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 20Category: 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…
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- AGLC
- R v Kaewklom (No. 2) [2012] NSWSC 1117
- Case
- [2012] NSWSC 1117
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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