REGINA v KANE [2000] NSWCCA 402

New South Wales Court of Criminal Appeal

CITATION : REGINA v KANE [2000] NSWCCA 402 FILE NUMBER(S) : CCA 60393/99 HEARING DATE(S) : 10 May 2000 JUDGMENT DATE : 11 October 2000

REGINA

PARTIES : v

Peter Clive Basil KANE JUDGMENT OF : Wood CJ at CL at 1; Adams J at 1; Foster AJA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70087/97 LOWER COURT JUDICIAL Sully J OFFICER :

COUNSEL : Mr S J Odgers (Appellant) Mr M C Marien (Crown) SOLICITORS : North & Badgery (Appellant) S E O'Connor (Crown)

LEGISLATION CITED : Crimes Act 1900 RPS (2000) 74 ALJR 449 Weissensteiner (1993) 178 CLR 217 Mraz (1955) 93 CLR 493 CASES CITED: Wilde (1988) 164 CLR 365 Glennon (1994) 179 CLR 1 Green (1997) 191 CLR 334 Bowhay 2000 NSWCCA 54 DECISION : Appeal allowed; Conviction and sentence quashed; Direct new trial

IN THE COURT OF CRIMINAL APPEAL

No. 60393/99 WOOD CJ at CL ADAMS J FOSTER AJ

WEDNESDAY 11 OCTOBER 2000 Regina v Peter Clive Basil KANE JUDGMENT

1 THE COURT: The appellant was placed on trial for the murder of Wayne George Tonks, on 3 May 1999. The jury returned a verdict of guilty in respect of that charge on 18 May 1999. The appellant appealed against his conviction, and this Court on 10 May 2000, announced that the appeal should be allowed, the conviction quashed and a new trial ordered. We now provide the reasons for that decision.

The Crown Case 2 It was the Crown case that the appellant and his co-accused Benjamin Andrew, went to the home unit of the deceased on 19 May 1990. There, it was alleged, the deceased was struck with a baseball bat that they had taken with them. It was alleged that they then bound his hands, knees and feet with adhesive tape. His ears, eyes and mouth were also found to have been heavily bound with tape. A plastic bag was placed over his head. It was secured by tape wound around his neck. 3 The cause of death was alleged to have been suffocation, either from the tape around the mouth of the deceased and/or by lack of oxygen from the plastic bag that had been placed around his head. The blow to the head, according to the forensic pathologist called by the Crown, could have contributed to death so far as it may have stunned the deceased, making it easier to gag him. 4 Each of the appellant and Andrew were charged with murder, but separate trials were ordered. In the case of Andrew, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. 5 The Crown case against the appellant rested upon: