Citation: Winikerei v R [2022] NSWDC 250
Court: District Court of New South Wales
Date: 29 March 2022
Judge: Neilson DCJ
Background
The applicant had entered pleas of guilty to charges arising from two separate incidents: one in August 2018 involving drugs found in a motor vehicle and at a brothel in Liverpool, and another in August 2019 involving drugs found during a roadside search following a minor traffic stop. The pleas were entered on different occasions before different judges in 2020 and 2021.
In May 2021, after receiving a draft statement of agreed facts from his former solicitors, the applicant raised concerns about how police had come to search his vehicle in the 2018 matter. That raised a question, previously unexamined by his lawyers, about whether the police searches in both matters had been lawfully conducted.
By notice of motion, the applicant sought leave to withdraw both sets of guilty pleas so that the matters could proceed to trial. His former solicitors provided affidavits confirming they had given detailed advice on many aspects of both matters but had never addressed the lawfulness of the searches.
Legal Issues
- Whether the court should exercise its discretion to grant the applicant leave to withdraw his pleas of guilty to the 2018 charges
- Whether the court should exercise its discretion to grant the applicant leave to withdraw his pleas of guilty to the 2019 charges
- Whether the applicant's former solicitors had adequately advised him about the legality of the police searches and the potential admissibility challenges arising from those searches
- Whether the applicant's criminal history and bail status gave police reasonable grounds to search his vehicle during the 2019 traffic stop
Decision
Issue 1: The 2018 vehicle searches
The court found that the applicant had received no advice about whether the police searches following the August 2018 incident were lawfully made (at [8]). Acting Sergeant Sheldrick had searched the applicant's vehicle using keys taken from the applicant's personal effects held at Liverpool Police Station, without the applicant's or his wife's consent (at [31]). The stated justification for the search, "concerns for the welfare" of the applicant, was difficult to reconcile with the fact that the applicant was receiving hospital care at the time (at [29]-[30]).
The court considered it at least arguable that the initial vehicle search was unlawful and that the evidence found may have been illegally obtained (at [31]). Because no investigation or challenge was possible while the guilty pleas stood, and because the applicant had not been given advice about the admissibility of the evidence against him, leave to withdraw the 2018 pleas was granted (at [34]-[36]).
Issue 2: The 2019 vehicle searches
The 2019 charges arose after police stopped the applicant for failing to indicate when turning out of a car park, a breach of the Road Rules attracting a fine (at [41]). Police checked records and found the applicant had a suspended licence. They then conducted a broader search of the applicant's person and vehicle for prohibited drugs.
The court found that the applicant's criminal history and bail status for a drug supply offence did not of themselves give rise to a reasonable suspicion that he was currently carrying illicit drugs (at [45]). A prior criminal record, including being on bail, is not equivalent to a conviction and cannot justify a search on that basis alone (at [46]-[47]). Although the applicant had formally consented to the search, the court observed that the consent may have been given because he felt it was futile to object, given the police had stated plainly that they intended to search him (at [49]). The former solicitors had not addressed whether the police were legally entitled to conduct the search in those circumstances (at [48]). Leave to withdraw the 2019 pleas was also granted (at [52]-[53]).
Issue 3: Immigration status and other matters
The court accepted the affidavits of the former solicitors as truthful and rejected several claims the applicant made against them (at [54]). The absence of advice about the impact of conviction on the applicant's immigration status was found to be irrelevant to whether relief should be granted, though it illuminated why the applicant strongly wished to challenge the evidence against him (at [60]). The court also rejected the submission that the applicant's history of drug use necessarily caused memory impairment (at [57]).
Orders Made
- Leave granted to withdraw pleas of guilty entered in respect of both the 2018 and 2019 charges, as sought in each notice of motion filed on 21 January 2022.
Key Takeaways
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Pleas of guilty entered in open court carry significant weight and may only be set aside after considerable circumspection by the court; the threshold is not lightly met (at [32]).
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Where a defendant's legal advisers have failed to investigate or advise on the legality of a police search and the admissibility of evidence obtained from it, that gap in advice can ground leave to withdraw a guilty plea, even where advice on other aspects of the case was detailed and competent (at [34]-[36], [48]).
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A person's criminal history and bail status for a drug offence do not, without more, give police reasonable grounds to search that person's vehicle during a routine traffic stop; the presumption of innocence applies (at [45]-[46]).
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Consent to a search may carry reduced weight where police have communicated a firm intention to search regardless of the defendant's response, leaving the question of whether consent was truly voluntary open to argument (at [49]).
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The absence of advice about the effect of conviction on immigration status did not independently justify withdrawal of the pleas, but the District Court acknowledged its relevance to the applicant's motivation to pursue any available challenge to the evidence (at [60]).
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Road Rules 2014 (NSW)
Cases
- Meissner v R (1995) 184 CLR 132; [1995] HCA 41
- R v Buddee [2016] NSWDC 422
- R v Lars (aka Larsson) (1994) 73 A Crim R 91
- R v Thalari (2009) 75 NSWLR 307