R v Li [2020] NSWDC 726

District Court New South Wales

Medium Neutral Citation: R v Li [2020] NSWDC 726 Hearing dates: 20/11/20, 24/11/20 Date of orders: 24/11/20 Decision date: 24 November 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: 1. I grant leave pursuant to s.12(1) to bring the appeal against conviction in the Local Court. 2. Pursuant to s.20(1)(c) - I set aside the convictions and penalties imposed, and I remit the proceedings to the Local Court for redetermination. 3. Adjourned for mention at Penrith Local Court on 1/12/20. Catchwords: Crime – Appeal against convictions after guilty pleas in Local Court Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Cases Cited: Ishac v R [2011] NSWCCA 117 R v Kouroumalos [2000] NSWCCA 453 R v Van [2002] NSWCCA 148 Category: Procedural and other rulings Parties: NSW DPP – Crown Hua Li - Appellant Representation: Ms J McWhirter for Crown Mr F Awada for Appellant File Number(s): 19/368006, 20/49498 Publication restriction: None

Judgment 1. On 24/8/20, the appellant Ms Li was convicted in the Local Court of 3 offences. 2. One of the offences was that of fail to appear at Court on 4 February 2020. 3. The other 2 offences arose out of a relationship which existed at one time between the appellant and a man named Norman Reid. The first of those offences relates to an alleged assault on Mr Reid's wife on 11/11/18, when the appellant allegedly attended the residence of Mr Reid and his wife, and assaulted Mrs Reid when she opened the door. The second offence is alleged to have occurred on 14/2/19, when the appellant was at Mr Reid's residence, and Mrs Reid (who it appears was not living at that address at that time) attended the address. On this occasion it is alleged that the appellant breached an Apprehended Domestic Violence Order that was in place, which had been granted after the alleged assault of 11/11/18. 4. On 24/8/20, the appellant was represented by a solicitor, who entered pleas of guilty on her behalf to all 3 offences. The magistrate imposed a conviction in each case and a fine for 2 of the offences. 5. On 17/9/20, a Notice of Appeal to this Court was filed on her behalf, which asserted that the appellant is not guilty of the offences and also that the penalties imposed in each case are too severe. 6. However on 22/10/20, a Notice of Motion was filed, seeking leave to withdraw the appellant's previous pleas of guilty, and orders setting aside the convictions and remitting the charges to the Local Court for re-determination. 7. The appellant has sworn an affidavit in which she says that from the beginning of the matters, her intention was to plead not guilty. 8. In relation to the charge of assault said to have occurred on 11/11/18, I note that the appellant was not charged until 7/10/19. That charge first came before the Local Court on 22/11/19, when a Registrar granted "leave to file unserved CAN" and directed that an arrest warrant was to issue. The proceedings on the assault charge next came before the Local Court on 4/2/20, when the record notes "warrant executed", and that there was no appearance by the Appellant at 12.50pm. The Magistrate then proceeded under s196 of the Criminal Procedure Act 1986 in the absence of the appellant and recorded a conviction for the assault and made an Apprehended Domestic Violence Order. 9. Ten days later, on 14/2/20, it is alleged that the appellant committed the offence of knowingly breaching the AVO made on 4/2/20. It appears that the appellant was arrested on 14/2/20 on that charge and remained in custody until she came before the Local Court the next day – 15/2/20. On that day, when the charge of contravene AVO came before the Local Court, the appellant, who appeared by AVL, was granted bail. 10. The proceedings for both the assault and the contravene AVO charges next came before the Local Court on 19/2/20. On that day, the record notes that the appellant was represented by a legal practitioner. On that date, the conviction on the assault charge was annulled and a date set, with an estimate of 3hrs, for the hearing of both charges on 16/6/20, and orders were made for a brief to be served 28 days before the hearing. 11. It appears however that the hearing did not occur on 16/6/20 – probably due to COVID-related listing problems. However, on 29/6/20, the proceedings were relisted, and a new hearing date set for 24/8/20. On each occasion, a request for an interpreter was made. 12. On 24/8/20, the Court record notes that the appellant appeared in person, represented by a solicitor, and that pleas of guilty were entered in relation to both charges, as well as for a charge of failure to appear on 4/2/20.