REGINA v Kevin John SMITH [2003] NSWCCA 53

New South Wales Court of Criminal Appeal

CITATION : REGINA v Kevin John SMITH [2003] NSWCCA 53 HEARING DATE(S) : 06/03/2003 JUDGMENT DATE : 6 March 2003

JUDGMENT OF : Hodgson JA at 1; Dowd J at 6; Barr J at 50 DECISION : Application for adjournment refused; appeal against conviction dismissed; leave to appeal against sentence refused.

CATCHWORDS : Refusal of appeal against conviction and sentence - appliction to withdraw guilty plea - plea allegedly induced by mental state and pressure by legal representatives - no miscarriage of justice. LEGISLATION CITED : Crimes Act 1900 R v Barton (2001) 121 ACrimR 185 R v Boag (1994) 73 AcrimR 35 CASES CITED : R v Davies (unreported, NSWCCA, 23 November 1993) R v Van (2002) 129 ACrimR 229 Attorney-General's Application [No 1] under s26 of the Criminal Procedure Act 1986 and R v Ponfield (1999) 48 NSWLR 327 PARTIES : Kevin John Smith (Applicant) Crown FILE NUMBER(S) : CCA 60156/2001 COUNSEL : Appellant in Person GIO Rowling (Crown) SOLICITORS : SE O'Connor (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT 00/41/0090 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60156/2001

HODGSON JA DOWD J BARR J

Thursday 6 MARCH 2003 REGINA v KEVIN JOHN SMITH Judgment 1 HODGSON JA: I agree with Dowd J. I recognise that the appellant is under a significant disadvantage, through difficulties in obtaining evidentiary material and in putting submissions of law before this court, and I have taken that into account in considering this appeal. 2 However, on the appeal against conviction the essential issue is whether or not Knight DCJ is shown to have been in error in refusing the appellant's application to withdraw his plea of guilty. In dealing with that application, Knight DCJ heard evidence from the appellant and also from Mr Stewart, the barrister who represented the appellant at the time of the entry of the guilty plea. Knight DCJ accepted the evidence of Mr Stewart in preference to that of the appellant, and I see no grounds on which this court could or should overturn that finding. 3 In those circumstances I can detect no error in the decision of Knight DCJ which could justify the intervention of this court so as to reverse his decision not to permit the withdrawal of the plea. 4 I have carefully considered material presented by the appellant in order to suggest there has been a miscarriage of justice, including material concerning his mental health at the time of the entry of the plea, material suggesting motives in his family to fabricate allegations against him, and the appellant's strenuous denials in relation to the offence, including the appellant's account of events which is wholly inconsistent with the account given by the complainants. In my opinion that material does not give grounds for thinking that Knight DCJ was wrong or that there has been any miscarriage of justice. 5 In those circumstances I agree that the appeal against conviction should be dismissed. I agree also no basis has been shown for leave to appeal from the sentence. 6 DOWD J: This is an appeal against conviction and an application for leave to appeal against sentence on two charges to which the appellant, who is unrepresented, entered pleas of guilty in the District Criminal Court at Goulburn on 30 October 2000. 7 The appellant has today lodged an application in writing for an adjournment which is based on the very real problems that are faced by an applicant, in person, in preparing a criminal appeal hearing in terms of access to material and precedents. 8 The application is also based on the difficulty which the appellant has had in obtaining a video which depicts discussions between members of his family as to the growing of a not insubstantial amount of marijuana which led to tension within his family and a death threat. The appellant was using the video as, to use his term, "insurance" to ensure that his children gave something back to the family.