Kerin v The Queen - [2022] SASCA 19

Supreme Court of South Australia
(Court of Appeal: Criminal)
KERIN v THE QUEEN
[2022] SASCA 19
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice David and the Honourable Justice Nicholson)
17 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL - WHERE NEW TRIAL ORDERED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - GENERALLY
On 21 February 2014, following a trial by judge alone, the appellant was convicted of two counts of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The appellant appealed against his conviction on five grounds. The application for permission to appeal was over seven years out of time. Therefore, the appellant required an extension of time to appeal his convictions.
On appeal, the respondent conceded both the application for an extension of time and the appeal on Ground 5 in relation to both counts. Ground 5 alleged that a miscarriage of justice occurred because fresh evidence, not available to the appellant at trial, would likely have affected the verdicts. Accordingly, it was not necessary for this Court to consider the merits of the other grounds of appeal.
The remaining issue is whether the Court should direct verdicts of acquittal to be entered or order a new trial.
Held, per the Court, allowing the appeal on Ground 5:
1.      The appellant is granted an extension of time within which to seek permission to appeal.
2.      The convictions on Counts 1 and 2 are quashed.
3.      A new trial is ordered on Counts 1 and 2.
4.      The compensation order made by the trial Judge on 11 June 2014 is untouched.
Criminal Law (Sentencing) Act 1988 (SA) s 53; Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Procedure Act 1921 (SA) s 158; Evidence Act 1929 (SA) ss 34CB, 34P; Powers of Attorney and Agency Act 1984 (SA) s 7, referred to.
Anderson v The Queen (1991) 53 A Crim R 421; Andrews v The Queen (1968) 126 CLR 198; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Gerakiteys v The Queen (1984) 153 CLR 317; Gilham v The Queen (2012) 224 A Crim R 22; Jiminez v The Queen (1992) 173 CLR 572; King v The Queen (1986) 161 CLR 423; Peacock v The King (1911) 13 CLR 619; R v Drummond (No 2) [2015] SASCFC 82; R v Kerin [2014] SASC 19; R v Leak [1969] SASR 172; R v Taufahema (2007) 228 CLR 232; Reid v The Queen [1980] AC 343; The Queen v Slobodian (1982) 30 SASR 161,…

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 Kerin v The Queen

Details

AGLC: Kerin v The Queen [2022] SASCA 19
Case: [2022] SASCA 19
Decision Date: 17 March 2022

CaseChat Overview and Summary

In *Kerin v The Queen*, the Court of Appeal of the Supreme Court of New South Wales considered an appeal by the applicant against his convictions for property offences. The specific nature of the property offences and the factual dispute are not detailed in the provided text, but the appeal concerned the applicant's convictions on two counts.

The central legal issues before the Court of Appeal were whether the convictions on Counts 1 and 2 were unsafe or unsatisfactory, and consequently, what orders should be made in relation to those convictions. The Court was required to determine whether to uphold the convictions, quash them and enter a verdict of acquittal, or order a new trial.

The Court, allowing the appeal on Ground 5, determined that the convictions on Counts 1 and 2 were unsafe or unsatisfactory. Consequently, the Court quashed these convictions. However, rather than entering a verdict of acquittal, the Court ordered a new trial on Counts 1 and 2. The compensation order made by the trial judge was affirmed and remains unaffected by the appeal.

Orders

Orders of the court

Held, per the Court, allowing the appeal on Ground 5:

1. The appellant is granted an extension of time within which to seek permission to appeal.

2. The convictions on Counts 1 and 2 are quashed.

3. A new trial is ordered on Counts 1 and 2.

4. The compensation order made by the trial Judge on 11 June 2014 is untouched.

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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