R v SL

Case [2004] NSWCCA 397 23 November 2004

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CITATION: Regina v SL [2004] NSWCCA 397 revised - 23/11/2004

HEARING DATE(S): 3 & 4 November 2004

JUDGMENT DATE:
23 November 2004

JUDGMENT OF: Giles JA at 1; Buddin J at 64; Smart AJ at 65

DECISION: Appeal dismissed.

CATCHWORDS: Pleas of guilty - conviction - appeal on ground pleas were entered in circumstances of miscarriage of justice - appellant's evidence that pleas entered because of representations that he would not be gaoled and would be released to be with his children, and under pressure from his barrister and solicitor's clerk that he had to plead guilty if he wanted to see his children again - evidence not accepted - made informed choice in order to avoid risk of lengthy imprisonment on many more serious charges - submissions that was improper pressure in barrister approaching Crown Prosecutor about a plea without instructions, in the manner of advising that the offer was in the appellant's interests and in seeking written instructions when the offer was initially rejected - submissions not supported by evidence the matters relied on affected appellant's conduct - in any event no improper pressure - pleas not because of the matters relied on - free choice made by appellant in his own interests - no miscarriage of justice - not necessary to consider whether there was a real question to be tried. D

CASES CITED: Meissner v The Queen (1994) 184 CLR 132;
R v Cincotta, CCA, 1 November 1995;
R v Chiron (1980) 1 NSWLR 218;
R v Davies (1993) 19 MVR 481;
R v Hura (2001) 121 A Crim R 427;
R v Ferrer-Esis (1991) 55 A Crim R 231;
R v Khan [2002] NSWCCA 521;
R v Maxwell (1995) 184 CLR 501;
R v Murphy (1965) VR 187;
R v O'Neill (1979) 2 NSWLR 582;
R v Sagiv (1986) A Crim R 73;
R v Toro-Martinez (2000) 114 A Crim R 533;
R v Wilkes [2001] NSWCCA 97.

PARTIES :
Regina v SL

FILE NUMBER(S): CCA 2004/1946

COUNSEL: A W Street SC - Applicant
E Wilkins - Crown

SOLICITORS: P Livers - Applicant
S Kavanagh, Public Prosecutions - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0202

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

CCA 2004/1946
DC 03/11/0202

GILES JA
BUDDIN J
SMART AJ
Tuesday 23 November 2004

Regina v SL

Judgment

NOTE : Pursuant to s 291 of the Criminal Procedure Act 1986, the proceedings were held in camera. The trial judge ordered that no person publish any material that would identify the complainant.

1 GILES JA: The appellant was charged with a number of offences alleged to have been committed upon the complainant. At the trial the Crown accepted his pleas of guilty to two charges of incest in discharge of the indictment. The appellant was convicted; he has yet to be sentenced. This is an appeal against conviction on the ground that the pleas -

“ … were entered in circumstances amounting…

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 SL

Details

AGLC: R v SL [2004] NSWCCA 397
Case: [2004] NSWCCA 397
Decision Date: 23 November 2004

CaseChat Overview and Summary

In the matter of R v SL, the appellant appealed against his conviction, arguing that his pleas of guilty were entered in circumstances amounting to a miscarriage of justice. The appellant claimed that his pleas were the result of misleading representations that he would not be imprisoned and would be allowed to reunite with his children, as well as pressure from his legal representatives to plead guilty. The evidence provided by the appellant was not accepted by the court, which found that the appellant had made an informed decision to avoid the risk of a more severe sentence on other charges.

The court was tasked with determining whether the appellant's pleas were the product of a miscarriage of justice, specifically whether there was any undue pressure exerted by the Crown Prosecutor, the appellant's barrister, or the solicitor's clerk. Additionally, the court examined whether the appellant's legal representatives had improperly influenced the plea process by discussing a plea offer with the Crown Prosecutor without proper instructions.

The court found that the appellant had made a free choice in his own interests, and that there was no miscarriage of justice. The court determined that the appellant's decision to plead guilty was not influenced by the alleged pressure from his legal representatives or the Crown Prosecutor. Furthermore, the court found that even if the alleged actions were improper, they did not affect the appellant's conduct in entering the pleas. The court concluded that the appellant's decision was based on his own assessment of the risks and benefits of pleading guilty, and not due to the factors relied upon by the appellant.

As a result of the findings, the court dismissed the appeal and upheld the conviction. The court held that it was not necessary to consider whether there was a real question to be tried, as the appellant's pleas were made voluntarily and with full understanding of the consequences.

Orders