Kumar v The Queen - [2013] VSCA 297

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2013 0174

VINOD JOHNNY KUMAR
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WEINBERG AND COGHLAN JJA AND LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2013
DATE OF JUDGMENT	18 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 297
JUDGMENT APPEALED FROM	DPP v Kumar (Unreported, County Court of Victoria, Judge Sexton, 18 September 2013) (Ruling)

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CRIMINAL LAW – Interlocutory appeal – Application before trial judge to resile from plea of guilty – Applicant under self-induced misconception that, on plea of guilty, he would receive lenient sentence notwithstanding gravity of offending – Application to change plea refused – Trial judge refused to certify appeal against interlocutory decision – Application for review dismissed – Decision below clearly correct – Meissner v The Queen [1995] 184 CLR 132 and Maxwell v The Queen (1996) 184 CLR 501 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P S Kilduff	Robert Stary Lawyers
For the Crown	Dr N Rogers SC	Mr C Hyland, Director of Public Prosecutions

WEINBERG JA:

This is an application for review of the refusal by a judge of the County Court to certify, under s295(3) of the Criminal Procedure Act 2009, thereby enabling an application for leave to appeal against an interlocutory decision to proceed.

On 18 September 2013 the judge refused the applicant leave to change his plea of guilty to various charges of rape, sexual penetration and other offences involving indecency. She further refused to certify that the matter was one that met the requirements of s 295(3)(b) as being of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

There is potentially an issue to be resolved, not in this case, but in other proceedings, as to whether an attack upon the exercise of discretion by a judge who refuses leave to change a plea is capable of giving rise to an interlocutory appeal. The respondent did not take the point in this case, and it is, accordingly, unnecessary to say anything further about it in these reasons.

The applicant now seeks, pursuant to s 296 of the Act to have this Court review her Honour’s decision to refuse certification.

The grounds upon which the applicant relies are:

1. The trial judge erred in law in refusing the application to change the pleas:
(a)Her Honour wrongly applied the High Court decision of Meissner v The Queen.[1]
(b) Her Honour erred in refusing the application to change the applicant’s pleas of guilty as it appeared to her Honour that, for whatever reason, the applicant’s pleas of guilty were not genuine.

2. The trial judge erred in the exercise of her discretion by refusing the application of the applicant to change his pleas:
(a) Her Honour failed to take into account the relevant consideration of the reasons the applicant entered his plea of guilty as not being a true admission of guilt.
(b) Her Honour failed to take into…

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 Kumar v The Queen

Details

AGLC: Kumar v The Queen [2013] VSCA 297
Case: [2013] VSCA 297
Decision Date: 18 October 2013

CaseChat Overview and Summary

Kumar has appealed against a decision of the Supreme Court of the State, which refused his application to withdraw a plea of guilty in criminal proceedings against him. Kumar's contention is that he was under a self-induced misconception that, despite the seriousness of his offending, he would receive a lenient sentence if he pleaded guilty. The legal issues before the court were whether the trial judge correctly refused Kumar's application to withdraw his plea of guilty and whether the trial judge was correct in refusing to certify an appeal against that interlocutory decision. Kumar argued that the trial judge should have allowed him to withdraw his plea of guilty as he was under a self-induced misconception about the likely sentence he would receive. The court considered the cases of Meissner v The Queen and Maxwell v The Queen in determining the appropriate test for allowing an accused to withdraw a plea of guilty. The court found that the trial judge had applied the correct test and that Kumar's application to withdraw his plea of guilty was correctly refused. The court also found that the trial judge was correct in refusing to certify an appeal against that interlocutory decision. The appeal was dismissed and the decision of the Supreme Court of the State was affirmed.

Orders