Kim v R [2015] NSWCCA 115

Kim v R [2015] NSWCCA 115

The applicant failed to establish any miscarriage of justice in the acceptance of his guilty plea. The Court preferred Mr Ricci's evidence over the applicant's evidence, found that the applicant was advised about the charge and the 'in company' element, and held that the applicant's own police interview admissions clearly established that others were assaulting the victim and that he joined in. Any challenge to proof of the 'in company' element would have been futile, and there was no basis for impugning the plea or the advice leading to it.

Jurisdiction
Australia
Judgment Date
27 May 2015
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal Against Conviction After Guilty Plea; Proposed Sentence Appeal Abandoned
Outcome
Leave to appeal against conviction granted; appeal dismissed.
Legal Topics
['recklessly Causing Grievous Bodily Harm in Company' 'guilty Plea' 'miscarriage of Justice' 'adequacy of Legal Advice' 'in Company Element']
['criminal Law' 'criminal Procedure' 'sentencing'] ['recklessly Causing Grievous Bodily Harm in Company' 'guilty Plea' 'miscarriage of Justice' 'adequacy of Legal Advice' 'in Company Element']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal Against Conviction After Guilty Plea; Proposed Sentence Appeal Abandoned

Legal Issues

  1. 1 ["Whether acceptance of the applicant's guilty plea resulted in a miscarriage of justice." 'Whether the applicant appreciated the nature of the charge to which the plea was entered.' "Whether the legal advice concerning the 'in company' element was correct and adequate." "Whether the applicant's admissions and the CCTV footage left a triable issue about the Crown's ability to prove the 'in company' element."]

Ratio Decidendi

The applicant failed to establish any miscarriage of justice in the acceptance of his guilty plea. The Court preferred Mr Ricci's evidence over the applicant's evidence, found that the applicant was advised about the charge and the 'in company' element, and held that the applicant's own police interview admissions clearly established that others were assaulting the victim and that he joined in. Any challenge to proof of the 'in company' element would have been futile, and there was no basis for impugning the plea or the advice leading to it.

Court Disposition

Leave to appeal against conviction granted; appeal dismissed.

Orders

  • ['Leave to appeal against conviction granted.' 'Appeal dismissed.']