Heydon JA at 94; Studdert J at 1; Greg James J at 95
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
95/61/0210
LOWER COURT JUDICIAL OFFICER :
Bell DCJ
COUNSEL :
R.A. Hulme (Crown) G.P. Craddock (Appellant)
SOLICITORS:
S.E. O'Connor (Crown) D.J. Humphreys (Appellant)
CATCHWORDS:
Criminal law - miscarriage of trial in consequence of conduct of Crown Prosecutor - summing up - inadequacy of instruction to jury as to lies and consciousness of guilt - sexual offences charged - delay in complaint and delay prior to trial - necessity for judge to warn jury as to effects of delay.
Appeal allowed; convictions and sentences quashed; verdicts and judgments of acquittal entered.
IN THE COURT OF CRIMINAL APPEAL
60242/00
HEYDON JA STUDDERT J GREG JAMES J
Thursday 23 November 2000
REGINA v ROBERT NEIL KENNEDY
JUDGMENT
1 STUDDERT J: The appellant, Robert Neil Kennedy, appeals against his conviction in relation to two sexual offences as to which the jury found him guilty following his trial in the Dubbo District Court in February of this year.
2 The indictment contained three counts: the first count as initially framed charged him with having sexual intercourse with LAM without her consent knowing that she was not consenting and charged that this offence occurred “on or about 29 July 1981”. The second count charged him in the alternative with carnal knowledge of LAM at that same time. The third count charged him with having sexual intercourse with LAM without her consent knowing that she was not consenting between 1 June 1986 and 30 June 1986.
3 The appellant was arraigned on 21 February 2000 but the trial was adjourned to 23 February 2000. On that date the Crown Prosecutor applied to amend Counts 1 and 2 by substituting for “on or about 29 July 1981” the words “between 29 July 1981 and 23 April 1983”. Counsel for the appellant did not object to the amendment and the trial judge allowed it. Upon arraignment on the amended indictment the appellant pleaded not guilty and the trial then began.
4 Following convictions on Counts 1 and 3, the appellant was, on 7 April 2000, sentenced on each count to imprisonment for two years eight months commencing on 7 April 2000. A…
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.
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Details
AGLC
R v Kennedy [2000] NSWCCA 487
Case
[2000] NSWCCA 487
Decision Date
CaseChat Overview and Summary
In the case of R v Kennedy, the defendant faced charges of sexual offences. The court heard the appeal against the conviction and sentence. The central issue before the court was whether there was a miscarriage of justice due to the conduct of the Crown Prosecutor during the summing up and the inadequacy of the judge's instruction to the jury regarding the significance of delay in the complainant's report and the defendant's prior delay in facing trial. The court needed to determine if the judge's instructions were sufficient to address the potential influence of these delays on the jury's assessment of the defendant's guilt.
The court examined the trial judge's summing up, noting the importance of guiding the jury on how to consider the delays in reporting and the defendant's response to these events. The court held that the trial judge should have more explicitly instructed the jury about the potential implications of these delays on the defendant's consciousness of guilt and the credibility of the evidence. The failure to do so was seen as a significant oversight, potentially leading to an unfair trial. The court found that the judge's instructions did not adequately address the legal principles necessary for the jury to properly consider these factors.
Given the identified error in the judge's instructions, the court concluded that there was a miscarriage of justice. Consequently, the conviction was quashed, and the case was ordered to be retried, with specific emphasis on ensuring that the jury is properly guided on the issues of delay and consciousness of guilt. The court's decision underscored the necessity for meticulous judicial oversight in ensuring that all relevant factors are appropriately addressed in jury instructions, particularly in cases involving sexual offences where the timing of complaints and the defendant's response can significantly impact the trial's outcome.