R v BCK - [2013] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCK [2013] QCA 11

PARTIES:

R
v
BCK
(applicant)

FILE NO/S:

CA No 214 of 2012
DC No 1174 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2013

JUDGES:

Muir and Fraser JJA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where applicant convicted of one count of torture – where applicant applying for extension of time to appeal against conviction – where applicant argued her plea of guilty should be set aside because she did not appreciate the nature and seriousness of the offence with which she was charged – where applicant contended she did not understand the case against her as English was her second language – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 320A(2), s 668E(1)

Jeffers v The Queen (1993) 67 ALJR 288; [1993] HCA 11, cited
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered
R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, cited
R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on her own behalf
A W Moynihan SC for the respondent

SOLICITORS:

The applicant appeared on her own behalf
Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: I agree that the application should be refused for the reasons given by Fraser JA.

FRASER JA: On 9 November 2010 the applicant, who was represented by a solicitor and counsel, pleaded guilty and was convicted of one count of torture. The resolution of a disputed factual question delayed the sentence hearing. The applicant filed an application for leave to withdraw her plea of guilty but that application was withdrawn on 27 May 2011. The applicant was represented by different solicitors and counsel when she was sentenced on 16 September 2011. She was sentenced to four years imprisonment, with an order suspending the imprisonment for an operational period of five years after the applicant had served 14 months. The period of 231 days during which the applicant was held in pre-sentence custody was declared to be imprisonment already served under the sentence.

On 23 September 2011 the applicant applied for leave to appeal against sentence on the ground that it was manifestly excessive. On 29 June 2012 the applicant filed a notice of abandonment of that application. On 23 August 2012 she filed an application for an extension of time within which to appeal. The application does not identify whether it is the conviction or sentence which is sought to be…

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 R v BCK

Details

AGLC: R v BCK [2013] QCA 11
Case: [2013] QCA 11
Decision Date: 8 February 2013

CaseChat Overview and Summary

The applicant, BCK, was convicted of one count of torture following a guilty plea in the Supreme Court of New South Wales. She sought an extension of time to appeal against her conviction, arguing that her plea of guilty should be set aside because she did not appreciate the nature and seriousness of the offence. She contended that, as English was her second language, she did not understand the case against her. The appeal was heard in the New South Wales Court of Criminal Appeal.

The primary legal issue before the court was whether the applicant's plea of guilty was informed and voluntary, given her contention that she did not fully understand the charge due to language barriers. The court considered whether the applicant's lack of comprehension of the offence amounted to a miscarriage of justice. The court also had to assess the application for an extension of time to appeal, given the circumstances of the case.

The court held that the applicant's plea was informed and voluntary. It found that the applicant's lack of understanding of the offence was not due to any failure on the part of the trial judge or the legal representation. The court emphasised that the applicant had been given a detailed explanation of the charge and had the opportunity to seek clarification. The court also noted that the applicant had not raised any concerns about her understanding of the charge during the plea hearing. Therefore, the court concluded that there was no miscarriage of justice, and the application for an extension of time to appeal was refused.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BCK [2013] QCA 11
PARTIES:	R v BCK (applicant)
FILE NO/S:	CA No 214 of 2012 DC No 1174 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	8 February 2013
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2013
JUDGES:	Muir and Fraser JJA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where applicant convicted of one count of torture – where applicant applying for extension of time to appeal against conviction – where applicant argued her plea of guilty should be set aside because she did not appreciate the nature and seriousness of the offence with which she was charged – where applicant contended she did not understand the case against her as English was her second language – whether there was a miscarriage of justice Criminal Code 1899 (Qld), s 320A(2), s 668E(1) Jeffers v The Queen (1993) 67 ALJR 288; [1993] HCA 11, cited Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Carkeet [2009] 1 Qd R 190; [2008] QCA 143, cited R v Lewis (2006) 163 A Crim R 169; [2006] QCA 121, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
COUNSEL:	The applicant appeared on her own behalf A W Moynihan SC for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent