R v Kaddour - [2004] NSWCCA 361

Reported Decision:
148 A Crim R 597
61 NSWLR 378

New South Wales

Court of Criminal Appeal

CITATION: REGINA v Kalid KADDOUR [2004] NSWCCA 361

HEARING DATE(S): 12 October 2004

JUDGMENT DATE:
12 October 2004

JUDGMENT OF: Spigelman CJ at 1; Buddin J at 25; Smart AJ at 26

DECISION: Access granted

CATCHWORDS: CRIMINAL LAW - Circumstances in which identity of juror may be disclosed - Proper interpretation of s68 of Jury Act - Whether word "person" includes a court - Whether circumstances listed in s68 are exhaustive - Disclosure permitted where necessary to establish whether or not there has been a significant miscarriage of justice

LEGISLATION CITED: Jury Act 1977
Securities Industry Act 1975

CASES CITED: Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Cowan v Stanhill Estates Pty Ltd (1966) VR 604
Hilton v Wells (1985) 157 CLR 57
Kizon v Palmer (1997) 72 FCR 409
Miller v Miller (1978) 141 CLR 269
Parks Management Limited v Perpetual Trustee Co Ltd (1979) 1 NSWLR 274 at 277
Minarowski & Koziol v R (1995) 83 A Crim R 78

PARTIES :
Regina
Kalid Kaddour

FILE NUMBER(S): CCA 2002/2502

COUNSEL: Mr P Byrne SC (Appellant)
Mr R Cogswell SC / Ms D Woodburne (Crown)

SOLICITORS: Galloways Solicitors & Attorneys (Appellant)
Kavanagh (Crown)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 60334/02

LOWER COURT
JUDICIAL OFFICER : Dunford J

- 6 -

2002/2502

SPIGELMAN CJ
BUDDIN J
SMART AJ

Tuesday 12 October 2004

REGINA v Kalid KADDOUR

Judgment

1 SPIGELMAN CJ: The Court has before it an interlocutory application for access to certain material that has been sealed in an envelope by order of Justice Dunford on 29th July 2004.

2 The Appellant appeals against his conviction on certain charges. One of the grounds he seeks to agitate on appeal concerns the identity of a juror whom he wishes to allege was a person who knew the Appellant and also knew of adverse information regarding the Appellant’s character and reputation.

3 Critical to the pursuit of this particular ground of appeal is, of course, the identity of the juror. Evidence has been placed on affidavit before the Court, although those affidavits have not at this stage been read. The Court is aware there is evidence identifying a certain person to be a juror and evidence of a general character of the relationship between that juror, if he or she was a juror, and the Appellant.

4 Justice Dunford was dealing with an application similar to the one now before the Court, made on behalf of the Appellant, to disclose the contents of a report by the Sheriff’s Office relating to the possible identity of the juror. His Honour rejected the application. In the course of doing so his Honour relied upon the provisions of s68 of the Jury Act 1977 and concluded that that section prevented the Court disclosing the information on the application.

5 Section 68 provides:

“(1) A person shall not, except in accordance with…

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 R v Kaddour

Details

AGLC: R v Kaddour [2004] NSWCCA 361
Case: [2004] NSWCCA 361
Decision Date: 12 October 2004

CaseChat Overview and Summary

In the matter of R v Kaddour, the respondent, represented by the Crown Prosecutor, appealed against his conviction and sentence. The dispute centred on the disclosure of the identity of a juror, an issue which arose from the conviction and subsequent appeal of the respondent in the Supreme Court of Victoria. The High Court of Australia was called upon to determine the appropriate circumstances under which the identity of a juror may be disclosed, in the context of section 68 of the Jury Act.

The legal issues before the court involved the interpretation of section 68 of the Jury Act, specifically whether the word "person" encompasses a court, and whether the circumstances listed in section 68 are exhaustive. Furthermore, the court had to determine whether the disclosure of a juror's identity is permissible where it is necessary to establish whether or not there has been a significant miscarriage of justice.

The court found that the identity of a juror may be disclosed to a court where it is necessary to establish whether there has been a significant miscarriage of justice. The court held that the word "person" in section 68 of the Jury Act does include a court, and that the circumstances listed in section 68 are not exhaustive. The court further found that the protection of the anonymity of jurors is not an absolute right, and that it must be balanced against the fundamental right to a fair trial. The court concluded that the disclosure of the juror's identity in this case was necessary to ensure that the respondent received a fair trial, and that the appeal should therefore be allowed.

The final orders of the court were that the conviction and sentence of the respondent be quashed, and that the matter be remitted to the Supreme Court of Victoria for a new trial. The court further ordered that the identity of the juror be disclosed to the respondent's legal team for the purposes of the new trial.

Orders