R v Kirk - [2005] SASC 230

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KIRK
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
1 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appellant found guilty of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 - Objection by counsel for defendant to unexpected response to question in examination-in-chief given by investigating detective - Objection upheld after argument on voir dire - Trial Judge directed jury to ignore witness' response to question - Appeal against conviction on ground that trial Judge erred in refusing to declare a mistrial, or alternatively that direction given to jury inadequate to overcome potential prejudice - Consideration of principles relevant to determination of whether failure to discharge jury has caused miscarriage of justice - Consideration of adequacy of direction - Presumption that jurors will follow directions given by trial judges - No error shown - Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e), referred to.
Maric v R (1978) 52 ALJR 631, 20 ALR 513; R v Miller (1980) 25 SASR 170; Byrne v R (1986) 20 A Crim R 306; Van De Weil v R (Unreported, 3 August 1995, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Duggan and Nyland JJ, Judgment No.S5202); Crofts v The Queen (1996) 186 CLR 487; R v Simpson (1999) 75 SASR 195; R v Weaver [1968] 1 QB 353; Gilbert v The Queen (2000) 201 CLR 414, applied.
R v Harms [2000] QCA 419 (Unreported, 10 October 2000, McPherson, Davies JJA and MacKenzie J), considered.

R v KIRK
[2005] SASC 230
Court of Criminal Appeal: Duggan, Bleby and Anderson JJ

DUGGAN J: I would dismiss the appeal for the reasons given by Bleby J.
BLEBY J: This is an appeal against conviction. The appellant, Kevin Allan Kirk, was found guilty by a jury of the offence of possessing cannabis for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984. The particulars of the offence were that on 13 July 2003 at Adelaide, the appellant knowingly had an amount of cannabis exceeding 2kg in his possession for the purposes of selling it to another person. The prosecution case was that the appellant was involved in the interstate transport from Adelaide of a suitcase containing approximately 4kg of dried cannabis destined for sale in New South Wales.
On 12 July 2003 the appellant reserved two bus tickets by telephone. He was to leave Adelaide the following morning travelling to Melbourne, then to continue his journey on a bus bound for Sydney.…

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 Kirk

Details

AGLC: R v Kirk [2005] SASC 230
Case: [2005] SASC 230
Decision Date: 1 July 2005

CaseChat Overview and Summary

In the matter of R v Kirk, the appellant was convicted of possessing cannabis for sale, a contravention of section 32(1)(e) of the Controlled Substances Act 1984. The primary issue in the appeal was whether the trial judge erred in his handling of an unexpected response given by an investigating detective during the examination-in-chief. The appellant's counsel objected to the response, and after a voir dire, the objection was upheld. The trial judge directed the jury to disregard the detective's response, and the appellant now appeals on the grounds that the judge should have declared a mistrial or that the direction given to the jury was inadequate to overcome any potential prejudice.

The court considered the principles pertinent to the determination of whether the failure to discharge the jury resulted in a miscarriage of justice. It was acknowledged that the jury's ability to follow the trial judge's directions was a crucial factor in the analysis. The court held that the trial judge's direction to the jury was sufficient to ensure that they disregarded the detective's response, and no miscarriage of justice was evident. The court emphasised the presumption that jurors will adhere to the instructions provided by the trial judge. The appeal was dismissed as no error was demonstrated in the trial judge's handling of the situation.

The court found that the trial judge's direction to the jury was adequate in ensuring that they disregarded the detective's response, and no miscarriage of justice was shown to have occurred. The presumption that jurors follow the trial judge's directions was upheld, and the appeal was dismissed. The conviction of the appellant was therefore affirmed. The court did not consider it necessary to address any other grounds of appeal raised by the appellant.

Orders