Kim v R

Case [2015] NSWCCA 115 27 May 2015

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Kim v R [2015] NSWCCA 115
Hearing dates: 20 May 2015
Decision date: 27 May 2015
Before: Hoeben CJ at CL at [1];
R A Hulme J at [2];
Beech-Jones J at [64]
Decision:
1. Leave to appeal against conviction granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – appeal against conviction – recklessly causing grievous bodily harm in company – where plea of guilty entered – principles applicable to conviction appeal after guilty plea – whether the applicant appreciated the nature of the charge to which the plea was entered – whether legal advice concerning ‘in company’ was correct and adequate – no miscarriage of justice – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW) s 35(1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
s 21A(2)
Cases Cited: Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119
Fox v Percy [2003] HCA 22; 214 CLR 118
Khamis v R [2014] NSWCCA 152
Lawson v R [2011] NSWCCA 44
Markou v R [2012] NSWCCA 64; 221 A Crim R 48
Meissner v The Queen [1995] HCA 41; 184 CLR 132
R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep)
R v Favero [1999] NSWCCA 320
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998; unrep)
R v Hawker [2005] NSWCCA 118
R v Hura [2001] NSWCCA 61; 121 A Crim R 472
R v Liberti (1991) 55 A Crim R 120
R v Murphy [1965] VR 187
R v Sagiv (1986) 22 A Crim R 73
R v Toro-Martinez [2000] NSWCCA 216; 114 A Crim R 533
R v Van [2002] NSWCCA 148; 129 A Crim R 229
R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Category: Principal judgment
Parties: Anthony Kim (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr J Nicholson SC with Mr B Vasic (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Cambridge Lawyers
Solicitor for Public Prosecutions

File Number(s): 2012/381671
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

9 May 2014

Before:

North DCJ

File Number(s):

2012/381671

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J. In relation to the CCTV footage which the Court viewed, my conclusions are the same as those of his Honour. I also share his Honour’s doubts as to the reliability of the applicant as a witness.
R A HULME J: Anthony Kim (“the applicant”) pleaded guilty in the Local Court to an offence of recklessly causing grievous bodily harm in company and was sentenced in the District Court by his Honour Judge North on 9 May 2014 to imprisonment for 3 years with a non-parole period of 1 year 6 months.
The offence is contrary to s 35(1) of the Crimes Act 1900 (NSW). The maximum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kim v R

Details

AGLC: Kim v R [2015] NSWCCA 115
Case: [2015] NSWCCA 115
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the case of Kim v R, the appellant, Kim, appealed against his conviction for recklessly causing grievous bodily harm in company. The case was heard in the relevant appellate court, where Kim argued that there had been a failure to properly appreciate the nature of the charge to which he had pleaded guilty. Specifically, Kim contended that he had not fully understood the implications of the phrase 'in company' as it pertained to the offence. The court was tasked with determining whether Kim's understanding of the legal advice he received regarding this aspect of the charge was adequate, and if the trial judge had properly assessed the voluntariness and informed nature of Kim's guilty plea.

The court reviewed the principles applicable to appeals against convictions following a guilty plea. It emphasised that the appellate court should consider whether the trial judge correctly applied the law and whether there was a miscarriage of justice. The court assessed the adequacy of the legal advice provided to Kim, examining the records of the plea hearing and the explanations given to Kim by his legal representative. The court also considered whether Kim's plea was voluntary and made with a full understanding of the charge. The court concluded that the trial judge had correctly assessed the voluntariness and informed nature of Kim's plea, and that there was no miscarriage of justice.

Based on the evidence and the principles discussed, the court found that Kim had indeed appreciated the nature of the charge to which he was pleading guilty. It was determined that the legal advice concerning the phrase 'in company' was both correct and adequate. Consequently, the appeal was dismissed, and Kim's conviction was upheld. The court confirmed that there were no grounds for the appeal to succeed and that the trial judge's assessment of the plea was proper.

Orders