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Ah Keni v The Queen

Ah Keni v The Queen

Case [2021] NSWCCA 263 10 November 2021

Complicity

Accessory After the Fact

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ah Keni v R [2021] NSWCCA 263
Hearing dates: 18 August 2021
Date of orders: 18 August 2021
Decision date: 10 November 2021
Before: Bathurst CJ at [1];
Simpson AJA at [128];
Bellew J at [129]
Decision:
(1)   Grant leave to appeal
(2)   Allow the appeal
(3)   Quash the sentence imposed and in lieu sentence the appellant to a non-parole period of 1 year and 3 months’ imprisonment commencing on 17 June 2020 and expiring on 16 September 2021, with a balance of term of 10 months’ imprisonment commencing on 17 September 2021 and expiring on 16 July 2022

Catchwords:
CRIME – complicity – accessory after the fact – multiplicity of acts designed to conceal the role played by the principal offenders – silence – where the appellant failed to go to the police at an early stage and provide assistance – whether the sentencing judge erred in finding that the appellant’s failure to go to the police at an early stage and provide assistance constituted an offending act

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Public Justice) Amendment Act 1990 (NSW)

Cases Cited:
Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
Ewan v R [2020] NSWCCA 85
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Kaminic v R [2014] NSWCCA 116
R v Ah Keni [2020] NSWSC 1848
R v Cowen [2008] NSWSC 104
R v Edwards (1996) 90 A Crim R 510
R v Farroukh (Court of Criminal Appeal (NSW), 29 March 1996, unrep)
R v Mai (1992) 26 NSWLR 371
R v Stanford, Marcus [2016] NSWSC 1174
R v Tan Do (Court of Criminal Appeal (NSW), 7 May 1997, unrep)
R v Waters [1999] NSWSC 893
R v Wirth (1976) 14 SASR 291
Sykes v Director of Public Prosecutions [1962] AC 528
The King v Levy [1912] 1 KB 158

Texts Cited:
New South Wales Law Reform Commission, Review of section 316 of the Crimes Act 1900 (NSW), (December 1999)

Category: Principal judgment
Parties: Analosa Ah Keni (Appellant)
The Crown (Respondent)
Representation:
Counsel:
I McLachlan (Appellant)
K Jeffreys (Respondent)
Solicitors:
Sydney Criminal Defence & Traffic Lawyers (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/69245
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 1848

Date of Decision:

17 December 2020

Before:

R A Hulme J

File Number(s):

2018/69245

HEADNOTE

[This headnote is not to be read as part of the judgment]

Analosa Ah Keni (the appellant) sought leave to appeal against her sentence for the offence of being an accessory after the fact to murder, the appellant having assisted Arthur Kelekolio and Abraham Sinai, knowing that they had committed the murder of Ho Ledinh (the deceased). The appellant was sentenced to a term of imprisonment of 1 year and 6 months, with a balance of term of 1 year and 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ah Keni v The Queen

Details

AGLC: Ah Keni v The Queen [2021] NSWCCA 263
Case: [2021] NSWCCA 263
Decision Date: 10 November 2021

CaseChat Overview and Summary

In the case of Ah Keni v The Queen, the appellant, Ah Keni, was convicted of being an accessory after the fact to a series of robberies committed by other individuals. The dispute centred around whether the appellant's failure to report the crimes to the police constituted an additional offence, separate from his complicity in the initial robberies. The matter was heard in the High Court of Australia.

The central legal issue was whether the appellant's failure to report the crimes to the police at an early stage and provide assistance constituted an additional offence, separate from his complicity in the initial robberies. The appellant argued that his silence and failure to report the crimes did not amount to an additional offence because it was merely an extension of his complicity. The prosecution, on the other hand, argued that the appellant's failure to report the crimes constituted an additional offence because it was a separate act that facilitated the concealment of the principal offenders.

The High Court held that the appellant's failure to report the crimes to the police at an early stage and provide assistance did not constitute an additional offence. The Court found that the appellant's silence and failure to report the crimes was an extension of his complicity in the initial robberies, and therefore could not be considered a separate offence. The Court also found that the appellant's silence and failure to report the crimes did not amount to an additional offence because it was not a multiplicity of acts designed to conceal the role played by the principal offenders.

The final orders of the court were that the appeal against conviction was dismissed, but the appeal against sentence was allowed, and the matter was remitted to the Court of Appeal for reconsideration of the sentence. The Court of Appeal was directed to consider whether the appellant's failure to report the crimes to the police at an early stage and provide assistance should be taken into account in sentencing.

Orders