R v Kneebone

Case [1999] NSWCCA 279


Reported Decision:

47 NSWLR 450

New South Wales


Court of Criminal Appeal

CITATION: REGINA v. KNEEBONE [1999] NSWCCA 279
FILE NUMBER(S): CCA 60300 of 1998
HEARING DATE(S): Friday 6 August 1999
JUDGMENT DATE:
21 September 1999

PARTIES :


REGINA v.
KNEEBONE, Michael Alfred John
JUDGMENT OF: Spigelman CJ at 1; Greg James J at 2; Smart AJ at 68
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 97/61/0130
LOWER COURT JUDICIAL OFFICER: Cooper, DCJ.
COUNSEL: Crown: T. Buddin, SC/D. Howard
App: S. Norrish, QC
SOLICITORS: Crown: C.K. Smith
App: Maureen Fanning & Associates
CATCHWORDS: Criminal trial - practice and procedure - duties of prosecutor - witness - refusal to call as not a witness of truth - inadequacy of basis for refusal in absence of proper enquiry - need to confer or otherwise establish basis - evidence received on appeal of witness' evidence of materiality to trial issues - failure to call witness and alternatively to make adequate enquiry causing a miscarriage of justice - principles in Apostilides and Whitehorn considered - role of Crown Prosecutor to seek to secure a fair trial - asserted inadequacies in directions on complaint - asserted inconsistencies in verdicts.
ACTS CITED: Crimes Act 1900
Evidence Act 1995
Criminal Appeal Act 1912
CASES CITED:
Fleming (1998) 158 ALR 379
M (1994) 181 CLR 487
Jones (1997) 191 CLR 275
Murray (1987) 11 NSWLR 12
Williams [1999] NSWCCA 9
Dwyer [1999] NSWCCA 47
Graham (1998) 157 ALR 404
Apostilides (1984) 154 CLR 563
Whitehorn (1983) 152 CLR 657
Wilson (1997) QSC CA 38
Russell-Jones (1995) All ER 239
Wilson (1997) 2 NZLR 500
Commonwealth of Pennsylvania v. Horn 50 Atlantic Reporter 872 [1959]
Cook 114 CCC (3d) 481
Anderson (1991) 53 A. Crim. R. 421
Tran v. Magistrates' Court of Victoria & Anor (1998) 4 VR 294
Armstrong (1998) 4 VR 533
O'Brien (1996) 66 SASR 396
Shaw (1991) 57 A. Crim. R. 425
Richardson (1974) 131 CLR 116
Milat (Hunt, CJ. at CL., unreported 23 April 1996)
Lozano (CCA, unreported 10 June 1997)
Souleyman (1996) 40 NSWLR 712
Pantoja (CCA, unreported 5 November 1998)
GAC (CCA, unreported 19 December 1996)
Adam & Adam (Wood, CJ. at CL., unreported 24 November 1998, 3 December 1998, 11 December 1998)
Adam & Adam (CCA, unreported 23 July 1999)
Patsalis & Spathis (No. 10) (Kirby, J., unreported 10 August 1999)
Greenough v. Eccles (1859) 2 CB(NS) 786
Semeviratne (1936) 36 All ER 36
Ziems v. Prothonotary (1957) 97 CLR 279
Chidiac (1991) 171 CLR 432
RJC (CCA, unreported 1 October 1998)
DECISION: Appeal allowed. New trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

No. 60300 of 1998 SPIGELMAN, CJ.
    GREG JAMES, J.
    SMART, AJ.


TUESDAY 21 SEPTEMBER 1999

REGINA v. MICHAEL ALFRED JOHN KNEEBONE

JUDGMENT

1   SPIGELMAN, CJ: I agree with Greg James J and Smart AJ. 2   GREG JAMES, J:

    Nature of the appeal
3 This appeal was heard on 6 August 1999 and at the conclusion of argument we ordered that the extension of time…

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R v Kneebone [1999] NSWCCA 279
Case
[1999] NSWCCA 279
Decision Date

CaseChat Overview and Summary

The appellant was convicted of multiple counts of indecent assault against children and was sentenced to imprisonment. The appeal against the conviction was based on the Crown Prosecutor's failure to call a key witness. The witness had provided evidence to the prosecutor indicating the importance of the witness' testimony to the trial issues. Despite this, the prosecutor did not call the witness, nor did they make any proper inquiry into the reasons for the witness' refusal to testify. The appeal was heard by the High Court of Australia, which considered the principles set out in the cases of Apostilides and Whitehorn.

The primary legal issue was whether the prosecutor's failure to call the witness, or to make an adequate inquiry into the reasons for the witness' refusal, resulted in a miscarriage of justice. The court examined the duty of the prosecutor to seek to secure a fair trial and the adequacy of the basis for the prosecutor's decision not to call the witness. The court also considered the impact of the Crown Prosecutor's asserted inadequacies in the directions on the complaint and the asserted inconsistencies in the verdicts.

The High Court found that the prosecutor had not adequately established the basis for their decision not to call the witness, or to make a proper inquiry into the reasons for the refusal. The court held that this failure, in the absence of proper inquiry, was a miscarriage of justice. The court further held that the principles in Apostilides and Whitehorn were applicable, and that the prosecutor's duty to seek to secure a fair trial was not properly discharged. The appeal was allowed, the convictions were quashed, and a retrial was ordered.

In light of the findings, the High Court made orders quashing the convictions and ordering a retrial. The court emphasised the importance of the prosecutor's duty to seek to secure a fair trial and the need for proper inquiry when making decisions about calling witnesses. The court also highlighted the importance of ensuring that the evidence received on appeal is considered in the context of the trial issues. The decision in this case serves as a reminder to prosecutors of their obligations in ensuring a fair trial and the consequences of failing to properly discharge those obligations.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

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