It is in the "interests of justice" for a Sydney man who unexpectedly pleaded guilty to murdering American mathematician Scott Johnson to instead be tried by a court, his lawyers have argued during an appeal.
Scott Phillip White was handed a 12-year jail sentence in May, more than three decades after Mr Johnson's body was found at the base of cliffs at North Head in 1988.
The 52-year-old surprised his lawyers by pleading guilty during a pre-trial hearing in January, but now maintains his innocence.
White's defence team made an unsuccessful attempt to have the plea withdrawn and he is now appealing the conviction.
Barrister Tim Game SC on Tuesday told the NSW Court of Criminal Appeal White did not understand that he was going to be arraigned on the morning of his plea.
At that time, the Crown case against White was not particularised and there were no facts for his plea to be entered against, he argued.
White was sentenced by Justice Helen Wilson on the basis of his "reckless indifference to human life", in accordance with the lower penalties that applied in the 1980s.
"Nobody had said a word about reckless indifference to life until during the sentence proceedings," Mr Game told the appeal hearing.
Immediately after the plea, White's lawyers held a conference in which he instructed them he was not guilty.
"It is in the interests of justice that this issue be tried by a court as to the question of guilt," Mr Game submitted.
During the conference, White expressed concerns his ex-wife would "come after" him.
"That is not a good reason to be pleading to an offence, and that's a reason he's giving," Mr Game said.
He said the plea had been described as "a plea of convenience", but told the court: "I've never heard of a plea of convenience for murder".
"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."
Mr Game described his client as "a man with significant mental difficulties, to say the least".
At one point during the hearing, White appeared distressed on a video link from prison and could be heard crying.
After a short break, Mr Game told the judges White was "quite distressed" and didn't want to be present while the appeal continued.
NSW Director of Public Prosecutions, Sally Dowling SC, earlier told the court that at the point of the guilty plea, the whole of the brief of evidence had been served.
“There is no suggestion … that the applicant was not very ably legally represented at every stage of this proceeding,” she told the court.
Ms Dowling said the day White pleaded guilty was his first formal arraignment.
“He had not had the opportunity to say the words ‘guilty’ or ‘not guilty’ at any point in time,” she said.
It was also White’s first in-person court appearance and he had been sitting in court with the victim’s family for about an hour, due to a delay.
Ms Dowling noted that during the post-plea conference, White told lawyers his plea wasn’t a split second decision.
At a separate conference prior to the court starting, lawyers explained the process to White, she told the hearing.
“What's going to happen has been clearly communicated to him and he's well supported.”
Ms Dowling also read out written notes from several conferences lawyers held with White prior to that day.
In a September 2020 conference, White raised the possibility of a guilty plea while simultaneously maintaining “but I didn’t do it”.
“Ultimately that will be 100 per cent your decision, people plead guilty for different reasons,” he was advised, according to notes from the conference.
The court heard that in October 2021, White contacted Legal Aid to tell his lawyers he wanted to change his plea.
Notes of a subsequent conference record that he was again told it was his choice.
The hearing will continue on Wednesday.
