R v Foran - [2020] NSWDC 274

District Court

New South Wales

Medium Neutral Citation: R v Foran [2020] NSWDC 274
Hearing dates: 1 June 2020
Decision date: 05 June 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Leave granted to withdraw plea of guilty; conviction in Local Court set aside

Catchwords: Leave to appeal; entry of plea on solicitor’s advice; advice given without regard to available evidence
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Evidence Act 1995
Uniform Civil Procedure Rules
Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Hawkins v Clayton (1988) 164 CLR 359
Kanakaradnam v R [2018] NSWCCA 282
Maxwell v R (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
O’Brien v Gillespie & Ors (1997) 41 NSWLR 549
Turner v Wheeler [2016] NSWSC 345
ULV Pty Limited v Scott (1990)19 NSWLR 190
Wong v DPP (NSW) (2005) 155 A Crim R 37
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Respondent/Crown)
Daniel Joseph Foran (Applicant/Accused)
Representation:
Counsel:
J Davidson (Offender)
Solicitors:
S Makin (Crown)
A Herring (Offender)

File Number(s): 19/254961
Publication restriction: Nil

Judgment ON APPLICATION

By his Notice of Motion filed on 13 March 2020, the applicant seeks the following relief which was amended by consent at the hearing on 1 June 2020:

Pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001 (“the Appeal Act”), leave to appeal be granted.

Leave be granted to the appellant to change his plea to not guilty.

The conviction ordered by the Local Court of NSW on 30 October 2019 be set aside.

Pursuant to s 20(1)(c) of the Appeal Act, the proceedings be remitted to the Local Court of NSW for hearing.

The applicant relied on an affidavit sworn by himself on 21 February 2020, in which was exhibited a number of documents in a folder marked exhibit “DJF-1”. Those exhibits will be referred to by their tab numbers, 1.1 to 1.21.
In his affidavit, the applicant deposed to his family background, and to the circumstances concerning an incident in the early hours of 21 June 2019 when he was working as a security officer at the Harlequin Inn Hotel in Pyrmont. In the course of his employment he was required to remove a patron from those premises. After a number of punches were thrown at him by the inebriated patron, he threw a punch at the patron, causing that person to fall to the ground.
After the patron was removed, the applicant completed an entry in the daily running sheet/incident log, which outlined that he punched the patron in self‑defence.
Sometime after the patron was removed, he returned to the premises armed with an iron bar. Police attended and spoke, inter alia, to the applicant, who provided a handwritten statement to the police officer in his notebook.
The applicant deposed that shortly before 22 July 2019 he received a telephone call from the investigating police officer asking…

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 Foran

Details

AGLC: R v Foran [2020] NSWDC 274
Case: [2020] NSWDC 274
Decision Date: 05 June 2020

CaseChat Overview and Summary

The matter before the court was an application for leave to appeal against a decision of the Local Court of New South Wales. The appellant, Mr Foran, sought to appeal against his conviction and sentence on the basis that his plea of guilty had been entered without regard to the available evidence. The Local Court had dismissed the application for leave to appeal, finding that the plea was properly entered. Mr Foran sought leave to appeal to the Supreme Court of New South Wales, which was granted. The court was required to determine whether the Local Court erred in law in dismissing the application for leave to appeal. Specifically, the court had to consider whether the plea of guilty was properly entered, and whether the advice given by the solicitor was such that it could have led a reasonable person in Mr Foran's position to enter a plea of guilty without regard to the available evidence.

The court found that the advice given by the solicitor was deficient in that it did not take into account all of the available evidence. The court held that the advice given was such that it could have led a reasonable person in Mr Foran's position to enter a plea of guilty without regard to the available evidence. The court found that the Local Court had erred in law in dismissing the application for leave to appeal, and that leave to appeal should have been granted. The court held that the plea of guilty was not properly entered, and that the conviction in the Local Court should be set aside. The court granted leave to appeal and set aside the conviction in the Local Court.

Orders

Orders of the court

Leave granted to withdraw plea of guilty; conviction in Local Court set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Foran [2020] NSWDC 274
Hearing dates:	1 June 2020
Decision date:	05 June 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Leave granted to withdraw plea of guilty; conviction in Local Court set aside
Catchwords:	Leave to appeal; entry of plea on solicitor’s advice; advice given without regard to available evidence
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Uniform Civil Procedure Rules
Cases Cited:	Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Hawkins v Clayton (1988) 164 CLR 359 Kanakaradnam v R [2018] NSWCCA 282 Maxwell v R (1996) 184 CLR 501 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 O’Brien v Gillespie & Ors (1997) 41 NSWLR 549 Turner v Wheeler [2016] NSWSC 345 ULV Pty Limited v Scott (1990)19 NSWLR 190 Wong v DPP (NSW) (2005) 155 A Crim R 37
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Respondent/Crown) Daniel Joseph Foran (Applicant/Accused)
Representation:	Counsel: J Davidson (Offender) Solicitors: S Makin (Crown) A Herring (Offender)
File Number(s):	19/254961
Publication restriction:	Nil