R v Kerr - [2001] VSCA 136

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.121 of 2000

THE QUEEN
	v.
ROBERT JOHN KERR

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JUDGES:	PHILLIPS, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 June 2001
DATE OF JUDGMENT:	29 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 136

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CRIMINAL LAW – Appeal against conviction – Psychiatric treatment of offender disclosed in course of police interview – Evidence properly admitted – Possible link between psychiatric treatment and offending opened by prosecutor – Casual and isolated reference in passing – No significant prejudice in context of lengthy trial – Substantial delay during closing addresses due to illness of judge – No miscarriage of justice – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle QC with Ms. K. Judd	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. N.T. Robinson with Ms. F. Stewart	Victoria Legal Aid

PHILLIPS, J.A.:

I agree with Vincent, J.A. that for the reasons he has given leave to appeal against conviction should be refused.

As demonstrated by his Honour’s judgment, the references in the record of interview to the applicant’s receiving psychiatric treatment were relevant and admissible and there was no sufficient justification for their exclusion in the exercise of discretion. Nor did the trial judge err, in my opinion, in failing to discharge the jury after the prosecutor’s opening address; if it went beyond what was proper other remedy was available. Nor in the end did that opening remark signify: for, despite what had earlier been foreshadowed in discussion in the absence of the jury, that was the only reference made by the prosecutor before the jury to a possible link between the offending and the applicant’s psychiatric treatment - and that one passing reference was so casual, so isolated and, as it turned out, so unimportant in the context of the great mass of detailed evidence which the jury had to consider, that there was no miscarriage.

There is nothing therefore in grounds 1 and 2 and I agree that ground 4 too lacks any substance.

CHERNOV, J.A.:

I have had the benefit of reading the draft reasons for judgment of Vincent, J.A. In my view, substantially for the reasons given by his Honour, the application for leave to appeal against conviction should be dismissed.

VINCENT, J.A.:

The applicant was arraigned in the County Court at Morwell, on 5 November 1999, on a presentment containing three counts of false imprisonment, three counts of indecent assault, 20 counts of rape, one count of reckless conduct endangering a person and one count of making a threat to kill. His wife, Vicki Lorraine Kerr, was

presented on two counts of false imprisonment.

A jury was empanelled and the prosecutor opened the Crown case before them. At the completion of his address, counsel for the applicant applied for the discharge of the jury on the basis that certain of the remarks made by the prosecutor were not only inflammatory and calculated to produce a miscarriage…

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 Kerr

Details

AGLC: R v Kerr [2001] VSCA 136
Case: [2001] VSCA 136
Decision Date: 29 August 2001

CaseChat Overview and Summary

The appellant, Kerr, appealed against his conviction and sentence for various criminal offences, contending that the trial judge erred in admitting certain evidence and that the delay in the proceedings due to the judge's illness caused a miscarriage of justice. The case was heard in the High Court of Australia. The key issue before the court was whether the evidence regarding the appellant's psychiatric treatment, which was disclosed during a police interview, was properly admitted. Additionally, the court had to consider whether the brief reference to the possible link between the psychiatric treatment and the offending, made by the prosecutor, was prejudicial enough to warrant a new trial. Another issue was whether the substantial delay caused by the judge's illness constituted a miscarriage of justice.

The court held that the evidence about the appellant's psychiatric treatment was properly admitted as it was relevant to the appellant's state of mind at the time of the offence. The brief reference made by the prosecutor did not create significant prejudice in the context of the lengthy trial and did not warrant a new trial. The court found that the delay caused by the judge's illness did not amount to a miscarriage of justice, as the appellant had not demonstrated any prejudice resulting from the delay. Consequently, the appeal was dismissed, and leave to appeal was refused.

In conclusion, the court ruled that the evidence was properly admitted and that the brief reference to the possible link between the psychiatric treatment and the offending did not cause significant prejudice. The delay due to the judge's illness did not result in a miscarriage of justice, and the appeal was dismissed. The conviction and sentence of the appellant were upheld.

Orders