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Court of Criminal Appeal 6 February 2012

Lawton v R

[2012] NSWCCA 16

Assault & violence
APPEAL CRIMINAL WITHDRAWAL OF PLEA APPEAL CONVICTION BASED ON PLEA OF GUILTY WHETHER MISCARRIAGE OF JUSTICE

Citation: Lawton v R [2012] NSWCCA 16
Court: Court of Criminal Appeal, NSW
Date: 6 February 2012
Judge(s): Basten JA; RS Hulme J; Schmidt J

Background

The applicant pleaded guilty in the District Court to recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW), following an incident in the early hours of 31 October 2009 outside a Maitland supermarket. During a fight, a bystander stepped in to intervene and was struck by a punch. The bystander fell to the concrete, suffered a serious head injury, and was left unresponsive.

The plea was entered on 17 March 2011 on the advice of the applicant's solicitor. The applicant was convicted and sentenced to a non-parole period of three years and nine months, with an additional term of two years and six months.

The applicant subsequently sought to withdraw his plea, contending that he had been given incorrect legal advice about the elements of the offence and had never intended to admit guilt to the charge as properly understood.

  • Whether the guilty plea was entered under a material misapprehension about the mental element required for the offence under s 35(2) of the Crimes Act 1900 (NSW)
  • Whether incorrect legal advice from the applicant's solicitor regarding that mental element produced a miscarriage of justice
  • Whether leave to withdraw the plea should be granted and the conviction set aside

Decision

The Court of Criminal Appeal allowed the appeal, with the Crown's counsel conceding that the applicant did not appreciate the nature of the charge and did not intend to admit guilt to all of its elements when entering the plea. That concession was grounded in the decision in Blackwell v Regina [2011] NSWCCA 93, which confirmed that the offence of recklessly causing grievous bodily harm requires foresight that the offender's recklessness might cause the victim grievous bodily harm. The advice given by the applicant's solicitor was inconsistent with that requirement.

The applicant's own affidavit stated that he had struck impulsively, without contemplating or foreseeing that the punch would cause serious injury. The Court accepted that, had the applicant been correctly advised about the mental element before entering his plea, it did not follow that he would still have pleaded guilty.

Basten JA was sharply critical of the affidavit material filed in support of the application. He described the applicant's and solicitor's affidavits as bare and inadequately detailed, noting the solicitor had not explained the advice given, his understanding of the offence's elements, or his instructions. Hulme J agreed with that criticism but considered the material nevertheless sufficient, particularly because the Crown did not require the solicitor for cross-examination and the concession as to error had to be accepted.

Applying the test from R v Hawker, the Court found the applicant's plea had not been entered with full understanding of the charge or with the intention of admitting all elements of the offence. That produced a miscarriage of justice when the sentencing judge acted on the plea to convict.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Leave granted to the applicant to withdraw his plea of guilty
  • Conviction and sentence set aside
  • Matter remitted to the District Court for further hearing according to law

Key Takeaways

  • A conviction entered upon a guilty plea constitutes a miscarriage of justice where the accused did not understand the nature of the charge and did not intend to admit all elements of the offence, including the requisite mental element.
  • Under Blackwell v Regina [2011] NSWCCA 93, the offence of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW) requires foresight that the offender's recklessness might cause grievous bodily harm, not merely foresight of some harm.
  • Incorrect legal advice about the mental element of a charge can found an application to withdraw a guilty plea, even after conviction and sentence have been imposed.
  • The Court of Criminal Appeal was critical of the inadequate affidavit evidence filed in support of the application, noting that neither the applicant nor his solicitor explained the advice given, the instructions received, or the basis for the solicitor's understanding of the law. This left the application in a state Basten JA described as "far from satisfactory."
  • Where a solicitor's advice about an offence's elements is demonstrated to be legally erroneous, and the Crown does not seek to cross-examine the solicitor on the circumstances of the plea, a court may accept that the plea was not entered with full and informed understanding of the charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases:
- Blackwell v Regina [2011] NSWCCA 93
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- R v Hawker [2005] NSWCCA 118
- R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310