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: a) the discovery of his fingerprint upon a drinking glass that was sitting on a coffee table in the deceased's unit; b) a confession allegedly made by him in about 1992, to Bedelia Dali, to whom he was later married, that he and Andrew had murdered the deceased because he had raped Andrew; c) a confession that he had allegedly made to Ms Dali's mother in about 1994, and d) the contents of an ERISP, in which he said that he and Andrew had gone to the unit of the deceased to give him a 'hiding', and to recover some photographs that they believed the deceased had taken of them a couple of weeks earlier. On that occasion, he said that they had visited the premises upon the deceased's invitation, had been given stupefying drugs, restrained and then sexually assaulted by the deceased and by another man. 6 The thumbprint of Andrew, but no prints of the appellant, were found on the tape around the deceased's ankles, knees, eyes and mouth. No fingerprints, useful for comparison purposes, were found on the plastic bag over the deceased's head. 7 Although the appellant did not give evidence, it was put to his wife and mother-in-law in cross examination, that he had not confessed to having killed anyone, and that their evidence was fabricated in order to assist in contested Family Court proceedings that were on foot. Reliance was placed upon the absence of any admission, in the ERISP of the appellant, that he had placed tape around the mouth of the deceased, or a plastic bag over his head. Otherwise, the appellant placed reliance upon provocation arising out of the events described in the ERISP, which was tendered by the Crown concerning the earlier alleged sexual assault, and the alleged conduct of the deceased in providing alcoholic drinks and in playing the homosexual pornographic videos that were found by police lying on the floor in front of the television set and video player. 8 Three grounds of appeal were advanced, and a further potential ground of appeal was identified in the course of argument. 9 As the Court was satisfied that the ground referable to the adequacy of the provocation direction was made good, and required a new trial, full argument was not received in relation to the other grounds. It is unnecessary to deal with them, other than briefly. The Refusal of his Honour to discharge the jury 10 The appellant applied for a discharge of the jury when a witness, who the Crown had said, in its opening, would give evidence of a confession by the appellant, failed to recall any such conversation, and denied having signed a statement concerning it, that had been made under his name to police. A further application to discharge the jury was made after there was a change of Counsel for the appellant, trial Counsel asserting that he was disadvantaged by not having seen the witnesses called to that point in the Crown case. 11 Since it may be assumed that the Crown will not open this witness's evidence at a retrial, unless he has changed his mind, and that there will be no need for any change of Counsel mid trial, there is no occasion to deal with this ground any further. The adequacy of the direction as to Causation 12 The point at issue in this regard related to whether or not his Honour should have directed the jury that they had to be satisfied that the appellant was himself a party to the act that caused death, which Mr Odgers suggests was the placing of a plastic bag over the head of the deceased; and also as to whether a direction should have been given in relation to the possibility that there had been a break in the chain of causation. 13 This matter was not fully argued beyond identifying associated issues relevant to the concept of joint criminal liability. Since its resolution will depend upon the way the evidence emerges at a retrial, and since the Crown was not heard upon this aspect of the case, it is inappropriate for it to be resolved in this Appeal. The directions given in relation to the failure of the Appellant to give evidence 14 His Honour gave a direction in accordance with that which had become current before the decision in RPS (2000) 74 ALJR 449, being a direction that was generally understood to comply with the principles discussed in Weissensteiner (1993) 178 CLR 217. 15 The trial was completed before the decision in RPS was handed down, and the adequacy of the summing up, in this respect, was therefore not the subject of a formal ground of appeal. Had the provocation ground not been made good, it was accepted that attention would need to be given to this aspect of the case, and the hearing of the appeal adjourned to allow Counsel an opportunity to consider their position. However, in the circumstances outlined, it is not necessary to deal with this aspect, since it may be assumed that, at a retrial, full effect will be given to the decision in RPS. Provocation 16 The directions of his Honour, which were reduced to writing and delivered to the jury, were deficient in one very significant respect. That related to the element of the direction conveyed in the following passage: "…. the particular conduct of the victim which is said to have so provoked the accused must have been sufficient to have induced an ordinary person to have so far lost his self control as to have formed an intent to kill the victim." 17 This direction was incorrect so far as it was capable of being understood as conveying the impression that the conduct of the victim must have been sufficient "to have induced" the response thereafter mentioned. However, this was corrected later, when his Honour made it clear that the question for the jury was whether the conduct was such that it could have caused the ordinary person to respond in the way mentioned. What was, however, missing and what was repeated by his Honour orally, and not corrected by any later direction, was the remainder of the words included in S 23(2)(b) of the Crimes Act 1900, namely "or to inflict grievous bodily harm upon the deceased". 18 This had a particular significance in a case where the appellant was aged sixteen years at the time of the alleged offence, and in a case where the co-accused had been acquitted of murder but found guilty of manslaughter. Its effect was to lower the bar for the Crown, which had the onus of negativing provocation, and to raise it for the appellant (although he bore no legal onus), since the jury may have reached the conclusion that, while the provocative conduct attributed to the deceased may not have been such as could have caused an ordinary person of the age, and in the position of the appellant, to have formed an intent to kill the deceased, they might nevertheless have found it to have been such as could have caused such a person to form a lesser intention of causing him grievous bodily harm. 19 Absent this part of the direction, which was required by S 23, the appellant was, in our view, deprived of an opportunity that was available to him of having a lesser verdict returned: Mraz (1955) 93 CLR 493, Wilde (1988) 164 CLR 365, Glennon (1994) 179 CLR1. 20 This Court is not in a position where it could substitute a lesser verdict. That is a matter for a jury having heard the evidence, the submissions, and the necessary directions concerning the issue of provocation. 21 The matter is also not suitable for an application of the proviso since the misdirection involved a fundamental error: Green (1997) 191 CLR 334. 22 The Crown submitted, in this regard, that the evidence going to loss of self control was insufficient, particularly having regard to the circumstance that there was a two week gap between the alleged provocation and the killing, and the further circumstance that the appellant and Andrew had planned the return visit with the intention of going to the deceased's unit to give him a hiding or to "kick the shit out of him", and to recover the films that they believed he had of the earlier assaults. 23 However, in answer to this submission was the circumstance described in the ERISP that the deceased, on the occasion of the second visit, produced some pornographic videos displaying homosexual conduct between young persons, and handed the young men glasses of liquor. Upon the assumption that this was the very same kind of conduct as had preceded the earlier sexual assault, it may have been capable of opening up for the jury a reasonable possibility that the memories of the earlier events were revived, causing the appellant to lose his self control, and to respond in a more savage way than had been originally intended. 24 A further and more fundamental difficulty in relation to the proviso submission exists. That lies in the circumstance that the Crown conceded at trial, and again on appeal, that the case was a proper one for provocation to have been left. It really is not open for it to resile from that concession in the guise of a proviso submission. The decision in Bowhay 2000 NSWCCA 54 is distinguishable. 25 It is for these reasons that the Court made the orders which it announced on 10 May 2000. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.