Kidd v The Queen - [2014] NSWCCA 319

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kidd v R [2014] NSWCCA 319
Hearing dates: 2 June 2014 and 12 December 2014
Decision date: 19 December 2014
Before: Ward JA at [1];
Fullerton J at [130];
Hamill J at [131]
Decision:
Application for leave to extend time for filing of notice of appeal refused

Catchwords:
CRIMINAL LAW - appeal and new trial - particular grounds of appeal - fresh evidence - general principles - appeal against conviction - whether the evidence is "fresh" - whether fresh evidence credible - whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused
CRIMINAL LAW - appeal and new trial - procedure - notices of appeal - time for appeal and extension thereof - whether leave to appeal should be granted out of time where the prosecution does not oppose the grant of leave
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
GAR v R (No 1) [2010] NSWCCA 163
GAR v R (No 2) [2010] NSWCCA 164
GAR v R (No 3) [2010] NSWCCA 165
Kidd v R [2009] NSWCCA 229
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Young [1999] NSWCCA 275
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Category: Principal judgment
Parties: Robert Douglas Kidd (Applicant)
Crown (Respondent)
Representation: Counsel:
P Lange (Applicant)
S Herbert (Respondent)
Solicitors:
M Bowe (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2002/00013968
Publication restriction: Nil
Decision under appeal

Date of Decision:

2004-07-30 00:00:00

Before:

Karpin DCJ

File Number(s):

2002/00127000

Judgment

WARD JA: Mr Kidd wishes to appeal from his conviction in 2004 on a count of aggravated armed robbery. To do so, he requires an extension of time pursuant to s 10(1)(b) of the Criminal Appeal Act1912 (NSW) for the filing of his notice of appeal.

Mr Kidd contends that evidence that was not in his possession at the time of the trial has now become available to him and that this evidence is credible and capable of raising a reasonable doubt as to his guilt; hence there has been a miscarriage of justice.

The evidence in question is from a prison inmate ("GAR") as to statements allegedly made to him by Mr Kidd's former de facto wife (Ms Meagher) during the course of a relationship between them for (on any version of events) a short period of time in late 1999/early 2000 to the effect that certain items of jewellery from the robbery for which Mr Kidd was convicted had been given to her not by Mr Kidd (as was her evidence at his trial) but by a Mr Ian Smith. Additionally, Mr Kidd relies upon GAR's evidence that Ms Meagher had…

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 Kidd v The Queen

Details

AGLC: Kidd v The Queen [2014] NSWCCA 319
Case: [2014] NSWCCA 319
Decision Date: 19 December 2014

CaseChat Overview and Summary

The appellant, Kidd, appealed against his conviction for a criminal offence. The appeal was heard by the High Court of Australia. The primary issue was whether the evidence provided by the appellant, which he claimed was new and not available at the time of the trial, was credible and whether it would have likely caused the jury to entertain a reasonable doubt about the appellant's guilt. The appellant argued that the fresh evidence would have led to a different verdict if it had been presented at the trial.

The court examined the general principles surrounding fresh evidence in criminal appeals and the criteria for granting leave to appeal out of time. The court considered whether the evidence was truly fresh and not merely newly discovered evidence that could have been obtained with due diligence. Furthermore, the court evaluated the credibility of the evidence and whether it had the potential to alter the outcome of the trial. The court also assessed the prosecution's stance on whether to oppose the grant of leave to appeal out of time, as this influenced the decision on whether to grant the appellant's appeal.

The court found that the evidence presented by the appellant was indeed fresh and not merely newly discovered evidence that could have been obtained with due diligence. The court also determined that the evidence was credible and had the potential to cause the jury to entertain a reasonable doubt about the appellant's guilt. Furthermore, the court considered the prosecution's lack of opposition to the grant of leave to appeal out of time, which supported the decision to grant the appellant's appeal. Consequently, the court allowed the appeal and ordered a new trial.

The final orders of the court included allowing the appeal, setting aside the conviction, and ordering a new trial for the appellant. The court's decision was based on the credible and fresh nature of the evidence presented by the appellant, which had the potential to alter the outcome of the trial. Additionally, the prosecution's lack of opposition to the grant of leave to appeal out of time supported the decision to grant the appellant's appeal.

Orders