Kenney v The Queen; Perkins v The Queen - [1990] HCATrans 182

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A9 of 1990
B e t w e e n -
IRENE KENNEY
Applicant

and
THE QUEEN
Respondent

Office of the Registry

Adelaide No All of 1990
B e t w e e n -
WESLEY HAROLD PERKINS
Applicant

and
THE QUEEN
Respondent

Applications for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY. 22 AUGUST 1990. AT 10,18 AM

Kenney

22/8/90

MR s. TILMOUTH. QC: May it please the Court, I appear with
my learned friend, MS T.M. JOHNSON, for the
applicant Kenney. (instructed by the Legal
Services Commission)

MS M. SHAW: May it please the Court,! appear with my
learned friend, MR M.A. GRIFFIN, for the applicant
Perkins. (instructed by Rainford and Associates)

MR J.J .. DOYLE, OC, Solicitor-General for the State of South
Australia: If the Court pleases, I appear with
MSG. DAVISON. for the respondent in both matters.
(instructed by the Crown Solicitor for the State of
South Australia.

MASON CJ: Yes, Mr Tilmouth.

MR TILMOUTH: May it please Your Honours, I understand
Your Honours already have the outline of
submissions.

MASON CJ: We have.

MR- TILMOUTH: May it please the Court, the appeal obviously
from the outline focuses upon the evidence of one
witness, a Crown witness who gave evidence against
Mrs Kenney at her trial, and the effect of that evidence, was on one reading of it at least,
virtually a complete confession; on another
reading, in any event, it was clearly very damaging
evidence to her.
Your Honours, the witness in question was the

witness Turrell and very briefly before going to
his evidence for a few passages, his relationship
with Mrs Kenney was as followaa he knew the
Kenney• for some years beforehand through their son

fr011l school days apparently. He also at relevant
times was living with and later married a woman by
the name of Shearer. Shearer was related to Mr
Kenney who, of course, died in the fire in August
1987. It followed, therefore, that Turrell knew
through those two avenues the Kanney• in a general

kind of way. What had happened however, Your Honours, was
that when Shearer left the man who i• referred to
throughout the paper as Raad she took up living almost 'mediately with Turrell and there was a
great deal of acrimony, animosity, squabbles over
custody of a child and so on, to the point where
Raad was harassing them and indNd to a point where
Turrell acquired an illegal sawn-off shotgun to protect th- fr011l him, such was their degree of fear of Raad.

Kenney 2 22/8/90

The involvement of Read was - and it runs

like a thread throughout the whole of the
evidence - that he was an intermediary between
Perkins, whose house was burnt of course, and Mr
Kenney on the Crown case who…

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.

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Details

Case: [1990] HCATrans 182
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard appeals from Wesley Harold Perkins and Mrs Kenney, with the respondent in both matters being the State of South Australia. The dispute concerned the admissibility and effect of evidence given by a Crown witness, Mr Turrell, at the trials of Mrs Kenney and Mr Perkins. Mr Turrell's evidence was described as potentially a complete confession or, at least, highly damaging to the defence.

The central legal issue before the Court was the impact of Mr Turrell's evidence, particularly in light of his relationship with the Kenney family and his own legal troubles. The Court was required to consider whether this evidence, which touched upon the circumstances surrounding a fire at Mr Perkins' house and the death of Mr Kenney, was properly admitted and how it should be assessed. The evidence also involved a third party, Mr Read, who acted as an intermediary between Mr Perkins and Mr Kenney, and whose own involvement in the fire was largely based on hearsay.

The Court's reasoning focused on the circumstances under which Mr Turrell gave his evidence to the police. It was submitted that at the time of questioning, Mr Turrell was facing potentially serious charges related to an incident where a firearm discharged, injuring a woman named Shearer. This situation, it was argued, could have influenced his testimony against Mrs Kenney and Mr Perkins, suggesting a possible motive for him to provide evidence favourable to the prosecution. The defence contended that the damaging nature of Mr Turrell's evidence, coupled with the potential for bias arising from his personal circumstances, raised significant questions about its reliability and admissibility.

Orders