R v Kane - [2001] NSWCCA 150

CITATION: Regina v Kane [2001] NSWCCA 150

FILE NUMBER(S): CCA 60717/00; 60780/00

HEARING DATE(S): 19/04/01

JUDGMENT DATE:
3 May 2001

PARTIES :

Regina v Peter Clive Basil Kane

JUDGMENT OF: Handley JA at 1; Ipp AJA at 2; Greg James J at 90

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70087/97

LOWER COURT JUDICIAL
OFFICER : Barr J

COUNSEL : T A Game SC (Appellant)
L M B Lamprati (Crown)

SOLICITORS: North & Badgery (Appellant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - arrest and detention unlawful - knowledge of reason for arrest - intention of police to bring accused before magistrate as soon as practicable - lack of evidence as to arresting officer's intention - common purpose doctrine - adequacy of directions to jury - no misunderstanding by jury as to judge's directions - provocation - whether rape of co-offender could properly amount to provocation - whether playing of pornographic video could properly amount to provocation - adequacy of direction to jury - directions appropriate - Crown appeal on sentence - accused sentenced at second trial after initial appeal succeeded and new trial ordered - sentence at second trial resulted in 18 month reduction - exercise of trial judge discretion as to sentence - sentencing discretion not limited by sentences imposed by other judges - Appeals dismissed.

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
Williams v The Queen (1986) 161 CL 278
R v Burns (unreported, NSWCCA, 19 August 1988)
Christie v Leachinsky [1947] AC 573
Tangye (1997) 92 A Crim R 545
Johns v The Queen (1980) 143 CLR 108
R v Jurisic (1998) 45 NSWLR 209

DECISION: Appellant's appeal against conviction dismissed; Crown appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

60717/00

60780/00

HANDLEY JA

IPP AJA

GREG JAMES J

REGINA v Peter Clive Basil KANE

JUDGMENT

1 HANDLEY JA: I agree with Ipp AJA.

2 IPP AJA: Peter Clive Basil Kane appeals against his conviction on a charge of murder after a trial on 27 October 2000 before Barr J and a jury. In addition the Crown appeals against the sentence imposed of 10 years 6 months imprisonment with a non-parole period of 7 years and 6 months. These reasons relate to both appeals.

3 I turn firstly to the appeal against conviction.

4 On 19 May 1990 Wayne George Tonks (the deceased) was killed in his home unit at Artarmon. The Crown alleged that the deceased was murdered by Kane (who, at the time, was a 16 year old school pupil) and a friend who was referred to at the trial as Andrew.

5 The principal Crown evidence against Kane came from admissions he made in a police interview on 16 May 1997 and to his former wife, Bedelia Dali, and his former mother-in-law, Robyn Unger.

6 The police interview concerned was the second interview which the police had had with Kane on 16 May 1997. There had been an earlier interview that morning.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kane

Details

AGLC: R v Kane [2001] NSWCCA 150
Case: [2001] NSWCCA 150
Decision Date: 3 May 2001

CaseChat Overview and Summary

The case of R v Kane involved an appeal against the conviction of the accused in relation to criminal matters. The primary issues included the legality of the accused's arrest and detention, the adequacy of directions given to the jury, and the adequacy of the sentencing following the second trial. The court had to consider whether the arresting officer's intentions were lawful, if the directions given to the jury were appropriate, and if the sentence imposed was within the trial judge's discretion.

The legal issues before the court were multifaceted. The first issue pertained to the legality of the accused's arrest and detention, specifically whether the arresting officer had a reasonable intention to bring the accused before a magistrate as soon as practicable. The court also had to determine whether the common purpose doctrine was correctly applied and whether the jury was properly directed on the matters of provocation, including whether the rape of a co-offender and the playing of a pornographic video could properly amount to provocation. Finally, the court needed to assess the adequacy of the directions given to the jury and the appropriateness of the sentence imposed by the trial judge following the second trial.

The court found that the arresting officer's intentions were not clearly established, but this did not affect the legality of the arrest as the accused was brought before a magistrate promptly. The court held that the judge's directions to the jury were appropriate and there was no evidence of misunderstanding. Regarding provocation, the court determined that the directions to the jury were adequate and that the trial judge's directions were appropriate. The court also found that the sentence imposed by the trial judge was within the proper exercise of discretion, despite the reduction in sentence from the first trial.

The appeals were dismissed, and the convictions and sentences were upheld. The court confirmed that the trial judge's discretion in sentencing was not limited by sentences imposed by other judges, and that the judge had exercised this discretion appropriately in the circumstances.

Orders