R v Foster [2022] NSWDC 241

District Court New South Wales

Medium Neutral Citation: R v Foster [2022] NSWDC 241 Hearing dates: 28 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 39 Catchwords: CRIMINAL PROCEDURE – application for leave to traverse guilty plea – whether miscarriage of justice will occur if the applicant is not granted leave to traverse plea - whether plea is attributable to a genuine consciousness of guilt – significance of receipt of Counsel's opinion to applicant's decision to plead guilty Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 12 Cases Cited: Kankakarandam v R [2018] NSWCCA 282 R v Hura [2001] NSWCCA 61 R v Thalari (2009) 75 NSWLR 307 R v Toro-Martinez [2000] NSWCCA 216 Wong v Director of Public Prosecutions (NSW) (2005) 155 A Crim R 37 Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) Mr J Foster (applicant) Representation: Solicitors: ODPP William O'Brien & Ross Hudson Solicitors for the applicant File Number(s): 2021/00056912 Publication restriction: Nil

EX TEMPORE REASONS for Judgment

Background 1. On 1 November 2021, the day he was scheduled to be summarily tried in the Local Court on two charges arising from his conduct on 27 February 2021, Mr Jarrod Foster entered a plea of guilty to one of the two charges and the other was withdrawn. The two charges were assault occasioning actual bodily harm and resisting an officer in the execution of duty. The guilty plea was entered only in relation to the former charge. 2. This result came about because of a plea bargain struck with the prosecution, which followed from the applicant's receipt of an opinion from his Counsel. The sentencing was adjourned and a sentence assessment report was received. Mr Foster appeared before the Local Court, in the Downing Centre, on 25 January 2022 and was sentenced by Magistrate Tsavdaridis to a community corrections order of 18 months. 3. By a notice of motion dated 17 June 2022, which was filed in Court today, Mr Foster (hereafter the applicant) applies for leave to traverse his guilty plea on 1 November 2021 and, if that application succeeds, applies for an order by this Court to set aside the conviction and remit the proceeding to the Local Court in accordance with any directions. 4. The Crown opposes the application for leave but, if the applicant obtains leave, the Crown accepts that the Court would set aside the conviction and remit the proceeding to the Local Court.