Fuimaono v Director of Public Prosecutions [2011] NSWSC 472

Supreme Court New South Wales

Medium Neutral Citation: Fuimaono v Director of Public Prosecutions [2011] NSWSC 472 Hearing dates: 20/04/2011 Decision date: 24 May 2011 Jurisdiction: Common Law - Administrative Law Before: Rothman J Decision: (i) An order in the nature of certiorari setting aside the decision of His Honour Dr Roger Alasdair Brown LCM of 1 July 2010 in refusing the application made by Mr Fuimaono. (ii) The Local Court be directed to deal with the plaintiff's application in accordance with law. (iii) Leave be granted to the parties to approach the Court to complete any orders that are necessary to have the matter determined. (iv) No order as to costs. Catchwords: ADMINISTRATIVE LAW - challenge to magistrate's decision not to allow withdrawal of plea - material relied upon not available to defendant - Director of Public Prosecutions concedes denial of natural justice - orders in the nature of certiorari issued - no issues of principle Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Category: Principal judgment Parties: Jason Fuimaono (Plaintiff) Director of Public Prosecutions (Defendant) Representation: Counsel:

P Folino-Gallo (Plaintiff) A Mitchelmore (Defendant) Solicitors:

Reimer Winter Williamson Lawyers (Plaintiff) Office of the Director of Public Prosecutions (Defendant) File Number(s): 2010/251346

Judgment 1The plaintiff, Jason Fuimaono, seeks to overturn the decision of the Local Court refusing the application by Mr Fuimaono to withdraw a plea of guilty earlier made. The plaintiff relies upon ss 53(1), 53(3), 55(1)(b) and 55(3)(a) of the Crimes (Appeal and Review) Act 2001 (hereinafter "the Act") in his application for declaratory relief and an order in the nature of certiorari and mandamus. 2The matter came before the Court as part of the duty list. The Director of Public Prosecutions (hereinafter "the DPP") accepts that error of law has occurred. The Court reviewed the evidence before it and issued orders, reserving reasons. These are my reasons. The facts may be set out briefly.

Background facts 3Mr Fuimaono was charged with three counts of dishonestly obtain financial advantage or cause disadvantage by deception, in contravention of s 192E(1)(b) of the Crimes Act 1900. The underlying allegation is that Mr Fuimaono and his cousin obtained fuel (on three occasions) from a Caltex Service Station without paying for the fuel. According to the police fact sheet, which was before the learned magistrate, Mr Fuimaono made full admissions as to his involvement and knowledge of the deception. 4On 16 May 2010, Mr Fuimaono pleaded guilty before the Local Court. At the time, Mr Fuimaono was unrepresented. The Local Court stood the matter over for sentence to 17 June 2010. On that date, the matter was stood over further to 1 July 2010, seemingly because of an application for a change in plea. On 17 June 2010, Mr Fuimaono was represented by a legal practitioner. 5On 1 July 2010, Mr Fuimaono made application to the learned magistrate to change his plea. Mr Fuimaono relied upon an affidavit sworn by him on 1 July 2010 in which he asserted that, at the time of his plea, he had not had the benefit of legal advice and knew nothing about the elements or nature of the charges of obtaining benefit by deception and in particular that an essential element of the offence was that he, Mr Fuimaono, needed to gain that which was the subject of the deception. Further, he was unaware that there were three charges to which he had pleaded guilty. He also alleged that he had not received a copy of the ERISP relied upon by the police. 6At the hearing, it was clear that the legal representative who appeared for Mr Fuimaono had not been provided with the material on which the Local Court was relying and on which the Local Court relied for the purpose of refusing the application to withdraw the plea.

Consideration 7There are a number of legal issues raised by the appeal. It is unnecessary for the Court to deal with all of them. 8At the hearing of the appeal, the DPP accepted that there was a denial of procedural fairness, in that the representative of Mr Fuimaono was denied the opportunity to deal with, and was not provided, a copy of the material on which the learned magistrate relied. 9It is an essential feature of the rule of law and of the rules of procedural fairness that a party have the opportunity to prepare and to present her or his case. For that purpose it is necessary to be aware of and to have access to, the evidence that is relied upon by the other side and by the decision maker. 10In this case, the learned magistrate relied upon the fact sheet (and, indirectly, the ERISP) neither of which were provided to Mr Fuimaono. Further, the magistrate relied upon the criminal history of Mr Fuimaono, which had not been provided to his legal representative and on which he had not had the opportunity to obtain instructions. Mr Fuimaono was denied the opportunity to address at least some of the material relied upon by the learned magistrate and was thereby denied natural justice. 11As a consequence of the foregoing, orders in the nature of certiorari should issue quashing the decision under review. Given that finding, it is unnecessary to deal with whether the decision is able to be appealed, whether the provisions of the Act allow an appeal against an interlocutory order and whether the order made was an error of law or an error of fact, requiring leave of the Court. For the foregoing reasons, on 20 April 2011, the Court issued the following orders: (i) An order in the nature of certiorari setting aside the decision of His Honour Dr Roger Alasdair Brown LCM of 1 July 2010 in refusing the application made by Mr Fuimaono. (ii) The Local Court be directed to deal with the plaintiff's application in accordance with law. (iii) Leave be granted to the parties to approach the Court to complete any orders that are necessary to have the matter determined. (iv) No order as to costs.

********** 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: 27 May 2011