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10
Court of Criminal Appeal 11 October 1999

Regina v William Vincenzo Favero [1999] NSWCCA 320 revised - 19

[1999] NSWCCA 320

Drugs
CRIMINAL LAW APPLICATION TO WITHDRAW PLEAS OF GUILTY PRINCIPLES APPLICABLE LEGAL PROFESSION DIRECT ACCESS OF CLIENT TO BARRISTER

Citation: Regina v William Vincenzo Favero [1999] NSWCCA 320 revised – 19/10/99
Court: NSW Court of Criminal Appeal
Date: 11 October 1999
Judges: Sully J, Hidden J, Greg James J

Background

The applicant was found in possession of approximately six kilograms of amphetamine following a motor vehicle accident in March 1998. Police discovered a small amount in a bag on his person and a much larger quantity in canvas containers in the boot of his car. The applicant told police the large quantity belonged to an unidentified person called "Sam" and that he had been looking after it temporarily.

The applicant was charged with two counts of supply of a prohibited drug under the Drug Misuse and Trafficking Act. He was committed for trial and appeared in the District Court, represented by counsel who had been briefed directly by the applicant without an instructing solicitor. He entered guilty pleas to both charges.

After his legal representation changed, the applicant received advice that arguable defences had been available to him on both charges. He applied to the District Court for leave to withdraw his guilty pleas. Nield DCJ refused that application, and the applicant sought leave to appeal to the Court of Criminal Appeal.

  • Whether the applicant's guilty pleas should be set aside on the ground that he had not received adequate legal advice about available defences before entering them
  • Whether the test applied by the trial judge for assessing the application to withdraw the pleas was the correct legal test
  • The appropriateness of barristers accepting direct instructions from clients without an instructing solicitor present

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the application to withdraw the guilty pleas. Sully J found that, whatever had passed between the applicant and his then counsel, the applicant had not received competent advice that clearly laid out the nature and scope of defences lawfully available to him. That failure meant the pleas could not be treated as a genuine recognition of guilt made with full knowledge of the relevant legal landscape.

The Court identified that the trial judge had applied an incorrect test. Nield DCJ had focused on whether the applicant knew the facts alleged against him and had entered the pleas intentionally and deliberately. Greg James J, with whom the other judges agreed, held that this test did not accord with the principles established in the earlier cases of Davies, Ganderton, and Liberti. The correct approach asks whether the plea was entered with full knowledge of the facts and as a genuine recognition of guilt, and whether the material before the appellate court shows a real question about the safety of that conviction.

Sully J also addressed the manner in which the applicant had been represented at the time of his pleas. Counsel had been briefed directly by the applicant, without an instructing solicitor present and without obtaining written confirmation of instructions. The Court viewed this arrangement as a significant contributing cause of the unsatisfactory outcome.

Orders Made

  • Leave to appeal granted
  • Orders made by Nield DCJ on 1 March 1999 refusing leave to withdraw the guilty pleas, and dismissing the notice of motion seeking such leave, vacated
  • Leave granted to the applicant to withdraw his guilty pleas entered on 22 May 1998 in the District Court
  • Matter remitted to the District Court of New South Wales for trial according to law

Key Takeaways

  • A guilty plea should not stand where the accused did not receive adequate advice about defences lawfully available, even if the plea was entered intentionally and with knowledge of the alleged facts.
  • The correct test for withdrawing a guilty plea goes beyond whether the accused knew the facts: it asks whether the plea was a genuine recognition of guilt entered with full legal understanding, and whether a real question exists about the validity of the resulting conviction.
  • Knowing the factual allegations is not the same as understanding their legal significance. As cited from Liberti, an accused person is ordinarily entitled to rely on their lawyers to explain the legal consequences of the facts.
  • The Court of Criminal Appeal expressed strong disapproval of the practice of barristers receiving instructions directly from clients without an instructing solicitor present and without obtaining written confirmation of those instructions. Sully J described departures from the traditional practice as "a sorry interference with proper standards of professional practice" that courts should not encourage.
  • Where an appellate court cannot be confident that an accused understood the legal significance of the facts before entering a plea, the appropriate remedy is to remit the matter to a court of trial capable of making proper findings of fact.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), s 5F
- Drug Misuse and Trafficking Act (NSW)

Cases
- R v Ganderton, unreported, NSW Court of Criminal Appeal, 17 September 1998
- R v Davies, unreported, NSW Court of Criminal Appeal, 16 December 1993
- R v Liberti (1991) 55 A Crim R 125