R v Kaewklom (No. 2) - [2012] NSWSC 1117

Supreme Court

New South Wales

Medium Neutral Citation: R v Kaewklom (No. 2) [2012] NSWSC 1117
Hearing dates: 17 September 2012
Decision date: 17 September 2012
Before: Johnson J
Decision:
The Court does not have jurisdiction to hear and determine an application for leave to withdraw the Offender's plea of guilty

Catchwords: CRIMINAL LAW - murder - jury trial commences - partial defence of substantial mental impairment is sole issue in trial - Accused changes plea to guilty of murder during trial - procedure under s.157 Criminal Procedure Act 1986 - jury discharged - finding of guilty by Court - Accused convicted - proceedings adjourned for sentencing hearing - Accused informs his counsel and solicitor that he wishes to apply to withdraw plea of guilty - whether Court has jurisdiction to entertain application for leave to withdraw plea of guilty where s.157 procedure followed - no jurisdiction to entertain application - sentencing hearing adjourned
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: R v Kaewklom (No. 1) [2012] NSWSC 1103
R v Hura [2001] NSWCCA 61; 121 A Crim R 472
R v Wilkinson (No. 2) [2008] NSWSC 1432
R v Wilkinson (No. 4) [2009] NSWSC 323; 195 A Crim R 20
Category: Procedural and other rulings
Parties: Regina (Crown)
Kukiat "Gang" Kaewklom (Offender)
Representation: Counsel:
Ms GM O'Rourke (Crown)
Mr KH Averre (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Brenda Duchen (Offender)

File Number(s): 2011/50515

Judgment (on question whether it was open to Offender in law to seek leave to withdraw his plea of guilty)

JOHNSON J: On 5 September 2012, the trial of the Accused, Kukiat "Gang" Kaewklom, commenced before a jury upon a charge that, on 25 February 2011 at Liverpool in the State of New South Wales, he did murder Frederick McGregor.

A jury having been empanelled, the trial proceeded until 10 September 2012.

At the commencement of proceedings on Monday, 10 September 2012, Mr Averre, counsel for the Accused, indicated a desire to confer with his client during the course of the morning (T73). I indicated that a longer than usual morning tea adjournment would be taken, to accommodate the conference which Mr Averre and his instructing solicitor, Ms Duchen, wished to have with their client.

After the morning tea adjournment, Mr Averre informed the Court that (T101):

"As a result of some discussions I had between nine and 9.30 this morning I thought it appropriate to have a conference with the accused. The result of those discussions, the accused would now change his plea and would plead guilty to the murder on the indictment."

I pause for a moment to observe that the circumstances of this trial were somewhat unusual. The nature of the charge brought against the Accused was referred to in my decision on pretrial matters: R v Kaewklom (No. 1) [2012] NSWSC 1103. As I observed in that judgment (at [3]-[6]), the physical attack by the Accused upon Mr McGregor, in a courthouse cell adjacent to the…

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 Kaewklom (No. 2)

Details

AGLC: R v Kaewklom (No. 2) [2012] NSWSC 1117
Case: [2012] NSWSC 1117
Decision Date: 17 September 2012

CaseChat Overview and Summary

The case of R v Kaewklom (No. 2) involved a plea change during a murder trial where the sole issue was the partial defence of substantial mental impairment. The accused changed his plea to guilty of murder mid-trial, leading to the discharge of the jury and a subsequent finding of guilt by the court. The matter was then adjourned for a sentencing hearing. During the adjournment, the accused expressed a desire to withdraw his plea of guilty. The court was required to determine whether it had jurisdiction to entertain an application to withdraw the plea of guilty where the procedure under section 157 of the Criminal Procedure Act 1986 had been followed.

The legal issue before the court was whether it had the authority to consider an application to withdraw a guilty plea once the section 157 procedure had been executed. The court examined relevant statutory provisions and case law to determine the appropriate course of action. It concluded that once the jury had been discharged and the accused found guilty following a plea of guilty, the court did not possess the jurisdiction to entertain an application to withdraw the plea. The court held that the accused's request to withdraw the plea was not within its authority under the statute, and thus, it could not proceed with the application.

As a result, the court found that it lacked jurisdiction to entertain the application to withdraw the plea of guilty. The sentencing hearing was subsequently adjourned to a later date to allow for the determination of an appropriate sentence for the convicted offender. The court's decision highlighted the importance of the procedural steps under section 157 and the finality of the guilty plea once the jury has been discharged and the accused found guilty.

Orders