plea of guilt based on the wrong test being applied to whether it should be: therefore, the first ground was made out and the second ground didn’t need to be determined.
“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 interests of justice test been applied,” their Honours said.
The court gave reasons to support its finding, including the speed of the initial withdrawal, that entering it was motivated by White’s desire to avoid his ex-wife, the Crown hadn’t articulated how it would put its case, that the accused thought he’d get a lesser sentence and that the plea was unexpected.
The orders of the day
Based on these reasons, on 18 November 2022, the three-justice bench of the NSWCCA determined to allow White’s appeal, quash his conviction and sentence which were imposed by the NSW Supreme Court, and to remit the matter to Chief Judge at Common Law Robert Beech-Jones.
White sought a nonpublication order for this decision, but the NSWCCA found this inappropriate in terms of the public interest in open justice.
Yet, the judgment may be removed from the caselaw website prior to the empanelment of a jury to try this matter so as not to prejudice it.
