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Court of Criminal Appeal 27 May 2015

Kim v R

[2015] NSWCCA 115

Assault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION WHERE PLEA OF GUILTY ENTERED NO MISCARRIAGE OF JUSTICE APPEAL DISMISSED

Citation: Kim v R [2015] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 27 May 2015
Judge(s): Hoeben CJ at CL, R A Hulme J, Beech-Jones J

Background

The applicant pleaded guilty in the Local Court to recklessly causing grievous bodily harm in company, an offence under s 35(1) of the Crimes Act 1900 (NSW) carrying a maximum penalty of 14 years' imprisonment. He was subsequently sentenced in the District Court to three years' imprisonment with a non-parole period of 18 months. A proposed sentence appeal was abandoned before the hearing.

The offence arose from an incident at a Sydney nightclub in December 2012. A co-offender punched the victim, knocking him to the ground. The applicant then kicked the unconscious victim in the face and punched him three more times. In a police interview the applicant admitted his actions in detail, including that others were also kicking the victim at the time.

The applicant sought leave to appeal against conviction, arguing that his guilty plea produced a miscarriage of justice. He contended that he did not properly understand what "in company" or "grievous bodily harm" meant, that he had not provided his version of events to his solicitor, and that the legal advice he received was inadequate.

  • Whether the applicant's guilty plea gave rise to a miscarriage of justice
  • Whether the applicant appreciated the nature of the charge to which he pleaded guilty, specifically the meaning of "in company"
  • Whether the legal advice the applicant received concerning the "in company" element was correct and adequate

Decision

The court granted leave to appeal but dismissed the appeal. All three judges agreed that no miscarriage of justice had occurred.

The applicant's primary evidence was an affidavit in which he claimed his solicitor, Mr Ricci, never explained the meaning of "in company" or "grievous bodily harm" and never told him he could plead not guilty. His solicitor gave conflicting evidence, stating he had explained both concepts and that the "in company" element was established by the applicant's own police admissions. The court preferred the solicitor's account. Both Hulme J and Beech-Jones J assessed the applicant's credibility as poor, noting his convenient inability to recall significant details during cross-examination despite having admitted those same details to police.

On the substance of the legal advice, the court found that Mr Ricci was correct. The applicant had admitted in his police interview that other people were kicking the victim at the same time as him. That admission was sufficient to establish the "in company" element under the principles confirmed in Markou v R [2012] NSWCCA 64. The solicitor's understanding and application of that element was sound.

The court also addressed the CCTV footage the applicant relied upon, which counsel had submitted tended to contradict his police admissions. All three judges found the footage too poor in quality to support that submission and concluded that nothing in it required Mr Ricci to reconsider the advice he gave.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • A guilty plea entered after legal advice will not be set aside on appeal merely because the applicant later claims ignorance of the elements of the offence, particularly where the court prefers the solicitor's evidence that adequate explanations were given.
  • The "in company" element in s 35(1) of the Crimes Act 1900 can be established by the defendant's own admissions that others were participating in the same assault at the same time, without those others being identified or charged.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Markou v R [2012] NSWCCA 64 correctly states the principles governing the "in company" element, and that a solicitor who applied those principles gave correct advice.
  • Where an applicant's credibility is assessed as unreliable, particularly due to selective memory that conveniently conflicts with contemporaneous police admissions, courts will scrutinise affidavit evidence challenging legal advice with considerable caution.
  • Poor-quality CCTV footage that does not clearly contradict agreed facts or police admissions provides no basis for concluding that legal advice built on those admissions was inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1) (recklessly causing grievous bodily harm in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Cases:
- Markou v R [2012] NSWCCA 64; 221 A Crim R 48
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Meissner v The Queen [1995] HCA 41; 184 CLR 132
- Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119
- Khamis v R [2014] NSWCCA 152
- Lawson v R [2011] NSWCCA 44
- R v Favero [1999] NSWCCA 320
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Hura [2001] NSWCCA 61; 121 A Crim R 472
- R v Liberti (1991) 55 A Crim R 120
- R v Toro-Martinez [2000] NSWCCA 216; 114 A Crim R 533
- R v Van [2002] NSWCCA 148; 129 A Crim R 229
- R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- R v Murphy [1965] VR 187
- R v Sagiv (1986) 22 A Crim R 73