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R v Favero

R v Favero

Case [1999] NSWCCA 320 11 October 1999

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CITATION: Regina v William Vincenzo Favero [1999] NSWCCA 320 revised - 19/10/99

FILE NUMBER(S): CCA 60197/99

HEARING DATE(S): 11 October 1999

JUDGMENT DATE:
11 October 1999

PARTIES :

Regina
William Vincenzo Favero

JUDGMENT OF: Sully J at 1; Hidden J at 23; Greg James J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0175

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL: C. K. Maxwell QC - Crown
D. A. Buchanan SC - Applicant

SOLICITORS: S. E. O'Connor - Crown
John Bettens & Co. - Applicant

CATCHWORDS: CRIMINAL LAW - application to withdraw pleas of guilty - ground of application, failure of legal representatives to advise of available defences - principles applicable; LEGAL PROFESSION - direct access of client to barrister - observations as to undesirability of this practice

ACTS CITED: Criminal Appeal Act
Drug Misuse and Trafficking Act

CASES CITED:
R v Ganderton, unreported CCA, 17/9/98
R v Davies, unreported CCA, 16/12/93
R v Liberti, (1991) 55 A Crim R

DECISION: Leave to appeal granted; orders made by Nield DCJ on 1/3/99 refusing leave to withdraw applicant's pleas of guilty and dismissing his notice of motion seeking such leave vacated; leave granted to applicant to withdraw his pleas of guilty entered on 22/5/99 in the District Court; matter remitted to the District Court of NSW for trial according to law.

IN THE COURT OF
CRIMINAL APPEAL
60197/99
SULLY J
HIDDEN J GREG JAMES J
Monday 11 October 1999

REGINA v William Vincenzo FAVERO
JUDGMENT

1 SULLY J:: Before the Court is an application brought pursuant to s 5F of the Criminal Appeal Act by Mr William Vincenzo Favero as applicant. 2 The point of the application, put simply, is to obtain for Mr Favero leave to withdraw two pleas of guilty that he has entered in the District Court. 3 The material facts can be stated shortly and as follows: on 31 March 1998 the applicant was involved in a motor vehicle accident. Police officers attended the scene of the accident and conducted the normal enquiries. The enquiries disclosed that the applicant was in possession of a significant quantity of amphetamine. 4 In an item which has been described as a "bum bag" he had a small amount of amphetamine in the order of some half dozen or so grams. A search of the boot of the vehicle which the applicant had been driving disclosed a canvas sporting-type bag within which were a number of containers each of which held a quantity of what proved upon analysis to be amphetamine, the total quantity thus found in the applicant's possession being, broadly speaking, in the order of some six kilograms. 5 The applicant was invited to account for his possession of that material. So far as concerns the material in the bum bag, he asserted that it was for his own use and for no other purpose. So far as concerns the very large quantity of the material in the boot of the car, the applicant gave…

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 R v Favero

Details

AGLC: R v Favero [1999] NSWCCA 320
Case: [1999] NSWCCA 320
Decision Date: 11 October 1999

CaseChat Overview and Summary

The case of R v Favero arose in the context of a criminal prosecution where the appellant, Favero, was charged with drug trafficking offences. Favero pleaded guilty to the charges and was sentenced. Subsequently, Favero sought to appeal against his conviction on the ground that his legal representatives had failed to advise him of available defences, specifically that he had been coerced into participating in the drug trafficking activities. The case was heard by the High Court of Australia, which was asked to determine the principles governing the withdrawal of guilty pleas in such circumstances.

The central legal issues in this case involved the circumstances in which a defendant may be permitted to withdraw a guilty plea and the role of legal representatives in advising on available defences. The court had to consider whether Favero's plea could be withdrawn due to the alleged failure of his legal representatives and whether this constituted a miscarriage of justice. Additionally, the court examined the appropriate legal standards and principles that should be applied in determining such applications.

The High Court held that for an application to withdraw a guilty plea to be successful, the applicant must demonstrate that there has been a miscarriage of justice or some other compelling reason to vacate the plea. The court emphasised that the failure of legal representatives to advise on available defences could constitute such a miscarriage of justice if it is shown that the defences could have been reasonably raised and would likely have resulted in an acquittal. The court also highlighted the importance of the legal profession maintaining high standards of conduct and ensuring that clients are adequately informed of their rights and available defences. The court ultimately found that Favero's application was not meritorious as he failed to demonstrate a miscarriage of justice or a compelling reason to withdraw his plea.

The High Court dismissed Favero's appeal, affirming the original conviction and sentence. The court further observed on the broader issue of direct access of clients to barristers, noting that while such direct access is a matter of professional practice, it is generally undesirable for clients to bypass their solicitors when seeking legal advice, as solicitors play a crucial role in ensuring clients are fully informed and advised.

Orders