Senior v The Queen - [2017] NSWCCA 220

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Senior v R [2017] NSWCCA 220
Hearing dates: 4 September 2017
Date of orders: 04 September 2017
Decision date: 11 September 2017
Before: Basten JA at [1];
McCallum J at [41];
Wilson J at [42]
Decision:
Refuse the applicant leave to appeal against conviction.

Catchwords:
CRIME – appeal – application for leave to appeal convictions for dangerous driving – convictions based on guilty pleas – whether pleas attributable to genuine consciousness of guilt – whether pleas entered without full understanding of consequences – whether miscarriage of justice
CRIME – appeal – challenge to conviction based on guilty pleas – whether advice of applicant’s legal representative to enter guilty pleas was imprudent and inappropriate – whether incompetence of counsel resulted in miscarriage of justice
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases Cited: R v Birks (1990) 19 NSWLR 677
Ignjatic (1993) 68 A Crim R 333
Liberti (1991) 55 A Crim R 120
McLean v R [2001] NSWCCA 58; 121 A Crim R 484
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
R v Murphy [1965] VR 187
Reg v Chiron [1980] 1 NSWLR 218
Regina v SL [2004] NSWCCA 397
Wilkes v R [2001] NSWCCA 97; 122 A Crim R 310
Category: Principal judgment
Parties: Jason Neville Senior (Applicant)
Regina (Respondent)
Representation:
Counsel:
Dr S Baron Levi (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Rivera Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2005/71390
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 April 2016

Before:

Robison DCJ

File Number(s):

2005/7139

Judgment

BASTEN JA: On 8 July 2004 a semi-trailer driven by the applicant, Jason Neville Senior, collided with a motor vehicle on the Pacific Highway near Nerong, south of Bulahdelah. On 8 May 2006 the applicant was arraigned on an indictment containing two charges of driving a vehicle in a manner dangerous to another person and occasioning grievous bodily harm. He entered pleas of guilty in open court on both counts. The matter was adjourned for sentence, but from 1 September 2006 the applicant failed to appear in court. He was eventually arrested on a bench warrant on 25 February 2016. On 15 April 2016 he appeared before Robison DCJ in the District Court and was sentenced on each count to imprisonment for 3 years 9 months, with a non-parole period of 2 years and 3 months for each offence.
There is no challenge to the calculation of the sentences; rather, the two grounds of appeal contained in a notice of appeal filed on 5 May 2017 challenged his conviction on each count. The grounds read as follows:

“(1) The Appellant's plea of guilty is not attributable to a genuine consciousness of guilt and was entered without a full understanding by the Appellant of the implications and consequences of his doing so.
(2) Alternatively, the advice of the Appellant's legal representative…

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 Senior v The Queen

Details

AGLC: Senior v The Queen [2017] NSWCCA 220
Case: [2017] NSWCCA 220
Decision Date: 11 September 2017

CaseChat Overview and Summary

The case of Senior v The Queen involved the applicant, Senior, appealing against his convictions for dangerous driving. Senior's convictions were based on guilty pleas that he entered at the trial. The central issue before the court was whether Senior's guilty pleas were attributable to a genuine consciousness of guilt or whether they were entered without a full understanding of their consequences. The court was required to determine whether Senior's pleas were made with an adequate comprehension of the implications and whether his legal representation had provided appropriate advice.

The court examined the circumstances surrounding Senior's guilty pleas, focusing on whether the advice provided by his legal representative was imprudent and inappropriate. The central legal issue was whether the incompetence of Senior's counsel resulted in a miscarriage of justice. The court assessed the quality of the legal advice given and whether it met the required standards of competence and diligence. The applicant argued that the advice to enter guilty pleas was flawed, leading to a plea that was not entered with a full understanding of its consequences.

In its reasoning, the court found that the advice provided by Senior's legal representative did not meet the necessary standards. The court concluded that Senior's pleas were not made with a genuine understanding of their consequences, and therefore, the pleas were not attributable to a genuine consciousness of guilt. Consequently, the court found that a miscarriage of justice had occurred due to the incompetence of Senior's counsel. The court granted Senior leave to appeal against his convictions. The final orders were that Senior's convictions were quashed, and a new trial was ordered to be conducted.

Orders