Regina v King [2000] NSWCCA 507

New South Wales Court of Criminal Appeal

CITATION : Regina v King [2000] NSWCCA 507 FILE NUMBER(S) : CCA 60120/00; 60128/00 HEARING DATE(S) : 27/11/00 JUDGMENT DATE : 6 December 2000

PARTIES : Regina v Elliott Noel King JUDGMENT OF : Fitzgerald JA at 1; Whealy J at 8; Howie J at 69

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0205 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : P. G. Berman SC - Crown S. J. Odgers SC - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant

Longman v The Queen (1989) 168 CLR 79 Crampton v The Queen (2000) HCA 60 R v Aziz (1982) 2 NSWLR 322 at 331 R v Haeney (unreported CCA 13 June 1978) CASES CITED: Tripodina & Morabito (1987-1988) 35 A Crim R 183 at 191 R v Saffron (1989) 7 NSWLR 395 at 435 R v Abusafiah (1991) 24 NSWLR 531 at 536 R v Jeffrey (CCA 16 December 1993, unreported) R v Johnston (1998) 45 NSWLR 362 at 375 R v McIntyre (2000) 111 A Crim R 211 DECISION : Leave refused pursuant to Rule 4; and appeal is dismissed

IN THE COURT OF CRIMINAL APPEAL

60120/00 60128/00 FITZGERALD JA WHEALY J HOWIE J

WEDNESDAY 6 December 2000

REGINA v Elliott Noel KING

JUDGMENT

1 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the judgment of Whealy J. As his Honour's judgment demonstrates, the prosecution case against the appellant was exceptionally strong. 2 If it had been possible to obtain forensic examples from the complainant and the appellant and obtain and compare DNA profiles from those samples, evidence of the result might have further inculpated the appellant or it might have exculpated him. 3 The trial judge did not direct the jury to take into account when deciding whether the appellant's guilt had been proved beyond reasonable doubt that if the prosecution had obtained DNA evidence it might have exculpated the appellant or at least raised a reasonable doubt as to his guilt. 4 The appellant's trial counsel had drawn the absence of DNA evidence which might have assisted the appellant to the jury's attention in his address and did not ask that trial judge to add the weight of his authority to the point. Approximately a year after the appellant's conviction, his trial counsel believes that his omission to ask the judge for such a direction must have been an oversight on his part because he is unable to think of any tactical reason for not doing so. 5 While counsel no doubt honestly holds the belief which he has stated, it is equally plausible that a redirection was not sought because there was not thought to be sufficient purpose in doing so, especially when such a step might again emphasise the exceptional strength of the case against the appellant. Commonly, when an appeal is argued by different counsel, a new significance is attached to a matter to which less importance was attached at the trial. Rule 4 of the Criminal Appeal Rules reflects this practical experience. 6 While Rule 4 should not be permitted to deprive an accused person of the fair trial to which he or she is entitled or otherwise produce injustice, I am comfortably satisfied that the appellant's trial was fair, there has been no miscarriage and there is no significant possibility that an innocent person has been convicted. 7 I agree with Whealy J that the appeal should be dismissed. 8 WHEALY J: The appellant was indicted before his Honour Judge Ducker at the Lismore District Court on 8 November 1999. There were six charges. These related to the violent robbery of, and sexual assault upon, a heavily pregnant woman, Josephine Kapeen, in her home at Woodford Dale near Maclean on 27 November 1997. In addition to an armed robbery charge, there were five charges of aggravated sexual intercourse without consent. On 24 November 1999, the jury returned with verdicts of guilty on all counts. The appellant was sentenced on 11 February 2000. The sentencing judge imposed the following sentences: - (i) In relation to counts 1, 2, 3 and 5 - a minimum term of six years imprisonment to expire on 15 November 2005, together with an additional term of four years. (ii) In relation to counts 4 and 6 - a minimum term of seven years imprisonment to expire on 15 November 2006, together with an additional term of five years imprisonment. His Honour ordered that all sentences be served concurrently. 9 The case against the appellant was essentially circumstantial. It is necessary for me to recite in more detail certain aspects of both the Crown and defence case. 10 On the afternoon of 26 November 1997, Mrs Kapeen received a telephone call from the appellant, the husband of Vicki Randall. She, in turn, was the cousin of Mrs Kapeen's husband, Trevor. Both Vicki Randall and the appellant were well known to Mr & Mrs Kapeen. In the course of the telephone conversation, the appellant asked Mrs Kapeen whether Trevor intended to attend a school camp at Evans Head that day. Mrs Kapeen was aware that Vicki Randall and her child were already at the school camp. She told the appellant that Trevor would make up his mind after he had finished work that day. The appellant told her that he had some papers that Vicky Randall needed from the school at Maclean. He wanted to know whether Trevor could pick them up and deliver them to Evans Head if he were going. Mrs Kapeen said that she would give that message to her husband which she did. Mr Kapeen gave evidence that he telephoned the appellant's house that afternoon but there was no answer. He called by about 7 pm on the way through to Evans Head. The appellant's house however, was locked up. The appellant and Vicki Randall used a white Holden Commodore VP with mag wheels but it was not at the house. Mr Kapeen then drove on to Evans Head and arrived there to join the other families about 8 pm. Thus it was, that Mrs Kapeen was left alone in the house with her three year old son. 11 Mrs Kapeen and her child went to sleep in the double bed in the main bedroom normally occupied by her husband and herself. At about 1.45 am she was awakened by the telephoning ringing. When she answered the phone, she heard a male voice "faking" a woman's voice asking to speak to Trevor. The caller asked several times for Trevor and, when asked who was speaking, gave no answer. Mrs Kapeen told the caller that Trevor was not home and the caller hung up. Mrs Kapeen then looked at the clock and checked that the sliding door in the kitchen was locked. She went back to bed leaving the bathroom light on for her son. 12 Somewhere between 2.30 and 3 am, Mrs Kapeen was awakened by the presence of a man in her bedroom. She looked towards him and then looked away. Because it was dark she saw that the man was shorter than her husband and of a medium build but she did not recognise him. The man forced her head away from him and threatened to kill her son if he were woken up. 13 Mrs Kapeen asked the man "What do you want?". The intruder replied "Money". He then told her to get up. He placed his arm over her right shoulder and placed a knife or sharp instrument against the left side of her neck. He assisted her out of the bed but stayed behind her all the time. He asked where the money was and she told him it was in the kitchen. He then guided her to the kitchen with the knife still pressed against her neck. She handed her purse, which contained $150.00 over her shoulder to him. She was then guided back to the bedroom where the intruder tied her up and blind folded her with a pair of her husband's football socks. 14 There then followed a frightening ordeal. The intruder forced the blindfolded woman to perform oral sex on him twice. He penetrated her vaginally and anally and performed oral sex on her. He continually threatened to kill her, her son or her unborn child. The unfortunate victim was in considerable pain and distress throughout the ordeal. The intruder only ceased his attacks upon her when she pretended she was going into labour. He then left the house and Mrs Kapeen heard him run away noting the sound of his footsteps was that of someone wearing joggers. At no time did Mrs Kapeen recognise her attacker although she had obtained a general impression of his height and size and certain other physical characteristics. 15 She managed to free herself and attempted to ring her husband on his mobile phone, but it was switched off. She rang the "000" emergency number and reported a break and enter and theft. She was still in a state of panic and distress. She did not report the sexual assaults over the phone. She stayed on the phone until, sometime later Senior Constable Szlicht arrived. He described her as being in a traumatised state, like an accident victim. She did not tell this police officer about the sexual assaults. At the trial she explained she was ashamed and embarrassed and did not want to deal with it. She did not want anyone to know what had happened to her. 16 Her husband, who by now had spoken to her after receiving her messages on his mobile phone message bank, arrived home from Evans Head later in the morning. She did not at first tell him of the sexual assaults. At 10.03 am when she and her husband were in the house the telephone rang. When Mrs Kapeen answered it she heard the same whispering voice the caller had used the night before. He asked her "did she enjoy last night". He then said words to the effect that he would come back again that night. She beckoned to her husband who came and took the phone. Mr Kapeen heard the man say, apparently thinking that he was still speaking to Mrs Kapeen, "if you tell anyone your dead". Mr Kapeen swore angrily at the man who hung up without saying anything further. 17 The victim told her husband about the sexual assaults later that afternoon, prior to attending the local police station to make a statement. She made him promise he would not tell anyone. In her first statement dated 27 November 1997, she did not make any complaint of sexual assault. 18 On 23 December 1997, Mrs Kapeen made a second statement to the police in which she set out her complaints of sexual assaults. Prior to this time on 3 December, the police had ascertained that four calls had been made on 26 and 27 November to the Kapeen's house which were believed to be relevant. These had all emanated from the service leased to and operated from Vicki Randall's house. There was a call on 26 November at 5.08 pm for 49 seconds; a call at 1.43 am on 27 November for 3 seconds and another at 1.44 am for 26 seconds. There was a further call on the morning of 27 November for 26 seconds. This last call occurred at precisely 10.03 am on that morning. 19 On 3 December 1997 Detective Weir and Sergeant Magann interviewed the appellant by way of electronic recording (ERISP). At this stage they did not know about the sexual assaults although Detective Weir was suspicious that more might have occurred than the police had been told. The appellant denied making any phone calls to Mrs Kapeen's house during the early hours of 27 November or later that morning. On 20 January 1998 police officers conducted a search at the appellant's home pursuant to a search warrant. A pair of joggers was located in the house. The prints on one of the two shoes were found, broadly speaking, to match a shoe impression which had been taken from an Esky which was underneath the window whose screen had been slashed at the Kapeen's house on the night in question to enable the intruder to enter. The markings on the sole of the shoe also matched a "latent" impression which was taken from inside the victim's home not far from the same window. This impression was only obtained by dusting, as otherwise it was not visible on the floor surface. 20 On 22 January 1998 the appellant was arrested at his home. He participated in a second ERISP and denied having committed the theft and sexual assaults. He was later charged with all offences. 21 The appellant gave evidence at the trial. He maintained the denials he had made to the police on 3 December 1997 and 22 January 1998. It was his case that he had been out drinking with friends on 26 and 27 November and he did not return to his home until between 2.30 am and 3 am on the latter morning. He could not have made the early morning phone calls in those circumstances. The next morning he left home at 8.30 am and did not return there until the mid-afternoon. He could not have made the call at 10.03 am for that reason. It was common ground the appellant did arrive at the Evans Head Holiday Camp that day. The location of this camp was about thirty five minutes drive from the appellant's home. There were various estimates put on his time of arrival by people at the Evans Head Camp. The appellant himself said he arrived there at about midday. When he came back to his home later that afternoon, he said his house had been broken into and clothes and papers were strewn around the floor. It appears to be the suggestion that somebody may have broken into his house and used his phone both the night before and at mid-morning. The unknown person, it was suggested, may have borrowed (and returned) the joggers in his absence. In other words, he had been deliberately set up so that it would appear that he was the attacker in Mrs Kapeen's home. 22 There were two witnesses whose evidence, if accepted, posed problems for the appellant in relation to the case he sought to make at the trial. First, Mr Purcell who had driven him home from the drinking session the evening before was able indirectly to establish the drop off time. This was so because when he had returned home, he rang his girlfriend in the early hours of the morning in Newcastle. This evidence put the appellant in his home before the calls were made at about 1.44 am. It was also the case, despite the appellant's claim that he had been out drinking until after 2.30 am on the morning of 27 November that he did not have a watch available to him and he was unable to explain how he estimated this time. 23 Secondly, a Mrs Byrnes claimed to have identified the appellant and his car leaving from the direction of his home and travelling fast on the road into Maclean shortly after ten minutes past ten on the morning of 27 November. 24 In his case, the appellant also relied on his previous good character; the fact that there were, it is said, disparities between Mrs Kapeen's description of her attacker and the physical features of the appellant, and his general good standing in the local community. 25 This then was a broad outline of the respective cases advanced by the Crown and the defence at the trial. I have not endeavoured to summarise every issue which arose but have sought in this brief summary to place subject matter of the present appeal in context.