R v Kenny - [2000] NSWCCA 364

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Kenny [2000] NSWCCA 364

FILE NUMBER(S):
60013/00

HEARING DATE(S): 5 May 2000 (Orders made)

JUDGMENT DATE: 12/09/2000

PARTIES:
Regina v Nils John Edward Kenny

JUDGMENT OF: Foster AJA Dunford J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0044

LOWER COURT JUDICIAL OFFICER: Wall ADCJ

COUNSEL:
P Byrne SC
MC Marien

SOLICITORS:
Meredith Richardson & Associates
SE O'Connor

CATCHWORDS:
Criminal law - unavailability of witness - refusal of permanent stay

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
CCA 60013/00
FOSTER AJA DUNFORD J
SMART AJ

Tuesday 12, September 2000

REGINA v Nils John Edward KENNY

JUDGMENT

FOSTER AJA: I agree with Smart AJ.
DUNFORD J: I agree with Smart AJ.
SMART AJ: Upon the conclusion of argument on 5 May 2000 this Court dismissed Mr Kenny’s appeal with reasons to be given later.
Nils John Edward Kenny appeals, with the certificate of the primary judge, against his decision refusing to grant a permanent stay of proceedings in respect of the prosecution of four serious sexual offences allegedly committed by Mr Kenny against C when a child aged nine and ten and a further four serious sexual offences allegedly committed by Mr Kenny against W, when a child. W is the brother of C and about two years older. It is alleged that the offences took place in 1985 and 1986 while the boys were being looked after by a baby-sitter, Mrs Nelson, the appellant’s grandmother. Some of the offences are alleged to have occurred in the home of the parents of C and W and some in the grandmother’s home. The appellant lived with his grandmother and mother. Their home was close to that of W and C.
It was the unavailability of Mrs Nelson to give evidence on behalf of the appellant that gave rise to the application for a stay. She is now an elderly lady who by reason of her physical and mental condition could not give evidence.
Neither W nor C made any complaint in 1985 or 1986. In May 1995 the boys’ father went to the police. In June 1995 statements were obtained from each boy by Sergeant Devine. In July 1995 he attended on Mrs Nelson but she declined to be interviewed or make a statement. Mrs Nelson was by this time an elderly lady and her daughter, Mrs Kenny, was overseas. The latter, on returning to Sydney in August 1995, became aware that the police were investigating allegations concerning her son, the appellant. She spoke with her mother (Mrs Nelson) and obtained a sketchy account of the police visit and the allegations which had been made, an assertion by her mother that the allegations were lies and a brief summary from her of the appellant’s activities and conduct whilst baby-sitting. On 20 September 1995 the appellant attended upon Detective Sergeant Devine and denied the allegations made about him.

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 Kenny

Details

AGLC: R v Kenny [2000] NSWCCA 364
Case: [2000] NSWCCA 364
Decision Date: 12 September 2000

CaseChat Overview and Summary

The matter before the court was an appeal against the refusal of a permanent stay of proceedings in a criminal case. The applicant, Kenny, was the accused in the proceedings. The dispute centred around the availability of a key witness, whose unavailability Kenny argued warranted a permanent stay of proceedings. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to decide was whether the unavailability of a key witness was sufficient grounds for a permanent stay of proceedings in a criminal case. The court had to consider the principles established in previous case law regarding the unavailability of witnesses and the implications for the administration of justice. Specifically, the court needed to assess whether the witness's unavailability was due to the fault of the prosecution or the accused, and whether the witness's testimony was essential to the case.

In reaching its decision, the court examined the circumstances of the witness's unavailability and the efforts made by both parties to secure their attendance. The court found that the prosecution had made reasonable efforts to locate the witness and that the witness's unavailability was not due to any fault on their part. The court also considered the nature of the witness's potential testimony and determined that it was not indispensable to the case. Consequently, the court held that the unavailability of the witness did not warrant a permanent stay of proceedings. The appeal was dismissed, and the decision of the lower court to refuse the permanent stay was upheld.

The court's decision clarified the threshold for a permanent stay of proceedings in cases where a key witness is unavailable. It emphasised that the prosecution's efforts to secure the witness's attendance and the indispensability of the witness's testimony are crucial factors in determining whether a permanent stay is warranted. The court's ruling ensures that the administration of justice is not unduly delayed by the unavailability of witnesses, while also protecting the rights of the accused.

Orders