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Rotner v R

Rotner v R

Case [2011] NSWCCA 207 8 September 2011

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Court of Criminal Appeal

New South Wales

Case Title: Rotner v R

Medium Neutral Citation: [2011] NSWCCA 207

Hearing Date(s): 5 August 2011

Decision Date: 08 September 2011

Jurisdiction:

Before:
McClellan CJ at CL at 1
Simpson J at 2
Fullerton J at 75

Decision:
Leave to appeal refused.

Catchwords:
CRIMINAL LAW - application for leave to appeal against interlocutory judgment or order - s 5F(3) Criminal Appeal Act 1912 - charge of wounding with intent to cause grievous bodily harm - plea of guilty entered - application for leave to withdraw plea of guilty - application refused - claim of inadequate legal advice - strength of prosecution case - unavailability of defence of accident - accident not previously raised - no error in application of principles - no error in rejecting evidence tendered on behalf of applicant - leave to appeal refused.

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986

Cases Cited:
Lawson v The Queen [2011] NSWCCA 44
Liberti (1991) 55 A Crim R 120
R v Davies (1993) 19 MVR 481
R v Kouroumalos [2000] NSWCCA 453
R v Murphy [1965] VR 187
R v Sargiv (1986) 22 A Crim R 73
R v Wilkes [2001] NSWCCA 97

Texts Cited:

Category: Principal judgment

Parties:
Daniel Samuel Asher Rotner (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel
S Odgers SC (Applicant)
D Arnott SC (Respondent)

- Solicitors:
Solicitors
Levitt Robinson (Applicant)
Director of Public Prosecutions (Respondent)

File number(s): 10/89209

Decision Under Appeal

- Court / Tribunal:

- Before: Knox DCJ

- Date of Decision: 15 June 2011

- Citation: N/A

- Court File Number(s) 10/89209

Publication Restriction:

Judgment

McCLELLAN CJ at CL : I agree with Simpson J

SIMPSON J : This is an application, pursuant to s 5F(3) of the Criminal Appeal Act 1912, for leave to appeal against an order of Judge Knox in the District Court made 15 June 2011, refusing an application by the applicant for leave to withdraw a plea of guilty entered by him to a charge of wounding with intent to cause grievous bodily harm (a charge brought under s 33(1)(a) of the Crimes Act 1900).

The grounds of the proposed appeal are specified as:

"1. His Honour erred in failing to apply the principles bearing on the application to withdraw the plea of guilty.

2. His Honour erred in refusing to permit the applicant to rely on material tendered on the application in respect of the strength of the prosecution case against the applicant."

The background

The events giving rise to the charge against the applicant occurred on 10 April 2010. It is alleged by the prosecution that, in the early hours of that day (a Saturday), in an intoxicated state, the applicant encountered a Mr Jonathan Devery and Mr Devery's girlfriend (Ms Melissa Sanders). The first encounter occurred at a service station in Bondi Road, Bondi. Mr Devery and Ms Sanders had begun to walk to their home in Penkivil Street, Bondi from the service…

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 Rotner v R

Details

AGLC: Rotner v R [2011] NSWCCA 207
Case: [2011] NSWCCA 207
Decision Date: 08 September 2011

CaseChat Overview and Summary

The case of Rotner v R involved the defendant, Rotner, who had entered a plea of guilty to a charge of wounding with intent to cause grievous bodily harm. Following this, Rotner sought to withdraw his plea of guilty, alleging that he had received inadequate legal advice. The application for leave to appeal against the interlocutory judgment or order was made under section 5F(3) of the Criminal Appeal Act 1912. The court was tasked with determining whether there were grounds to grant Rotner leave to withdraw his plea of guilty, considering the strength of the prosecution's case and the unavailability of a defence of accident.

The primary legal issues revolved around the adequacy of the legal advice provided to Rotner and whether there were exceptional circumstances justifying the withdrawal of his guilty plea. The court also examined the strength of the prosecution's evidence, which included the absence of a previously raised defence of accident and the evaluation of the tendered evidence on behalf of Rotner. The court had to decide if there was an error in the application of legal principles or in the rejection of the tendered evidence, which could warrant the granting of leave to appeal.

The court found that there was no error in the application of legal principles or in the rejection of the tendered evidence. It was determined that the prosecution's case was strong, and the defence of accident was not available as it had not been previously raised. Consequently, the court refused the application for leave to withdraw the plea of guilty and also denied the application for leave to appeal. The reasoning underscored that the application did not meet the stringent criteria required for leave to appeal to be granted.

Orders