R v Kaine
[2013] NSWSC 1823
•03 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Kaine [2013] NSWSC 1823 Hearing dates: 2 December 2013 Decision date: 03 December 2013 Before: R A Hulme J Decision: Evidence excluded
Catchwords: EVIDENCE - admissibility - probative valued against prejudicial effect - trial for murder - partial defence of substantial impairment - evidence of hatred of paedophiles and belief that deceased was a paedophile -previous assault of person accused believed to be a paedophile reported by accused to psychiatrist preparing report for Crown - previous assault relevant to view of psychiatrist that accused not operating under an abnormality of mind - Crown not relying on evidence for tendency purpose - no objection to evidence to the general effect that accused did possess hatred of paedophiles - directions not capable of excluding danger of tendency reasoning if evidence of previous assault led - evidence excluded Category: Procedural and other rulings Parties: Regina
Michael Peter KaineRepresentation: Counsel:
Mr L Carr (Crown)
Mr R Cavanagh (Accused)
Solicitors:
Solicitor for Public Prosecutions
O'Brien Winter Partners
File Number(s): 2011/405549
Judgment
HIS HONOUR: The Crown case is that the accused murdered Mr Dennis Griffin by the infliction of multiple stab and incised wounds as well as severe blunt force trauma to the head. The defence case appears to be that the accused is only guilty of manslaughter and this is because (a) the Crown cannot negative provocation, and/or (b) the accused was acting under a substantial impairment by an abnormality of mind.
The defence have given notice of an intention to rely upon the partial defence of substantial impairment. A report by Dr Olav Nielssen as been served on the Crown.
The Crown has engaged Dr Bruce Westmore and has served his report upon the defence.
The Crown case has advanced to the point where all that remains is the calling of the police officer in charge of the case and Dr Westmore.
Mr Cavanagh, counsel for the accused, has indicated an objection to certain evidence that the Crown proposes to adduce through these witnesses. To indicate its possible relevance I need to say something more about a particular issue in the trial.
There is evidence before the jury that the accused had on a number of occasions in the past expressed an intense hatred for persons he perceived to be paedophiles. It is the defence case that he perceived the deceased to be such a person. It is common ground that the deceased was not such a person. The accused had never met the deceased. Such information that he had been provided about him was simply wrong.
Mr Cavanagh objects to evidence of part of the history the accused gave to Dr Westmore. It appears in the doctor's report (pp 2-3):
I asked him had he attacked other people previously thinking that they might be paedophiles. He said "well, there was a case in Queensland, I did 8 months in jail". He said that incident occurred in 1996. Mr Kaine then provided a more detailed history about the events leading up to the incident in Queensland. He said that victim was a youth worker and Mr Kaine said his step-son, who was aged around 11 at the time, reported that that victim may have stripped the step-sons's clothing off in front of others and that he did the same with other children in a swimming pool. He said that particular victim made sexual advances towards that particular boy. He said in addition, a friend had told him (Mr Kaine) that that victim had put his hands onto the breasts of a 14 year old girl. Mr Kaine said, one night the victim invited his step-son and another boy to a youth group and when the victim came round to Mr Kaine's home, presumably to collect the boys, that he (Mr Kaine) "beat the shit out of him".
The killing occurred on 3 October 2011. On 16 December 2011, the accused spoke by telephone to his mother. The conversation was lawfully recorded by police and a transcript is before me. There was some discussion about police wanting to speak with the accused about the killing. He denied being responsible, but referred to the deceased as a paedophile and provided an explanation for the police interest in him. In that context he said (and this is the portion to which Mr Cavanagh objects):
V1: Oh, yeah, and here's another thing, I did stab one up in Queensland bloody ten years ago that was hanging around your grandson and Luke.
V3: Come on, Michael.
V1: Eighteen times with a pen.
V3: Yeah, righto, okay. Well...
V1: Well I did.
Although it was not mentioned as being within the scope of the objection, there is also a passage in Dr Westmore's report (2nd paragraph on page 6) that summarises the content of the above conversation. I will proceed upon the assumption that it is objected to as well.
The Crown has obtained papers in relation to the incident in Queensland in 1996. The accused was charged with assault occasioning bodily harm on 9 January 1996 at Toowoomba. The facts were that he was visiting the home of his former defacto wife when the victim, Mr Danny Nugent, arrived. Both his former wife and the victim asked the accused to leave but he became abusive towards Mr Nugent. Mr Nugent rang the police. The accused then violently assaulted him, including striking him with his fists and striking him in the chest with the pointed end of a biro pen. He admitted the assault to police and explained that he was at the house because he was concerned for the welfare of his son.
The Crown does not propose to adduce any evidence of the detail of that incident. It is content to rely upon the history provided to Dr Westmore and the statements made by the accused in the covertly recorded telephone conversation.
The learned Crown Prosecutor argued that the evidence was relevant to the opinion formed by Dr Westmore that the accused does not have available to him the partial defence of substantial impairment by abnormality of mind.
Dr Nielssen is of the contrary view, considering that pre-existing traumatic brain injury as well as a probable bipolar mood disorder gave rise to an underlying condition resulting in an abnormality of mind which caused substantial impairment in the accused's perception of events, his capacity to judge right from wrong and his capacity to control his actions.
Dr Westmore, however, does not accept that the accused had a pre-existing brain injury and nor does he accept that he suffered from a bipolar condition at the time of the killing. The expression of his opinion includes the following:
I also believe that there is, at this time, insufficient evidence to enable Mr Kaine to raise the defence of substantial impairment. There is a history of Mr Kaine acting aggressively towards a person he thought was a paedophile prior to him suffering any head injuries and that history, I think, is very significant.
...
Mr Kaine has a pre-existing history, i.e. before he suffered any head injuries, of having very negative views in relation to people he thought might be paedophiles and he has a history, prior to him having suffered any head injuries, of acting aggressively towards people he thought may be paedophiles. It would seem, based on the facts, that his behaviour towards alleged paedophiles prior to the head injuries is not dissimilar to his behaviour which is now before the court. Because of that, I do not believe it can be argued that the head injuries, or the previous Bipolar Illness, played any immediate role in Mr Kaine's actions towards the deceased.
Mr Cavanagh's submission was that the evidence had limited probative value having regard to evidence otherwise before the jury concerning the accused's aversion to paedophiles. Such probative value that it did have was outweighed by the danger of unfair prejudice in two respects; first, that the evidence was of the accused's prior bad character, and second, that it invited impermissible tendency reasoning. Another matter referred to in submissions in reply was that the evidence did not clearly describe the accused's conduct in that according to the history set out in Dr Westmore's report, he "beat the shit out of" the victim, whereas in the telephone conversation he stabbed the victim 18 times with a pen.
Determination
The first two bases upon which the objection is based have force but I do not think there is any merit in the third. What is relevant is that the accused behaved violently towards a person he perceived to be a paedophile. How he did so is relatively unimportant.
I note that the Crown does not intend to lead any evidence of the curial and penal consequences for the accused as a result of the 1996 incident and disclaims any intention to use the evidence for tendency reasoning purposes.
But it seems to be inescapable, despite whatever directions I might give, that the jury would reason that, because the accused violently attacked a person he thought was a paedophile in the past, he had a tendency to be violent towards persons he perceived to be paedophiles. The jury would then more likely conclude that this was the explanation for his conduct on the occasion in question and that killing the deceased had nothing to do with any asserted abnormality of mind.
One particular problem with that type of reasoning is that it is of a tendency nature, but the basis for it is a single incident some 15 years earlier in circumstances considerably different from those pertaining to the killing of Mr Griffin.
Mr Cavanagh explicitly excluded from his objection reference by Dr Westmore to the accused's "aggressive attitude towards paedophiles". He said that this is not contested and reference being limited to this would not weaken the force of the doctor's opinion. I take it from this that there is no objection to the doctor expressing his conclusions in the terms I have extracted earlier.
In my view, the concession by Mr Cavanagh I have just referred to goes a long way towards serving the purposes of the Crown in adducing the impugned evidence. The evidence that is objected to adds very little and contains a significant danger of unfair prejudice.
For these reasons the objection is upheld and the evidence is excluded.
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Decision last updated: 09 December 2013
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