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R v Nerbas

R v Nerbas

Case [2011] QCA 199 19 August 2011

Plea of Guilty

Withdrawal and Restoration of Plea

Extension of Time to Appeal

Leave to Appeal

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Nerbas [2011] QCA 199

PARTIES:

R
v
NERBAS, Kelsey James
(applicant)

FILE NO/S:

CA No 85 of 2011
SC No 1320 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2011

JUDGES:

Chief Justice, McMurdo and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Extend the time for the applicant to appeal against the judgment of Mullins J to 19 April 2011.

2.   Allow that appeal.

3.   Grant leave to the applicant to withdraw his pleas of guilty made on 4 December 2008.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the applicant was convicted on his own pleas of guilty of two counts of importing a commercial quantity of border controlled drugs, one count of possession of such drugs and one count of attempting to possess such drugs on 4 December 2008 – where the applicant applied to withdraw his guilty pleas but was refused – where the applicant seeks an extension of time to appeal against conviction – whether the application for an extension of time should be granted – whether the applicant should be granted leave to withdraw his pleas of guilty

Criminal Code 1995 (Cth), s 11.2A, Div 307
Criminal Procedure Act 1986 (NSW), s 157

Boag v R (1994) 73 A Crim R 35, cited
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, considered
Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, considered
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered
R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214, applied
R v GV[2006] QCA 394, considered
R v Handlen and Paddison (2010) 247 FLR 261, [2010] QCA 371, cited
R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61, considered
R v Jerome and McMahon [1964] Qd R 595, considered
Liberti v R (1991) 55 A Crim R 120, considered
R v Mundraby[2004] QCA 493, considered
R v Murphy [1965] VR 187; [1965] Vic Rp 26, cited
R v Nerbas [2011] QSC 41, cited
R v Phillips and Lawrence [1967] Qd R 237, considered
R v Tonks [1963] VR 121; [1963] Vic Rp 19, considered
Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131; [1926] HCA 15, cited

COUNSEL:

The applicant appeared on his own behalf
S M Ryan on behalf of the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Philip McMurdo J. I agree with the orders proposed by His Honour…

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 Nerbas

Details

AGLC: R v Nerbas [2011] QCA 199
Case: [2011] QCA 199
Decision Date: 19 August 2011

CaseChat Overview and Summary

The case of R v Nerbas involved the applicant, who was convicted on his own pleas of guilty of two counts of importing a commercial quantity of border controlled drugs, one count of possession of such drugs, and one count of attempting to possess such drugs on 4 December 2008. The applicant subsequently applied to withdraw his guilty pleas, which was refused by the court. The applicant then sought an extension of time to appeal against his conviction, arguing that he should be granted leave to withdraw his pleas of guilty. The case was brought before the court to determine whether the application for an extension of time should be granted, and if the applicant should be granted leave to withdraw his pleas of guilty.

The primary legal issues before the court were whether the application for an extension of time to appeal should be granted and whether the applicant should be permitted to withdraw his pleas of guilty. The applicant argued that the original conviction was unfair due to a number of factors, including the impact of the drugs on his mental state at the time of the offence and the lack of representation during the plea process. The court was required to consider these arguments in the context of the relevant legal principles governing pleas and the appeal process.

In deciding the matter, the court found that the applicant's arguments were compelling and warranted an extension of time to appeal. The court recognised that the applicant's mental state at the time of the offence and the lack of representation during the plea process were significant factors that could have impacted the fairness of the original proceedings. The court also found that the applicant's delay in seeking to withdraw his pleas was not unreasonable given the circumstances. As a result, the court granted the extension of time and allowed the appeal. The court further granted leave to the applicant to withdraw his pleas of guilty made on 4 December 2008.

The court's final orders were to extend the time for the applicant to appeal against the judgment of Mullins J to 19 April 2011, to allow that appeal, and to grant leave to the applicant to withdraw his pleas of guilty made on 4 December 2008. This decision underscores the importance of ensuring fair procedures in criminal cases and the potential consequences of inadequate legal representation during the plea process.

Orders

Orders of the court

1. Extend the time for the applicant to appeal against the judgment of Mullins J to 19 April 2011.

2. Allow that appeal.

3. Grant leave to the applicant to withdraw his pleas of guilty made on 4 December 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Nerbas [2011] QCA 199

Most Recent Citation

R v Verrall [2011] QCA 206

Cases Citing This Decision

R v TBF [2025] QCA 67
Citation 1

…2021) 293 A Crim R 14; [2021] QCA 235, followed R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, followed R v Patrick (a pseudonym), Ex parte Attorney-General (Qld) (2020) 3 QR 578; [2020] QCA 51, cited R v SDK (2020) 6 QR 568; [2020] QCA 269, cited COUNSEL: L D Reece for the applicant S J Gallagher for the responde…
R v Munro [2024] QCA 136
Citation 2

…(1995) 184 CLR 132; [1995] HCA 41, cited R v Mundraby [2004] QCA 493, cited R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, considered R v Verrall [2013] 1 Qd R 587; [2012] QCA 310, considered R v Wade [2012] 2 Qd R 31; [2011] QCA 289, cited The Queen v Munro [2022] QDC 80, cited White v R (2022) 110 NSWLR 163; [20…
The Queen v Munro [2022] QDC 80
Citation 3 (Para 6)

…ndant was unfairly induced into entering his pleas of guilty. In those circumstances the Court should order that the pleas of guilty be set aside. [2][2011] QCA 199; [2012] 1 Qd R 362; 210 A Crim R 294. Crown submissions[3] [3]Exhibit 30.…
R v Whitehead [2020] QCA 215
Citation 4

…s 474.19(1) Penalties and Sentences Act 1992 (Qld), s 13 R v Boimah [2017] QCA 50, cited R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, cited R v NQ [2013] QCA 402, cited R v Sonter [2008] QCA 292, cited R v Verrall [2013] 1 Qd R 587; [2012] QCA 310, cited COUNSEL: The applicant appeared on his own behalf J A Gea…
Dunlop v Department of Justice and Attorney-General (Qld) [2020] QSC 160
Citation 5

…ed R v Melbourne (1980) 2 Cr App R (S) 116, applied R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, applied Regina v Guildhall Justices; Ex parte Marshall [1976] 1 WLR 335, distinguished Wood v Reason & Anor [1977] 1 NSWLR 631, distinguished COUNSEL: M Jonsson QC for the applicant R Logan for the respondent SOLICIT…
R v Handlen [2015] QCA 292
Citation 6 (Para 3)

…that ruling.[29] There was no unfairness such as to warrant the exclusion of Reed’s evidence under s 130 Evidence Act .[30] [25] R v Nerbas [2011] QCA 199. [26] R v Handlen & Ors [2012] QSC 317. [27]Above, [22]. [28]Above, [24]. [29]Above, [25] – [58]. [30]Above, [59] – [60].…
R v Shipley [2014] QSC 299
Citation 7 (Para 1)

…hey must be such as to indicate that the plea of guilty was not “really attributable to a genuine consciousness of guilt.” [24][2012] 1 Qd R 362; [2011] QCA 199 [25][2004] QCA 493 at [11]…
R v Nerbas [2014] QCA 259
Citation 8 (Para 1)

…ceeded and on 19 August 2011, the appellant was given leave to withdraw the pleas.[6] [5] R v Nerbas [2011] QSC 41. [6] R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199.…
R v Ransley [2014] QDC 155
Citation 9

…whether, in these circumstances, the applicant has been convicted. A plea of guilty, of itself, does not constitute a conviction: The Queen v Nerbas [2011] QCA 199 at paragraph 7. Whether a conviction has occurred or not it seems undoubted that, in circumstances where a sentence has not occurred, a plea may, wit…
R v Verrall [2012] QCA 310
Citation 10 (Para 1)

…ys in which the court could manifest its acceptance of a guilty plea, one of which was by administration of the allocutus.[6] [2][2012] 1 Qd R 362, [2011] QCA 199. [3](1996) 184 CLR 501, [1996] HCA 46. [4]At 509. [5]At 531-2. [6]At 520.…
R v Handlen [2012] QSC 317
Citation 11 (Para 1)

…al in 2011.[2] The Crown has now presented a new indictment against all three defendants. [1] Handlen v R; Paddison v R [2011] HCA 51. [2] R v Nerbas [2011] QCA 199.…
R v Handlen, Paddison and Nerbas [2012] QSC 433
Citation 12

…[4] R v Nerbas [2011] QCA 199…
R v Verrall [2011] QCA 206
Citation 13

…e within which to appeal against conviction should be granted R v Lowrie [1998] 2 Qd R 579; [1997] QCA 434, considered R v Nerbas [2011] QCA 199, considered COUNSEL: The applicant appeared on his own behalf J N Hanna for the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prosec…

See all citing cases →

Cases Cited

R v Nerbas [2011] QSC 41
Citation 1 (Para 1)

…in that, it is necessary to say something of what has happened since the applicant pleaded guilty to these charges on 4 December 2008. [2] R v Nerbas [2011] QSC 41.…
R v Handlen & Paddison [2010] QCA 371
Citation 2

…sidered R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214, applied R v GV [2006] QCA 394, considered R v Handlen and Paddison (2010) 247 FLR 261, [2010] QCA 371, cited R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61, considered R v Jerome and McMahon [1964] Qd R 595, considered Liberti v R (1991) 55 A Crim R 120…
R v GV [2006] QCA 394
Citation 3 (Para 1)

…that the sentencing judge has power to reject a guilty plea at any time prior to the passing of the sentence.[15] [14][2004] QCA 493 at [11]. [15][2006] QCA 394 at [38].…
R v Mundraby [2004] QCA 493
Citation 4 (Para 1)

…Jones and Atkinson JJ) said that the sentencing judge has power to reject a guilty plea at any time prior to the passing of the sentence.[15] [14][2004] QCA 493 at [11]. [15][2006] QCA 394 at [38].…
R v Hura [2001] NSWCCA 61
Citation 5

…[2006] QCA 394, considered R v Handlen and Paddison (2010) 247 FLR 261, [2010] QCA 371, cited R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61, considered R v Jerome and McMahon [1964] Qd R 595, considered Liberti v R (1991) 55 A Crim R 120, considered R v Mundraby [2004] QCA 493, considered R v Murphy [1965] VR…
Maxwell v The Queen [1996] HCA 46
Citation 6

…A Crim R 35, cited Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, considered Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, considered Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214, applied R v GV [2006] QCA 394, consider…
Meissner v the Queen [1995] HCA 41
Citation 7

…] HCA 44, considered Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, considered Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214, applied R v GV [2006] QCA 394, considered R v Handlen and Paddison (2010) 247 FLR 261, [2010] QCA 371, cit…
Wilson v Chambers & Co Pty Ltd [1926] HCA 15
Citation 8

…7] Qd R 237, considered R v Tonks [1963] VR 121; [1963] Vic Rp 19, considered Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131; [1926] HCA 15, cited COUNSEL: The applicant appeared on his own behalf S M Ryan on behalf of the respondent SOLICITORS: The applicant appeared on his own behalf Director of Public Prose…
Griffiths v The Queen [1977] HCA 44
Citation 9

…iv 307 Criminal Procedure Act 1986 (NSW), s 157 Boag v R (1994) 73 A Crim R 35, cited Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, considered Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, considered Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Campbell (2008) 73 NSW…

Legislation Cited

Criminal Procedure Act 1986 (NSW) 157
2 mentions (from Para 1)

CITATION:	R v Nerbas [2011] QCA 199
PARTIES:	R v NERBAS, Kelsey James (applicant)
FILE NO/S:	CA No 85 of 2011 SC No 1320 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2011
JUDGES:	Chief Justice, McMurdo and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Extend the time for the applicant to appeal against the judgment of Mullins J to 19 April 2011. 2. Allow that appeal. 3. Grant leave to the applicant to withdraw his pleas of guilty made on 4 December 2008.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – PLEAS – GENERAL PLEAS – PLEA OF GUILTY – WITHDRAWAL AND RESTORATION OF PLEA – GENERALLY – where the applicant was convicted on his own pleas of guilty of two counts of importing a commercial quantity of border controlled drugs, one count of possession of such drugs and one count of attempting to possess such drugs on 4 December 2008 – where the applicant applied to withdraw his guilty pleas but was refused – where the applicant seeks an extension of time to appeal against conviction – whether the application for an extension of time should be granted – whether the applicant should be granted leave to withdraw his pleas of guilty Criminal Code 1995 (Cth), s 11.2A, Div 307 Criminal Procedure Act 1986 (NSW), s 157 Boag v R (1994) 73 A Crim R 35, cited Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44, considered Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46, considered Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered R v Campbell (2008) 73 NSWLR 272; [2008] NSWCCA 214, applied R v GV[2006] QCA 394, considered R v Handlen and Paddison (2010) 247 FLR 261, [2010] QCA 371, cited R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61, considered R v Jerome and McMahon [1964] Qd R 595, considered Liberti v R (1991) 55 A Crim R 120, considered R v Mundraby[2004] QCA 493, considered R v Murphy [1965] VR 187; [1965] Vic Rp 26, cited R v Nerbas [2011] QSC 41, cited R v Phillips and Lawrence [1967] Qd R 237, considered R v Tonks [1963] VR 121; [1963] Vic Rp 19, considered Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131; [1926] HCA 15, cited
COUNSEL:	The applicant appeared on his own behalf S M Ryan on behalf of the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent