Kearns v R [2011] NSWCCA 103

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kearns v R [2011] NSWCCA 103 Hearing dates: 15 December 2010 Decision date: 06 May 2011 Before: Giles JA at [1], Latham J at [97], Rothman J at [98] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appellant convicted for various offences of improperly obtaining money - subsequent appeal dismissed - case referred by Attorneys to be dealt with as appeal - grounds of appeal did not involve only question of law - whether leave to appeal necessary - differing obiter views - whether open to jury to be satisfied beyond reasonable doubt that appellant was an officer of companies - on facts was open - whether open to jury to be satisfied beyond reasonable doubt that appellant made knowingly false representations - on facts was open - whether trial judge asleep or apparently asleep during trial - whether jury distracted from attention to the evidence - not established that judge was asleep - on evidence, no more than occasional appearance that was asleep - no distraction of jury constituting miscarriage of justice. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW); Criminal Appeal Act 1912 (NSW); Cases Cited: Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358; Re Coldham; Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338; GAR v R (No 1) [2010] NSWCCA 163; GAR v R (No 2) [2010] NSWCCA 164; GAR v R (No 3) [2010] NSWCCA 165; Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125; Mickelberg v The Queen (1989) 167 CLR 259; The Queen v Nguyen [2010] HCA 38; (2010) 271 ALR 493; R v Catt [2005] NSWCCA 279; R v Chard (1984) AC 279; R v JJT [2006] NSWCCA 283; (2006) 67 NSWLR 152. Category: Principal judgment Parties: James Gordon Kearns - Appellant The Queen - Respondent Representation: Counsel: S G Finch SC- Applicant W J Abraham QC & S G Callan - Crown Solicitors: In person - Appellant Commonwealth Director of Public Prosecutions - Respondent File Number(s): CCA 2007/00003309 Decision under appeal Before: Dodd DCJ File Number(s): 02/11/0041