Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Keen v R [2020] NSWCCA 59 Hearing dates: 27 March 2020 Decision date: 17 April 2020 Before: McCallum JA at [1];
Wilson J at [104];
Cavanagh J at [105]Decision: (1) Grant leave under rule 4 of the Criminal Appeal Rules (NSW) to rely on grounds 1 and 2.
(2) Grant leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to rely on ground 3.
(3) Dismiss the appeal.Catchwords: CRIME – appeals – appeal against conviction – allegedly inconsistent verdicts – whether there was a rational basis for the jury to acquit on three counts but convict on a fourth
CRIME – appeals – appeal against conviction – alleged miscarriage of justice due to failure to give a Markulski direction – whether case properly characterised as a word against word case involving multiple counts resting on the evidence of a single Crown witness – consideration of the principle for which Markuleski stands
CRIME – appeals – application of rule 4 of the Criminal Appeal Rules – admissibility of evidence from trial defence counselLegislation Cited: Crimes Act 1900 (NSW) ss 93T(4A), 193B(2)
Criminal Appeal Act 1912 (NSW) ss 5(1)(b), 6(1)
Criminal Appeal Rules (NSW) r 4
Drug Misuse and Trafficking Act 1985 (NSW) ss 24(2), 25(1)
Evidence Act 1995 (NSW) s 128Cases Cited: Alkhair v R [2016] NSWCCA 4
Amos v R [2014] NSWCCA 302
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Ganiji v R [2019] NSWCCA 208
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
Haidari v R [2015] NSWCCA 126
Hajje v R [2006] NSWCCA 23
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
JPM v R [2019] NSWCCA 301
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mortada v R [2014] NSWCCA 36
Nudd v The Queen [2006] HCA 9
R v Hines (1991) 24 NSWLR 737
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Stone (UK Court of Criminal Appeal, Devlin J, 13 December 1954, unreported)
RGM v R [2012] NSWCCA 89
RWC v R [2013] NSWCCA 58
SM v The Queen [2016] NSWCCA 171
Wong v R [2009] NSWCCA 101Category: Principal judgment Parties: David Keen (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
S Odgers SC, R El Choufani (Applicant)
M Kumar (Respondent)
O’Brien Hudson Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2014/368988 Publication restriction: None Decision under appeal
- Court or tribunal:
- District Court of New South Wales, Sydney
- Jurisdiction:
- Criminal
- Date of Decision:
- 11 August 2017
- Before:
- Tupman DCJ
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, David Keen, was tried on an indictment containing 15 counts variously alleging the supply or manufacture of prohibited drugs (amphetamine and methylamphetamine) and related offences.…
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- AGLC
- Keen v R [2020] NSWCCA 59
- Case
- [2020] NSWCCA 59
- Decision Date
CaseChat Overview and Summary
The court considered the principle for which the Markulski direction stands, which pertains to the requirement for a judge to direct a jury in cases involving conflicting evidence, particularly when the case rests on the evidence of a single witness. The court examined whether the case should be characterised as a word against word case involving multiple counts based on the evidence of a single Crown witness. The court also addressed the admissibility of evidence from trial defence counsel under rule 4 of the Criminal Appeal Rules.
The court found that there was a rational basis for the jury's verdicts, as they could reasonably differentiate between the counts based on the evidence presented. The court concluded that the case did not require a Markulski direction because the evidence did not solely rest on the testimony of a single witness. Furthermore, the court held that the evidence from trial defence counsel was inadmissible as it did not meet the criteria under rule 4 of the Criminal Appeal Rules. The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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