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2
Court of Criminal Appeal 28 November 2000

R V KRC

[2000] NSWCCA 541

Sexual offences

Citation: KRC v R [2000] NSWCCA 541
Court: New South Wales Court of Criminal Appeal
Date: 28 November 2000
Judge(s): Wood CJ at CL; Dunford J; Carruthers AJ

Background

The appellant was charged in the Mudgee District Court on six representative counts of sexual misconduct against his daughter, spanning eight years between 1984 and 1992. The offences were alleged to have occurred when the victim was as young as five years of age and continued until she was sixteen. The charges were brought under several provisions of the Crimes Act 1900, reflecting legislative changes over the relevant period.

The appellant entered pleas of guilty and was sentenced to a minimum term of five years penal servitude with an additional term of three years, with fixed concurrent terms on the remaining counts. He subsequently lodged an appeal against both conviction and sentence, but a notice of abandonment of the conviction appeal was filed on his behalf.

When the matter came before the Court of Criminal Appeal in October 1999, the appellant, appearing in person after Legal Aid was refused, raised fresh concerns about his guilt. He alleged that his daughter had fabricated the allegations at the instigation of a caseworker to support a victim's compensation claim, and that he had been pressured by his legal advisers to plead guilty against his wishes. The court stood the matter over to allow him to file any supporting material, including any statement from the victim withdrawing her allegations.

  • Whether the convictions should be set aside on the basis that the guilty pleas did not reflect a genuine consciousness of guilt or were otherwise tainted by a miscarriage of justice.
  • Whether the appellant had been improperly pressured by his legal representatives to enter guilty pleas.
  • Whether the sentences imposed by the District Court were affected by any error of principle or fell outside the proper exercise of sentencing discretion.

Decision

The Court found that no material capable of supporting a miscarriage of justice had been placed before it. The appellant produced no statement or affidavit from the victim withdrawing her allegations, and no other fresh evidence was tendered. The Court noted that the appellant had made admissions to police in a recorded interview (ERISP) that went beyond the admissions implicit in the guilty pleas.

On the question of alleged pressure from legal advisers, both trial counsel and the instructing solicitor filed affidavits firmly denying the appellant's claims. The appellant cross-examined both deponents at the hearing, but each maintained their accounts. Wood CJ at CL found no reason to disbelieve them, concluding that they had understood and discharged their duties to both the appellant and the court with competence.

Applying principles drawn from its earlier decision in Kouroumalos and a line of established authority, the Court confirmed that a plea of guilty entered by a person in possession of all relevant facts and intending to plead guilty is treated as an admission of all the legal ingredients of the offence. The onus of establishing a miscarriage of justice lies on the applicant, and the appellant had not discharged that onus.

On sentence, the Court found no error of principle. The sentencing judge had expressly considered all relevant subjective matters in the appellant's favour and correctly applied the principle that offences involving the sexual violation of young children require substantial general deterrence. The sentence was within the proper exercise of her Honour's discretion.

Orders Made

  • Appeal against conviction dismissed.
  • Leave granted to appeal against sentence, but that appeal also dismissed.

Key Takeaways

  • A conviction following a guilty plea will not be set aside on appeal unless the applicant demonstrates a miscarriage of justice, such as a failure to appreciate the nature of the charges, an absence of genuine intent to admit guilt, legal incapacity to be convicted on the admitted facts, or a plea induced by improper pressure or imprudent advice.
  • The onus of establishing that miscarriage of justice rests on the applicant, and courts approach attempts to withdraw guilty pleas with considerable caution, given the strong public interest in the finality of legal proceedings.
  • Unsubstantiated claims that legal advisers pressured an accused to plead guilty will not suffice to set aside a conviction where the legal representatives have filed affidavits denying those claims and those accounts withstand cross-examination.
  • Affidavit evidence from trial counsel and the instructing solicitor, which survives cross-examination, is capable of grounding a finding that a plea of guilty was properly entered with full understanding.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed the principle that sentences for child sexual assault must incorporate a substantial element of general deterrence, consistent with a long line of CCA authority.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E(1), 61E(1A), 66A, 66C(2)

Cases
- Kouroumalos (2000) NSW CCA 453
- Chiron (1980) 1 NSWLR 218
- Liberti (1991) 55 A Crim R 120
- Foley (1963) 80 WN 726
- Caruso (1988) 37 A Crim R 1
- Murphy (1965) VR 187
- Favero (1999) NSW CCA 320
- Whitehead (2000) NSW CCA 400
- Davey, NSW CCA, 3 March 1995
- Cincotta, NSW CCA, 1 November 1995
- Ganderton, NSW CCA, 17 September 1998
- Vergara (1999) NSW CCA 352
- Sagiv (1986) 22 A Crim R 73
- O'Neill (1979) 2 NSWLR 582
- Davies, NSW CCA, 16 December 1993
- Lars (1994) 73 A Crim R 91
- Boag (1994) 73 A Crim R 35
- Burchell (1987) 34 A Crim R 148
- Dent, NSW CCA, 14 March 1991
- Bamford, NSW CCA, 23 July 1991
- RKB, NSW CCA, 30 June 1992
- JVP, NSW CCA, 6 November 1995