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AKB v The King

AKB v The King

Case [2024] NSWCCA 169 6 September 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AKB v R [2024] NSWCCA 169
Hearing dates: 22 September 2023
Date of orders: 6 September 2024
Decision date: 06 September 2024
Before: Gleeson JA at [1]
Walton J at [113]
Dhanji J at [114]
Decision:
(1) Grant leave to appeal, including an extension of time.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against conviction –murder – death by thermal injury – where Crown relied on alternative acts causing death – extent to which jury unanimity required – where standard unanimity direction given – where direction given with respect to alternative intentional acts causing death – whether failure to direct jury as to requirement of unanimity as to specific act causing death

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8(1)(e)
Crimes Act 1900 (NSW), s 18
Criminal Appeal Act 1912 (NSW), s 5(1)(a)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Chapman v The Queen [2013] NSWCCA 91; (2013) 232 A Crim R 500
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (2020) 275 FCR 342; [2020] FCAFC 30
Fermanis v The State of Western Australia (2007) 33 WAR 434; [2007] WASCA 84
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 290 A Crim R 570
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Lane v R [2017] NSWCCA 46
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Magnus v R (2013) 41 VR 612; [2013] VSCA 163
Pratten v R [2014] NSWCCA 117
Question of Law Reserved No 1 of 2022 [2023] SASCA 109
Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130
R v AKB (No 8) [2018] NSWSC 1628
R v Boreman [2000] 1 All ER 307
R v Brown (1984) 79 Cr App R 115
R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198
R v Heaney (2009) 22 VR 164; (2009) 194 A Crim R 562
R v Klamo (2008) 18 VR 64; [2008] VSCA 75
R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177
R v Mead [2002] 1 NZLR 594
R v More (1988) 86 Cr App R 234
R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179

Category: Principal judgment
Parties: AKB (Applicant)
Crown (Respondent)
Representation:
Counsel:
T F Woods (Applicant)
E Balodis (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/311049
Publication restriction:
By order made in the Supreme Court of…

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 AKB v The King

Details

AGLC: AKB v The King [2024] NSWCCA 169
Case: [2024] NSWCCA 169
Decision Date: 06 September 2024

CaseChat Overview and Summary

In the case of AKB v The King, the appellant, AKB, was convicted of murder by the Supreme Court of Victoria. The victim suffered death by thermal injury, and the Crown presented alternative acts which could have caused the death. The appeal focused on the necessity for jury unanimity regarding the specific act that caused the death, given that the standard unanimity direction was given in relation to the alternative intentional acts.

The primary legal issue before the court was whether the trial judge was required to direct the jury to achieve unanimity on the specific act that caused the death, despite the general unanimity direction regarding alternative intentional acts. The court needed to determine if the failure to give such a specific direction constituted a material irregularity that could potentially affect the safety of the conviction.

The court concluded that while the trial judge had given a standard unanimity direction, there was an additional requirement to specifically direct the jury on the necessity of unanimity concerning the particular act that caused the death. The omission of this specific direction was deemed significant, as it could potentially lead to a situation where the jury reached a verdict without unanimity on the specific act causing death. This defect in the trial process was considered a material irregularity that undermined the safety of the conviction, warranting a new trial. The court thus quashed the conviction and ordered a retrial, emphasizing the importance of ensuring that the jury is properly directed on the requirement of unanimity as to the specific act that caused the death.

Orders