R V KRC [2000] NSWCCA 541

New South Wales Court of Criminal Appeal

CITATION : R V KRC [2000] NSWCCA 541 FILE NUMBER(S) : CCA 60585/98 HEARING DATE(S) : 28 November 2000 JUDGMENT DATE : 28 November 2000

PARTIES : REGINA KRC JUDGMENT OF : Wood CJ at CL at 1; Dunford J at 34; Carruthers AJ at 35

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/61/0213 LOWER COURT JUDICIAL Backhouse DCJ OFFICER :

COUNSEL : R Hulme for Crown Applicant in person SOLICITORS : S E O'Connor

DECISION : Appeal against conviction dismissed.; Leave granted to appeal against sentence but dismiss that appeal.

IN THE COURT OF CRIMINAL APPEAL

No 60585/98 WOOD CJ At CL DUNFORD J CARRUTHERS AJ Tuesday 28 November 2000

REGINA -V- K R C

JUDGMENT

1 WOOD CJ At CL: The appellant was indicted before her Honour 2 Judge Backhouse QC at Mudgee District Court, on 24 April 1997, with six counts of sexual misconduct with his daughter JAC, spanning a period of eight years between 24 February 1984 and 23 February 1992. They were preferred as representative counts in relation to many alleged offences, occurring over this period either at the family home in Mudgee or at the home of relatives at Gulgong or Sofala. Some related to occasions when the victim was aged under ten years, and other related to occasions when she was aged between ten years and sixteen years, and was under the appellant's authority. 3 The offences came to light when the victim made a statement to police on 16 February 1995 when she was aged fifteen years. By reason of various changes in the legislation over the relevant period the offences were charged under a number of different sections of the Crimes Act 1900. 4 In summary, they included two counts of indecent assault variously charged under section 61E(1) (count 1) and 61E(1A) (count 3) for which the maximum penalty was penal servitude for four years and six years respectively. Additionally they included four counts of sexual intercourse charged under section 66A of the Crimes Act (counts 2 and 4) and section 66C(2) (count 5 and 6) for which the maximum prescribed penalty was penal servitude for twenty years and ten years respectively. 5 Following his pleas of guilty the appellant was sentenced, in relation to counts 2, 4, 5 and 6, to a minimum term of five years penal servitude with an additional term of three years, and, in relation to counts 1 and 2, to fixed terms of two years and three years penal servitude respectively, these terms to be served concurrently with the remaining sentences. 6 Although an appeal was initially lodged in relation to both conviction and sentence, a notice of abandonment of the conviction appeal was filed on behalf of the appellant. When the matter came before this court for hearing on 25 October 1999 the applicant raised an issue as to his guilt. The appeal was then stood out of the list so as to enable the appellant to place before the court any material that was available, and relevant, to the reliability of his plea and in particular to provide him with an opportunity to present any statement or affidavit which he could procure from the victim withdrawing her allegations, if they were accepted by her as having been untrue. 7 Legal Aid has been refused and the appellant appeared in person to argue the appeal. 8 Nothing has been placed before the court by the appellant by way of additional or fresh evidence that would support the claim then advanced, and now pursued, that the allegations had all been made up by his daughter at the instigation of a case worker who was assisting her in order to found a claim for victim's compensation. Nor has he placed anything before us to further support the claim that he had been pressured by his legal advisers to enter the pleas of guilty, notwithstanding his insistence at the time that the matter proceed to trial. 9 Affidavits have however been filed by trial counsel and the solicitor who appeared for him at the trial. The appellant has been given the opportunity today to cross examine the deponents of those affidavits and he has done so. Each of the allegations he put to them was firmly denied. 10 The circumstances in which convictions can be set aside following pleas of guilty were examined by this court in Kouroumalos, (2000) NSW Court of Criminal Appeal 453. There, I observed at paragraph 16 to 21 of that judgment: "16 Before the court will go behind a plea of guilty, and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Chiron (1980) 1 NSWLR 218 and 231. That may occur for example, where in offering a plea, the applicant did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged: Liberti (1991) 55 A Crim R 120 at 121-122, and see also Foley (1963) 80 WN 726 and Caruso (1988) 37 A Crim R 1.