R v Foster

[2022] NSWDC 241

District Court

New South Wales

Medium Neutral Citation:

R v Foster [2022] NSWDC 241

Hearing dates:

28 June 2022

Date of orders:

28 June 2022

Decision date:

28 June 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 39

Catchwords:

CRIMINAL PROCEDURE – application for leave to traverse guilty plea – whether miscarriage of justice will occur if the applicant is not granted leave to traverse plea - whether plea is attributable to a genuine consciousness of guilt – significance of receipt of Counsel’s opinion to applicant’s decision to plead guilty

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) s 12

Cases Cited:

Kankakarandam v R [2018] NSWCCA 282

R v Hura [2001] NSWCCA 61

R v Thalari (2009) 75 NSWLR 307

R v Toro-Martinez [2000] NSWCCA 216

Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37

Category:

Procedural rulings

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr J Foster (applicant)

Representation:

Solicitors:
ODPP
William O’Brien & Ross Hudson Solicitors for the applicant

File Number(s):

2021/00056912

Publication restriction:

Nil

EX TEMPORE REASONS for Judgment

Background

1. On 1 November 2021, the day he was scheduled to be summarily tried in the Local Court on two charges arising from his conduct on 27 February 2021, Mr Jarrod Foster entered a plea of guilty to one of the two charges and the other was withdrawn. The two charges were assault occasioning actual bodily harm and resisting an officer in the execution of duty. The guilty plea was entered only in relation to the former charge.

2. This result came about because of a plea bargain struck with the prosecution, which followed from the applicant’s receipt of an opinion from his Counsel. The sentencing was adjourned and a sentence assessment report was received. Mr Foster appeared before the Local Court, in the Downing Centre, on 25 January 2022 and was sentenced by Magistrate Tsavdaridis to a community corrections order of 18 months.

3. By a notice of motion dated 17 June 2022, which was filed in Court today, Mr Foster (hereafter the applicant) applies for leave to traverse his guilty plea on 1 November 2021 and, if that application succeeds, applies for an order by this Court to set aside the conviction and remit the proceeding to the Local Court in accordance with any directions.

4. The Crown opposes the application for leave but, if the applicant obtains leave, the Crown accepts that the Court would set aside the conviction and remit the proceeding to the Local Court.

Evidence

5. The applicant relies upon the following evidence:

1. his affidavit, affirmed on 20 June 2022; and

2. an affidavit from his solicitor, Kenneth Madden, affirmed 14 June 2022;

3. a sentencing assessment report dated 24 January 2022, which was before Magistrate Tsavdaridis on the sentencing; and

4. a character reference of Joshua Ferrari dated 24 January 2022, which was also before Magistrate Tsavdaridis on sentencing.

6. For its part, the Crown placed before the Court a conviction appeal bundle. The Crown also relied upon the transcript of the Local Court proceeding on 1 November 2021, 13 December 2021 and 25 January 2022 and also notes of the applicant’s solicitor arising from the conference with Counsel on 29 October 2021. The applicant was cross-examined at the hearing on its application.

The Facts

The events giving rise to the charges

7. For the purpose of the leave application, these are of short compass.

8. On the afternoon of 27 February 2021, the applicant was on a boat cruise on Sydney Harbour. This was to celebrate a couple’s engagement. Between midday and 5pm, he consumed 4 or 5 full strength beers. Thereafter the applicant, and his then partner, Rachel McGarry, along with a group of other friends went to dinner at a bar, where some further drinking occurred, along with the consumption of the meal.

9. The applicant and Rachel were planning on catching an Uber home after the dinner had concluded around 9:30pm. They were intending to travel back to Richmond and the engaged couple asked him and Rachel whether two of their younger siblings could go back with them.

10. The Uber driver indicated that the applicant and the others would be collected from outside the P J O’Briens pub, and they walked from the Cargo Bar to that other pub. According to the applicant, as the Uber was nearby or waiting, or both, one of the two siblings wanted to go into the bathroom in P J O’Briens.

11. After waiting for a while, the applicant asked Rachel to go inside the pub and check on the siblings. Rachel went to the front of the queue, and according to the applicant’s retelling, this caused consternation in the others waiting to use the toilet in the queue, misinterpreting Rachel’s movements as queue jumping. At this point, the applicant was standing in the foyer to the pub, but not actually inside it. Rachel exited the pub without the two siblings and was in in the process of leaving. The applicant says that as she, and he, were leaving, an unidentified male walked downstairs and pushed Rachel and him. The applicant says that he pushed the male back and they kept walking towards the exit.

12. The applicant says that as they approached the door, he observed three security guards approaching the door. One of them, he asserts, grabbed Rachel and started pushing and pulling her. The applicant says he tried to pry Rachel away, but two other security guards joined in. He asserts that one of the security guards struck Rachel, with a closed fist, to her chin. He says he saw another push Rachel forcefully onto the street and says that he was also pushed. The applicant asserts that he turned back towards the security guards and one of them said to him “you’re dead, cunt”. In response to this, the applicant says that he believed that the security guard was going to cause him serious harm, so he threw a punch at the security guard in an attempt to cause Rachel or himself further harm.

13. In his affidavit, the applicant deposes that he did not want to punch the security guard, but believed that this was his only option, since the guard was continuing to advance towards him and that the applicant honestly believed that the guard was going to hurt him if he did not do something about it. He deposed that he was not looking for a fight: only 3 days before, he had had surgery on his right thumb.

14. The applicant was arrested and charged with the 2 charges.

The Local Court proceeding

15. The applicant was granted bail on 28 February 2021. In about March 2021, the applicant retained Ken Madden to represent him. He did not meet Mr Madden in person until October 2021, but it appears to be the case that until the day of the scheduled hearing, for 1 and 2 November 2021, the applicant had instructed his solicitor, and the solicitor had entered pleas, to both charges, that the applicant was “not guilty”. When he met Mr Madden in October 2021, the applicant explained to Mr Madden that he only punched the security guard in self-defence.

16. The applicant said in his evidence he had received counselling from his father (a former police officer). After that conference in October 2021, Mr Madden retained counsel for a defended hearing. That Counsel was Mr Haverfield.

17. In a conference with counsel on 29 October 2021, only a few days before the hearing, the applicant deposed to telling Mr Haverfield that he only punched out of self-defence. However, he also deposed that his Counsel had indicated that the Counsel had seen CCTV footage and had formed a view that what he saw was adverse to the applicant; so much so that the Magistrate was likely to find him guilty of the two charges and, if that was so, there was a risk that he would be sentenced to gaol. The applicant said in his evidence that the barrister told him that if he took a plea, this would provide a “easier route” for him and may remove doubt in him. The applicant said under cross-examination he was advised that the CCTV footage would “definitely” put him in gaol.

18. The applicant deposed that the prospect of being sent to gaol “weighed heavily on me”. He deposed that he felt he had no option other than to plead guilty to the charge of assault occasioning actual bodily harm. He deposed that Mr Haverfield said to him that he would try and do a deal with the prosecution to have the other charge withdrawn. He said in his evidence that his parents told him after the conviction to get a new legal team.

19. The applicant deposed that “reluctantly” he indicated that he would accept Mr Haverfield’s “advice” on the basis of his belief that he would avoid a potential prison sentence. During his cross-examination, the applicant was shown two documents signed at his conference with Counsel on 29 October 2021 (Exhibit 3). These confirmed the instructions.

20. So, on 1 November 2021, when his matter was called, through his Counsel, the applicant entered a plea of guilty to the assault charge; following which the other charge was withdrawn. When asked in cross-examination why he went ahead, the applicant stated that he was scared and that he did not feel he had other options.

21. After the sentencing, the applicant felt that the order for the CCO and its length was “too harsh”.

22. All of this account is essentially corroborated by Mr Madden in his affidavit in support.

The sentencing proceeding

23. The applicant relies upon two documents that were relevant to the sentencing exercise.

24. The first was Mr Ferrari’s character reference, dated 24 January 2022. Materially, the reference stated the following:

“Jarrod has been largely quiet on the event that took place due to the mental effect it had on him. In short, he has explained that he felt as though the action he took was a reaction to being frightened by the bouncers approaching himself and his partner so aggressively …

Jarrod has expressed remorse to me regarding the outcome to (the victim’s) nose being broken but has expressed as above a defensive reaction was the common factor to this, not alcohol nor aggression nor instigation.”

25. The second was the sentencing assessment report. Under the heading ‘Attitude”, the Windsor Community Corrections Officer wrote:

“Mr Foster appeared to display a poor attitude towards his offending behaviour. He appeared to believe that he was the victim of an unfair criminal justice system, and he shouldn’t have been charged with the offence.

Mr Foster appeared to display anti-social attitudes which support the use of violence when he stated, ‘any male who sees their partner getting punched will be expected to react’”.

Principles applicable to applications for plea traversals

26. In the written submissions of the applicant’s solicitor, Mr Cole, the applicant acknowledged that there are very limited circumstances in which the Court would permit an appeal against conviction following a plea of guilty. The applicant identified as the relevant test being whether a miscarriage of justice has occurred. Reference was made to the factors set out in cases like R v Toro-Martinez [2000] NSWCCA 216 and R v Hura [2001] NSWCCA 61.

27. One of those factors, cited in many authorities, was where the plea is ‘not really attributable to a genuine consciousness of guilt’.

28. In R v Thalari (2009) 75 NSWLR 307, the Court of Criminal Appeal said at 312-313 [32]-[35] (citations omitted):

“32    This Court may quash a conviction entered upon a plea of guilty in the sentencing court if it is demonstrated that a miscarriage of justice will occur if the Appellant is not permitted to withdraw the plea ...

33    The onus lies upon the Appellant to demonstrate that leave should be granted: ... The Appellant must establish a good and substantial reason for the Court taking the course of granting leave to withdraw the plea…. An application to withdraw a plea of guilty is to be approached with caution bordering on circumspection ….

34    The plea of guilty itself is a cogent admission of the ingredients of the offence ... Indeed, it has been described as the most cogent admission of guilt that can be made….

35    A person may plead guilty upon grounds which extend beyond that person’s belief in his guilt, and the entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred, and this will normally only arise where the accused person did not understand the nature of the charge, or did not intend by his plea to admit his guilt of it ….”

29. In Wong v Director of Public Prosecutions(NSW) (2005) 155 A Crim R 37 (“Wong”) at 45-46 [33]-[39], Howie J said (citations omitted):

“33    A court is entitled to accept a plea of guilty that is given in the exercise of a free choice in a defendant’s own interests and there will be no miscarriage resulting from reliance on the plea even though the person entering the plea ‘is not in truth guilty of the offence’: Meissner at 141. Justice Dawson stated the following at 157 (footnotes omitted):

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

34    There is a discussion as to the concept of a miscarriage of justice in relation to an application to withdraw a plea prior to conviction in Sewell, above. Smart AJ, with whom the other members of the Court agreed, … pointed out the difficulty of trying to fit all the circumstances in which it might be in the interests of justice to permit a person to withdraw a plea of guilty ‘within one verbal formula’.

35    If the advice that the plaintiff received from his legal representative went to the nature of the charge, the elements of the offence, or whether any conduct of the plaintiff amounted to the offence charged, it might be that the court would more easily come to the view that the plea of guilty did not constitute an admission of all of the elements of the offence notwithstanding the plaintiff’s antecedents and his knowledge and familiarity with the criminal process. If the plaintiff is asserting that as a result of legal advice he was confused at the time of the plea of guilty, again the issue will probably be whether the plaintiff entered the plea of guilty from a consciousness of guilt or intending it to be an admission of the elements of the offence charged against him.

36    If, on the other hand, the advice was concerned with whether he should plead guilty despite his denial of the offence in order, for example, to obtain some advantage for himself then the focus of the proceedings might be different. Simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty even if others might disagree with the advice. This is because there will be no miscarriage of justice arising. The issue in such a case might focus on whether the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests. Of course the fact that a person is induced into taking a course of action does not mean the person in acting on that inducement is not acting from a free choice. It is not every threat, inducement or pressure applied to a defendant that either requires or justifies a court in permitting the defendant to withdraw a plea of guilty:

37    But if the plaintiff by taking the advice proffered to him, entered the plea of guilty as a result of the exercise of a free choice in what he believed to be his best interests at the time, and if, when he entered the plea, he understood that he was admitting his guilt of the offence to the court, it does not follow that a miscarriage of justice would arise by refusing the application simply because he maintains his innocence of the charge and has always done so, or because he now regrets taking the advice. As Dawson J stated in Meissner …, a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it.

38    An admission of guilt by a plea in open court is not necessarily inconsistent with instructions to a solicitor that the defendant is in truth not guilty of the offence. There is a discussion upon the subject of pleas of guilty by a person who asserts that he or she is not guilty of the offence in R v Allison …. under the heading ‘I am not guilty but I’ll plead guilty’. In that part of his judgment Jerrard JA considers the obligations upon counsel to obtain instructions in a situation where an accused insists on pleading guilty but nevertheless denies the offence. Whether there is anything of relevance to the disposal of the application in the present case is a matter for the magistrate hearing the application. But the case emphasises that the issue is whether the defendant when entering the plea of guilty understood that the plea was an admission of his guilt of the offence charged.

39    I should also point out that not only does a defendant bear the onus of proof in relation to an application to withdraw a plea of guilty, hemust establish ‘a good and substantial reason for the Court taking that course’:  … It goes without saying that the the (sic) accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea.”

30. Both of these passages were applied by the Court of Criminal Appeal in Kankakarandam v R [2018] NSWCCA 282 (per Johnson J, Simpson AJA and N Adams J agreeing) (at [17]-[19]).

Arguments

31. The applicant argues that the evidence indicates a continuous and consistent belief manifesting no consciousness of guilt at all. This was demonstrated in his instructions to his solicitor from the moment he was charged, what he said to Mr Ferrari and to the Windsor Community Corrections Officer. He believes, and continues to believe, that he acted as he did in self-defence.

32. Of course, he acknowledges, as he must, the fact that a guilty plea to one of the two charges was made on the date of the scheduled hearing. But that was only following the indication of his Counsel that if he continued to defend the assault charge, he would likely be found guilty of that charge and, if that occurred, he faced the prospect of a sentence of imprisonment. Despite accepting and implementing Counsel’s opinion, the applicant continued to believe that he acted in self-defence. Therefore, his plea could not be treated as being attributable to a genuine consciousness of guilt.

33. The Crown argues that the plea of guilty was the product of a free exercise of choice and with an understanding of the nature of the charge following legal advice.

34. There was no suggestion of coercion by his Counsel or that he was wrongly advised by his Counsel. By entering the plea, the applicant simply accepted in accordance with what he perceived was his best interests at the time.

31. The circumstances that the applicant has had second thoughts about the wisdom of his entering the plea and maintains his belief that he acted in self-defence after his plea and after the penalty was imposed, does not establish a good and substantial reason for a grant of leave.

Consideration

36. I substantially agree with the Crown. Contrary to the applicant’s argument, the question is not be determined on the basis of whether or not the applicant subjectively believes he had a good defence irrespective of the guilty plea which implicitly indicated that he did not. The test is not whether there has been a continuing manifestation of an absence of consciousness of guilt, but rather whether there has been a miscarriage of justice. Here the applicant’s plea was made after the applicant received, and acted upon, the opinion of Counsel. It is not a case, to use the words from Meissner, that “the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea”.

37. The applicant does not answer the point referred to by Howie J in Wong at [36]. He decided to enter the plea of guilty because of a belief, influenced by his Counsel’s opinion, that he would likely obtain a better result on penalty should he plead guilty to the charge of assault than if he continued to contest that charge and hoped that, by taking the course of instructing his counsel to engage in plea discussions with the prosecution, the prospect of receiving a custodial sentence would be minimised further if a ‘deal’ could be secured through which the other charge could be withdrawn, as it eventually was. The applicant only gave evidence about his subjective belief that he had no options. However, as the Crown submitted, he did have options arising from his Counsel’s advice, that he had the option of accepting the plea for the charge receiving some assurance that he was unlikely to be subjected to a custodial sentence, or in the alternative, if he defended the charge and failed in his defence, he risked a custodial sentence. No suggestion was made that his Counsel’s advice was wrong or that his will was overborne. In Howie J’s words “the plea of guilty was entered in the exercise of a free choice in the defendant’s own interests”.

38. It is unnecessary to consider the Crown’s submission that it was necessary for the applicant to establish that it was likely that the applicant would achieve a better outcome if the matter was remitted to the Local Court. One reason is, as the Crown acknowledged, if the conviction was set aside and the matter remitted, there would be a possibility of a better outcome – on sentence – if not on the issue of the applicant’s guilt. Nevertheless, there is some force in the Crown’s submission that there is no evidence on this application to support any proposition that Mr Havefield’s advice was wrong, in terms of what was actually said or its completeness.

39. I am not persuaded that a miscarriage of justice will occur if the applicant is not allowed to traverse his guilty plea entered on 1 November 2021 in the Downing Centre Local Court. Accordingly, the applicant’s application for leave to appeal his conviction under s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is refused. His notice of motion dated 17 June 2022 is otherwise dismissed.

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Decision last updated: 29 June 2022