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Kearns v R

Kearns v R

Case [2011] NSWCCA 103 6 May 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kearns v R [2011] NSWCCA 103
Hearing dates: 15 December 2010
Decision date: 06 May 2011
Before: Giles JA at [1], Latham J at [97], Rothman J at [98]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW - appellant convicted for various offences of improperly obtaining money - subsequent appeal dismissed - case referred by Attorneys to be dealt with as appeal - grounds of appeal did not involve only question of law - whether leave to appeal necessary - differing obiter views - whether open to jury to be satisfied beyond reasonable doubt that appellant was an officer of companies - on facts was open - whether open to jury to be satisfied beyond reasonable doubt that appellant made knowingly false representations - on facts was open - whether trial judge asleep or apparently asleep during trial - whether jury distracted from attention to the evidence - not established that judge was asleep - on evidence, no more than occasional appearance that was asleep - no distraction of jury constituting miscarriage of justice.
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW);
Criminal Appeal Act 1912 (NSW);
Cases Cited: Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358;
Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338;
GAR v R (No 1) [2010] NSWCCA 163;
GAR v R (No 2) [2010] NSWCCA 164;
GAR v R (No 3) [2010] NSWCCA 165;
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125;
Mickelberg v The Queen (1989) 167 CLR 259;
The Queen v Nguyen [2010] HCA 38; (2010) 271 ALR 493;
R v Catt [2005] NSWCCA 279;
R v Chard (1984) AC 279;
R v JJT [2006] NSWCCA 283; (2006) 67 NSWLR 152.
Category: Principal judgment
Parties: James Gordon Kearns - Appellant
The Queen - Respondent
Representation: Counsel:
S G Finch SC- Applicant
W J Abraham QC & S G Callan - Crown
Solicitors:
In person - Appellant
Commonwealth Director of Public Prosecutions - Respondent

File Number(s): CCA 2007/00003309
Decision under appeal

Before:

Dodd DCJ

File Number(s):

02/11/0041

Judgment

GILES JA : This is a case referred under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW). For the reasons which follow, in my opinion the appeal should be dismissed.

Background

In the latter part of 2002 the appellant stood trial before Dodd DCJ and a jury on an indictment containing nine counts alleging breaches of the then Corporations Law (C'th) and the Crimes Act 1900 (NSW). The trial extended from 23 September 2002 to 2 December 2002. On the lastmentioned date the appellant was found guilty on all counts.

The offences arose from the appellant's conduct between 30 September 1994 and 18 May 1995 in relation to Nambucca Investments Pty Ltd…

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 Kearns v R

Details

AGLC: Kearns v R [2011] NSWCCA 103
Case: [2011] NSWCCA 103
Decision Date: 06 May 2011

CaseChat Overview and Summary

The case of Kearns v R involved the appellant, who had been convicted of various offences related to improperly obtaining money. The appellant appealed against his conviction, and the appeal was subsequently dismissed. However, the case was referred by the Attorneys-General for the Commonwealth and New South Wales to be dealt with as an appeal due to the nature of the grounds of appeal. The primary legal issues the court needed to address were whether leave to appeal was necessary, given that the grounds of appeal did not solely involve questions of law, and whether there was a miscarriage of justice during the trial.

The court examined whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was an officer of the companies involved. Based on the evidence presented, the court determined that it was indeed open to the jury to reach this conclusion. Similarly, the court assessed whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant made knowingly false representations. Again, the court found that this was open to the jury based on the facts presented. Additionally, the court considered whether the trial judge was asleep or appeared to be asleep during the trial, and whether this had distracted the jury from paying attention to the evidence. The court found that, while there were occasional appearances that the judge may have been asleep, this did not constitute a distraction of the jury that amounted to a miscarriage of justice.

The court dismissed the appeal and affirmed the conviction. The reasoning and findings of the court provided clarity on the issues of officer status, knowingly false representations, and the conduct of the trial judge, ensuring that the appellant's appeal was thoroughly assessed within the legal framework.

Orders