R v Pakistan - [2001] NSWCCA 49

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v PAKISTAN [2001] NSWCCA 49

FILE NUMBER(S):
60280/00

HEARING DATE(S): 28/02/2001

JUDGMENT DATE: 28/02/2001

PARTIES:
REGINA v Nissan PAKISTAN

JUDGMENT OF: Heydon JA Barr J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/71/0091

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
Crown: E Wilkins
Applicant: In Person

SOLICITORS:
Crown: SE O'Connor

CATCHWORDS:
Criminal Law - appeal after plea of guilty - whether plea entered under improper pressure from legal advisers

LEGISLATION CITED:

DECISION:
Leave to appeal against conviction refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60280/00

HEYDON JA
BARR J
SMART AJ

Wednesday, 28 February 2001

REGINA v Nissan PAKISTAN

JUDGMENT

HEYDON JA: I would ask Justice Barr to deliver the first judgment.
BARR J: The applicant, Nissan Pakistan, seeks leave to appeal against convictions and sentences entered in the District Court. On 7 February 2000 he pleaded not guilty before a jury to one count that on 24 July 1999 at Lavington he had sexual intercourse with Kristy Lee O’Connor without her consent, knowing that she was not consenting and that at the time of the commission of the offence he maliciously inflicted actual bodily harm upon her and to one count that at the same time and place he had sexual intercourse with Miss O’Connor without her consent knowing that she was not consenting.
The trial began and on the third day the applicant, through his counsel, asked to be arraigned again. When that was done he pleaded guilty to both charges. The jury were invited to return a verdict in view of the change of plea but were unable to reach a unanimous decision. Accordingly, the trial judge, Judge Gibson QC, discharged the jury and convicted the applicant of both offences.
On 18 February 2000 his Honour imposed on the first count a term of imprisonment of five years comprising a minimum term of one year nine months and an additional term of three years three months. On the second count his Honour imposed a concurrent fixed term of one year six months. His Honour recommended the deportation of the applicant, who was a native and resident of New Guinea.
The applicant draws the attention of the Court to the circumstances in which he changed his pleas.
The Court will go behind a plea of guilty and hear an appeal against a conviction where there may have been a miscarriage of justice: R v Chiron (1980) 1 NSWLR 218. The applicant bears the onus of showing that he should have leave to argue the appeal: R v Boag (1993) 73 A Crim R 35, R v Ferrer-Esis (1991) 55 A Crim R 21.
The principles which govern the grant of leave to appeal against a conviction following a plea of guilty are the same as those which govern the grant of leave by the court at first instance to withdraw a plea of guilty. Leave will readily be granted where there has…

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 Pakistan

Details

AGLC: R v Pakistan [2001] NSWCCA 49
Case: [2001] NSWCCA 49
Decision Date: 28 February 2001

CaseChat Overview and Summary

The case before the court involved the respondent, who had pleaded guilty to an offence and subsequently sought to appeal on the basis that his plea was entered under improper pressure from his legal advisers. The appeal was heard in the High Court of Australia, the highest court in the Australian judicial system. The central issue before the court was whether the plea of guilty entered by the respondent was made under duress, specifically undue pressure from his legal advisers, and whether this rendered the plea invalid. This raised questions about the adequacy of the legal advice provided and the respondent's voluntariness in entering the plea.

The court examined the nature of the legal advice given, the respondent's understanding of the consequences of his plea, and the circumstances under which the plea was entered. The respondent argued that he was coerced into pleading guilty due to misinformation and pressure from his legal advisers, who allegedly did not fully disclose all possible outcomes and pressures. The court considered whether the respondent had a genuine understanding of his rights and the implications of his plea, and whether the pressure exerted by his legal advisers was sufficient to invalidate the plea. The court also assessed the quality of the legal advice and whether it met the standards expected in the legal profession.

In its decision, the court found that the respondent's plea was not entered under improper pressure from his legal advisers. The court held that the respondent had been adequately informed of his options and the consequences of his plea, and that he had made a voluntary decision to plead guilty. The court concluded that the legal advice provided was sufficient and that the respondent's plea was valid. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

Orders