R v Piccin [2001] NSWCCA 35

New South Wales Court of Criminal Appeal

CITATION : R v Piccin [2001] NSWCCA 35 FILE NUMBER(S) : CCA 60207/00 HEARING DATE(S) : 09/02/01 JUDGMENT DATE : 9 February 2001

PARTIES : Regina v Kay Piccin JUDGMENT OF : Giles JA at 98,104; James J at 1; Hulme J at 103

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0607 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : P Segal - Appellant CK Maxwell QC - Crown SOLICITORS : Direct Access - Appellant SE O'Connor CATCHWORDS : Malicious wounding - stalking - inconsistent verdicts - Crimes Act s562AB - discharge of jury - character of the accused. DECISION : Appeal allowed in part

IN THE COURT OF CRIMINAL APPEAL 60207/00 GILES J JAMES J HULME J

Friday 9 February 2001 REGINA v KAY PICCIN JUDGMENT

1 JAMES J: This is an appeal by Kay Piccin against her conviction after a trial before his Honour Judge Luland and a jury on charges that on 27 April 1999 at Elizabeth Bay she maliciously wounded Yangyong Premprasert and that on 5 May 1999 at Pyrmont she stalked Yangyong Premprasert with the intention of causing Yangyong Premprasert to fear personal injury. 2 At the beginning of the trial the appellant had been indicted on the following charges that she:- 3 1(a) on 27 April 1999 at Elizabeth Bay attempted to murder Yangyong Premprasert; 4 Alternatively, (b), on 27 April 1999 at Elizabeth Bay she maliciously wounded Yangyong Premprasert; 5 2 on 27 April 1999 at Elizabeth Bay she maliciously damaged a motor vehicle being the property of Yangyong Premprasert; 6 3(a) on 5 May 1999 at Pyrmont was armed with a weapon being a knife with the intent to commit an indictable offence, murder; 7 Alternatively, (b) on 5 May 1999 at Pyrmont she stalked Yangyong Premprasert with the intention of causing Yangyong Premprasert to fear personal injury. 8 The appellant pleaded not guilty to all of the charges in the indictment. 9 In the course of the trial count 1(a) in the indictment was amended so as to substitute a charge of wounding with intent to murder and count 2 in the indictment was amended so as to allege that the motor vehicle which had been damaged was the property, not of Yangyong Premprasert, but of Yongyuth Premprasert. The making of these amendments was not opposed by counsel for the appellant at the trial, who was also counsel for the appellant on the hearing of the appeal. 10 The jury found the appellant not guilty of the offences charged in counts 1(a), 2 and 3(a) of the indictment and, as I have already indicated, guilty of the offences charged in counts 1(b) and 3(b) of the indictment. 11 In regard to the verdicts of guilty on counts 1(b) and 3(b) in the indictment, his Honour Judge Luland made orders deferring passing sentence, upon the appellant entering into a conditional recognizance to be of good behaviour for two years from 13 April 2000, which was the date on which Judge Luland made the orders. 12 The appellant is a woman who was born in Thailand in 1955. She came to Australia in 1974. She married in 1981 but separated from her husband in 1993. 13 Yangyong Premprasert, the victim of the two offences of which the appellant was convicted (who I will refer to as the "complainant"), was born in Thailand in 1977 and came to Australia as a boy. He was referred to in some of the evidence at the trial by the name "Toc". 14 Yongyuth Premprasert, the owner of the motor vehicle referred to in the amended second count in the indictment, is Yangyong Premprasert's older brother. 15 It was common ground at the trial that in 1994 the complainant began working at a Thai restaurant in Neutral Bay. Soon after the complainant began working at the restaurant, the restaurant business was acquired by the appellant. Within a short time of the appellant acquiring the restaurant business, the appellant and the complainant entered into a sexual relationship, which continued at least up until 1998. Between about 1995 and 1998 the complainant worked in the restaurant business and was the tenant of a flat at Homebush owned by the appellant. 16 By 1998 the appellant was in serious financial difficulties and she had to sell the restaurant business at Neutral Bay and the flat at Homebush which she had been letting to the complainant. She also had to sell her own home at Strathfield and move into a rented flat. 17 After the appellant sold the flat the complainant had been occupying, the complainant went to live with his brother Yongyuth Premprasert in the latter's flat in a block of flats or units in Harris Street, Ultimo (sometimes referred to in the evidence as Pyrmont). The complainant began working at a takeaway Thai restaurant in Kings Cross operated by his brother Yongyuth and Yongyuth's female partner. One of the complainant's duties was to deliver takeaway food which had been ordered by telephone. 18 The Crown case on counts 1(a) and 1(b) and 2 in the indictment depended primarily upon the evidence of the complainant. 19 The complainant gave evidence in his evidence-in-chief that, from about the middle of 1998 and until the end of 1998, there had been no contact between him and the appellant. However, in January 1999, the complainant made a delivery of takeaway food to a room in the Holiday Inn Hotel at Kings Cross and discovered that the customer was the appellant. The appellant asked the complainant to come back to the hotel after he had finished work at the restaurant. The complainant did so and spent the night with the appellant. During the next week the appellant telephoned the complainant and the complainant telephoned the appellant. 20 Subsequently, the complainant made a delivery of takeaway food to a hotel room in the Top Of The Town Hotel and discovered that the customer to whom he was delivering the food was the appellant. Subsequently, the appellant made a number of telephone calls to the complainant. 21 The complainant gave evidence that on the evening of 27 April 1999 he was working at the takeaway restaurant. He received a telephone call from the appellant. He told the appellant that he was busy at the restaurant and this first conversation was brief. Shortly afterwards, the complainant received another telephone call from the appellant, who told him that she wanted to meet him urgently and she suggested that they meet at the Sebel Townhouse in Kings Cross. 22 The complainant drove to the meeting place in his brother Yongyuth's motor vehicle. The appellant was waiting in front of the Sebel Townhouse. She got into a back passenger seat of the vehicle. The complainant drove the vehicle to Roslyn Gardens and parked the vehicle. The complainant turned to face the appellant "in a diagonal way". The appellant and the complainant talked about the breakup of their relationship. The conversation became very loud and aggressive. The complainant told the appellant that their relationship was finished. The complainant then gave evidence-- "And then I turn my face, instead of facing her diagonally, then I turn my face to the front, then when I turn back there's a knife approaching to me and cut me across the chest". 23 The pointed end of the knife cut the complainant across the chest "and then dragged to cut my chin". A struggle ensued between the appellant and the complainant for control of the knife. The complainant gave evidence that the appellant said, in both Thai and English, "I am going to kill you, you have hurt me so much". 24 After about ten to fifteen minutes of struggling, the appellant calmed down and both the complainant and the appellant got out of the car. The appellant said, "You got away today, I will get you next time. If not me, there will be someone else". She also said, "You are going to die, I am going to kill you". 25 The complainant returned on foot to the restaurant where he worked. The complainant, his brother Yongyuth and Yongyuth's partner went by taxi to where Yongyuth's car had been left. It was discovered that all the tyres of the vehicle had been cut and were deflated. 26 The complainant then went to Kings Cross Police Station where he reported the incident. He then went to St Vincent's Hospital where he was treated for the cuts on his chest and under his chin. 27 Between 27 April and 5 May 1999, the complainant received a number of telephone calls from the appellant. In these calls the appellant said, "Sorry I didn't finish the job and I will get someone else to do it next time". She also said, "Tell the little rat to get out of your life, otherwise she will get hurt too". 28 The complainant was then in a relationship with a young Thai woman whose nickname was "Orn" and, on the Crown case, the reference to "the little rat" was a reference to Orn. Orn gave evidence in the Crown case that between 27 April and 5 May she had received threatening telephone calls from the appellant. 29 The Crown case on counts 3(a) and 3(b) in the indictment depended, to a large extent, on the evidence of a witness Mr Nounrasi and evidence by police officers. Mr Nounrasi gave evidence-in-chief that, at about 1 o'clock in the afternoon of 5 May 1999, he met the appellant by chance and they travelled together in her car to Harris Street, Ultimo, arriving between 2.30 and 3 o'clock in the afternoon. There was a Thai restaurant nearby in Harris Street and Mr Nounrasi gave evidence in his evidence-in-chief that he and the appellant were waiting for the restaurant to open, so that they could have dinner at the restaurant. 30 The Crown Prosecutor was granted leave to cross-examine Mr Nounrasi on the grounds that he had made prior statements, inconsistent with the evidence he had so far given in his evidence-in-chief, when he had been interviewed by the police. In cross-examination Mr Nounrasi agreed that when he had been interviewed by the police, he had said that on 5 May the appellant had told him that she missed her boyfriend (that is, the complainant) and still loved him and that she was very upset and that her boyfriend lived in Harris Street. Mr Nounrasi had also told the police that while the car was parked in Harris Street the appellant was using binoculars. 31 A police officer, Detective Senior Constable Wall, gave evidence inter alia that after 4pm on 5 May 1999 he went with another officer to Harris Street, Ultimo. There were two people in a car parked in Harris Street, who were the appellant and Mr Nounrasi. The appellant was in the driver's seat. She was wearing a black cap and sunglasses and was looking through binoculars at the block of units or flats in Harris Street, which was the block containing the flat in which the complainant resided. Detective Senior Constable Wall arrested the appellant for the stabbing of the complainant on 27 April. The appellant was taken to a police station, where she was interviewed. 32 The appellant gave lengthy evidence in her own case at the trial. I will not attempt to summarise all of her evidence, which occupies many pages of the transcript. 33 In her evidence she asserted that the complainant had become heavily indebted to her, through non-payment of rent for the flat at Homebush and through gambling away some of the takings of the restaurant at Neutral Bay and that the appellant had pressed the complainant to repay some of the indebtedness, particularly when her own financial situation deteriorated. 34 She said that there had been many telephone contacts between the complainant and herself in the early months of 1999, many of them initiated by the complainant. She said that there had been meetings between them, including a meeting at the Hampton Court Hotel in Kings Cross on the night of 21 April 1999, which had not been mentioned by the complainant in his evidence. 35 The appellant agreed in her evidence that she and the complainant had agreed to meet outside the Sebel Townhouse on the evening of 27 April, that the complainant had arrived driving his brother's car and that she had got into the car. She said that she had got into the front passenger's seat and not into a rear passenger's seat. The complainant drove the car to Roslyn Gardens, where he parked the car. The appellant asked the complainant about the money the complainant owed her and the complainant told her that he was not going to do anything about paying the money. 36 The pair continued to argue about the money the complainant owed the appellant. The appellant said it was not fair that the complainant was keeping the appellant waiting for her money. The complainant asked, "What can you do about it?" and the appellant replied that she could tell the complainant's mother, brother and girlfriend Orn, what sort of person he was. 37 The complainant became agitated. The appellant saw a knife in the complainant's hand. She became very frightened. In a reflex action, she grabbed the complainant's hand. There was a struggle between them for control of the knife. The appellant saw that the complainant's hand was bleeding. Then the complainant's mobile phone rang. The appellant quickly got out of the car and, as she expressed it, "ran for her life", not looking back. She reached her car and drove off. She said that she had not damaged the complainant's brother's car. She claimed that she had herself sustained injuries in the incident, being a cut to her eyelid and to her index finger. 38 In her evidence the appellant denied making threatening telephone calls between 27 April and 5 May. 39 As regards 5 May, the appellant agreed that she had been in the parked car with Mr Nounrasi in Harris Street, Ultimo. She said that she was waiting for the Thai restaurant in Harris Street to open. She denied that she was using the binoculars she had, to try to see anything connected with the complainant. She said that a little knife which the police had found on searching her car was a knife she used to peel fruit and open up packets. 40 When she was interviewed by the police in a formal interview on 5 May, the appellant denied that she had met the complainant on 27 April at Kings Cross or, indeed, that she had seen the complainant at all on the night of 27 April. It was accepted at the trial that these denials were deliberate lies told by the appellant. 41 I turn to the grounds of appeal against conviction, which I will deal with in the order in which they appear in the amended notice of appeal.