Daniel Foran was working as security at Pyrmont’s Harlequin Hotel in the early hours of 21 June last year, when he was required to remove a patron from the establishment. After the inebriated man swung at him several times, Foran punched him, causing the customer to fall to the ground.
Following the removal of the patron, Foran logged the incident on the daily running sheet. And after this, the ejected patron turned back up at the pub with an iron bar, the police were called, and the bouncer entered a handwritten statement as to what happened in an officer’s notebook.
Then, on 22 July, Foran received a phone call from an investigating police officer, asking him to attend the station in relation to the incident. Expecting to be asked about the patron, Foran turned up that same day to find out that he was to be charged with common assault.
On being asked, Foran agreed to undergo a recorded interview, which lasted 50 minutes. The security officer outlined his version of events, with the claim that he’d acted in self-defence. And at the end of the interview, he left the station without being charged.
Foran then sought legal advice from a lawyer. And at an initial 30 minute meeting, he provided the lawyer with a disc containing his police interview and he told his legal representative that he wanted to plead not guilty, as he’d acted in self-defence.
Convicted of assault
On 20 August, Foran emailed the lawyer with inconsistencies he’d found in the police fact sheet of the incident. And two days later, the lawyer emailed her client noting that the patron had resisted being ejected, but saw difficulties in arguing self-defence after viewing the CCTV footage.
However, this footage didn’t capture the whole incident, but rather the moments before Foran threw the punch. The lawyer said there was a “50/50” chance of self-defence being accepted because during the 3 to 4 seconds prior to the punch, the patron is shown standing with his arms by his side.
The lawyer then advised it would be better to plead guilty, as there was a good chance that a non-conviction order would be achieved. Foran told the court that at a latter face-to-face meeting, the lawyer advised him that pleading guilty would lead to a 90 percent chance of avoiding a criminal record.
The defendant then attended the Downing Centre Local Court on 30 October 2019, where he agreed with the amended police fact sheet, which presented a version of events that was consistent with his pleading guilty over a charge of common assault.
The defendant pleaded guilty before the magistrate and was convicted of the crime. Foran later testified that his lawyer rushed him into agreeing with the amended facts on the day of his court appearance, and that his lawyer said if he didn’t agree with them, the matter could drag on for months.
Evidence on appeal
On 13 March 2020, Foran filed an appeal in the the NSW District Court seeking to revoke his guilty plea, based on the fact that he entered it following the advice of his lawyer, which wasn’t informed as she’d neglected to consider the evidence.
NSW District Court Judge Phillip Mahony heard on 1 June 2020 that the lawyer didn’t agree that she’d advised her client that he had a 90 percent chance of not being convicted if he pleaded guilty, but rather the lawyer said it was likely, with about 80 to 90 percent chance of it coming to fruition.
The lawyer also set out in her affidavit that she hadn’t been confident on watching the footage that a plea of self-defence was workable. And at no time had her client told her that he’d logged the incident, while she made no mention as to whether she’d heard the interview or read its transcript.
Foran’s new criminal defence lawyer submitted that the advice given by the initial would have been different had she reviewed the details her client had related during his interview with police, however the initial lawyer had based all her advice on the CCTV footage, which she never viewed in his presence.
It was further put forth that the initial lawyer had at no time tried to understand her client’s desire to claim self-defence or taken any instructions from him on what had happened off-screen prior to the punch in question.
As Foran’s new lawyer put it, if the initial lawyer had taken the time to go over what her client had said to police during the initial interview, she wouldn’t have advised him to plead guilty. And because she neglected to do this, a miscarriage of justice had occurred.
District Court Judge Mahony noted that despite saying the initial lawyer would review the brief of evidence and update her client on whether he should continue to plead guilty, the lawyer never did so. Nor had she gone over the content of the police interview or obtained any instructions around the incident log.
His Honour remarked that without being aware of the explanation her client “provided to police at that time, supported as it was by the incident log filled out contemporaneously by him, the solicitor was not in a position to provide cogent advice to her client based on” all the evidence.
The judge added that without having reviewed what her client had set out to police, her estimate that his claim of self-defence had a 50 percent chance of success was “seriously flawed”. And while he entered the plea, it was still based on dodgy advice and not on the evidence.
“I find that in all of the circumstances,” Judge Mahony ruled, “a miscarriage of justice will occur if the conviction is allowed to stand.”
And on 5 June 2020, his Honour ordered that the “conviction entered in the Local Court of NSW on 30 October 2019” be set aside and the matter be remitted to the court for reconsideration.