Donohoe v The Queen - [2012] NSWCCA 176

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Donohoe v R [2012] NSWCCA 176
Hearing dates: 04/06/2012
Decision date: 23 August 2012
Before: McClellan CJ at CL at [1]
Garling J at [2]
Adamson J at [121]
Decision:
(1) Leave to appeal granted.
(2) Appeal upheld.
(3) Set aside the order of the District Court of NSW (McLoughlin DCJ) dated 28 October 2011.
(4) In lieu thereof, grant leave to the applicant to withdraw his plea of guilty entered on 2 May 2011 to the offence.

Catchwords: CRIMINAL LAW - preliminary issue, application for extension of time for leave to appeal on basis of incorrect advice - not opposed by Crown - application granted and time extended - primary issue, application for leave to appeal pursuant to Criminal Appeal Act 1912 s 5F - offence of break and enter and sexual intercourse without consent - Crown's case circumstantial - applicant entered plea of guilty - relied on advice from solicitor and counsel that tendency evidence would be admitted - whether error in District Court decision - central question is admissibility of the tendency evidence - unlikely evidence would have been admitted - satisfied advice affected applicant's plea - error with respect to view of admissibility of evidence and with respect to view that advice was appropriate - whether plea should be allowed to be withdrawn - consideration of facts, context of circumstances - no genuine consciousness of guilt - appellant ought to have been allowed to withdraw plea - application allowed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262
House v The King [1936] HCA 40; (1936) 55 CLR 499
Pfenning v R [1995] HCA 7; (1995) 182 CLR 461
R v Davies (1993) 19 MVR 481
R v Ellis [2003] NSWCCA 319; 58 NSWLR 700
R v Fletcher [2005] NSWCCA 338; (2005) A Crim R 308
R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451
R v Hura [2001] NSWCCA 61; 121 A Crim R 472
R v Liberti (1991) 55 A Crim R 120
R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302
R v O'Keefe [2009] NSWCCA 121
R v RM [2005] NSWCCA 413
R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310
Category: Procedural and other rulings
Parties: Stuart James Donohoe (Appellant)
The Crown (Respondent)
Representation:
Counsel:
A Evers (Applicant)
N Noman (Crown)
Solicitors:
M Giles (Applicant)
Director of Public Prosecution (Crown)

File Number(s): 2010/269989
Publication restriction: Publication restriction removed.
Decision under appeal

Date of Decision:

28 October 2011

Before:

McLoughlin DCJ

File Number(s):

2010/269989

Judgment

McCLELLAN CJ at CL: I agree with Garling J.

GARLING J: Stuart James Donohoe, the applicant, seeks an extension of time within which he ought be permitted to apply for leave to appeal against a decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donohoe v The Queen

Details

AGLC: Donohoe v The Queen [2012] NSWCCA 176
Case: [2012] NSWCCA 176
Decision Date: 23 August 2012

CaseChat Overview and Summary

The case of Donohoe v The Queen involved the applicant, Donohoe, who sought an extension of time to appeal his conviction for break and enter and sexual intercourse without consent. The Crown did not oppose the application for an extension of time. The primary issue before the court was whether Donohoe's application for leave to appeal should be allowed under the Criminal Appeal Act 1912 section 5F. The applicant entered a plea of guilty relying on advice from his solicitor and counsel that tendency evidence would be admitted. The central question was the admissibility of the tendency evidence. Donohoe argued that he was unlikely to have entered a guilty plea if he had not been erroneously advised about the admissibility of evidence.

The court found that the advice Donohoe received was erroneous with respect to the view of the admissibility of the evidence and the appropriateness of that advice. The court was satisfied that the error in the advice affected Donohoe's plea. The court also considered whether Donohoe's plea should be allowed to be withdrawn. The court examined the facts and the context of the circumstances and concluded that there was no genuine consciousness of guilt. The court found that Donohoe ought to have been allowed to withdraw his plea. The application for leave to appeal was allowed.

Orders