R v Kenny - [1999] QCA 399

99.399

COURT OF APPEAL

DAVIES JA
McPHERSON JA
AMBROSE J

CA No 246 of 1999

THE QUEEN

ROBERT FRANCIS KENNY Applicant

BRISBANE

..DATE 17/09/99

JUDGMENT

DAVIES JA: The applicant seeks an extension of time within which to appeal against a conviction for assault occasioning bodily harm and a sentence of 120 hours community service which was imposed for that offence to which he pleaded guilty on 11 May this year. The notice of appeal was filed on 16 July, that is more than a month out of time.

The facts upon which the applicant pleaded guilty involved an assault on a railway security officer. The applicant was intoxicated and was causing a disturbance to other passengers. Two security officers attempted to placate him. He refused to leave the train when asked. He struggled violently at attempts to remove him. When he was left on the platform he repeatedly tried to push his way back onto the train. Eventually the complainant escorted him to a seat. As the complainant walked into the guard box on the train the applicant shoved him hard from behind and dislocated his shoulder. The applicant denied the circumstances of the offence to the police but as I have said pleaded guilty on the basis of those facts.

The applicant does not assert that that plea of guilty was induced in any way by fraud or by any pressure or threat to him and in those circumstances, in my view, fails to satisfy the tests requisite for setting aside a plea of guilty and I refer to the decision of the High Court in Meissner v. The Queen (1994-95) 184 CLR 132. What he says in effect is that there would have been some further evidence which might have assisted him had he obtained it.
That evidence being in the form of a video recording and of some other witnesses who were there at the relevant time. But he does not even go so far as to say that that evidence does support contentions which he would like to make which was that he did not - although he admits to pushing the security officer - did not cause the security officer to dislocate his shoulder.

His reason for pleading guilty in the end was that if he pleaded not guilty in order to obtain the evidence which he later sought that his bail would be revoked and he would go back to prison, and really it was in those circumstances that he made the election to plead guilty. As I have already said that is not sufficient to justify a Court in setting aside a guilty plea and there is, therefore, no substance in the appeal against conviction were an extension of time granted and, as I have mentioned, the only basis for the delay was that he was seeking this evidence which may or may not have assisted him.

As to the application for leave to appeal against sentence, in my view, having…

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 Kenny

Details

AGLC: R v Kenny [1999] QCA 399
Case: [1999] QCA 399
Decision Date: 17/09/1999

CaseChat Overview and Summary

In the case of The Queen v. Robert Francis Kenny, the applicant is appealing against a conviction for assault occasioning bodily harm and a sentence of 120 hours community service, imposed following a guilty plea on 11 May of this year. The applicant filed his notice of appeal on 16 July, which is more than a month outside the permitted time frame. The incident in question involved the applicant assaulting a railway security officer while intoxicated, causing a disturbance, and refusing to leave the train. During the struggle to remove the applicant, he shoved the security officer from behind, dislocating his shoulder. The applicant pleaded guilty to the facts of the case but does not claim that his plea was influenced by any fraud, pressure, or threat. He argues that additional evidence, including a video recording and witness statements, might have supported his contention that he did not cause the security officer's shoulder dislocation, but he does not assert that this evidence would have resulted in an acquittal.

The court considered whether the applicant's plea of guilty could be set aside and whether an extension of time should be granted to appeal against the conviction and sentence. The court examined the decision of the High Court in Meissner v. The Queen, which established that a plea of guilty is generally considered the most compelling admission of guilt and will not be set aside unless a miscarriage of justice can be demonstrated. In this case, the court found that the applicant's guilty plea was made in open court by a person who appeared to be of full age and sound mind and understanding, and there was no evidence of improper pressure or threats to influence the plea. The court also considered the sentence imposed and found it to be within the appropriate range for an offence of assault occasioning bodily harm.

Based on the court's reasoning, the application for extension of time was refused. The court determined that there was no miscarriage of justice in the applicant's conviction and that an extension of time would not result in a successful appeal against the conviction or sentence. Consequently, the applicant's appeal was dismissed, and the conviction and sentence stand as imposed by the lower court.

Orders