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District Court 24 November 2020

R v Li

[2020] NSWDC 726

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME

Citation: R v Li [2020] NSWDC 726
Court: District Court of New South Wales
Date: 24 November 2020
Judge(s): Bourke SC DCJ

Background

The appellant entered pleas of guilty in the Local Court on 24 August 2020 to three offences: assaulting a woman on 11 November 2018, breaching an Apprehended Domestic Violence Order (ADVO) on 14 February 2019, and failing to appear at court on 4 February 2020. Her solicitor entered those pleas on her behalf. The Magistrate recorded convictions and imposed fines for two of the offences.

The appellant subsequently filed a Notice of Appeal and then a Notice of Motion seeking leave to withdraw her guilty pleas. She swore an affidavit stating that her intention throughout the proceedings had always been to plead not guilty. The District Court was asked to determine whether the pleas should be set aside and the matters remitted to the Local Court for rehearing.

A central issue was the quality and accuracy of the advice the appellant received before her pleas were entered. The appellant, who is a Mandarin speaker, had no interpreter present when her solicitor met with her on 9 August 2020 to discuss the matter, nor when pleas were entered in court on 24 August 2020.

  • Whether the guilty pleas entered in the Local Court were a free and voluntary confession genuinely attributable to a consciousness of guilt
  • Whether a mistake or other circumstance existed that affected the integrity of the pleas
  • Whether the convictions and penalties should be set aside and the proceedings remitted to the Local Court for redetermination

Decision

Bourke SC DCJ found that the legal advice given to the appellant in relation to the ADVO breach charge of 14 February 2019 was based on a factual misunderstanding. The solicitor's file note proceeded on the assumption that the protected person (Mrs Reid) was living at the relevant address, when the Police Statement of Facts indicated she was merely visiting. That error was material because the solicitor advised the appellant she had no defence, whereas the correct facts may have supported one.

The court also found that the solicitor's file note made no mention of any advice given about the other two charges: the alleged assault of 11 November 2018 and the failure to appear on 4 February 2020. The absence of any recorded advice on those matters, combined with the appellant's evidence that she felt overwhelmed and was crying when the pleas were entered, supported the conclusion that the pleas were not freely and voluntarily made.

The lack of a Mandarin interpreter at the pre-hearing conference on 9 August 2020 and in court on 24 August 2020 compounded the court's concerns. Although the appellant's solicitor maintained he was acting on instructions, the District Court was satisfied on the balance of probabilities that the pleas were not a genuine confession attributable to a consciousness of guilt, and that a mistake or oversight had affected the integrity of the plea process.

Orders Made

  • Leave granted to bring the appeals against the convictions recorded in the Local Court, pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001
  • Convictions and penalties set aside pursuant to s 20(1)(c) of the Crimes (Appeal and Review) Act 2001
  • Proceedings remitted to the Local Court for redetermination
  • Matters adjourned to Penrith Local Court on 1 December 2020 for mention

Key Takeaways

  • The District Court confirmed that the central question when a conviction following a guilty plea is challenged is not guilt or innocence, but the integrity of the plea itself, applying the principle stated in Ishac v R [2011] NSWCCA 117.
  • A guilty plea may lack integrity where it was not a free and voluntary confession, was not genuinely attributable to a consciousness of guilt, or was affected by a mistake or circumstance compromising its value as an admission.
  • Legal advice founded on a material misreading of the prosecution's own facts can be sufficient to undermine the integrity of a plea entered in reliance on that advice.
  • The absence of an interpreter throughout the advice and plea process, for a defendant who required one, was treated as a significant factor in assessing whether the pleas were genuinely voluntary and informed.
  • An appellant's acquiescence in a solicitor's actions in open court does not, by itself, establish that the pleas were freely and voluntarily made, particularly where the surrounding circumstances suggest the defendant felt overwhelmed and had not previously given clear instructions to plead guilty.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 12(1), 20(1)(c)
- Criminal Procedure Act 1986 (NSW), s 196

Cases
- Ishac v R [2011] NSWCCA 117
- R v Kouroumalos [2000] NSWCCA 453
- R v Van [2002] NSWCCA 148