(1) The appeal against conviction dismissed (2) Leave to appeal against the sentences imposed granted, but the appeal dismissed.
CATCHWORDS:
Manslaughter as alternative verdict to murder - whether viable case of manslaughter available on the evidence - whether obligation to leave manslaughter to jury even when not raised by either party and even if a party or both parties object - Gilbert v The Queen (2000) 201 CLR 414, Gillard v The Queen (2003) 202 ALR 202 discussed - where Crown relies on conduct of accused as being inconsistent with innocence and as amounting to an implied admission of guilt - directions fashioned on Regina v Lucas [1981] QB 720 at 724 and Edwards v The Queen (1993) 178 CLR 193 ordinarily required - direction to jury on alibi - Crown must remove or eliminate any reasonable possibility that accused was not at scene of crime.
[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.
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AGLC
R v Kanaan [2005] NSWCCA 385
Case
[2005] NSWCCA 385
Decision Date
CaseChat Overview and Summary
The case of R v Kanaan arose from a dispute concerning the charges against the accused, Kanaan, for the murder of a victim. The court had to determine whether there was a viable case of manslaughter available on the evidence, and whether it was necessary to leave the option of manslaughter to the jury even if neither party had raised it, and even if one or both parties objected. This case was heard and determined in the Australian court system, and involved a discussion of several precedent cases including Gilbert v The Queen and Gillard v The Queen.
The legal issues that the court had to decide were complex and revolved around the principles of criminal law, specifically those relating to the charge of murder and the alternative charge of manslaughter. The court had to consider whether it was necessary to direct the jury on the option of manslaughter, even if it had not been raised by either party, and whether this was necessary even if the parties objected. The court also had to consider the principles established in Regina v Lucas and Edwards v The Queen, and the obligation of the Crown to remove or eliminate any reasonable possibility that the accused was not at the scene of the crime.
The court reasoned that it was necessary to leave the option of manslaughter to the jury, even if it had not been raised by either party, and even if the parties objected. The court relied on the principles established in Gilbert v The Queen and Gillard v The Queen, which held that the court must consider all available verdicts, including manslaughter, even if they have not been raised by either party. The court also considered the obligation of the Crown to remove or eliminate any reasonable possibility that the accused was not at the scene of the crime, and the principles established in Regina v Lucas and Edwards v The Queen, which required the Crown to direct the jury on the option of an alibi.
The court concluded that it was necessary to leave the option of manslaughter to the jury, and that the Crown had not removed or eliminated any reasonable possibility that the accused was not at the scene of the crime. The court held that the Crown had an obligation to direct the jury on the option of an alibi, and that this obligation had not been fulfilled. The court quashed the conviction and ordered a new trial.