Winikerei v R [2022] NSWDC 250

District Court New South Wales

Medium Neutral Citation: Winikerei v R [2022] NSWDC 250 Hearing dates: 28-29 March 2022 Date of orders: 29 March 2022 Decision date: 29 March 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: I grant the relief sought in each of the notices of motion filed on 21 January 2022. Catchwords: CRIME – APPEAL – NOTICE OF MOTION -WITHDRAWAL OF PLEAS OF GUILTY – Applicant entered pleas of guilty for various offences – Applicant not apprised of the legality of police searches. Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Road Rules 2014 (NSW) Cases Cited: Meissner v R (1995) 184 CLR 132; [1995] HCA 41 R v Buddee [2016] NSWDC 422 R v Lars (aka Larsson) (1994) 73 A Crim R 91 R v Thalari (2009) 75 NSWLR 307 Texts Cited: Nil. Category: Procedural rulings Parties: Regina – Crown Applicant – Raiwhara Winikerei Representation: Crown - Hughes, M. Applicant - Santisi, F. File Number(s): 2018/00239867; 2019/00241077 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: By notice of motion filed on 31 January 2022, the Applicant, Mr Raiwhara Winikerei, seeks the leave of the Court to withdraw pleas of guilty entered earlier to two sets of charges. The first set of charges arise from an event that occurred early in the morning of 4 August 2018. On 19 May 2020, the Applicant pleaded guilty in open court, albeit by audio-visual link, before Hanley DCJ, sitting at Parramatta, to an indictment containing two counts. The transcript of proceedings before his Honour at Parramatta can be found on p 21 of Exhibit P2, a bundle of documents tendered by the Crown. Immediately after the Applicant was arraigned and entered pleas of guilty, Mr Kelly, who was appearing for the Crown via audio-visual link, told his Honour that the second count to which the Applicant had pleaded guilty was to be taken into account on a Form 1, and therefore there was only one substantive charge to which he had pleaded guilty, and the other original charge was to be placed on a Form 1. 2. The second set of charges relate to an event which happened very shortly after midnight on 3 August 2019. There were 12 charges initially, known as sequences 1 to 12. Those charges were the subject of the Applicant's being committed for trial in this Court. The sequence number for the charges committed to this Court, are 1, 3, 4 and 11. There were back-up or related charges on a s 166 certificate for sequences numbered 5, 7, 8, 9, 10 and 12. 3. Eventually, the Applicant pleaded guilty to a number of charges in open Court before Yehia SC DCJ on 26 February 2021. As I have already indicated, the Applicant seeks leave to withdraw each of those pleas of guilty, such that both sets of proceedings will proceed to trial.