Kamm v The Queen
[2007] NSWCCA 275
•14 May 2007
Appeal Outcome: Application dismissed by the High Court (s316/2009) 20 April 2010
New South Wales
Court of Criminal Appeal
CITATION: KAMM v R [2007] NSWCCA 275 HEARING DATE(S): 14 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 16; Price J at 17 EX TEMPORE JUDGMENT DATE: 14 May 2007 DECISION: Leave is refused. CATCHWORDS: CRIMINAL LAW – Section 5F application – applicant charged with multiple sexual offences – pre-trial evidence – allegation from witness that statement was incorrect and signature a forgery – allegation that witness made a deal to give information about the applicant to a television program – whether applicant denied a fair trial if allegations not investigated – whether enquires by a handwriting expert could produce admissible evidence LEGISLATION CITED: Criminal Appeal Act 1912 PARTIES: William Kamm (Appl)
The CrownFILE NUMBER(S): CCA 2007/1164 COUNSEL: G J Stanton (Appl)
D Arnott SC/P Leask (Crown)SOLICITORS: Macquarie Lawyers (Appl)
Director of Public Prosecutions (Crown_LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0741 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 9 May 2007
2007/1164
MONDAY 14 MAY 2007McCLELLAN CJ at CL
HIDDEN J
PRICE J
Judgment
Non-publication order:
I order that both the making of this application and the reasons in relation to the application not be published until after the conclusion of the trial of the applicant.
1 McCLELLAN CJ at CL: This is an application for leave to appeal pursuant to s 5F(3)(b) of the Criminal Appeal Act, 1912. The applicant has been charged with twelve offences, generally of a sexual character. He has been charged in relation to six incidents and in relation to each incident, there are two alternative charges.
2 The Crown case depends, as I understand it, significantly on the evidence of SH. The Crown also has evidence from SC, who, it is alleged, at least for a time, was the de facto partner of SH. During the course of pre-trial hearings in relation to the question of tendency and coincidence evidence, which, as it happened, had taken place before a judge other than the judge assigned to the present trial, SH gave evidence.
3 She said in her evidence that some of the material contained in a statement dated 25 June 2003 was not correct. She also said that the signature on that statement was not hers, but was a forgery.
4 It is conceded by the applicant that the factual material to which SH refers does not have great significance for the trial. However, whether or not she is telling the truth in relation to the matters in the statement and her signature are said to be matters of significance in relation to her credit.
5 SC has also given evidence in the pre-trial hearings in which he denies that the signature on one statement is his. He disavows the complete statement and says that it is a forgery. As I understand the position, the Crown does not propose to call SC in its case, but the defence requires him to be called for cross-examination.
6 Again, as I understand the position, it is said that the evidence which SC has given at these pre-trial hearings may be of significance in relation to his credit.
7 Counsel for the applicant referred the court to other allegations in relation to activities of SC. Those allegations relate to an alleged “deal”, which he is said to have brokered with the television program, Today Tonight, for the giving of information in relation to the alleged activities of the applicant. It is alleged that the deal with the television channel to give this information was for money. Tied in with that allegation is an allegation relating to a letter seeking to extort money from the applicant. It is also alleged that SC illegally recorded a private conversation with the applicant in which he sought confessions from him.
8 Although these matters were raised, when ultimately analysed, they seem to me to play no part in the application which is now made. The essence of the applicant’s submission is that unless the allegation that the statements have been interfered with and the signatures are forgeries are properly investigated, the applicant may be denied a fair trial.
9 As I understand the position, it is submitted that if it be the case that the allegations which those witnesses make are true, they would probably play no further part in the trial. However, if it was to transpire that those allegations were not correct, it would be submitted that they have lied on their oath in the earlier hearings and accordingly, should be disbelieved in relation to any evidence which they give in the ultimate trial.
10 Consideration of the matter this morning reveals that the police officers who took the relevant statements have so far not given evidence in any of the pre-trial hearings. Those police officers are available to give evidence and the Crown indicates that if requested by the defence, they would be prepared to call those officers.
11 The outcome of such an enquiry and whether or not it may produce any admissible evidence, and I mean by that admissible at the trial, is unclear. The only other investigation, which it is suggested could be made, would be to have a handwriting expert examine the signature of SH on the challenged statement, and provide an opinion as to whether or not that signature is a forgery, or is her signature. The opportunity to assess the validity of the signatures through the expertise of a handwriting expert is available to the defence, as much as it is to the Crown. I see no merit in the suggestion that it falls for the Crown to take that step. If the defence wishes to take that step, they may do so. Whether or not, it would result in evidence which could be admitted at the trial, this Court need not consider. However, that matter would need careful consideration by the trial judge.
12 There being no other inquiry which would appear relevant, in my opinion, there is no substance in any suggestion that if this trial is required to proceed, it could result in any injustice by reason of the complaints which have been raised. However, no doubt, if an application is made to the trial judge for further inquiry before the trial, in relation to the evidence which the police officers taking the statements may give, the trial judge would accede to it. It would seem to be an inquiry which would take a very short period of time.
13 As far as handwriting experts are concerned, that is a matter which, as I have indicated, falls within the power of the applicant to pursue. Perhaps, if it emerged that the basic inquiries could not be made within a short compass, it may be necessary for arrangements to be made to ensure that the evidence, if the matter is pursued, could at least be tendered at the trial.
14 However, the inquiry which the handwriting expert would make would be a very limited one, and would not seem to me to require much time, or, indeed, result in any necessity to further significantly delay this trial.
15 In the circumstances, it seems to me the application does not have sufficient merit to warrant a grant of leave by this Court. Accordingly, in my opinion, leave should be refused.
16 HIDDEN J: I agree.
17 PRICE J: I agree.
18 McCLELLAN CJ at CL: Accordingly, leave is refused. I order that both the making of this application and the reasons in relation to the application not be published until after the conclusion of the trial of the applicant.
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