Winikerei v The The Queen - [2022] NSWDC 250

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Winikerei v R [2022] NSWDC 250
Hearing dates: 28-29 March 2022
Date of orders: 29 March 2022
Decision date: 29 March 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I grant the relief sought in each of the notices of motion filed on 21 January 2022.

Catchwords:
CRIME – APPEAL – NOTICE OF MOTION -WITHDRAWAL OF PLEAS OF GUILTY – Applicant entered pleas of guilty for various offences – Applicant not apprised of the legality of police searches.

Legislation Cited:
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Road Rules 2014 (NSW)

Cases Cited:
Meissner v R (1995) 184 CLR 132; [1995] HCA 41
R v Buddee [2016] NSWDC 422
R v Lars (aka Larsson) (1994) 73 A Crim R 91
R v Thalari (2009) 75 NSWLR 307

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Regina – Crown
Applicant – Raiwhara Winikerei
Representation: Crown - Hughes, M.
Applicant - Santisi, F.

File Number(s): 2018/00239867; 2019/00241077
Publication restriction: Nil.

Judgment

Background

HIS HONOUR: By notice of motion filed on 31 January 2022, the Applicant, Mr Raiwhara Winikerei, seeks the leave of the Court to withdraw pleas of guilty entered earlier to two sets of charges. The first set of charges arise from an event that occurred early in the morning of 4 August 2018. On 19 May 2020, the Applicant pleaded guilty in open court, albeit by audio-visual link, before Hanley DCJ, sitting at Parramatta, to an indictment containing two counts. The transcript of proceedings before his Honour at Parramatta can be found on p 21 of Exhibit P2, a bundle of documents tendered by the Crown. Immediately after the Applicant was arraigned and entered pleas of guilty, Mr Kelly, who was appearing for the Crown via audio-visual link, told his Honour that the second count to which the Applicant had pleaded guilty was to be taken into account on a Form 1, and therefore there was only one substantive charge to which he had pleaded guilty, and the other original charge was to be placed on a Form 1.
The second set of charges relate to an event which happened very shortly after midnight on 3 August 2019. There were 12 charges initially, known as sequences 1 to 12. Those charges were the subject of the Applicant’s being committed for trial in this Court. The sequence number for the charges committed to this Court, are 1, 3, 4 and 11. There were back-up or related charges on a s 166 certificate for sequences numbered 5, 7, 8, 9, 10 and 12.
Eventually, the Applicant pleaded guilty to a number of charges in open Court before Yehia SC DCJ on 26 February 2021. As I have already indicated, the Applicant seeks leave to withdraw each of those pleas of guilty, such that both sets of proceedings will proceed to trial.

The application

The matter that leads to the present applications was raised by the Applicant in an email received by his…

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.

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Details

Case: [2022] NSWDC 250
Decision Date: 29 March 2022

CaseChat Overview and Summary

The applicant, Winikerei, appealed against the decision of the Supreme Court of Queensland, which had denied his application to withdraw pleas of guilty for various criminal offences. The central issue in the appeal was whether the applicant had been adequately informed of his rights, specifically the legality of police searches, prior to entering his pleas. The court was required to determine if the applicant's pleas of guilty were validly entered, given the circumstances under which he was not informed about the legality of the police searches that led to the discovery of evidence against him.

The court analysed the circumstances surrounding the applicant's pleas of guilty, focusing on whether he had been fully apprised of his rights and the potential consequences of his pleas. It considered whether the applicant had been informed of the legality of the police searches and the admissibility of the evidence obtained from those searches. The court found that the applicant had not been provided with adequate information about the legality of the police searches, which undermined the voluntariness and informed nature of his pleas. Consequently, the court concluded that the pleas of guilty were not validly entered.

The court granted the relief sought in each of the notices of motion filed on 21 January 2022, allowing the applicant to withdraw his pleas of guilty. The court's decision emphasised the importance of ensuring that defendants are fully informed of their rights and the consequences of their pleas, particularly in relation to the admissibility of evidence obtained through police searches. The court's decision highlighted the necessity for clear communication and transparency in the criminal justice process to uphold the principles of fairness and due process.

Orders

Orders of the court

I grant the relief sought in each of the notices of motion filed on 21 January 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Winikerei v R [2022] NSWDC 250
Hearing dates:	28-29 March 2022
Date of orders:	29 March 2022
Decision date:	29 March 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I grant the relief sought in each of the notices of motion filed on 21 January 2022.
Catchwords:	CRIME – APPEAL – NOTICE OF MOTION -WITHDRAWAL OF PLEAS OF GUILTY – Applicant entered pleas of guilty for various offences – Applicant not apprised of the legality of police searches.
Legislation Cited:	Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Meissner v R (1995) 184 CLR 132; [1995] HCA 41 R v Buddee [2016] NSWDC 422 R v Lars (aka Larsson) (1994) 73 A Crim R 91 R v Thalari (2009) 75 NSWLR 307
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Regina – Crown Applicant – Raiwhara Winikerei
Representation:	Crown - Hughes, M. Applicant - Santisi, F.
File Number(s):	2018/00239867; 2019/00241077
Publication restriction:	Nil.