Regina v Kevin John Smith - [2003] NSWCCA 53

CITATION: REGINA v Kevin John SMITH [2003] NSWCCA 53

HEARING DATE(S): 06/03/2003

JUDGMENT DATE:
6 March 2003

JUDGMENT OF: Hodgson JA at 1; Dowd J at 6; Barr J at 50

DECISION: Application for adjournment refused; appeal against conviction dismissed; leave to appeal against sentence refused.

CATCHWORDS: Refusal of appeal against conviction and sentence - appliction to withdraw guilty plea - plea allegedly induced by mental state and pressure by legal representatives - no miscarriage of justice.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Barton (2001) 121 ACrimR 185
R v Boag (1994) 73 AcrimR 35
R v Davies (unreported, NSWCCA, 23 November 1993)
R v Van (2002) 129 ACrimR 229
Attorney-General's Application [No 1] under s26 of the Criminal Procedure Act 1986 and R v Ponfield (1999) 48 NSWLR 327

PARTIES :
Kevin John Smith (Applicant)
Crown

FILE NUMBER(S): CCA 60156/2001

COUNSEL: Appellant in Person
GIO Rowling (Crown)

SOLICITORS:
SE O'Connor (Crown)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/41/0090

LOWER COURT
JUDICIAL OFFICER : Knight DCJ

60156/2001

HODGSON JA
DOWD J
BARR J
Thursday 6 MARCH 2003

REGINA v KEVIN JOHN SMITH

Judgment

1 HODGSON JA: I agree with Dowd J. I recognise that the appellant is under a significant disadvantage, through difficulties in obtaining evidentiary material and in putting submissions of law before this court, and I have taken that into account in considering this appeal.

2 However, on the appeal against conviction the essential issue is whether or not Knight DCJ is shown to have been in error in refusing the appellant’s application to withdraw his plea of guilty. In dealing with that application, Knight DCJ heard evidence from the appellant and also from Mr Stewart, the barrister who represented the appellant at the time of the entry of the guilty plea. Knight DCJ accepted the evidence of Mr Stewart in preference to that of the appellant, and I see no grounds on which this court could or should overturn that finding.

3 In those circumstances I can detect no error in the decision of Knight DCJ which could justify the intervention of this court so as to reverse his decision not to permit the withdrawal of the plea.

4 I have carefully considered material presented by the appellant in order to suggest there has been a miscarriage of justice, including material concerning his mental health at the time of the entry of the plea, material suggesting motives in his family to fabricate allegations against him, and the appellant’s strenuous denials in relation to the offence, including the appellant’s account of events which is wholly inconsistent with the account given by the complainants. In my opinion that material does not give grounds for thinking that Knight DCJ was wrong or that there has been any miscarriage of justice.

5 In those circumstances I agree that the appeal against conviction should be dismissed. I agree also no basis has been shown for leave to appeal from the sentence.

6 DOWD J: This…

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 Regina v Kevin John Smith

Details

AGLC: Regina v Kevin John Smith [2003] NSWCCA 53
Case: [2003] NSWCCA 53
Decision Date: 6 March 2003

CaseChat Overview and Summary

The case of Regina v Kevin John Smith involved the defendant appealing against his conviction and sentence. The defendant argued that his guilty plea was induced by his mental state and pressure from his legal representatives, and sought to withdraw his plea. The matter was heard in the appellate court, which reviewed the lower court's decision.

The central legal issue before the appellate court was whether the defendant's plea was induced by his mental state and the pressure exerted by his legal representatives, which would constitute a miscarriage of justice. The court had to consider the evidence presented regarding the defendant's mental state, the conduct of his legal representatives, and the voluntariness of the plea.

The appellate court examined the evidence and found that the defendant's plea was not induced by his mental state or pressure from his legal representatives. The court determined that the defendant had a clear understanding of the consequences of his plea and that the plea was entered voluntarily. The court further held that there was no miscarriage of justice in the defendant's conviction and sentence. The appeal was therefore dismissed, and the conviction and sentence were upheld.

No additional orders were made by the court. The defendant's conviction and sentence remained as originally determined by the lower court.

Orders