Donohoe v R [2012] NSWCCA 176

Donohoe v R [2012] NSWCCA 176

The proposed tendency or coincidence evidence based on two prior offences was highly unlikely to be admitted because the alleged similarities were too general to amount to a hallmark or signature identifying the applicant and the prejudicial effect of the prior convictions was significant. Advice that there was a strong chance the evidence would be admitted was therefore erroneous and inappropriate, and it affected the integrity of the applicant's plea. In circumstances where the Crown case without that evidence was weak and the plea was not shown to be a genuine consciousness of guilt, the District Court's discretion miscarried and the applicant should have been granted leave to withdraw...

Jurisdiction
Australia
Judgment Date
23 August 2012
Procedural Posture
Criminal Application for Extension of Time and Leave to Appeal Under S 5 F of the Criminal Appeal Act 1912 From Refusal to Permit Withdrawal of a Guilty Plea / Court of Criminal Appeal Determination After the District Court of NSW Dismissed the Applicant's Notice of Motion to Withdraw His Plea of Guilty
Outcome
Leave to appeal granted; appeal upheld; District Court order set aside; leave granted to withdraw the guilty plea.
Legal Topics
['withdrawal of Guilty Plea' 'tendency Evidence' 'coincidence Evidence' 'extension of Time for Leave to Appeal' 'break and Enter and Sexual Intercourse Without Consent' 'circumstantial Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['withdrawal of Guilty Plea' 'tendency Evidence' 'coincidence Evidence' 'extension of Time for Leave to Appeal' 'break and Enter and Sexual Intercourse Without Consent' 'circumstantial Evidence']

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Procedural Posture

Criminal Application for Extension of Time and Leave to Appeal Under S 5 F of the Criminal Appeal Act 1912 From Refusal to Permit Withdrawal of a Guilty Plea / Court of Criminal Appeal Determination After the District Court of NSW Dismissed the Applicant's Notice of Motion to Withdraw His Plea of Guilty

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to seek leave to appeal.' "Whether the District Court erred in assessing the admissibility of the Crown's proposed tendency or coincidence evidence." 'Whether advice that there was a strong chance the tendency evidence would be admitted was erroneous and affected the integrity of the guilty plea.' "Whether the applicant's guilty plea reflected a genuine consciousness of guilt or should be withdrawn."]

Ratio Decidendi

The proposed tendency or coincidence evidence based on two prior offences was highly unlikely to be admitted because the alleged similarities were too general to amount to a hallmark or signature identifying the applicant and the prejudicial effect of the prior convictions was significant. Advice that there was a strong chance the evidence would be admitted was therefore erroneous and inappropriate, and it affected the integrity of the applicant's plea. In circumstances where the Crown case without that evidence was weak and the plea was not shown to be a genuine consciousness of guilt, the District Court's discretion miscarried and the applicant should have been granted leave to withdraw...

Court Disposition

Leave to appeal granted; appeal upheld; District Court order set aside; leave granted to withdraw the guilty plea.

Orders

  • ['Leave to appeal granted.' 'Appeal upheld.' 'Set aside the order of the District Court of NSW (McLoughlin DCJ) dated 28 October 2011.' 'In lieu thereof, grant leave to the applicant to withdraw his plea of guilty entered on 2 May 2011 to the offence.']