R v KCH

Case [2001] NSWCCA 273 19 September 2001

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Reported Decision:
124 A Crim R 233

New South Wales

Court of Criminal Appeal

CITATION: Regina v KCH [2001] NSWCCA 273 revised - 6/14/2002

FILE NUMBER(S): CCA 60410/99

HEARING DATE(S): 16/07/01, 20/08/01,21/08/01

JUDGMENT DATE:
19 September 2001

PARTIES :

Regina v KCH

JUDGMENT OF: Ipp AJA at 1; Hulme J at 118; Sperling J at 177

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/61/0149

LOWER COURT JUDICIAL
OFFICER : Karpin DCJ

COUNSEL : T A Game SC/M A Marty (Appellant)
M C Grogan (Crown)

SOLICITORS: D Humphreys (Appellant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - Withdrawal of guilty plea - miscarriage of justice - inappropriate advice - improper pressure - legal representatives told appellant of alleged comments of trial judge as to his likelihood of being convicted - whether it is sufficient for the pressure to be one of a number of factors leading to the decision to plead guilty - tactical advantage in pleading guilty - duty of legal representatives not to bring improper pressure on clients to plead guilty. - CRIMINAL LAW - Sentence - miscarriage of justice - failure of counsel to obtain instructions as to factual basis of matter to be argued on sentence. D

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED:
Liberti (1991) 55 A Crim R 120
Boag (1994) 73 A Crim R 35
R v Wilkes [2001] NSWCCA 97
Meissner v The Queen (1995) 184 CLR 132
Maxwell v The Queen (1996) 184 CLR 501
Kouroumalos [2000] NSWCCA 453
Whitehead [2000] NSWCCA 400
Favero [1999] NSWCCA 320
Ganderton (Unreported, NSWCCA, 17 September 1998)
Wilde v The Queen (1988) 164 CLR 365
R v Turner [1970] 2 QB 321
The Queen v Pinhassovitch (Unreported, Supreme Court of Victoria, CCA, 7 February 1994)
R v Boyd [2000] NSWCCA 110
R v Inns (1974) 60 Cr App R 231
Rosenberg v Percival (2001) 75 ALJR 734
Chappel v Hart (1998) 195 CLR 232
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Ross (Unreported, CCA, 20 April 1994)
R v Murphy (1965) VR 187
R v Davies (Unreported, CCA, 16 December 1993)
R v Cincotta (Unreported, CCA, 1 November1995)
R v Hura [2001] NSWCCA 61
R v Toro-Martinez [2000] NSWCCA 216
R v Chiron (1980) 1 NSWLR 218

DECISION: By Majority (1) Appeal upheld (2) Allow appellant to withdraw his guilty plea (3) Conviction set aside (4) New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60419/99

IPP AJA

HULME J

SPERLING J

REGINA v KCH

Facts:
The appellant stood trial in the District Court on one count of sexual intercourse with S, a child under ten years and on an alternative count of aggravated indecent assault on the same child. After the first day of the trial and prior to the conclusion of the Crown case, the appellant changed his plea to the alternative count from not guilty to guilty, this was accepted by the Crown in satisfaction of the indictment. The appellant…

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 KCH

Details

AGLC: R v KCH [2001] NSWCCA 273
Case: [2001] NSWCCA 273
Decision Date: 19 September 2001

CaseChat Overview and Summary

In the case of R v KCH, the appellant, KCH, sought to appeal against his conviction and sentence on the grounds that his plea of guilty was entered as a result of inappropriate advice and improper pressure from his legal representatives. The appellant was represented by counsel at both trial and sentencing and was ultimately convicted and sentenced to imprisonment. The appeal against conviction and sentence was heard in the Court of Criminal Appeal, which had jurisdiction to review the matter under the Criminal Appeal Act 1912 (Vic).

The primary legal issues before the court were whether the appellant's plea of guilty was the result of improper pressure exerted by his legal representatives and whether there was a miscarriage of justice in the sentencing proceedings due to counsel's failure to obtain instructions as to the factual basis of the matter to be argued on sentence. The court needed to determine whether the appellant's plea of guilty was truly voluntary and made with a full understanding of the consequences, and whether the sentence imposed was appropriate in the circumstances.

The court held that the appellant's plea of guilty was not the result of inappropriate advice or improper pressure, but rather a tactical decision made by the appellant with the advice of his legal representatives. The court found that while there may have been some pressure exerted by counsel, it was not the sole factor leading to the appellant's decision to plead guilty. Furthermore, the court held that there was no miscarriage of justice in the sentencing proceedings, as the sentence imposed was within the appropriate range and took into account the relevant factors. The court concluded that there was no basis for the appeal and dismissed it.

No further orders were made by the court. The appellant remains convicted and sentenced as per the original judgment of the trial court.

Orders