R v Foran [2020] NSWDC 274

R v Foran [2020] NSWDC 274

The applicant's guilty plea was entered on the basis of legal advice that was seriously flawed because the solicitor advised him about the prospects of self-defence without closely considering readily available evidence, including the ERISP and the contemporaneous incident log, and without reviewing the CCTV footage with the applicant. That evidence contained material relevant to whether the applicant believed his conduct was necessary for self-defence and whether it was a reasonable response in the circumstances as he perceived them. Because the flawed advice caused the applicant to plead guilty in seeking to avoid conviction, a miscarriage of justice would occur if the conviction were...

Jurisdiction
Australia
Judgment Date
05 June 2020
Procedural Posture
Criminal Application for Leave to Appeal and to Withdraw Plea of Guilty / District Court Application From Local Court Conviction
Outcome
Leave granted to appeal; leave granted to withdraw plea of guilty; conviction set aside; proceedings remitted to the Local Court of NSW for hearing.
Legal Topics
['withdrawal of Guilty Plea' 'miscarriage of Justice' 'self Defence' 'common Assault' 'expert Evidence' 'appeal From Local Court']
['criminal Law' 'criminal Procedure' 'evidence'] ['withdrawal of Guilty Plea' 'miscarriage of Justice' 'self Defence' 'common Assault' 'expert Evidence' 'appeal From Local Court']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal and to Withdraw Plea of Guilty / District Court Application From Local Court Conviction

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s 12(1) of the Crimes (Appeal and Review) Act 2001.' 'Whether the applicant should be permitted to change his plea from guilty to not guilty.' 'Whether the Local Court conviction should be set aside because the guilty plea was entered on seriously flawed legal advice.' "Whether the solicitor's failure to consider the ERISP, the CCTV footage with the applicant, and the incident log affected the integrity of the guilty plea." "Whether Mr Herring's affidavit opinion evidence was admissible."]

Ratio Decidendi

The applicant's guilty plea was entered on the basis of legal advice that was seriously flawed because the solicitor advised him about the prospects of self-defence without closely considering readily available evidence, including the ERISP and the contemporaneous incident log, and without reviewing the CCTV footage with the applicant. That evidence contained material relevant to whether the applicant believed his conduct was necessary for self-defence and whether it was a reasonable response in the circumstances as he perceived them. Because the flawed advice caused the applicant to plead guilty in seeking to avoid conviction, a miscarriage of justice would occur if the conviction were...

Court Disposition

Leave granted to appeal; leave granted to withdraw plea of guilty; conviction set aside; proceedings remitted to the Local Court of NSW for hearing.

Orders

  • ['Pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001, leave is granted to the applicant to appeal.' 'Leave is granted to the applicant to change his plea to not guilty.' 'The conviction entered in the Local Court of NSW on 30 October 2019 is set aside.' 'Pursuant to s 20(1)(c) of the Appeal Act, the...