Citation: Fuimaono v Director of Public Prosecutions [2011] NSWSC 472
Court: Supreme Court of New South Wales
Date: 24 May 2011
Judge(s): Rothman J
Background
The plaintiff had been charged with three counts of dishonestly obtaining a financial advantage by deception under the Crimes Act 1900, arising from allegations that he and a cousin obtained fuel from a service station without paying on three occasions. He entered guilty pleas in the Local Court on 16 May 2010 while unrepresented. The matter was adjourned for sentence, during which time the plaintiff obtained legal representation.
On 1 July 2010, the plaintiff applied to withdraw his guilty pleas. In a supporting affidavit, he stated that he had not received legal advice before entering the pleas, had been unaware of the essential elements of the offences, did not know he had pleaded guilty to three separate charges, and had not received a copy of the electronically recorded interview with police (known as an ERISP).
The Local Court magistrate refused the application to withdraw the pleas. At that hearing, the plaintiff's legal representative had not been provided with the materials on which the magistrate relied to refuse the application. The plaintiff then sought Supreme Court review of that refusal.
Legal Issues
- Whether the Local Court's refusal to allow withdrawal of the guilty pleas should be set aside on the basis of a denial of procedural fairness (natural justice)
- Whether the plaintiff's legal representative had been given access to the material relied upon by the magistrate in making the decision
- Whether orders in the nature of certiorari and other relief were available under the Crimes (Appeal and Review) Act 2001
Decision
The DPP conceded that a denial of procedural fairness had occurred. The magistrate had relied upon the police fact sheet, the ERISP, and the plaintiff's criminal history, none of which had been provided to the plaintiff's legal representative before or during the hearing of the withdrawal application. As a result, the representative could not obtain instructions or make submissions on that material.
Rothman J confirmed the foundational principle that a party must be made aware of, and given access to, the evidence relied upon by the opposing party and the decision-maker. Because that opportunity was denied here, the magistrate's decision could not stand.
Given the DPP's concession and the clear procedural fairness breach, the Court found it unnecessary to resolve several other legal questions that had been raised, including whether the relevant provisions of the Crimes (Appeal and Review) Act 2001 permitted an appeal against an interlocutory order, and whether any error was one of law or fact.
Orders Made
- An order in the nature of certiorari setting aside the magistrate's decision of 1 July 2010 refusing the plaintiff's application to withdraw his guilty pleas
- The Local Court directed to deal with the plaintiff's application in accordance with law
- Leave granted to the parties to approach the Supreme Court to complete any orders necessary to have the matter determined
- No order as to costs
Key Takeaways
- A decision-maker's reliance on material that has not been disclosed to a party, and on which that party has had no opportunity to make submissions, constitutes a denial of natural justice sufficient to warrant the decision being set aside.
- Where a denial of procedural fairness is established and conceded, an order in the nature of certiorari is an available remedy to quash a Local Court decision refusing withdrawal of a guilty plea.
- The Supreme Court confirmed that it need not resolve ancillary procedural questions (such as whether the challenged order was interlocutory or whether any error was one of law or fact) once a procedural fairness breach is clearly established.
- Under the rule of law, access to the evidence relied upon by the opposing party and by the decision-maker is a necessary precondition to a party's ability to prepare and present their case.
- The DPP's concession of error did not automatically produce final orders; the Supreme Court independently reviewed the evidence before making its orders and reserving reasons.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 53(1), 53(3), 55(1)(b), 55(3)(a)
Cases cited: No cases were cited in the judgment.