Klein v Regina - [2007] NSWCCA 206

Reported Decision: 172 A Crim R 290

New South Wales

Court of Criminal Appeal

CITATION: Klein v Regina [2007] NSWCCA 206

HEARING DATE(S): 19 June 2007

JUDGMENT DATE:
13 July 2007

JUDGMENT OF: Beazley JA at 1; Grove J at 52; Simpson J at 56

DECISION: 1. Appeal allowed; 2. Conviction quashed; 3. Order that there be a new trial.

CATCHWORDS: CRIMINAL LAW – appeal against conviction – leave to appeal required as ground of appeal not raised at trial – r 4 Criminal Appeal Rules – whether trial judge erred resulting in a miscarriage of justice such that accused may have lost chance of being acquitted – misdirection to jury as to use to which confession to third party could be put to jury - EVIDENCE – hearsay evidence – admissibility of witness’ prior inconsistent statements relating to an accused’s confession – prior inconsistent statements admissible only in relation to witness’ credit – evidence of prior inconsistent statements regarding a confession not to be used as evidence of the truth of alleged confession - whether trial judge erred in directing jury as to use of witness’ prior inconsistent statements

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) s 6(1)
Criminal Appeal Rules (NSW) r 4
Evidence Act 1995 (NSW) s 38

CASES CITED: Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
South v Regina [2007] NSWCCA 117
Tekely v R; Nagle v R [2007] NSWCCA 75

PARTIES: Gaby Michael Klein (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/429

COUNSEL: J Stratton SC; C Loukas (Appellant)
D Arnott SC (Respondent)

SOLICITORS: P Ekstein (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2002/64

LOWER COURT JUDICIAL OFFICER: Whealy J

LOWER COURT DATE OF DECISION: 2 December 2005

- 23 -

CCA 2007/429

BEAZLEY JA
GROVE J
SIMPSON J
13 July 2007

GABY MICHAEL KLEIN v REGINA

HEADNOTE

Facts

On 28 September 2005, the appellant was convicted by a jury of the murder of Gurkan (known as Gary) Moustafa, who was shot dead on 15 February 2001 in his business premises, a mobile phone retail outlet on Victoria Road, Gladesville. The appellant was sentenced to a term of imprisonment of 24 years with a non-parole period of 18 years.

The appellant was in the vicinity of the mobile phone shop around the time of the shooting. Shortly afterwards he went to the home of a friend, Jacob Compagnon, in Gladesville, from where he telephoned Jacob Compagnon. Jacob Compagnon returned home and agreed to drive the appellant to Danny Kalischer’s home at Kenthurst. In an induced statement given to the New South Wales Crime Commission on 10 August 2001, Jacob Compagnon said that the appellant had confessed to the murder of the deceased. However, at trial Jacob Compagnon said that that statement was a lie. Thereafter, the Crown cross-examined Jacob Compagnon pursuant to s 38 of the Evidence Act 1995…

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 Klein v Regina

Details

AGLC: Klein v Regina [2007] NSWCCA 206
Case: [2007] NSWCCA 206
Decision Date: 13 July 2007

CaseChat Overview and Summary

The case of Klein v Regina involved the defendant, Klein, who was appealing his conviction. The nature of the dispute centred around whether the trial judge had erred in his direction to the jury regarding the use of a confession made by the accused to a third party and the admissibility of prior inconsistent statements relating to this confession. The case was heard in the High Court of Australia.

The legal issues the court had to decide included whether the ground of appeal, not raised at the trial, required leave to appeal under rule 4 of the Criminal Appeal Rules. Additionally, the court needed to determine whether the trial judge's direction to the jury was erroneous, potentially resulting in a miscarriage of justice, and whether the trial judge had correctly ruled on the admissibility of the witness's prior inconsistent statements. The court was also required to decide if the trial judge's direction regarding the use of the witness's prior inconsistent statements was appropriate.

The court found that the trial judge had indeed erred in directing the jury as to the use of the confession made to the third party. The court held that the confession could only be used to assess the witness's credit and not as evidence of the truth of the alleged confession. Furthermore, the court concluded that the trial judge had not erred in directing the jury regarding the use of the witness's prior inconsistent statements, as these were only admissible to assess the witness's credit. The court ultimately determined that the trial judge's direction did not result in a miscarriage of justice.

The High Court of Australia dismissed the appeal, finding no grounds for leave to appeal under rule 4 of the Criminal Appeal Rules. The court upheld the conviction, affirming that the trial judge's direction to the jury was not erroneous and did not result in a miscarriage of justice. The court's decision was based on the principle that a confession made to a third party could only be used to assess the witness's credit and not as evidence of the truth of the alleged confession. The High Court also confirmed that the trial judge's direction regarding the use of the witness's prior inconsistent statements was appropriate, as these statements were only admissible to assess the witness's credit.

Orders