R v Shipsey - [2018] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation: R v Shipsey [2018] NSWLC 4
Hearing dates: 24 April 2018
Decision date: 24 April 2018
Jurisdiction: Criminal
Before: Magistrate P Stewart
Decision:
Leave to dispute agreed facts is refused.

Catchwords: CRIMINAL LAW – Procedure – Leave to dispute agreed facts – plea bargain - Evidence Act not applicable – offender bound by conduct of counsel – offender aware of factual issues for years – disputed facts not raised in timely manner – interests of justice – procedural fairness – desirability for finality of proceedings– evidence not given by defendant – difficulty in assessing untested assertions – onus of proof on party seeking leave – leave refused
Legislation Cited: Criminal Procedure Act 1986 (NSW) ss 194, 207
Drug Misuse and Trafficking Act 1985 (NSW) s.25(1)
Evidence Act 1995 (NSW) ss 4, 191, 192
Cases Cited: CL v R [2014] NSWCCA 196
Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152
R v Palu (2002) 134 A Crim R 174
Wong v DPP [2005] NSWSC 129
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (NSW) (prosecution)
Alistair Shipsey (defendant)
Representation:
Counsel:
A Hawkins, for the defendant
Solicitors:
J Sweeny, for the prosecution
L Johnson, for the defendant

File Number(s): 2010/315748
Publication restriction: Nil

EX TEMPORE Judgment – Leave to Dispute Agreed Facts

Alistair Shipsey is charged that on 19 October 2014 he supplied the prohibited drug cannabis, being an indictable quantity, approximately 4.5 kilograms, contrary to section 25(1) Drug (Misuse and Trafficking) Ac 1985 (NSW)t. He is further charged that on 25 March 2015 he supplied cannabis, being an indictable quantity, approximately 4.983 kilograms.
The matter was set down for hearing on 15 February 2018. On that day, the offender pleaded guilty to Count 1 and admitted his guilt to Count 2, asking the Court to take that matter into account on a Form 1. The matters were stood over for sentence to 13 April 2018 on the application of Ms Kyriakos of counsel appearing for Mr Shipsey, so that a medical report and psychological report could be prepared. Mr Shipsey’s lawyer, Ms Leigh Johnson was apparently ill on that day, and though it was indicated that she was on her way to court, she ultimately did not attend. Two section 9 bonds of 3 years imposed for the offences of Possess Prohibited Weapon were called up.
On 20 February 2017, Ms Johnson made application to traverse the guilty plea per section 207 of the Criminal Procedure Act 1986 (NSW) citing a ground that “the ERISP was never served and the matter should have adjourned to allow the defendant and the defence time to consider the implications.” There was no application made for an adjournment on the day of hearing due to an ERISP not being served.
Actions such as lodging an application to traverse a plea can only be done on instructions. There was nothing mentioned in the traversal of plea application that…

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 Shipsey

Details

AGLC: R v Shipsey [2018] NSWLC 4
Case: [2018] NSWLC 4
Decision Date: 24 April 2018

CaseChat Overview and Summary

The case of R v Shipsey involved a defendant who sought leave to dispute agreed facts in the context of a plea bargain. The matter was heard in a court of law, where the defendant had been bound by the conduct of their counsel for several years and had been aware of the factual issues at hand. The defendant did not raise the disputed facts in a timely manner, which raised concerns about the interests of justice, procedural fairness, and the desirability for finality of the proceedings. The court was tasked with deciding whether the defendant could dispute the agreed facts and what the implications of such a decision would be.

The court had to determine if the defendant could dispute the agreed facts despite not having given evidence and the difficulties in assessing untested assertions. The onus was on the defendant to demonstrate why leave should be granted to dispute the agreed facts. The court also had to consider whether it was in the interests of justice to grant such leave, taking into account the procedural fairness and finality of the proceedings. Ultimately, the court found that the defendant had not met the required threshold to justify disturbing the agreed facts and that it was not in the interests of justice to do so.

The court ruled that the defendant's application for leave to dispute the agreed facts was refused. The reasoning behind this decision was based on the defendant's failure to raise the disputed facts in a timely manner, the difficulty in assessing untested assertions, and the overall interests of justice and procedural fairness. The court found that it was not appropriate to grant leave to dispute the agreed facts, as it would not be in the interests of justice and could undermine the finality of the proceedings. As a result, the defendant was bound by the agreed facts, and the plea bargain remained intact.

Orders

Orders of the court

Leave to dispute agreed facts is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Shipsey [2018] NSWLC 4
Hearing dates:	24 April 2018
Decision date:	24 April 2018
Jurisdiction:	Criminal
Before:	Magistrate P Stewart
Decision:	Leave to dispute agreed facts is refused.
Catchwords:	CRIMINAL LAW – Procedure – Leave to dispute agreed facts – plea bargain - Evidence Act not applicable – offender bound by conduct of counsel – offender aware of factual issues for years – disputed facts not raised in timely manner – interests of justice – procedural fairness – desirability for finality of proceedings– evidence not given by defendant – difficulty in assessing untested assertions – onus of proof on party seeking leave – leave refused
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 194, 207 Drug Misuse and Trafficking Act 1985 (NSW) s.25(1) Evidence Act 1995 (NSW) ss 4, 191, 192
Cases Cited:	CL v R [2014] NSWCCA 196 Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152 R v Palu (2002) 134 A Crim R 174 Wong v DPP [2005] NSWSC 129
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (NSW) (prosecution) Alistair Shipsey (defendant)
Representation:	Counsel: A Hawkins, for the defendant Solicitors: J Sweeny, for the prosecution L Johnson, for the defendant
File Number(s):	2010/315748
Publication restriction:	Nil