R v Foran

The Crown case

1. The Crown relied on an affidavit of Ms Trudie Cameron, affirmed on 16 April 2020. Ms Cameron deposed that she agreed with the content of the applicant's affidavit from [22] to [48] inclusive, however, she set out matters where she disagreed with the content, or included further relevant material.
2. Ms Cameron deposed as to the first conference she held with the applicant on 26 July 2019 and confirmed that she was instructed on that occasion that the applicant wished to plead not guilty and raise self-defence.
3. Ms Cameron did not agree that she advised the applicant that if he were to plead guilty to the charge, her estimate of his chances of receiving a non‑conviction for the charge would be 90%. She advised the applicant that if he chose to plead guilty and the police agreed to amend the facts as they were requested, it was her view that a conditional release order without conviction was the likely outcome. When asked to give a percentage likelihood, she had said, "80 to 90% before warning him that there were no guarantees".
4. Ms Cameron deposed that she explained to the applicant that the CCTV footage did not entirely accord with his instructions, that the victim had tried to hit him and that in response he had leaned forward and punched the patron. She explained that after watching the footage she was not entirely confident that self-defence would be raised successfully.
5. Ms Cameron deposed that she explained that raising self-defence may be successful, however, her advice was that his prospects of successfully defending the matter were no better than "50/50".
6. Ms Cameron deposed that she explained various penalties that may be available to the applicant and that an assault involving a punch to the head was a serious example of violence, which is usually treated seriously by the courts. In the circumstances, she deposed that she advised that he had a good chance of receiving a conditional release order and she disagreed that she advised him he had good prospects of achieving a s 10 bond.
7. Ms Cameron also deposed that she could recall advising the applicant that he could think about her advice before making a decision, as court was not until 25 September 2019. The applicant had indicated that he thought it was better to plead guilty and aim for a non-conviction, and provided those instructions.
8. Ms Cameron set out in some detail what occurred on 30 October 2019 at the Local Court. She explained to the applicant that his options were to proceed to sentence that day on the amended facts, seek a short adjournment to consider his position, or indicate the facts were not agreed, at which time the court would likely set the matter down for a contested facts hearing. She agreed, having gone through the amended facts, that she said words to the effect of, "this is about as good as you're going to get", however, she qualified that by saying "today". Ms Cameron deposed that she reiterated advice previously given to the applicant in conference as to the seriousness of the assault, and further deposed that she was instructed that the applicant wished to proceed to sentence and that he stated he "wanted to get it over with".
9. Ms Cameron attached what she described as "non-exhaustive notes" of the conferences of 26 July and 27 August 2019, and further deposed that at no time did the applicant tell her that he had prepared an incident log at the time of the incident. She did not depose that she had, at any time, viewed the applicant's ERISP or obtained a transcript of it. She was not required for cross-examination.

The applicant's submissions

1. Learned Counsel for the applicant provided a written outline of submissions which set out relevant principles to be applied in determining whether the court should allow a plea of guilty to be withdrawn and conviction set aside. In Wong v DPP (NSW) (2005) 155 A Crim R 37, Howie J had stated that: "The issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the court acted upon the plea to convict and sentence the defendant."
2. In Maxwell v R (1996) 184 CLR 501, Dawson and McHugh JJ said: "The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage."
3. It is clear that the categories of cases in which leave will be granted to withdraw a plea of guilty are not fixed or closed - see Turner v Wheeler [2016] NSWSC 345 per Campbell J at [26].
4. The applicant submitted that Ms Cameron did not await receipt of the brief of evidence to advise the applicant on prospects of successfully defending the charge. Had she done so, and undertaken the assessment that Mr Herring had opined was required, her advice would have been the same as the opinion of Mr Herring, namely, that the applicant had good prospects of successfully defending the charge on the basis that he was acting in self‑defence, if given the opportunity to do so.
5. The applicant submitted that Ms Cameron's advice appeared to be based primarily upon the period of time between the last physical act of the patron and the blow being struck by the applicant, of approximately four seconds. It was therefore significant that she did not at any stage review this footage with the benefit of concurrent instructions from the applicant. The applicant's explanation for what occurred, and what is shown on the CCTV footage, was set out in the ERISP interview (see Q's 52, 56, 78, 79 and the answers thereto).
6. It was submitted that in the absence of these crucial instructions, Ms Cameron proceeded to advise the applicant on his likelihood of success. It was clear that a key factor in deciding what plea to enter for the applicant was the likelihood of conviction and the impact that that would have upon his recently obtained employment. Further, the applicant explained that it was because of the solicitor advising him that his prospects of obtaining a conditional release order without conviction were 80 to 90%, before warning him that there were no guarantees, that he instructed her to enter his plea of guilty. That plea, it was submitted, was entered in circumstances where he was given incomplete and therefore mistaken advice. The plea was therefore not entered as a true consciousness of guilt, rather, it was entered upon an incorrect assessment of the appellant's prospects of defending the charge as against avoiding a conviction via a plea of guilty. In those circumstances it would be a miscarriage of justice to allow the conviction to stand.
7. In his oral submissions, learned counsel rehearsed those submissions and highlighted those parts of the ERISP interview which were helpful to discern the prospects of the applicant succeeding on a defence of self-defence. Ms Cameron had taken no instructions as to what had happened off-screen, namely, what the CCTV did not show. Nor had she gone through the ERISP interview with the applicant. It was submitted that the error in her advice was therefore a failure to look at the matter in complete context of all of the evidence. No attempt was made by the solicitor to understand what was in the applicant's mind at the time, which was relevant to an assessment of self‑defence. Rather, the solicitor was focussed on the three to four seconds where the patron had his hands down, prior to which, the applicant punched the patron in the head. It was submitted that had she acted in the manner outlined by Mr Herring, it may well have been that her advice would have been different. Further, from the outset, the applicant had instructed her to enter a plea of not guilty and raise self-defence. There was no evidence that she had taken instructions on the mental element involved in raising that defence.
8. Learned Counsel highlighted the solicitor's email of 22 August 2019, in which she stated there was a "significant possibility that he would be found guilty". It was submitted that advice was mistaken, and had Ms Cameron taken the steps set out above, she would not have given that advice. In those circumstances, a miscarriage of justice had occurred. Ms Cameron's advice was flawed and the applicant's plea of guilty was entered on a mistaken belief. As the applicant had said in re-examination, her advice had a significant effect on his decision to enter a plea of guilty.

The Crown submissions

1. The Crown also relied on a thorough detailed written outline of submissions, which set out the principles of law governing an application to reverse a plea of guilty. The principles were conveniently summarised in Kanakaradnam v R [2018] NSWCCA 282 at [17] - [19] by Johnson J (with whom Simpson AJA and M Adams J agreed). Those principles include that the ultimate question for the court is whether it has been demonstrated that a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea. The onus is on the applicant to establish a good and substantial reason for the granting of leave, and such an application is to be approached by the court with caution, bordering on circumspection. Further, simply because a defendant is induced to plead guilty because of legal advice given to him, it does not follow that he should be allowed to withdraw the plea of guilty, even if others might disagree with that advice. The focus in such a case is whether the plea of guilty was entered in the exercise of a free choice in the defendant's own interest. In Wong v DPP, supra, it was held that a miscarriage of justice will normally only arise in that situation where the defendant did not understand the nature of the charge or did not intend by his plea to admit his guilt of it (at [37]).
2. The Crown highlighted the evidence as to the advice given by Ms Cameron to the applicant and the fact that she emphasised that there were no guarantees of a non-conviction following a plea of guilty due to the nature of the assault. Further, the applicant had time to think about his instructions before he made a decision and was advised that Ms Cameron would seek to negotiate the facts. The Crown relied on the circumstances in which Ms Cameron gave the applicant advice at court on 30 October 2019 and he gave her written instructions to proceed to enter the plea of guilty, and had acknowledged that he wanted to "get it over with".
3. The Crown submitted that this is not a case where the applicant was coerced by his lawyer or wrongly advised. Rather, the applicant simply wanted to get it over and was hoping he would be dealt with without the court proceeding to a conviction. He knew there were no guarantees that that would happen. Having been convicted, it was submitted that the applicant now regrets taking the course he did and the fact that he maintains his innocence to the offence does not found a good and substantial reason for granting the application. The Crown submitted that what occurred does not amount to a miscarriage of justice in the circumstances and the application must be refused.
4. In his oral submissions the Crown referred to Ex DJF-1.9, which set out the facts sheet inaccuracies compiled by the applicant which put Ms Cameron on notice of all of the matters upon which the applicant relied. It was submitted that she was virtually in the same position had she attended to the three matters highlighted by Mr Herring as omissions in her preparation prior to advising the applicant. It was submitted she therefore had a solid legal basis to provide the advice she provided on 22 August 2019.
5. It was submitted that the fact that Ms Cameron did not view the CCTV footage with the applicant does not demonstrate incompetence by the solicitor. It was clear that the applicant wanted to avoid a conviction and that he made an informed choice to enter a plea of guilty as the shortest, cheapest and best route for him to obtain a non-conviction order. The applicant had not submitted that the advice given to him was incorrect, and therefore the integrity of the plea was not undermined. The Crown submitted that the applicant had not established a mistake in the provision of legal advice and had certainly not established a miscarriage of justice. Further, the Crown emphasised the need for the approach to such applications as being cautious, and the need for finality in litigation.
6. In reply, Counsel for the Applicant submitted that by providing the list of inaccuracies in the police facts, the applicant was not providing instructions to his solicitor, as evidenced in his email dated 20 August 2019.

Determination

1. The principles to be applied on an application to reverse a plea of guilty are well settled, however, the categories are not closed, nor could they be. Nor can the matter be determined with the benefit of hindsight. Rather, the ultimate question is whether the applicant has demonstrated, to the required standard, that a miscarriage of justice will occur if the applicant is not permitted to withdraw the plea. Any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea.
2. In Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at [157], Dawson J said: "An accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily, that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it, or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside."
3. Here, the following facts are established on the evidence: 1. Following the incident where an inebriated, abusive patron was removed from the hotel premises, the applicant entered details of what had occurred in the incident log, in which he recorded that he had punched the patron in self-defence. 2. Subsequent events involving the patron returning to the premises meant that police attended and took a statement from the applicant. 3. The applicant was subsequently requested by police to attend at a police station to discuss the matter. 4. The applicant attended the police station, believing he was there to provide a statement concerning the patron's conduct and believing he had done nothing wrong. 5. The applicant was advised by police that he was to be charged and requested him to undergo an electronic interview, in which he gave ample information to the police to the effect that he had acted in self‑defence when he punched the patron. 6. The applicant was not charged but sought legal advice. At the first meeting with his solicitor she was instructed that he wished to plead not guilty and to raise a defence of self-defence. 7. Subsequently, the applicant was served with a Court Attendance Notice and a Statement of Facts prepared by the police. Having received those facts, the applicant forwarded to his solicitor a document outlining numerous inaccuracies contained in those facts. 8. His solicitor made arrangements with the police to view the CCTV footage from the hotel, which was incomplete, and advised the applicant that it was unnecessary for him to view it with her. 9. Based on that viewing of the CCTV footage, and without viewing the ERISP, the solicitor proceeded to advise the applicant that she foresaw difficulties in raising self-defence and that there was a significant possibility that he would be found guilty, in which case the penalty was more likely to be "harsher". She advised that there was "At least a 50/50 chance that a plea of not guilty will result in him being found guilty". Without the discount for your plea of guilty as well as remorse etc, your chances of avoiding a conviction are less." 1. Thereafter, the solicitor sought to negotiate an amended Statement of Facts and was only partly successful in doing so. Relevantly, as set out above, the amendments to the facts did not ameliorate the circumstances in which the applicant struck the patron, nor did it explain what had occurred beforehand, so as to benefit the applicant. 2. That advice was provided on 22 August 2019 and was discussed by the applicant and Ms Cameron on 27 August 2019, when the applicant indicated he would enter a plea of guilty. 3. The plea of guilty was confirmed to police by the letter forwarded by Ms Cameron on 27 August 2019, subject to police agreeing to the amendments proposed. 4. On 25 September 2019 the matter was stood over for hearing on 30 October 2019 in the Local Court, subject to police agreement to the amendments. 5. On 30 October 2019, partial agreement was reached concerning the amendments and the applicant confirmed in writing that he understood the matter could proceed to sentence that day on the facts proposed, or go to a contested facts hearing. He instructed his solicitor in writing to finalise the matters and confirmed that he signed the instructions "on his own free will and that he understood his options and had no further questions".
4. The application should be approached with caution and circumspection. Having changed his initial instructions to defend the charge on 27 August 2019, the applicant had, not only from that time until 25 September, but up until 30 October 2019, the opportunity to change his instructions back to enter a plea of not guilty to the charge. However, throughout that period he was relying on the advice of Ms Cameron provided by email on 22 August 2019, which was based on her viewing of the CCTV footage.
5. I accept the evidence of Ms Cameron that in her initial interview with the applicant, she did not ask him about the record of interview. I further accept that she asked the applicant whether the version he gave to police in the interview was in essence the same as the version he had provided to her, and that the applicant had told her it was. I also accept that she advised the applicant that once she had received the brief of evidence she would review it and provide him with further advice about whether he should maintain his plea of not guilty or enter a plea of guilty and/or seek to negotiate the facts. That, however, did not occur, and I find that the advice provided on 22 August 2019 was provided without Ms Cameron listening to the audio recording of the ERISP interview, or obtaining a transcript of it. Nor did she at any time obtain instructions relating to the incident log.
6. Section 418(1) of the Crimes Act 1900 provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) sets out the circumstances where self-defence is available, and s 419 provides that the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. It is therefore for the Crown to eliminate self‑defence as an issue by proving, beyond reasonable doubt, that the accused's act was not done in self-defence. The Crown may do this by proving, beyond reasonable doubt, either: 1. The accused did not believe at the time of the act that it was necessary to do what he or she did in order to defend himself or herself; or 2. The accused's act was not a reasonable response in the circumstances as he or she perceived them.
7. In determining the issue of whether the accused personally believed that his or her conduct was necessary for self-defence, the court must consider the circumstances as the accused perceived them to be at the time. If the Crown fails to prove either of the elements set out in (a) or (b) above, it will fail to eliminate self-defence. In determining these issues, the court will have regard to the whole of the circumstances surrounding the alleged conduct and in particular, evidence regarding the accused's belief at the time that it was necessary to do what he did to defend himself and whether the accused's act was a reasonable response in the circumstances as he perceived them. These were critical issues to be considered by the solicitor, having regard to the whole of the available evidence, in advising the applicant.
8. I reject the submission made by the Crown that having reviewed the facts sheet inaccuracies compiled by the applicant (Ex DJF-1.9), Ms Cameron was "virtually in the same position had she attended to the three matters highlighted by Mr Herring as omissions in her preparation prior to advising the applicant", and therefore she had a "solid legal basis to provide the advice she provided on 22 August 2019". Without a close regard to the applicant's ERISP interview and the explanation he provided to police at that time, supported as it was by the incident log filled out contemporaneously by him, the solicitor was not in a position to provide cogent advice to her client based on all of the readily available evidence.
9. The advice provided by Ms Cameron on 22 August 2019 was therefore flawed in all of the circumstances because the ERISP interview contained a great deal of detail in the paragraphs referred to above, that would found a defence of self-defence. So too would the incident log which Ms Cameron never had the advantage of seeing, however, she did not discuss its existence with her client.
10. Without that material, which was readily available, the advice, to the effect that there was a significant possibility that the applicant would be found guilty, and that his prospects of success were no more than "50/50" was therefore seriously flawed in that it was given in the absence of readily available evidence which would suggest otherwise. For example, at Q66 to Q80 of his ERISP, the applicant provides a detailed explanation of his conduct during the confrontation with the patron, including what was occurring during the three to four second period prior to the applicant striking the patron. In so finding, I am not in any way prognosticating the outcome of proceedings if the defence had been raised. However, it means that the advice given, albeit with good intention, was seriously flawed.
11. Further, the factual issue as to whether the applicant was told his prospects of obtaining a sentence without conviction involved a 90% chance, or a "80 to 90% chance", and that there were "no guarantees", does not ameliorate the flawed advice. Either way, to a lay person those prospects indicated a good chance of obtaining the result he wanted, compared to a significant possibility that he would be found guilty and convicted.
12. Having regard to the evidence that was available and notwithstanding that the applicant gave his solicitor written instructions, "on his own free will", to enter a plea of guilty, he did so on the basis of advice that was seriously flawed, and remained flawed up until the date of his conviction on 30 October 2019.
13. For those reasons, I find that in all of the circumstances, a miscarriage of justice will occur if the conviction is allowed to stand. In the interests of justice, I therefore propose to make the orders sought in the applicant's Notice of Motion.

Orders

1. I make the following orders: 1. Pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001, I grant leave to the applicant to appeal. 2. Leave is granted to the applicant to change his plea to not guilty. 3. The conviction entered in the Local Court of NSW on 30 October 2019 is set aside. 4. Pursuant to s 20(1)(c) of the Appeal Act, the proceedings are remitted to the Local Court of NSW for hearing. 5. I further direct that the Registrar of the Local Court list the matter for mention only on Monday 22/6/20 at the Downing Centre Local Court at 9.30am.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2020