R v Kemp - [2008] QCA 355

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kemp [2008] QCA 355

PARTIES:

R
v
KEMP, Michael Shane
(appellant)

FILE NO/S:

CA No 90 of 2008
DC No 185 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

14 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2008

JUDGES:

Fraser JA, Jones and Daubney JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE – Conduct of legal practitioners - Misdirection and non-direction – where the Crown Prosecutor made assertions that the accused withheld the name of a witness from police because it would have been adverse to the defence – where the Crown Prosecutor asserted the accused did not cross-examine a witness because it would have been adverse to the defence – whether the Crown Prosecutor’s remarks had the effect of misleading the jury into believing the accused had an onus to prove his innocence – whether the trial Judge made sufficient comments to the jury to ensure they were not wrongly influenced – where no miscarriage of justice occurred

Criminal Code 1899 (Qld), s 668F

R v Allouche [1998] QCA 216, cited
R v DDR [1998] 3 VR 580, cited
R v Hay and Lindsay [1968] Qd R 459, cited
R v M (1994) 181 CLR 487, applied
R v Pernich & Anor [1991] 55 ACrimR 464, cited
R v Rigney [2005] SASC 264, cited

COUNSEL:

K A Mellifont for the appellant
B W Farr SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland)

FRASER JA: I have had the advantage of reading the reasons for judgment of Jones J. I agree with the order proposed by his Honour, and with his reasons for the order.

JONES J: The appellant was convicted by a jury of two counts of rape and one count of doing an indecent act in a public place. He was acquitted of a charge of attempted rape. He appeals against the convictions on the grounds –

1. The prosecutor’s address in this case disclosed serious irregularities which when taken separately or together produced a real risk of wrongly influencing the verdict:

Nature of Irregularities

(a) Making an assertion that defence counsel did not cross-examine the complainant about a matter (in respect of which the complainant did not give evidence) because the answer would have been adverse to the defence;

(b) Making an assertion that the accused person withheld the name of a potential witness from the police during interview because he would want to first check with the potential witness to see if he would lie for him and implying to the jury that the accused should have provided the name to police and/or call the witness; and

(c)…

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 Kemp

Details

AGLC: R v Kemp [2008] QCA 355
Case: [2008] QCA 355
Decision Date: 14 November 2008

CaseChat Overview and Summary

In the case of R v Kemp, the defendant appealed against his conviction on the grounds that there was a miscarriage of justice in the trial. The appeal centred on the conduct of the Crown Prosecutor and the trial judge's direction to the jury. Specifically, the appellant argued that the Crown Prosecutor's assertions about the withholding of a witness's name and the failure to cross-examine a particular witness misled the jury into believing that the appellant had an onus to prove his innocence. The appeal also questioned whether the trial judge adequately addressed these assertions to ensure the jury was not improperly influenced.

The primary legal issues before the court were whether the remarks made by the Crown Prosecutor amounted to a misdirection or non-direction that prejudiced the appellant's right to a fair trial, and whether the trial judge's comments sufficiently mitigated any prejudicial impact on the jury. The court had to consider the effect of the prosecutor's comments on the jury's understanding of the burden of proof and the standard of proof required in criminal trials.

The court concluded that the prosecutor's remarks, while potentially misleading, did not lead to a miscarriage of justice. It found that the trial judge's directions to the jury adequately clarified the legal principles and mitigated any potential prejudice caused by the prosecutor's comments. The court held that there was no error in the trial process that warranted a new trial or an appeal on the grounds of a miscarriage of justice. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kemp [2008] QCA 355
PARTIES:	R v KEMP, Michael Shane (appellant)
FILE NO/S:	CA No 90 of 2008 DC No 185 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	14 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2008
JUDGES:	Fraser JA, Jones and Daubney JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISCARRIAGE OF JUSTICE – Conduct of legal practitioners - Misdirection and non-direction – where the Crown Prosecutor made assertions that the accused withheld the name of a witness from police because it would have been adverse to the defence – where the Crown Prosecutor asserted the accused did not cross-examine a witness because it would have been adverse to the defence – whether the Crown Prosecutor’s remarks had the effect of misleading the jury into believing the accused had an onus to prove his innocence – whether the trial Judge made sufficient comments to the jury to ensure they were not wrongly influenced – where no miscarriage of justice occurred Criminal Code 1899 (Qld), s 668F R v Allouche [1998] QCA 216, cited R v DDR [1998] 3 VR 580, cited R v Hay and Lindsay [1968] Qd R 459, cited R v M (1994) 181 CLR 487, applied R v Pernich & Anor [1991] 55 ACrimR 464, cited R v Rigney [2005] SASC 264, cited
COUNSEL:	K A Mellifont for the appellant B W Farr SC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland)