Regina v Jason Michael Kane [2004] NSWCCA 78

Reported Decision : 144 A Crim R 496

New South Wales Court of Criminal Appeal

CITATION : Regina v Jason Michael Kane [2004] NSWCCA 78 HEARING DATE(S) : 19 March 2004 JUDGMENT DATE : 19 March 2004

JUDGMENT OF : Studdert J at 22; Sully J at 1; Dunford J at 23 DECISION : Leave to appeal against sentence granted; Appeal against sentence dismissed; Appeal against conviction dismissed

LEGISLATION CITED : Crimes Act 1900 Crimes (Forensic Procedures) Act 2000 R v Henry [1999] NSWCCA 111, 46 NSWLR 346 CASES CITED : R v Bloomfield (1998) 44 NSWLR 734 R v Wu [2002] NSWCCA 214 at [14] PARTIES : Regina Jason Michael Kane FILE NUMBER(S) : CCA 60436/03; 60029/04 D. Howard - Crown A. P. Cook - Appellant (60029/04) COUNSEL : In person - Appellant (60436/03)

D. Kelly, DPP - Crown SOLICITORS : Legal Aid Commission - Appellant (60029/04)

In person - Appellant (60436/03)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0815 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060436/03 060029/04

STUDDERT J SULLY J DUNFORD J

19 March 2004 REGINA v JASON MICHAEL KANE Judgment

1 SULLY J: The appellant, Mr Kane, stood trial in the District Court before Judge Shillington QC and a jury in October 2002. He had been presented for trial in that Court upon an indictment containing two counts charged in the alternative. 2 The first count alleged an armed robbery: that is to say, a robbery while being armed with an offensive weapon, namely, a knife; an offence contravening s 97 (1) of the Crimes Act 1900 and attracting upon conviction a maximum penalty of imprisonment for twenty years. The second count charged in the alternative was a count of robbery from the person; an offence contravening s 94 of the Crimes Act 1900 and attracting upon conviction a maximum penalty of imprisonment for fourteen years. 3 The appellant pleaded not guilty to both charges but the jury found him guilty on the first count: that is, the count of robbery being armed with an offensive weapon, namely, a knife. In those circumstances no verdict was required of the jury in connection with the second and alternative charge in the indictment. 4 In due course the appellant stood for sentence, and he was sentenced to imprisonment for eight years with a non-parole period of six years. 5 The appellant appeals against his conviction and seeks leave to appeal against sentence. 6 So far as concerns the appeal against conviction, three grounds of appeal have been notified. The first ground of appeal is that the verdict is unsafe and unsatisfactory. The second ground of appeal focuses more particularly upon the admission in the trial of certain DNA evidence, and challenges the regularity and propriety of the admission in the trial of that material. The third ground is that the trial Judge erred in not directing a verdict of acquittal at the close of the Crown case. It is convenient to deal first with the second ground; and then successively with the third ground and the first ground. 7 The relevant facts are within a small compass and are set out conveniently in the following paragraphs extracted from the remarks on sentence: "The Crown case was a circumstantial one. Kelly Judd, an employee of the TAB, was working alone at the Mascot branch on 14 December 2001 at about 10pm. The prisoner, wearing a balaclava and carrying a knife, burst into the agency. He forced the victim to open a door into the office part of the premises and seized $2,389 in money from a tray and left. Kelly Judd recognised the general demeanour and physical characteristics of the assailant as one of a regular customer to the agency. She took into account no doubt the above average height of the assailant when relating him to the person of the prisoner when he came at a later stage into the TAB agency. The balaclava was thrown away by the robber a short distance from the premises and was recovered by investigating police. Remnants of skin above the eyeholes in the balaclava were forensically examined for hum DNA and a successful profile was obtained. This was compared with DNA from a cigarette later discarded by the prisoner and a hair sample taken after the prisoner's arrest. The profile of all of these DNA samples were identical. The probability of another person in the community having the same DNA profile was said to be extremely low. The robbery was committed with considerable threats of violence, and was clearly a traumatic experience for the victim. It demands a substantial custodial penalty".