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Supreme Court 5 December 2014

R v Raymond Kennedy

[2014] NSWSC 1921

Homicide
PLEA OF GUILTY TO MURDER REVERSAL OF PLEA APPLICATION REFUSED

Citation: R v Raymond Kennedy [2014] NSWSC 1921
Court: Supreme Court of New South Wales
Date: 5 December 2014
Judge(s): Wilson J

Background

The applicant had been charged with the murder of a 75-year-old man who was beaten by intruders at his home in Kempsey in November 2010 and died from his injuries. After initially pleading not guilty, the applicant entered a plea of guilty to murder before Barr J on 6 November 2013. At that time he had been represented by senior counsel and a solicitor for approximately eight months, and his written instructions to plead guilty were recorded on 1 November 2013.

Sentence proceedings commenced but were not completed. In early 2014, the applicant withdrew instructions from both his counsel and solicitor. He then filed a motion seeking to vacate the guilty plea, alleging that his former legal representatives had improperly pressured him into entering it and that he had not genuinely understood the basis of his liability for murder.

The application was heard on 5 December 2014. The applicant gave evidence by affidavit and orally, supported by a report from a consultant psychologist. His former counsel and solicitor also gave evidence.

  • Whether the applicant's plea of guilty to murder was a voluntary acknowledgment of guilt
  • Whether the applicant had been subjected to improper pressure by his legal representatives in entering the plea
  • Whether the applicant sufficiently understood the nature of the charge and the basis of his criminal liability at the time of the plea
  • Whether leave to withdraw the plea should be granted to avoid a miscarriage of justice

Decision

Wilson J refused the application. Her Honour found that the applicant had received thorough and appropriate advice from both his solicitor and counsel over a substantial period before entering the plea. That advice covered the Crown case, the evidence against him (including a significant shoeprint), and the legal basis of his liability for murder as a party to a joint criminal enterprise. Her Honour accepted that the applicant's understanding of these matters may have been unsophisticated, but found it was sufficient for him to appreciate his position and make a genuine choice about his plea.

The applicant's credibility was significantly undermined during the hearing. He was largely unable or unwilling to answer questions in cross-examination, which her Honour found reflected reluctance rather than illness or incapacity. His account of the shoeprint also conflicted materially with the accounts given to his former lawyers, both of which involved an acceptance that he had worn the shoes in question. Wilson J expressly found him to be an unreliable and not necessarily honest witness.

Her Honour rejected the allegation of improper pressure. Any urgency in the advice given by his former lawyers was properly directed at securing the maximum sentencing discount available for an early plea of guilty, which is a legitimate consideration. The plea was further corroborated by the applicant's own instructions (recorded in writing) and by admissions the applicant had made to a forensic psychiatrist, acknowledging participation in the robbery with the intention of obtaining money to purchase drugs.

The applicant failed to discharge the onus of establishing that he did not understand the charge or that the plea was not a voluntary acknowledgment of guilt. Wilson J found no miscarriage of justice had occurred.

Orders Made

  • Leave to withdraw the plea of guilty to the charge of murder is refused.
  • The applicant's motion is dismissed.
  • The matter is listed for sentence on 13 March 2015 at the Sydney Supreme Court.

Key Takeaways

  • An applicant seeking to withdraw a guilty plea bears the onus of establishing that the plea was not a voluntary acknowledgment of guilt, or that the applicant did not understand the nature of the charge; mere dissatisfaction with advice received is not sufficient.
  • Allegations that lawyers applied "improper pressure" will be weighed against the full evidentiary record, including written instructions signed by the accused, the extent of conferences held, and the consistency of the advice given over time.
  • Where urgency in legal advice is directed at maximising a sentencing discount for an early plea, that conduct does not constitute improper pressure on a client.
  • A court may draw adverse inferences about an applicant's credibility where the applicant refuses, without adequate explanation, to answer questions in cross-examination; Wilson J found the applicant's conduct in the witness box reflected a considered reluctance to answer rather than genuine incapacity.
  • No miscarriage of justice was established in circumstances where the applicant had received extensive legal advice, had given written instructions to plead guilty, and had made admissions to a forensic psychiatrist consistent with the plea entered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)

Cases
- Maxwell v The Queen (1996) 184 CLR 501
- Liberti (1991) 55 A Crim R 120
- Ferrer-Esis (1991) 55 A Crim R 231
- Sagiv (1986) 22 A Crim R 73
- Khamis v R [2014] NSWCCA 152
- Regina v Houra [2001] NSWCCA 61
- R v Parkes [2004] NSWCCA 377
- Wong v Director of Public Prosecutions (2005) 155 A Crim R 37
- O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59
- Murphy [1965] VR 187
- Cincotta (NSW Court of Criminal Appeal, unreported, 1 November 1995)
- R v ARG (NSW Court of Criminal Appeal, unreported, 2 August 1983)