Kelly v The King

Case [2024] VSCA 69
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2023 0137
IAN MAXWELL KELLY Applicant
v
THE KING Respondent

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JUDGES: PRIEST, BEACH and BOYCE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 12 April 2024
DATE OF JUDGMENT: 22 April 2024
MEDIUM NEUTRAL CITATION: [2024] VSCA 69
JUDGMENT APPEALED FROM: DPP v Kelly [2023] VCC 993 (Judge Murphy)

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CRIMINAL LAW – Appeal – Conviction – Cultivating a commercial quantity of cannabis – Admissibility of guilty plea entered at committal – Alleged failure of the applicant’s solicitor to explain the necessary mental element of the charge – Whether unfair to admit evidence of guilty plea – Where applicant failed to call solicitor to give evidence on voir dire – No error in failing to exclude evidence of guilty plea – Evidence Act 2008 s 90 – Jones v Dunkel (1959) 101 CLR 298 – Em v The Queen (2007) 232 CLR 67.

CRIMINAL LAW – Appeal – Conviction – Cultivating a commercial quantity of cannabis – Whether prosecutor invited forbidden reasoning from defence failure to call witness – Whether judge failed to correct prosecutor’s error – Jury Directions Act 2015 ss 41, 42.

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Counsel
Applicant: Mr M D Stanton and Mr J Riordan
Respondent: Ms S Lenthall

Solicitors
Applicant: Haines and Polites
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

  1. At about 9.50 am on 5 November 2020, police executed a search warrant at the applicant’s residential premises in Frankston and located just over 33.6 kilograms of cannabis — a commercial quantity[1] — comprising 1.919 kilograms of dried cannabis, and 79 cannabis plants weighing a total of 31.7 kilograms.  Police also located an electricity bypass, permitting the applicant to unlawfully appropriate electricity to supply lighting necessary for the cultivation of cannabis.  As a result, police charged the applicant with a number of offences, including cultivating a commercial quantity of cannabis.

    [1]A commercial quantity of cannabis is 25 kilograms or 100 plants.  See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 2, column 2.

  2. When the charges laid by police came before the Magistrates’ Court for committal mention on 5 May 2021, the applicant was represented by a solicitor experienced in criminal law.  The applicant’s solicitor informed the magistrate that the matter had resolved and the parties were seeking a date for a guilty plea in the County Court.  Notably, a charge of trafficking in a commercial quantity of cannabis was withdrawn, and, after amendments were made to the three charges that were to proceed — cultivating a commercial quantity of cannabis, trafficking a drug dependence and theft of electricity — the applicant’s solicitor advised the magistrate that the prosecution summary was accepted.[2]  The hand-up brief was then tendered, and the magistrate indicated that there was sufficient evidence to put the applicant on trial.[3]  Upon being read the charges, the applicant was asked how he pleaded.  The applicant then pleaded guilty to all three charges.

    [2]See Criminal Procedure Act 2009 (‘CPA’),…

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Ian Maxwell Kelly v The King [2024] VSCA 69
Case
[2024] VSCA 69
Decision Date

CaseChat Overview and Summary

The matter of Kelly v The King involved an appeal against a conviction for cultivating a commercial quantity of cannabis. The central issues included the admissibility of a guilty plea entered at committal and the fairness of admitting such evidence given the applicant's solicitor's alleged failure to explain the necessary mental element of the charge. Additionally, the appeal raised concerns about whether the prosecutor invited the jury to engage in forbidden reasoning regarding the defence's failure to call a particular witness and whether the judge failed to correct such an error.

The court addressed the first issue by examining whether it was unfair to admit the evidence of the guilty plea, considering the applicant's solicitor did not testify on voir dire. The court determined that there was no error in admitting the plea because the applicant failed to call the solicitor to give evidence. The court also referred to the Evidence Act 2008 and the precedent set in Jones v Dunkel and Em v The Queen. Regarding the second issue, the court analysed whether the prosecutor's final address to the jury violated Section 42 of the Jury Directions Act 2015, which prohibits certain statements and suggestions in relation to an accused who does not give evidence or call a witness. The court concluded that the prosecutor did not invite the jury to reason in a manner forbidden by the statute.

The court found no error in the prosecutor's final address and no failure by the judge to correct any prohibited suggestion. As a result, both grounds of appeal were without substance. Consequently, the court refused leave to appeal against the conviction.

The final orders of the court were that leave to appeal against the conviction was refused, and the conviction stood affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 42 of the JDA provides:42Prohibited statements and suggestions in relation to accused who does not give evidence or call witnessThe trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may—(a) conclude that the accused is guilty from that fact; or(b)use the failure of the accused to provide an explanation of facts, which must be within the knowledge of the accused, to more safely draw an adverse inference based on those facts which, if drawn, would prove the guilt of the accused; or(c)draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case. In our opinion, the prosecutor did not invite the jury to reason in a manner forbidden by s 42. Nothing the prosecutor said suggested that the jury could: conclude that the applicant was guilty from the fact that he did not ‘call a particular witness’; use the failure of the applicant to provide an explanation of facts, which must be within his knowledge, ‘to more safely draw an adverse inference based on those facts’; or draw an inference that he did not call a witness ‘because that would not have assisted his or her case’. Indeed, it is clear that the prosecutor made no reference to the applicant’s failure to call his former lawyer or his wife, emphasising that the jury must not speculate. We consider that, in the passage from his address set out above, the prosecutor would have been understood by the jury to be submitting no more than that, in the absence of any evidence to the contrary, the jury could infer from the fact that the applicant entered the plea when in the former solicitor’s office that the applicant and the solicitor must have discussed the case, and that the solicitor must have told the applicant what the elements were of the charge of cultivating a commercial quantity of cannabis. So understood, that submission, in our view, invited a legitimate form of inferential reasoning. In our opinion, in the absence of evidence to the contrary, in a case such as the present, it might ordinarily be inferred that a lawyer will properly have advised his or her client as to the elements of a given offence before inviting or permitting the client to plead to the charge. Since the prosecutor’s final address to the jury did not infringe s 42, there was no occasion for the judge under s 7(1)(a) of the JDA ‘to correct a statement or suggestion by the prosecution … that is prohibited by [the] Act’. Certainly there was no error or irregularity in the trial constituted by the prosecutor having made a prohibited suggestion in his final address, or by any failure by the judge to give a corrective direction. Ground 2 must fail. Neither ground has substance. Leave to appeal against conviction must therefore be refused.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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