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R v Kaewklom (No. 1)

R v Kaewklom (No. 1)

Case [2012] NSWSC 1103 17 September 2012

Mens Rea & Intention

Admissibility of Evidence

Tendency Evidence

Evidence Act 1995

Criminal Procedure Act 1986

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kaewklom (No. 1) [2012] NSWSC 1103
Hearing dates: 3 September 2012, 4 September 2012, 5 September 2012
Decision date: 17 September 2012
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Evidence admitted - see [160]-[165] of judgment

Catchwords: CRIMINAL LAW - pretrial rulings - charge of murder - killing by kicking and stomping upon fellow prisoner in courthouse cell - late notice by Accused of reliance upon partial defence of substantial mental impairment - construction and operation of ss.138(d) and 151 Criminal Procedure Act 1986 - admissibility of evidence of earlier attack by Accused on former girlfriend involving kicking and stomping - relevance to substantial mental impairment - tendency evidence - whether evidence should be excluded under ss.135, 137 or 138 Evidence Act 1995 - evidence admitted
Legislation Cited: Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Law Enforcement (Powers and Responsibilities) Act 2002
Evidence Act 1995
Criminal Procedure Regulation 2010
Cases Cited: R v Dunn [2012] NSWSC 946
Skondin v R [2005] NSWCCA 417
R v Fraser [2003] NSWSC 965
R v Trotter (1993) 35 NSWLR 428
R v Ryan (1995) 90 A Crim R 191
R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241
R v Hucker [2002] NSWSC 1068
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Ford [2009] NSWCCA 306
Cittadini v R [2008] NSWCCA 256; 189 A Crim R 492
R v PWD [2010] NSWCCA 209
DAO v R [2011] NSWCCA 63
O'Leary v The King [1946] HCA 44; 73 CLR 566
R v Adam [1999] NSWCCA 189; 106 A Crim R 510
R v Serratore [2001] NSWCCA 123
R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304
Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
R v Petroulias (No. 6) [2006] NSWSC 1422; 182 A Crim R 1
R v Petroulias (No. 8) [2007] NSWSC 82
Spurling v R [2006] NSWCCA 245
Category: Procedural and other rulings
Parties: Regina (Crown)
Kukiat "Gang" Kaewklom (Accused)
Representation: Counsel:
Ms GM O'Rourke (Crown)
Mr KH Averre (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Brenda Duchen (Accused)

File Number(s): 2011/50515

Judgment

JOHNSON J: The Accused, Kukiat "Gang" Kaewklom, is charged with the murder of Frederick McGregor at Liverpool on 25 February 2011.

This judgment relates to a number of applications and objections made in advance of the trial of the Accused. The pretrial hearing took place on 3 and 4 September 2012 and I announced my rulings on 5 September 2012 (T14). This judgment contains my reasons for those rulings.

The Charge of Murder

The Crown alleges that, at about 10.35 am on 15 February 2011, the Accused (then aged 18 years) was alone in a cell in the precincts of the Liverpool Local Court 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 Kaewklom (No. 1)

Details

AGLC: R v Kaewklom (No. 1) [2012] NSWSC 1103
Case: [2012] NSWSC 1103
Decision Date: 17 September 2012

CaseChat Overview and Summary

The case of R v Kaewklom (No. 1) involved a defendant who was charged with the murder of another prisoner through a violent attack in a courthouse cell. The defendant sought to rely on a partial defence of substantial mental impairment, which was notified late in the proceedings. The legal issues that came before the court were primarily concerned with the operation and construction of sections 138(d) and 151 of the Criminal Procedure Act 1986, and whether evidence of an earlier attack by the defendant on a former girlfriend, involving similar conduct of kicking and stomping, was admissible in relation to the defence of substantial mental impairment. The court also had to consider whether the evidence should be excluded under sections 135, 137, or 138 of the Evidence Act 1995.

The court examined the timing and nature of the notice provided by the defendant regarding their intention to rely on the partial defence of substantial mental impairment, as well as the relevance of the earlier attack evidence in establishing this defence. The court found that the evidence of the earlier attack was relevant to the issue of substantial mental impairment and was not excluded under the provisions of the Evidence Act 1995. The court determined that the evidence was admissible to establish a propensity to commit acts of violence, and that the probative value of the evidence outweighed any prejudicial effect it may have had on the proceedings. As a result, the evidence was admitted for consideration by the jury in determining the defendant's state of mind at the time of the offence.

The court's decision to admit the evidence of the earlier attack was based on a careful assessment of the relevant statutory provisions and the principles of evidence law. The court found that the evidence was relevant to the defence of substantial mental impairment and that it did not fall within any of the exclusions set out in the Evidence Act 1995. The court also considered the potential prejudicial effect of the evidence and concluded that it was outweighed by its probative value. The court's decision to admit the evidence was ultimately based on a careful balancing of the relevant factors and a consideration of the overall fairness of the proceedings.

The final orders of the court were that the evidence of the earlier attack would be admitted for consideration by the jury in determining the defendant's state of mind at the time of the offence. The court also made orders for the continuation of the trial, with the evidence being presented to the jury as part of the overall case. The court's decision was an important one in relation to the admissibility of evidence in cases involving the defence of substantial mental impairment, and it provides guidance for future cases involving similar issues.

Orders