New South Wales Supreme Court CITATION : R v KANE [2000] NSWSC 1061 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70087/97 HEARING DATE(S) : 16/10/00, 17/10/00, 18/10/00, 19/10/00, 20/10/00, 23/10/00, 24/10/00, 25/10/00, 26/10/00, 27/10/00, 10/11/00 JUDGMENT DATE : 17 November 2000 PARTIES : REGINA v Peter Clive KANE JUDGMENT OF : Barr J at 1 COUNSEL : Crown: P Barrett Offender: S Odgers SOLICITORS : Crown: SE O'Connor Offender: North & Badgery DECISION : See para 53 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J Friday, 17 November 2000 70087/97 - REGINA v Peter Clive KANE JUDGMENT 1 HIS HONOUR: The offender was convicted following a trial by jury of the murder on 19 May 1990 at Artarmon of Wayne George Tonks. It was the offender's second trial. He was convicted of the same offence at a trial last year but appealed successfully against his conviction to the Court of Criminal Appeal, which quashed the conviction and ordered a new trial. 2 On 19 May 1990 the offender was sixteen years old and a school pupil. He and a friend, whom I shall call X, went to the home unit of the deceased at Artarmon and attacked the deceased with a wooden bat and perhaps with another wooden weapon, occasioning him a nasty head wound with minor associated bruising of the brain, as well as other superficial injuries. They used strong industrial tape to truss his hands behind his back and bind his ankles and knees tightly together. They gagged and blindfolded him by means of the same tape. Finally, a plastic shopping bag was put over his head and taped tightly around his neck. But for the last act the deceased would have survived. As it was he suffocated. The only inference that can reasonably be drawn about the positioning and taping of the plastic bag was that the person or persons who did it intended to kill the deceased. Only the offender and X were with the deceased at the time, so one or both of them must have done the act causing death. 3 Substantial issues of fact arise for sentencing purposes. They concern what it was that caused the offender and X to go to the deceased's premises, what their intent was in doing so and what part, if any, the offender played in the commission of the act causing death. 4 The offender and X were tried separately. Like the offender, X was tried twice, having been convicted of manslaughter at his first trial and having successfully appealed against that conviction. At his second trial he was charged with manslaughter (having been acquitted of murder at his first) and was acquitted. I presided at X's second trial. X did not give evidence at the offender's trial but did give evidence at his own. I take no notice of any evidence given by X or any other witness at his trial. 5 Counsel for the offender relies substantially on the evidence of the offender himself in contending for the presence of mitigating features. It is therefore necessary for the Court to assess the reliability of the offender as a witness in general and in particular. He has given a number of accounts about the events at the deceased's premises and what led up to them. 6 The offender and X became best friends at school and remained so at all times material to the present inquiry. They kept in touch even when living a long distance apart and X became best man at the offender's wedding. On 21 November 1990, six months after the death of the deceased, they went together to the Albion Street Centre, a clinic concerned, among other things, with testing for the presence of sexually transmitted diseases. The offender said that he was nineteen years old and had had unsafe sex with a woman two months previously. He was referred to a counsellor, whom he told that he had had a six-month relationship with a woman who had had sexual intercourse with an intravenous drug user. 7 Records of the clinic show that on the same occasion X told a counsellor that he had been anally penetrated by two men and had had no other sexual connection. The evidence about the matter is a little confusing because the clinical note on the strength of which the evidence was given said that the event had happened in June 1990, ten months previously. Perhaps the reference should have been to January 1990. 8 The offender met Miss Bedelia Dali in 1992 and before long they commenced a permanent relationship. When they met, she was living in Nowra, where she had grown up and where her mother, Mrs Robyn Unger, lived and had a house. The offender and Miss Dali lived together in various places, sometimes for a short time and others for as much as six months at a time, in premises in Sydney and Nowra. Their relationship was not altogether a happy one and there were periods of separation as well. They married in 1994 and Miss Dali gave birth to a daughter in June of that year and to a son in February 1996. 9 At some time before they were married and while they were living in Mrs Unger's house a conversation took place between them. According to Miss Dali, the offender told her that he and X had together murdered the deceased. He said that X had been raped by the man and came to the offender to ask for help to go back to his premises to murder him, that they went to the deceased's unit by an arrangement made by X, that they were invited inside and that they bashed him and put a plastic bag over his head. He told her that the plastic bag had been tied around the throat but Miss Dali could not remember whom he said had tied the bag. He told her to tell nobody and she kept it to herself for a long time. 10 The offender never told her that he and X went to the deceased's premises for any other reason. He never told her that the deceased had sexually assaulted him. 11 There was an occasion when Miss Dali was speaking to Mrs Unger and they realised that they both knew about the offender's involvement in the death of the deceased. Miss Dali's evidence about the conversation was inexact and her memory of it was obviously not clear. 12 Mrs Unger said that there was an occasion before February 1996 when the offender and Miss Dali were going to spend the night at her home. They had come in late and Miss Dali had gone to bed. She and the offender were in the lounge and the offender sat at her feet. He told her that some time previously X had approached him and told him that he had been raped by a man and wanted to go and kill him. He asked the offender to help him. The offender agreed to help him kill the man and they planned to do so for about three weeks. They went to the man's unit and knocked on the door. They were let in because X was known to the deceased. He said that the deceased was a school teacher and a homosexual. They kicked and punched the deceased and at the end they put a plastic bag over his head to make sure that he was dead. 13 On an occasion when the offender and Miss Dali were living together in Sydney they visited an hotel in Darlinghurst. X was with them. Miss Dali left the table to get drinks and when she returned she heard the end of a conversation between them. They were smiling and referring to "Mr Tonky". They both used that expression. 14 Miss Dali and Mrs Unger were strongly attacked in cross-examination. It was suggested to Miss Dali that, whilst the offender told her that he had been involved in a murder by assaulting and tying up the deceased, he had never told her that he had killed the deceased. Miss Dali disagreed. It was suggested to Mrs Unger that she had fabricated the whole conversation. 15 The offender and Miss Dali finally separated in February 1997 and there was a serious disagreement between them about the control and custody of their two children. Proceedings were commenced in the Family Court of Australia. On one occasion the offender took the children away from Nowra where they had been living. On another Miss Dali took them away to Tasmania. She was ordered by the Family Court of Australia to attend on the next day that their case would be dealt with. She was made aware of the order and failed to attend. She knew that she was in breach of the order and must have supposed that that conduct would advantage the offender in their struggle for the children. It was suggested to Miss Dali that she had materially changed the proper account of what the accused told her about his involvement with the death of the deceased and to Mrs Unger that she had fabricated her account altogether so as to ensure that the offender should be charged over the death of the deceased and that they should be able to make mention of the fact before the Family Court of Australia in order to justify Miss Dali's breach of the order and to advance her chances of success in the dispute. 16 Attention was drawn to common features of things that they said that the offender had told them individually and which were incorrect or unlikely to be correct. Examples are that the offender was fourteen years old at the time and that gloves were worn in the attack on the deceased. In fact, of course, the offender and X were sixteen years old. The offender's fingerprints were found on a glass in the deceased's unit, showing that he did not wear gloves, at least during the first part of the visit when he accepted the drink from the deceased. X's fingerprints were found on tape which had been used to bind the deceased's body. 17 These and other criticisms do not lead me to doubt the substantial truth of the evidence of Miss Dali and Mrs Unger. I think that when each realised that the other knew what the offender had done they must have discussed what he had told them individually. I think that they probably also discussed, when it was obvious that Miss Dali's relationship with the offender had finally ended, going to the police to tell them what the offender had said to them. They probably exchanged details like the age at the time of the offender, the taking of gloves and other matters to which attention was drawn. It is possible that such an exchange of details might have resulted in their being identically wrong about incidental matters, but that would not lead me to the view that they had put their heads together and fabricated a confession of murder. There were substantial points of difference between their versions as well, and I think that if they had been intent on falsely having the offender convicted of a crime they had no reason to believe he had committed their stories would have been much more alike. I think that they would have affected to remember much more clearly the detail of what the offender said. 18 I think that Miss Dali and Mrs Unger were telling the truth and I think that their evidence is reliable insofar as they say that the offender told them individually that X recruited him to help him kill the deceased, that they planned to kill him and that they attacked him and put a plastic bag over his head. 19 Police officers arrested the offender on 16 May 1997 and interviewed him at a police station. There were two interviews, and the offender's father was with him throughout them both. Each was electronically recorded and I have seen and listened to video tapes of the two interviews. 20 During the first interview the offender was asked about his knowledge of X and gave a forthright account. He was then told that the police were investigating the death of the deceased and they gave him particulars about the circumstances in which the deceased's body had been found. He said that he did not know the deceased. He looked at a photograph of him and said that he had never seen him before. He said that he had never visited any home unit in Artarmon. 21 The police then asked him about confessions he was said to have made to Miss Dali, to the effect that he had killed someone, that X had been raped and had wanted to get back at the man who had raped him, that they had gone to the unit, had alcoholic drinks, had started to bash the deceased and had put a plastic bag over his head, suffocating him. The offender denied it all. He denied having told Mrs Unger that X had been raped and confessing to her his involvement in the murder. During an interruption to the interview the offender spoke to his father and on resumption commenced a detailed and vituperative attack on Mrs Unger and her family. It is unnecessary to recount the detail of what he told the police but the effect was that Mrs Unger was not past having people killed for committing sexual offences against Miss Dali. He said that Mrs Unger had told him this either to brag or to warn him. 22 He then commenced a detailed attack on Miss Dali, citing her desire for victory in the Family Court proceedings as the reason why she had falsely told the police that he had told her that he had killed the deceased. 23 A few minutes from the end of the conversation, the interrogating officer told the offender that a fingerprint found at the crime scene had been identified as one of his own. He was also told that X's fingerprints had been identified. He said that he did not know how his fingerprint could have been there and he found it incredible that X's fingerprints were there. 24 During the whole of the interview the offender answered questions forthrightly and confidently. He gave the impression that he was telling the truth. 25 At the conclusion of the interview the offender spoke privately again to his father and requested to be interviewed a second time. During the interview which followed the offender's demeanour was entirely different. He was downcast throughout and on occasions broke down and wept. He said that the deceased and another man, whom he could not identify, approached X and him one day and invited them to a party at his home unit. They accepted the invitation. He accepted drinks he was offered and thought that drugs must have been put into them, because he was affected by what he drank. The deceased and his companion stopped X and the offender from leaving. They tied them up and hit them. The offender's hands and legs were tied so that he could not move. He thought that he was going to be killed. He believed that both men had anal intercourse with him. They forced him to perform oral sex on the deceased. At the conclusion of the proceedings he and X were unceremoniously thrown out. 26 They talked about what they would do. They kept the matter to themselves and planned to go back. The offender was concerned because he had heard the sound of a camera and had noticed flashes and believed that photographs must have been taken of what was going on. 27 On the night of the deceased's death the offender and X went to his unit. They took with them a twenty-four inch junior baseball bat and some strong tape. The offender told the deceased that he wanted the film. They both hit him, the offender with the baseball bat. They tied him up and went looking for the film. 28 When the police told the offender that the deceased had been bound by the ankles, the knees, the hands, the eyes and the mouth, he said that he remembered tying the hands and the feet but that that was all he remembered. In response to an answer to the effect that they tied the deceased up and went looking, the interrogating officer asked this question - Q250 Right. And is, (it) true to say that you and (X) then left him and went searching? 29 The transcript of the interview continues as follows - A (Answers by nodding his head to (sic) the affirmative.) Q251 And did you find anything? A Not a thing, there were photos of him and friends and stuff like that. I couldn't spot any, … couldn't see, … there was no film or anything. 30 The offender went on to say that he did not know at what stage the plastic bag had been placed over the deceased's head and secured with tape. He said that he did not remember putting a bag over his head. He said that that was not what he went there to do. When asked what his intention was when he went there with X he said - To kick the shit out of him and to get the film. I thought maybe we might have had his friend too. 31 He said that he knew that the deceased was injured at the time he and X left the unit but thought that he was alive. 32 Towards the end of the interview there were these questions and answers - Q394 And just in relation to, you spoke about Mr Tonks lying on the floor when you left, did you and (X) both leave at the same time? A I think I walked out first, cause he, he said, I remember him saying …. we should stab him and I said, "No, I can't, can't do that" …. I couldn't …. there was already blood everywhere, I couldn't do it. And I said, "Don't", I said, "Let's get out of here". Q395 So what happened then? A …. and I left and I can't remember, I, I know we, we, I think he left like, I think he left straight away, put it this way, I know we walked, we got to the station together and I know we were at the station like, I can't remember, it's, I'm sorry, it's all just so blurred and - Q396 That's O.K, but I take it by that answer that, that (X) was obviously still in the unit as you were leaving --- A As I was leaving but I'm not, he, he probably came out like when I told him to, because I, I just didn't want to be, I just wanted to get out of there. 33 The offender gave evidence. For the most part he had the confident demeanour that had been apparent during the first interview. He conceded, as he was bound to, that he had lied to the police in the first interview. When he spoke about the rape of himself and X by the deceased and the other man, however, he again became subdued. Seen and heard by itself, his evidence before the jury would have been in every way as convincing as the account he gave in the first interview and independently in the second. In his evidence he said three substantially different things from what he had told the police. The first concerned the search for film or photographs. There were these questions and answers in his evidence in chief - Q. Did you find any film or photographs? A. No photos or anything that had anything with us in it, no. Q. Did you find any film? A. There were little canisters of film but like didn't have those developed or anything, just threw those away. Q. When you say you just threw those away, you took them away with you did you? A. That's right. Q. And you threw them away at some point? A. That's right. Q. You didn't develop them at any stage? A. No. 34 He was cross-examined about the apparent difference between those answers and what he had told the police and said that he was finding it difficult to remember things on the day of the interview and that his memory had improved. 35 The second item of difference is more important. Dealing with the occasion of his and X's leaving the unit, he gave this evidence - Q. You said you had a conversation with (X) about leaving, is that what you said? A. That's right. Q. As best you can, what was said? A. I just said that we'd been there for too long and that I wanted to go. And then (X) indicated that - (X) was sort of loitering about, (X) and I had sort of like an argument about leaving, and for some reason (he) just seemed to want to hang around, not go right there and then, and he said to me he wanted to cut his dick off or-- Q. As best you can can you give the words of what you recall he said? A. Sorry. He said he'd like to cut his penis off. Q. Did he use the word "penis" or "dick"? A. No, dick. Q. Who do you think he was referring to? A. To Wayne Tonks. Q. What did you say in response to that? A. I said that I wasn't there for that and that I just wanted to go. Q. Was there any other conversation that you recall at that point? A. Just to hurry up and get out, and then I told him I was leaving. Q. What happened then? A. I left. Q. You went out I believe through the front door? A. That's right. Q. Do you recall closing the door after you? A. I don't. Q. What did you do then? A. I walked up to Artarmon station, I was waiting as I was going, I was hoping for (X) to catch up. Q. When you say you were waiting as you were going, what do you mean by that? A. I'd go a certain distance and wait, then go and wait again. Q. Did you observe him as you were doing this? A. Observe (X)? Q. Yes? A. (X) was in the unit, I couldn't. Q. As you went, walked and waited, you didn't observe (X)? A. No. Q. I think you said you walked to Artarmon station? A. That's right. Q. Do you know roughly the distance between the unit and Artarmon station? A. Be half a kilometre. Q. Are you able to estimate the period of time it took you to go from the unit to the station? A. Maybe ten minutes. Q. When did you next see (X)? A. At the tunnel. Out the front of the tunnel that leads into Artarmon station. Q. Did you see him as he approached you? A. Yes. Q. Was he walking or running or what? A. Running. Q. Approximately how long after you had left the unit did you see him did he join you? A. After I'd left the unit? Q. Yes? A. Oh, maybe ten or fifteen minutes. 36 The offender was cross-examined about the difference between that account and what he had said in the second interview. He was asked why, knowing that he was going to be charged with murder, he had not given that version to the police, a version which would have exculpated him. He said that that was because he wanted to protect X. 37 Finally, the offender told the jury that his recollection was that there was no tape on the deceased's head at all and no bag on his head when he left the unit. In his account to the police he had said that he had no recollection of those matters. He explained the difference by saying again that he did not want to talk about his recollection during the interview because of his desire to protect X. 38 I do not accept the offender's explanation for the differences between what he told the jury and what he said in the second interview. I think that those differences are as significant as those between the first and the second interviews and they make me think that the offender is still prepared to lie about the part he played. Accordingly, I do not think that I should accept his evidence about any controversial matter unless it is supported by independent evidence. 39 It was submitted on behalf of the offender that I should find that he and X were subject to a gross sexual impropriety of some kind by the deceased and another man some weeks before he met his death. The only evidence for such a conclusion comes from the offender himself. I have not overlooked that X told the counsellor at the Albion Street Clinic that he had been raped by two men, but that is a bald account by hearsay. One may assume that the note of what X said is substantially accurate, but whether X was telling the truth may be a different question. The evidence shows that it would be unremarkable for a person attending at such a clinic for a blood test to give an untruthful history. The case of the offender himself is that that is just what he did. Because X did not give evidence, the truth of what he is reported to have said was unable to be tested. I think that I should give it little weight on that account alone, but there is more to be said. 40 I accept as substantially accurate the evidence of Miss Dali and Mrs Unger as to the things the offender said to each of them. It was submitted on behalf of the offender that, even if their evidence be accepted, it is easily understandable why the offender would be reluctant to say that he himself, rather than just X, had been raped. I do not accept that submission. The confession to Miss Dali was made in intimate circumstances in which the offender owned up to the murder itself. The occasion was one on which the offender had an interest in explaining and justifying his actions. I think it quite unlikely that a man who would go so far as to confess the substance of such a serious offence would not explain the proper justification for it. The things he has said since show that he does explain and justify himself when he considers the occasion requires. I think that if he had been raped he would have said something about it to Miss Dali. 41 The rape of the offender in the way he has described would be a substantial mitigating feature and it is for him to establish that that account is more likely than not a truthful one. I am not satisfied that such a thing did happen. Neither am I satisfied that the deceased carried out a sexual attack of any kind on the offender. I found the offender's description of the manner in which he and X were picked up by the deceased and another man unconvincing. 42 I accept that the offender did not take part in any mindless attack on the deceased however. I think that he played his part because of his indignation over what he believed the deceased had done to his friend and because his friend had asked him for help. That does not justify what he did but it does explain it and mitigates his criminality to some extent. 43 In this respect, of course, the Court is concerned only with the offender's belief about what the deceased had done to X and not with whether X's complaint about the deceased's conduct was true. 44 I think that the offender went to the deceased's unit believing that he had raped X and intending to help X kill him, as he told Miss Dali and Mrs Unger. I think that that is why he took the weapons and the tape. The bag which was eventually put over the deceased's head may have been taken by the offender and X. It may have contained the weapons. They may have found the bag on the premises. They may have intended to do something with the bag before they arrived at the unit. They may have formed that intention after they arrived there. The evidence does not permit me to make findings about these matters. Neither does it enable me to say whether the offender or X or both put the bag over the deceased's head and taped it. I reject the offender's evidence that he left the unit before X and at a time before the bag was placed over the deceased's head. 45 I cannot be satisfied beyond reasonable doubt that the offender did the act causing death, but I am satisfied beyond reasonable doubt either that he was present when it was done, doing whatever was necessary to carry out his intention to see the deceased killed for the offence he believed he had committed on his friend or that he did the act causing death. 46 The offender was only sixteen years of age at the time of the offence and that fact entitles him to leniency. He is now twenty-six years ten months old. He has a modest record of offences involving drugs and dishonest behaviour, but that, I think, was principally associated with a period of immature and experimental behaviour during his formative years. Nothing has been recorded now for more than five years. I do not think that his record is a matter of any great significance. 47 Reports were put before the Court from Dr Nielssen, psychiatrist, and Ms Barrier, psychologist. They show that the offender suffers from no psychiatric illness and does not have anti-social personality disorder. Psychological tests show that he is anxious, apprehensive and displays symptoms of post-traumatic stress disorder. Ms Barrier thought that one of the causes was the effect of the deceased's sexual attack on the offender. Like Dr Nielssen, Ms Barrier accepted at face value the account the offender gave, which was substantially according to the account he gave in evidence. It seems more likely to me in all the circumstances that the symptoms to which Ms Barrier refers result from any belief that the offender may have had about a sexual attack on his friend, from the part the offender played in killing the deceased and from the highly stressful events that have taken place since his arrest in 1997. 48 The offender has made expressions of remorse. He did so during the second interview with investigating police and when speaking to Dr Nielssen and Ms Barrier. Although the accounts he gave on those occasions were not always truthful, I do not think that his expressions ought therefore to be rejected, and I am prepared to accept that he has some feelings of remorse notwithstanding the attempt he made during his evidence to put the whole blame on to his friend and escape conviction himself. 49 The offender's parents and family supported him throughout the trial and there is every indication that he will be able to rely on the continuation of that support. There is every indication that when he is released on parole he will be able to pursue a useful role in society and avoid offending again. 50 Between the day of his arrest and his release on bail on 18 July 1997 the offender was kept in custody for a period of nine weeks and one day. Between 18 May 1999 and 10 May 2000 he served some fifty-one weeks of the sentence imposed upon him after his first conviction. I remanded him in custody following his second conviction on 27 October 2000 and he has been in custody since that day. Altogether he is entitled to credit for about sixty weeks spent in custody before his conviction for the second time. 51 The second conviction and his remand in custody have involved his being returned to prison, a particularly stressful circumstance, the direct cause of which was a mistrial which was no fault of his. 52 These matters justify a reduction in the non-parole period and, together with the need to provide a realistic period of time on parole to foster the offender's rehabilitation, justify a parole period which is more than one-quarter of the term of the sentence. 53 Peter Clive Kane, you are sentenced to imprisonment for ten years and six months. Your sentence will be taken to have commenced on 27 October 2000 and will expire on 26 April 2011. I fix a non-parole period of seven years and six months, which will expire on 26 April 2008. You will be eligible for release on parole on that day. ********** Last Modified: 11/21/2000 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.