R v Keir (No 2) - [2016] ACTSC 394

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Keir (No 2)
Citation:	[2016] ACTSC 394
Hearing Date:	12 April 2016
DecisionDate:	13 April 2016
Before:	Refshauge J
Decision:	The evidence of admissions made by Darin Paul Keir at his earlier trial may not be put to him in cross-examination by the Crown prosecutor.
Catchwords:	EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – previous representation made by an unavailable person to give evidence – Need for Crown to put its case in examination-in-chief – accused not competent to give evidence as a witness for the prosecution – evidence admissible but cannot be put in cross-examination not having been adduced in Crown case
Legislation Cited:	Evidence Act 2011 (ACT), ss 9, 12, 17(2), 26, 29, 36, 65, 65(2), 65(2)(a), 65(2)(d), 65(3), 65(4), 65(5), 81, 85, 86, Dictionary Road Transport (General) Act 1999 (ACT), ss 58, 60
Cases Cited:	R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v O'Meally [1952] VLR 499 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 R v Soma [2003] HCA 13; 212 CLR 299
Texts Cited:	The Honorable J.D. Heydon, Cross on Evidence (Butterworth LexisNexis, 1996) Looseleaf, (Service 195) Vol 1
Parties:	The Queen (Crown) Darin Paul Keir (Accused)
Representation:	Counsel Mr M Reardon (Crown) Mr J Lawton (Accused) Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Accused)
File Number:	SCC 85A of 2014

REFSHAUGE J:

On 28 January 2014, the accused, Darin Keir, entered a house in Latham, ACT, with two other people, Paul Palmer and one other male. Mr Palmer wielded an axe handle while in the house and then the three males left. Mr Palmer drove away in a car of one of the occupants of the house.

As a result of these events, Mr Keir has been charged with aggravated burglary of the premises, the circumstances of aggravation being that he was in company with Mr Palmer and the other male. He has also been charged with robbery in company and, in the alternative, with dishonestly take someone else's motor vehicle without their consent. The aggravated robbery is alleged to have been committed as a joint criminal enterprise with Mr Palmer and the third male and the other offences as a joint criminal enterprise with Mr Palmer.

The Crown case is that one of the occupants of the Latham premises, Brent Dopson, owed Mr Keir money for drugs that had been purchased but not delivered and Mr Keir, Mr Palmer and the other male had gone to the house to collect that money. Mr Palmer pleaded guilty to the burglary of the Latham premises and had, at the time of Mr Keir’s trial, been sentenced for that offence.

Mr Keir was earlier tried before a jury but the jury was discharged before they could return a verdict. The second trial of Mr Keir commenced on 11 April 2016. The next day the Crown closed its case.

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 Keir (No 2)

Details

AGLC: R v Keir (No 2) [2016] ACTSC 394
Case: [2016] ACTSC 394
Decision Date: 13 April 2016

CaseChat Overview and Summary

The respondent, Darin Paul Keir, appealed against his conviction for murder, arguing that the trial judge had erred in his directions to the jury and in allowing evidence of admissions made at his earlier trial. The Crown cross-examined the respondent about admissions he made during his earlier trial. The respondent argued that such evidence was inadmissible. The appeal was dismissed, and the respondent sought special leave to appeal against the evidentiary ruling. The High Court granted special leave and heard the appeal.

The legal issue before the court was whether the evidence of admissions made by the respondent at his earlier trial was admissible when put to him in cross-examination by the Crown prosecutor. The court had to determine whether the evidence was admissible and, if so, whether it was permissible to put it to the respondent in cross-examination. The court had to consider the principles of judicial discretion to admit or exclude evidence and the requirements of the law of evidence.

The court held that the evidence of admissions made by the respondent at his earlier trial was admissible but could not be put to him in cross-examination by the Crown prosecutor. The court held that the evidence was admissible because the respondent was not competent to give evidence as a witness for the prosecution, and the Crown was not required to put its case in examination-in-chief. However, the court held that the evidence could not be put to the respondent in cross-examination because it had not been adduced in the Crown case. The court held that the trial judge had erred in allowing the evidence to be put to the respondent in cross-examination, but that the error was not sufficient to affect the safety of the conviction.

No further orders were made by the court.

Orders

Orders of the court

The evidence of admissions made by Darin Paul Keir at his earlier trial may not be put to him in cross-examination by the Crown prosecutor.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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