Legal Research
Cases
KE v The Queen

KE v The Queen

Case [2021] NSWCCA 119 14 July 2021

Appeal

Miscarriage of Justice

Judicial Review

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: KE v R [2021] NSWCCA 119
Hearing dates: 17 May 2021
Date of orders: 14 July 2021
Decision date: 14 July 2021
Before: Garling J at [1]
Beech-Jones J at [102]
N Adams J at [108]
Decision:
(1)   Grant leave to appeal.
(2)   Quash the verdicts of guilty returned by the jury on the 4th to 7th counts on the Amended Indictment.
(3)   Order that the appellant be retried.
(4)   List the proceedings before the District Court on Friday 23 July 2021 for further directions.

Catchwords:
CRIME – appeals – appeal against conviction – where a majority verdict direction was given instead of a Black direction – whether a miscarriage of justice occurred by the failure to give a Black direction – direction was not a proper perseverance direction – appeal allowed – quash the verdicts of guilty returned by the jury – retrial ordered

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Jury Act 1977

Cases Cited:
Adams v R [2018] NSWCCA 303
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
CA v R [2019] NSWCCA 166
Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541
GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
Hanna v R [2008] NSWCCA 173; (2008) 191 A Crim R 302
R v Dann [2000] NSWCCA 185
R v KE [2019] NSWDC 349
Regina v RTB [2002] NSWCCA 104
Regina v Skaf, Ghanem & Hajeid [2004] NSWCCA 74
RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100
Tabalbag v R [2016] NSWCCA 48; (2016) 258 A Crim R 240

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: KE (Applicant)
The Crown
Representation:
Counsel:
D Barrow (Applicant)
M Millward (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/24014
Publication restriction: Pseudonym order made 17 May 2021
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 July 2019

Before:

Grant DCJ

File Number(s):

2018/24014

Judgment

GARLING J: The applicant (who has been given a pseudonym to protect the juvenile victim of his crimes) was found guilty by a jury of four offences, each consisting of aggravated sexual intercourse with a child between the ages of 14 and 16 whilst that child was under his authority. This is an offence contrary s 66C(4) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 12 years. The standard non-parole period of 5 years applies.
The jury returned verdicts of not guilty with respect to the three other counts on the Indictment.
An aggregate sentence was imposed of 12 years imprisonment with a non‑parole period of 8 years and 6 months. Indicative sentences for two of the counts comprised 3 years and 6 months with a non-parole period of 2 years and 7 months, and for the other…

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 KE v The Queen

Details

AGLC: KE v The Queen [2021] NSWCCA 119
Case: [2021] NSWCCA 119
Decision Date: 14 July 2021

CaseChat Overview and Summary

KE was convicted of multiple serious offences, and subsequently appealed against the conviction. The appeal centred around the trial judge's direction to the jury instead of giving a direction as outlined in the case of Black. The legal issue was whether the trial judge's direction resulted in a miscarriage of justice. The court had to consider whether the direction given was a proper perseverance direction, and if the failure to give a Black direction resulted in a miscarriage of justice.

The court found that the direction given by the trial judge was not a proper perseverance direction as it did not require the jury to consider whether they were able to follow the trial judge's direction. The court further found that the failure to give a Black direction resulted in a miscarriage of justice, as it meant that the jury was not properly directed in relation to the standard of proof required for the verdicts of guilty. The court held that the trial judge ought to have given a Black direction, and that the failure to do so resulted in a miscarriage of justice.

As a result of the above findings, the court allowed the appeal, quashed the verdicts of guilty returned by the jury and ordered a retrial. The court found that the error in the direction given to the jury was not a minor error, but rather a fundamental error that went to the heart of the trial. The court held that the only appropriate remedy was to allow the appeal, quash the verdicts of guilty, and order a retrial. The court did not find it necessary to order a new trial as the evidence was still fresh in the minds of the witnesses and the parties.

Orders