Keen v R

Case [2020] NSWCCA 59 17 April 2020

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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 counsel
Legislation 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 128
Cases 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 101
Category: Principal judgment
Parties: David Keen (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Odgers SC, R El Choufani (Applicant)
M Kumar (Respondent)
Solicitors:
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.…

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 Keen v R

Details

AGLC: Keen v R [2020] NSWCCA 59
Case: [2020] NSWCCA 59
Decision Date: 17 April 2020

CaseChat Overview and Summary

The appellant, Keen, appealed against his conviction on four counts of sexual assault. The appeal was heard by the Court of Appeal of the Supreme Court of South Australia. The central issue was whether there was a rational basis for the jury to acquit the appellant on three counts of sexual assault while convicting him on the fourth. The appellant argued that the verdicts were inconsistent and that there was no rational basis for the differing outcomes.

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