R v Kanaan

Case [2005] NSWCCA 385


Reported Decision:

157 A Crim R 238
64 NSWLR 527

New South Wales


Court of Criminal Appeal

CITATION:

Regina v Kanaan [2005] NSWCCA 385

HEARING DATE(S): 7-8 February 2005
 
JUDGMENT DATE: 


17 November 2005

JUDGMENT OF:

Hunt AJA at 1; Buddin J at 1; Hoeben J at 1

DECISION:

(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.

LEGISLATION CITED:

Crimes Act 1900
Criminal Appeal Act 1912
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Criminal Appeal Rules

CASES CITED:

Bullard v The Queen [1957] AC 635
Chamberlain v The Queen (1983) 46 ALR 493
Conway v The Queen (2001) 209 CLR 203
De Jesus v The Queen (1986) 68 ALR 1
Edwards v The Queen (1993) 178 CLR 193
Gallagher v The Queen (1986) 160 CLR 392
Gammage v The Queen (1969) 122 CLR 444
Gilbert v The Queen (2000) 201 CLR 414
Gillard v The Queen (2003) 202 ALR 202
Knight v The Queen (1992) 175 CLR 495
Kural v The Queen (1987) 162 CLR 502
Kwaku Mensah v The King [1946] AC 83
Lawless v The Queen (1979) 142 CLR 659
Mancini v DPP [1942] AC 1
McKenzie v The Queen (1996) 190 CLR 348
Mickelberg v The Queen (1989) 167 CLR 259
Mraz v The Queen (1955) 93 CLR 493
Packett v The King (1937) 58 CLR 190
Pemble v The Queen (1971) 124 CLR 107
Regina v Abou-Chabake (2004) 149 A Crim R 417
Regina v Abusafiah (1991) 25 NSWLR 531
Regina v Beserick (1993) 30 NSWLR 510
Regina v Cameron [1983] 2 NSWLR 66
Regina v Doan (2001) 3 VR 349
Regina v Elfar (2003) 115 A Crim R 64
Regina v Evans & Lewis [1969] VR 858
Regina v Goonan (1993) 60 A Crim R 338
Regina v Heuston (2003) 140 A Crim R 422
Regina v Hitchins & Elliott [1983] 3 NSWLR 318
Regina v Ilic and Sammut (2000) 118 A Crim R 378
Regina v Isaacs (1997) 41 NSWLR 374
Regina v Jackson [1993] 4 SCR 573
Regina v Johns (1999) 110 A Crim R 149
Regina v Kane (2001) 3 VR 542
Regina v Kirkman (1987) 44 SASR 591
Regina…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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