Lawton v R [2012] NSWCCA 16

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lawton v R [2012] NSWCCA 16 Hearing dates: 6 February 2012 Decision date: 06 February 2012 Before: Basten JA at 1; RS Hulme J at 23; Schmidt J at 24 Decision: 1. Grant, to the extent necessary, leave to appeal. 2. Allow the appeal. 3. Grant leave to withdraw the plea of guilty entered by the appellant on 17 March 2011 in the District Court in response to the indictment in relation to the offence allegedly committed on 31 October 2009. 4. Set aside the conviction and sentence based on that plea. 5. Remit the matter to the District Court to be further dealt with according to law. 6. In relation to bail granted by the Supreme Court on 21 October 2011, add a condition 13 as follows: "The Court notes that these conditions of bail may appropriately be varied by a judge of the District Court pursuant to s 44(6) of the Bail Act 1978 (NSW)." Otherwise the conditions of bail imposed on 21 October 2011 continue. Catchwords: APPEAL - criminal - withdrawal of plea - adequacy of evidence regarding legal advice - prosecutor's duty in accepting that plea - followed incorrect legal advice

CRIMINAL LAW - appeal - conviction based on plea of guilty - recklessly cause grievous bodily harm, Crimes Act 1900 (NSW), s 35(2) - application to withdraw plea of guilty on basis of incorrect legal advice - whether miscarriage of justice - considerations when defence lawyer has acted incompetently Legislation Cited: Crimes Act 1900 (NSW), ss 33, 35 Criminal Appeal Act 1912 (NSW), ss 5, 6 Cases Cited: Blackwell v Regina [2011] NSWCCA 93 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 R v Hawker [2005] NSWCCA 118 R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310 Category: Principal judgment Parties: Beau Lawton - Applicant Regina - Respondent Representation: Counsel: