R v Cemitis, Andrew [No 1] [2010] NSWDC 158

R v Cemitis, Andrew [No 1] [2010] NSWDC 158

The application was refused because counsel's original advice was adequate and the applicant's pleas were informed. Properly applying Annetts, the DVDs viewed contained more than enough material from which a jury could be satisfied of production and possession of child pornography: the material depicted persons under sixteen in a sexual context and in circumstances capable of causing offence to reasonable persons. The applicant therefore did not lose a real opportunity for acquittal and there was no risk of miscarriage of justice in refusing withdrawal of the pleas.

Jurisdiction
Australia
Judgment Date
08 March 2010
Procedural Posture
Criminal Interlocutory Application / Application to Vacate or Withdraw Pleas of Guilty After Arraignment and Before Sentence
Outcome
Application to vacate or withdraw pleas of guilty refused.
Legal Topics
['withdrawal of Guilty Pleas' 'child Pornography' 'production of Child Pornography' 'possession of Child Pornography' 'sexual Context Under S 91 H Crimes Act 1900' 'offensive Weapon to Hinder Apprehension']
['criminal Law'] ['withdrawal of Guilty Pleas' 'child Pornography' 'production of Child Pornography' 'possession of Child Pornography' 'sexual Context Under S 91 H Crimes Act 1900' 'offensive Weapon to Hinder Apprehension']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Interlocutory Application / Application to Vacate or Withdraw Pleas of Guilty After Arraignment and Before Sentence

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to withdraw pleas of guilty to production and possession of child pornography because DPP v Annetts (2009) NSWCCA 86 was decided after the pleas were entered.' "Whether the pleas of guilty were uninformed because counsel's advice did not take account of Annetts." 'Whether the applicant lost a real opportunity for acquittal on the child pornography charges.']

Ratio Decidendi

The application was refused because counsel's original advice was adequate and the applicant's pleas were informed. Properly applying Annetts, the DVDs viewed contained more than enough material from which a jury could be satisfied of production and possession of child pornography: the material depicted persons under sixteen in a sexual context and in circumstances capable of causing offence to reasonable persons. The applicant therefore did not lose a real opportunity for acquittal and there was no risk of miscarriage of justice in refusing withdrawal of the pleas.

Court Disposition

Application to vacate or withdraw pleas of guilty refused.

Orders

  • ['The application to withdraw the plea of guilty to produce child pornography or possession of child pornography is refused.' 'Pleas of guilty will remain entered in respect of all three charges pleaded to on indictment.']