R v Kerin

The appeal before the Full Court of the Supreme Court of South Australia concerned convictions for theft. The appellant, Peter David Kerin, a barrister and solicitor, was charged with three counts of theft under section 134 of the Criminal Law Consolidation Act 1935. Counts 1 and 2 related to property of the late Ms Mary Fahey, for whom the appellant held an enduring power of attorney. Count 3 concerned property of the estate of the late Ms Jean Batten, for whom the appellant acted as solicitor. The jury acquitted the appellant on count 3 following a direction from the judge, but convicted him on counts 1 and 2.

The legal issues before the Full Court included whether the appellant had dishonestly dealt with property belonging to Ms Fahey, specifically a chose in action in the amount of $100,000 from a Commonwealth Bank account and a chose in action in the amount of $200,000 from an AXA investment portfolio. The court was required to consider the elements of theft as defined by the Act, including the dishonest intent to permanently deprive the owner of the property or to make a serious encroachment on their proprietary rights. The appeal also implicitly raised questions regarding the sufficiency of the evidence presented to the jury to establish these elements beyond a reasonable doubt.

The court applied the proviso to section 22(1) of the Criminal Appeals Act 1928 (SA), which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, even if an error by the trial judge is established. In this instance, the court found that even if any error had been made by the trial judge, it did not result in a substantial miscarriage of justice. The reasoning for this conclusion, though not fully detailed in the provided text, suggests that the evidence, when considered in its entirety, was sufficient to support the jury's verdict of guilt on the two counts of theft.

Consequently, the Full Court dismissed the appeal. The appellant's convictions for theft in relation to the property of Ms Mary Fahey were upheld.