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Court of Criminal Appeal 6 March 2003

REGINA v Kevin John SMITH

[2003] NSWCCA 53

Firearms & weaponsDomestic & family violence
APPLICTION TO WITHDRAW GUILTY PLEA NO MISCARRIAGE OF JUSTICE.

Citation: Regina v Kevin John Smith [2003] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 6 March 2003
Judges: Hodgson JA, Dowd J, Barr J

Background

The appellant entered guilty pleas in the District Court at Goulburn on 30 October 2000 to two charges: entering a dwelling with intent to commit kidnapping, and possessing a shortened firearm without authorisation. The charges arose from a series of serious incidents involving the appellant's estranged wife and adult children, during which he detained two people at gunpoint and was later found in possession of a prohibited weapon and ammunition. Several associated matters were dealt with on a Form 1 (a mechanism allowing a court to take additional admitted offences into account when sentencing for the primary offence).

After the pleas were entered, the appellant applied to withdraw them before a different judge, Knight DCJ. That application was refused, and the appellant was sentenced to six years and four months imprisonment on the primary count, with a four-year non-parole period, and a fixed term of 18 months on the second count.

The appellant, representing himself, then appealed to the Court of Criminal Appeal against both conviction and sentence. He also sought an adjournment to gather further material, including video evidence and transcripts he claimed were not available to him.

  • Whether the application for an adjournment of the appeal hearing should be granted
  • Whether Knight DCJ erred in refusing the application to withdraw the guilty plea
  • Whether the guilty plea was vitiated by the appellant's mental state at the time it was entered, or by pressure applied by his legal representatives
  • Whether there had been a miscarriage of justice
  • Whether leave to appeal against sentence should be granted

Decision

The Court refused the adjournment application. Dowd J noted the appellant had already provided hundreds of pages of material and that the matter had been before the Court on several previous occasions. The Court accepted that the appellant faced real difficulties as a self-represented litigant but found those difficulties did not justify further delay.

On the conviction appeal, the central question was whether Knight DCJ had been wrong to refuse the application to withdraw the guilty plea. Knight DCJ had heard evidence from both the appellant and the barrister who had represented him when the plea was entered, preferring the barrister's account. The Court of Criminal Appeal found no basis to disturb that credibility finding.

Hodgson JA carefully considered the appellant's additional material, including evidence about his mental health at the time of the plea, allegations that family members had fabricated allegations against him, and his own denials of the offences. None of that material demonstrated error by Knight DCJ or pointed to a miscarriage of justice.

On sentence, Dowd J found no demonstrated error in the approach taken by Knight DCJ, including the treatment of the Form 1 offences. Barr J would have granted leave to appeal against sentence but would nonetheless have dismissed that appeal. The majority refused leave entirely.

Orders Made

  • Application for adjournment refused
  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence refused

Key Takeaways

  • A court will not permit withdrawal of a guilty plea simply because the applicant asserts mental health difficulties or legal pressure existed at the time of the plea; the applicant must demonstrate actual error in the refusal decision.
  • Where a trial judge hears conflicting evidence from an accused and their former counsel about the circumstances of a plea, and prefers the counsel's account, an appellate court will not readily disturb that credibility finding.
  • No miscarriage of justice was established merely by the appellant's denials, allegations of family fabrication, or evidence of psychological difficulties, where the sentencing judge had already considered comparable material.
  • When sentencing for a primary offence and taking Form 1 matters into account, courts are required to give real weight to those additional offences, particularly where they are serious in their own right, consistent with the principles affirmed in R v Barton and R v Ponfield.
  • Self-represented appellants face acknowledged disadvantages in criminal appeals, but the Court of Criminal Appeal confirmed that practical difficulties alone do not automatically warrant an adjournment, especially where extensive material has already been filed and the matter has been listed repeatedly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 113(3), 562
- Weapons Prohibition Act (NSW)
- Firearms Act (NSW), s 65(3)
- Criminal Procedure Act 1986 (NSW), s 26

Cases
- 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 s 26 of the Criminal Procedure Act 1986 and R v Ponfield (1999) 48 NSWLR 327