AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 5 June 2020

R v Foran

[2020] NSWDC 274

Assault & violence
LEAVE TO APPEAL ENTRY OF PLEA ON SOLICITOR’S ADVICE

Citation: R v Foran [2020] NSWDC 274
Court: District Court of NSW
Date: 5 June 2020
Judge: Mahony SC DCJ

Background

The applicant was a security officer who, in the early hours of 21 June 2019, punched an intoxicated patron he was ejecting from a Pyrmont hotel. The patron had thrown punches at him first. The applicant made a contemporaneous entry in the incident log recording that he acted in self-defence, and later gave a detailed electronically recorded interview (ERISP) to police along the same lines.

The applicant retained a solicitor who, after viewing CCTV footage of the incident alone, without the applicant present, advised that his prospects of successfully raising self-defence were no better than "50/50" and that there was a significant possibility he would be found guilty. Relying on that advice, and on the solicitor's assessment that a plea of guilty offered an 80 to 90 percent chance of a non-conviction outcome, the applicant changed his instructions and entered a plea of guilty to common assault in the Local Court on 30 October 2019.

The applicant subsequently applied to the District Court to withdraw his plea of guilty and have the conviction set aside, arguing that the advice on which he relied was seriously flawed because his solicitor had not reviewed the ERISP interview or the incident log before advising him.

Legal Issues

  • Whether the applicant's plea of guilty was entered on the basis of flawed legal advice such that a miscarriage of justice would occur if the conviction were allowed to stand.
  • Whether expert evidence from a specialist solicitor about the standard of advice required was admissible, including whether compliance with the expert witness code of conduct and a certificate under s 177 of the Evidence Act 1995 were prerequisites to admissibility.
  • Whether the Crown's submission that the solicitor was in substantially the same position from the applicant's written list of facts-sheet inaccuracies as she would have been had she reviewed the ERISP and incident log should be accepted.

Decision

Issue 1: Admissibility of expert solicitor evidence

The court admitted the affidavit of Mr Herring, an accredited specialist in advocacy. Compliance with the expert witness code of conduct under the Uniform Civil Procedure Rules is not a prerequisite to admissibility, because the court retains a discretion to dispense with that requirement. A certificate under s 177 of the Evidence Act 1995 is a mechanism for adducing expert evidence, not a threshold requirement for its admission (at [31]). The court was satisfied that Mr Herring's opinions were based wholly or substantially on his specialised knowledge as a solicitor, and were therefore admissible under s 79 of the Evidence Act 1995 (at [34]).

Issue 2: Whether the legal advice was flawed

Mr Herring identified three pieces of evidence critical to any proper assessment of a self-defence argument: the ERISP interview, the CCTV footage, and the incident log (at [35]-[36]). The court found that Ms Cameron did not listen to the ERISP recording or obtain a transcript, and never obtained instructions about the incident log before providing her advice on 22 August 2019 (at [69]). The ERISP interview, which ran for approximately 50 minutes, contained detailed explanations of the applicant's conduct during the confrontation, including what was occurring in the three to four seconds immediately before he struck the patron (at [74]). The court rejected the Crown's submission that reviewing the applicant's written list of facts-sheet inaccuracies placed Ms Cameron in substantially the same position as reviewing those materials (at [72]).

Issue 3: Whether a miscarriage of justice occurred

The court acknowledged that applications to withdraw pleas of guilty are approached with caution, bordering on circumspection, and that an applicant must establish a good and substantial reason for leave. The court accepted that the applicant gave written instructions on his own free will to enter the plea, and had opportunities from 27 August until 30 October 2019 to change course (at [68]). However, throughout that period he remained reliant on advice that was given without regard to readily available evidence supporting self-defence (at [76]). The court found the advice, particularly the assessment of a "significant possibility" of conviction and "50/50" prospects for self-defence, was seriously flawed. That flaw persisted through to the date of conviction (at [76]). Accordingly, the court found that a miscarriage of justice would occur if the conviction were allowed to stand (at [77]).

Orders Made

  • Leave granted to the applicant to appeal under s 12(1) of the Crimes (Appeal and Review) Act 2001.
  • Leave granted to the applicant to change his plea to not guilty.
  • The conviction entered in the Local Court of NSW on 30 October 2019 is set aside.
  • Proceedings remitted to the Local Court of NSW for hearing under s 20(1)(c) of the Appeal Act.
  • Matter listed for mention at the Downing Centre Local Court on 22 June 2020.

Key Takeaways

  • A plea of guilty entered on the basis of seriously flawed legal advice, where the solicitor failed to review readily available evidence before advising on prospects, may constitute a miscarriage of justice sufficient to warrant leave to withdraw the plea, even where the defendant gave written instructions of their own free will (at [76]-[77]).

  • The District Court confirmed that the categories of cases in which leave to withdraw a plea of guilty will be granted are not fixed or closed, and the ultimate question is whether a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea (at [65]).

  • Where a solicitor advises on the prospects of a self-defence claim, the court's assessment of self-defence requires consideration of the circumstances as the accused personally perceived them at the time, and the prosecution must disprove self-defence beyond reasonable doubt (at [70]-[71]). Advice that ignores available evidence bearing directly on those questions is vulnerable to challenge.

  • Compliance with the expert witness code of conduct is not an absolute prerequisite to the admissibility of expert evidence in proceedings of this kind; the court retains a discretion to dispense with that requirement, and a s 177 certificate is a procedural mechanism rather than a threshold condition (at [31]).

  • A defendant's written instructions on the day of sentencing acknowledging free choice do not necessarily insulate a conviction from being set aside where, as the District Court found here, the choice was shaped throughout by persistently flawed advice (at [76]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
- Evidence Act 1995
- Uniform Civil Procedure Rules

Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Hawkins v Clayton (1988) 164 CLR 359
- Kanakaradnam v R [2018] NSWCCA 282
- Maxwell v R (1996) 184 CLR 501
- Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
- O’Brien v Gillespie & Ors (1997) 41 NSWLR 549
- Turner v Wheeler [2016] NSWSC 345
- ULV Pty Limited v Scott (1990)19 NSWLR 190
- Wong v DPP (NSW) (2005) 155 A Crim R 37