R v Nerbas

[2011] QSC 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nerbas [2011] QSC 41

PARTIES:

THE QUEEN
(respondent)
v
KELSEY JAMES NERBAS
(applicant)

FILE NO:

Indictment No 1320 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application for withdrawal of guilty pleas

DELIVERED ON:

18 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2011

JUDGE:

Mullins J

ORDER:

The application for leave to withdraw guilty pleas is refused

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEA – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – application to withdraw guilty plea – where prosecution case against applicant and two co-accused was almost complete – where applicant’s instructions on one aspect of the evidence against him were wrong – where defence conducted on the basis of those instructions – where applicant’s lawyers advised the applicant that the prosecution case was strong and of the possible options – where applicant gave written instructions that he would plead guilty – where applicant was re-arraigned and pleaded guilty – whether applicant understood the nature of the charges - whether pleas were entered freely and voluntarily – whether applicant incapable of making a decision to change the pleas - where application refused

Meissner v The Queen (1995) 184 CLR 132, considered
R v Chiron [1980] 1 NSWLR 218, considered
R v Gadaloff [1999] QCA 286, followed
R v Handlen & Paddison [2010] QCA 371, considered
R v Mundraby [2004] QCA 493, considered
R v Wilkes [2001] NSWCCA 97, considered

COUNSEL:

The applicant in person
G R Rice SC for the respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for the respondent

[1]      The applicant’s trial in this court before a jury of the four charges on indictment number 1320 of 2008 commenced on 24 November 2008.  The applicant was represented by Mr Hunter SC instructed by solicitors’ firm Ryan & Bosscher.  The co-defendants on the same indictment, Handlen and Paddison, also pleaded not guilty to the charges that applied to them and were parties to the same trial.  The last witness for the prosecution, Mr Thomson, had almost completed his evidence-in-chief, when at the commencement of the ninth day of the trial (4 December 2008) the applicant’s counsel applied for discharge of the jury with respect to the applicant on the basis of prejudice caused to the applicant by late disclosure of part of that witness’ evidence.

[2]      After the trial judge indicated that he has disinclined to accede to the application, there was an adjournment at 10:54am.  During that adjournment the applicant took advice from Mr Hunter and solicitor Mr Shields.  Another solicitor from Ryan & Bosscher, Mr Jacob, was present at the conference and took notes.  The applicant signed instructions at 1:35pm that he wished to enter a plea of guilty to the indictment. 

[3]      When court resumed at 2:30pm on that day, the applicant was re-arraigned and pleaded guilty to each of the four counts against him and the allocutus was administered.  The transcript of the…