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Regina v Kane

Regina v Kane

Case [2000] NSWCCA 402 11 October 2000

Provocation

Unconscionable Conduct

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CITATION: REGINA v KANE [2000] NSWCCA 402

FILE NUMBER(S): CCA 60393/99

HEARING DATE(S): 10 May 2000

JUDGMENT DATE:
11 October 2000

PARTIES :

REGINA
v
Peter Clive Basil KANE

JUDGMENT OF: Wood CJ at CL at 1; Adams J at 1; Foster AJA at 1

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70087/97

LOWER COURT JUDICIAL
OFFICER : Sully J

COUNSEL : Mr S J Odgers (Appellant)
Mr M C Marien (Crown)

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

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
RPS (2000) 74 ALJR 449
Weissensteiner (1993) 178 CLR 217
Mraz (1955) 93 CLR 493
Wilde (1988) 164 CLR 365
Glennon (1994) 179 CLR 1
Green (1997) 191 CLR 334
Bowhay 2000 NSWCCA 54

DECISION: Appeal allowed; Conviction and sentence quashed; Direct new trial

IN THE COURT OF
CRIMINAL APPEAL
No. 60393/99
WOOD CJ at CL
ADAMS J
FOSTER AJ

WEDNESDAY 11 OCTOBER 2000

Regina v Peter Clive Basil KANE

JUDGMENT
1 THE COURT: The appellant was placed on trial for the murder of Wayne George Tonks, on 3 May 1999. The jury returned a verdict of guilty in respect of that charge on 18 May 1999. The appellant appealed against his conviction, and this Court on 10 May 2000, announced that the appeal should be allowed, the conviction quashed and a new trial ordered. We now provide the reasons for that decision.

The Crown Case

2 It was the Crown case that the appellant and his co-accused Benjamin Andrew, went to the home unit of the deceased on 19 May 1990. There, it was alleged, the deceased was struck with a baseball bat that they had taken with them. It was alleged that they then bound his hands, knees and feet with adhesive tape. His ears, eyes and mouth were also found to have been heavily bound with tape. A plastic bag was placed over his head. It was secured by tape wound around his neck. 3 The cause of death was alleged to have been suffocation, either from the tape around the mouth of the deceased and/or by lack of oxygen from the plastic bag that had been placed around his head. The blow to the head, according to the forensic pathologist called by the Crown, could have contributed to death so far as it may have stunned the deceased, making it easier to gag him. 4 Each of the appellant and Andrew were charged with murder, but separate trials were ordered. In the case of Andrew, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. 5 The Crown case against the appellant rested upon:

a) the discovery of his fingerprint upon a drinking glass that was sitting on a coffee table in the deceased’s unit;

b) a confession allegedly made by him in about 1992, to Bedelia Dali, to whom he was later married, that he and Andrew had murdered the deceased because he had raped Andrew;

c) a confession that…

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 Regina v Kane

Details

AGLC: Regina v Kane [2000] NSWCCA 402
Case: [2000] NSWCCA 402
Decision Date: 11 October 2000

CaseChat Overview and Summary

In Regina v Kane, the appellant was convicted of the murder of Wayne George Tonks and appealed against his conviction. The case involved a complex set of circumstances surrounding the death of the victim, who was found bound and gagged with tape, leading the prosecution to argue that the death resulted from suffocation. The appellant and his co-accused were separately tried, with the co-accused found guilty of manslaughter. The appellant's conviction hinged on several pieces of evidence, including a fingerprint found at the crime scene, alleged confessions, and a statement in which the appellant admitted to going to the victim's home with the intent to assault him.

The Court of Criminal Appeal considered multiple grounds of appeal, including the adequacy of the judge's direction to the jury regarding provocation, the failure to discharge the jury, and the direction given concerning the appellant's decision not to testify. The court found that the direction regarding provocation was deficient as it did not correctly convey the legal standard for assessing provocation, particularly omitting the part of the statutory provision that allowed for a response leading to grievous bodily harm. This misdirection fundamentally affected the appellant's right to have the jury consider a lesser charge. The court also noted that it was inappropriate to apply the proviso in this case, given the Crown's concession that the case was suitable for provocation to be left to the jury.

Ultimately, the Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial. This decision was based on the significant error in the provocation direction, which prevented the appellant from receiving a fair trial. The court emphasized that the misdirection was a fundamental error that could not be rectified by substituting a lesser verdict or applying the proviso. The appeal thus succeeded on the grounds that the appellant was entitled to a new trial with proper legal directions.

Orders