R v Khan - [2002] NSWCCA 521

CITATION: R v Khan [2002] NSWCCA 521

FILE NUMBER(S): CCA 60811/01

HEARING DATE(S): 19 December 2002

JUDGMENT DATE:
19 December 2002

PARTIES :

Regina v Abdul Sameer Khan

JUDGMENT OF: Giles JA at 1; Sully J at 32; Dowd J at 33

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/3018

LOWER COURT JUDICIAL
OFFICER : Latham DCJ

COUNSEL : D M L Woodburne - Crown
P Byrne - Appellant

SOLICITORS: S E O'Connor - Crown
Ross Hill and Associates - Appellant

CATCHWORDS: Criminal law - leave to withdraw plea of guilty - leave if plea not attributable to consciousness of guilt - no separate ground that a doubt about guilt - ultimate question whether miscarriage of justice - burden on applicant to establish basis for leave - findings of fact as to consciousness of guilt not shown to be in error.

CASES CITED:
Principal Registrar of the Supreme Court of New South Wales v Drollett [2002] NSWSC 490;
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527;
R v Boag (1994) 73 A Crim R 35;
R v Chiron (1980) 1 NSWLR 218;
R v Cincotta (CCA, 1 January 1995, unreported);
R v Davies (CCA, 16 December 1993;
R v Hura (2001) 121 A Crim R 472;
R v Liberti (1991) 55 A Crim 120;
R v Murphy (1965) VR 187;
R v Wilkes [2001] NSWCCA 97.

DECISION: Appeal dismissed.

CCA 60811/01
DC 01/21/3018

GILES JA
SULLY J
DOWD J
Thursday 19 December 2002

R v Abdul Sameer KHAN

Judgment

1 GILES JA: The appellant pleaded guilty to two counts of armed robbery, applied for but was refused leave to withdraw his pleas of guilty, and was convicted and sentenced to terms of imprisonment. This is an appeal against conviction on the ground that he should not have been refused leave to withdraw his pleas of guilty.

The course of trial

2 The appellant was charged with a series of offences alleged to have occurred in late January and early February 2000. There were eight charges in all, four of robbery in company, one of stealing a motor vehicle and three of armed robbery.

3 The eight charges were listed for hearing on 28 May 2001. The appellant appeared before Judge Armitage QC, represented by counsel and solicitor. He pleaded guilty to two of the charges of armed robbery and not guilty to the remaining six charges. Sentencing on the two charges to which he had pleaded guilty was deferred, and the trial of the remaining six charges proceeded.

4 The Crown case depended on the evidence of two alleged co-offenders. Each of them refused to answer questions asked by the Crown Prosecutor. Each of them was charged with contempt, and sentences of imprisonment were later imposed, see Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527 and Principal Registrar of the Supreme Court of New South Wales…

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 Khan

Details

AGLC: R v Khan [2002] NSWCCA 521
Case: [2002] NSWCCA 521
Decision Date: 19 December 2002

CaseChat Overview and Summary

In the case of R v Khan, the appellant was charged with a serious criminal offence and subsequently entered a plea of guilty. The applicant later sought leave to withdraw the plea, arguing that it was not attributable to a consciousness of guilt and that there was a separate ground for doubt about guilt. The matter was brought before the court to determine whether the applicant had established the necessary basis for leave to withdraw the plea. The court was tasked with assessing whether the findings of fact regarding the consciousness of guilt were erroneous and whether the applicant had demonstrated that a miscarriage of justice would occur if the plea were not withdrawn.

The central legal issues before the court were whether the applicant had satisfied the criteria for leave to withdraw a guilty plea and whether the applicant had established that there was a separate ground for doubt about guilt. The court examined the principles governing leave to withdraw a guilty plea, particularly focusing on the requirement that the plea not be attributable to a consciousness of guilt. Additionally, the court considered whether there was a separate ground for doubt about guilt, distinct from the consciousness of guilt, that would warrant the withdrawal of the plea. The ultimate question was whether the applicant had discharged the burden of establishing that a miscarriage of justice would occur if the plea were not withdrawn.

The court held that the applicant had not demonstrated that the findings of fact regarding the consciousness of guilt were in error. The court found that the applicant had not established a separate ground for doubt about guilt that would warrant the withdrawal of the plea. The ultimate question, whether a miscarriage of justice would occur, was not answered in the applicant's favour. The burden of establishing the basis for leave to withdraw the plea had not been met by the applicant. Therefore, the application for leave to withdraw the plea was dismissed.

No further orders were made by the court. The applicant's plea of guilty remained in place, and the matter proceeded accordingly.

Orders