R v Raymond Kennedy - [2014] NSWSC 1921

Supreme Court

New South Wales

Medium Neutral Citation: R v Raymond Kennedy [2014] NSWSC 1921
Hearing dates: 5 December 2014
Decision date: 05 December 2014
Jurisdiction: Common Law - Criminal
Before: Wilson J
Decision:
Application for leave to withdraw the plea of guilty to a charge of murder is refused

Catchwords: Plea of guilty to murder – reversal of plea – perceived improper conduct by legal representatives – application refused
Legislation Cited: Crimes Act 1900
Cases Cited: Cincotta (NSW Court of Criminal Appeal, unreported decision of 1 November 1995)
Ferrer-Esis (1991) 55 A Crim R 231
Khamis v R [2014] NSWCCA 152
Liberti (1991) 55 A Crim R 120
Maxwell v The Queen (1996) 184 CLR 501
Murphy [1965] VR 187
O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59
R v Parkes [2004] NSWCCA 377
R v ARG (NSW Court of Criminal Appeal, unreported decision of 2 August 1983)
Regina v Houra [2001] NSWCCA 61
Sagiv (1986) 22 A Crim R 73
Wong v The Director of Public Prosecutions (2005)155 A Crim R 37
Category: Principal judgment
Parties: Raymond Kennedy (the applicant)
Director of Public Prosecutions (the Crown)
Representation:
Counsel: Mr. M. Johnston (the applicant)
Mr. M. Tedeschi QC (the Crown)
Solicitors: Michael Croke & Co (the applicant)
Solicitor for Public Prosecutions (the Crown)

File Number(s): 2012/206026

Judgment

On 5 December 2014 I heard an application from Raymond Kennedy (“the applicant”) for leave to vacate a plea of guilty he had earlier entered to a charge of murder contrary to s.18(1)(a) of the Crimes Act 1900. Having heard evidence from a number of witnesses, together with submission from the parties, I refused leave. These are my reasons for that decision.

The History of the Matter

On or about 19 November 2010 Mr. Stanley Davies (“the deceased”), a man of 75 years who lived alone at his home in Dangar Street at Kempsey, was brutally beaten by intruders to his home, and left there, severely injured and probably unconscious, to die. He was found the following day and was immediately taken to hospital but, such was the severity of his injuries, he failed to respond to medical treatment, and died on 26 November 2014.
A police investigation ensued and, on 2 July 2012, the applicant was arrested and charged with the murder of Mr. Davies.
On 1 February 2013 a co-accused, Richard Smith, was arraigned upon an indictment charging him with the murder, and pleaded guilty. On 5 April 2013, the applicant and a third person charged with the murder, Stephen Smith, were ordered to stand their trial before the Supreme Court sitting at Port Macquarie, with a trial date fixed for 7 June 2013.
The Crown subsequently elected to try the applicant and Stephen Smith separately, and the applicant was separately arraigned. He entered a plea of not guilty to an indictment charging him with the murder of Mr. Davies, together with a charge alleging aggravated assault of the deceased with intent to rob, and his…

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 Raymond Kennedy

Details

AGLC: R v Raymond Kennedy [2014] NSWSC 1921
Case: [2014] NSWSC 1921
Decision Date: 05 December 2014

CaseChat Overview and Summary

The case of R v Raymond Kennedy involved the defendant, Raymond Kennedy, who initially pleaded guilty to a charge of murder. Subsequently, Kennedy sought to reverse his plea, alleging that his legal representatives had engaged in improper conduct. The matter was brought before the court for determination on the application to reverse the plea. The central issue before the court was whether Kennedy's plea could be reversed due to the alleged improper conduct of his legal representatives. This required the court to examine the nature and impact of any alleged misconduct on the voluntariness of Kennedy's plea.

The court considered the legal principles governing the reversal of guilty pleas, particularly focusing on the requirement that such pleas must be voluntarily and intelligently made. It was necessary to determine if the conduct of Kennedy's legal representatives was indeed improper and, if so, whether this misconduct had influenced the voluntariness of his plea. The court weighed the evidence and submissions on whether the alleged misconduct had indeed compromised the fairness of the proceedings or the voluntariness of the plea. Ultimately, the court found that the alleged improper conduct did not meet the threshold for reversing the plea, and therefore, the application was refused.

In reaching its decision, the court emphasised the importance of maintaining the integrity of the plea process while also considering the context and impact of any alleged misconduct. The court held that the conduct in question did not undermine the voluntariness of Kennedy's plea to the extent necessary for a reversal. Consequently, the court dismissed the application to reverse the plea, leaving Kennedy's initial plea of guilty to stand. This decision underscores the high standard required for overturning a plea based on alleged legal misconduct.

Orders