Keen v R [2020] NSWCCA 59

Keen v R [2020] NSWCCA 59

The requirements for consistency in verdicts, the necessity for a Markuleski direction, and the relevance of subjective evidence from trial counsel are determined contextually. There was a logical basis for the differing verdicts; no miscarriage of justice resulted from the absence of a Markuleski direction, and the orders granting leave to appeal on identified grounds but dismissing the appeal were appropriate.

Parties
Applicant: David Keen; Respondent: Regina
Jurisdiction
Australia
Judgment Date
17 April 2020
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
Appeal dismissed; leave granted to rely on grounds 1, 2 and 3.
Legal Topics
Appeal Against Conviction, Inconsistent Verdicts, Markuleski Direction, Admissibility of Evidence on Appeal
Criminal Law Appeal Against Conviction Inconsistent Verdicts Markuleski Direction Admissibility of Evidence on Appeal

Case Brief

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Parties

David Keen

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 Whether the verdict of guilty on count 14 was unreasonable due to alleged inconsistency with not guilty verdicts on counts 11, 12 and 13
  2. 2 Whether a miscarriage of justice resulted from the trial judge failing to give a Markuleski direction
  3. 3 Whether evidence from trial defence counsel is admissible on the question of leave under rule 4 of the Criminal Appeal Rules (NSW)

Ratio Decidendi

The requirements for consistency in verdicts, the necessity for a Markuleski direction, and the relevance of subjective evidence from trial counsel are determined contextually. There was a logical basis for the differing verdicts; no miscarriage of justice resulted from the absence of a Markuleski direction, and the orders granting leave to appeal on identified grounds but dismissing the appeal were appropriate.

Court Disposition

Appeal dismissed; leave granted to rely on grounds 1, 2 and 3.

Orders

  • Grant leave under rule 4 of the Criminal Appeal Rules (NSW) to rely on grounds 1 and 2.
  • Grant leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to rely on ground 3.