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, 192Cases 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 129Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) (prosecution)
Alistair Shipsey (defendant)Representation: Counsel:
Solicitors:
A Hawkins, for the defendant
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
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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.
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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.
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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.
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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…
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- AGLC
- R v Shipsey [2018] NSWLC 4
- Case
- [2018] NSWLC 4
- Decision Date
CaseChat Overview and Summary
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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