Donohoe v R [2012] NSWCCA 176

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Donohoe v R [2012] NSWCCA 176 Hearing dates: 04/06/2012 Decision date: 23 August 2012 Before: McClellan CJ at CL at [1] Garling J at [2] Adamson J at [121] Decision: (1) Leave to appeal granted. (2) Appeal upheld. (3) Set aside the order of the District Court of NSW (McLoughlin DCJ) dated 28 October 2011. (4) In lieu thereof, grant leave to the applicant to withdraw his plea of guilty entered on 2 May 2011 to the offence. Catchwords: CRIMINAL LAW - preliminary issue, application for extension of time for leave to appeal on basis of incorrect advice - not opposed by Crown - application granted and time extended - primary issue, application for leave to appeal pursuant to Criminal Appeal Act 1912 s 5F - offence of break and enter and sexual intercourse without consent - Crown's case circumstantial - applicant entered plea of guilty - relied on advice from solicitor and counsel that tendency evidence would be admitted - whether error in District Court decision - central question is admissibility of the tendency evidence - unlikely evidence would have been admitted - satisfied advice affected applicant's plea - error with respect to view of admissibility of evidence and with respect to view that advice was appropriate - whether plea should be allowed to be withdrawn - consideration of facts, context of circumstances - no genuine consciousness of guilt - appellant ought to have been allowed to withdraw plea - application allowed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: DSJ v R; NS v R [2012] NSWCCA 9; (2012) 259 FLR 262 House v The King [1936] HCA 40; (1936) 55 CLR 499 Pfenning v R [1995] HCA 7; (1995) 182 CLR 461 R v Davies (1993) 19 MVR 481 R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 R v Fletcher [2005] NSWCCA 338; (2005) A Crim R 308 R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 R v Hura [2001] NSWCCA 61; 121 A Crim R 472 R v Liberti (1991) 55 A Crim R 120 R v Mundine [2008] NSWCCA 55; (2008) 182 A Crim R 302 R v O'Keefe [2009] NSWCCA 121 R v RM [2005] NSWCCA 413 R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310 Category: Procedural and other rulings Parties: Stuart James Donohoe (Appellant) The Crown (Respondent) Representation: Counsel: A Evers (Applicant) N Noman (Crown)