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Court of Criminal Appeal 11 October 2000

REGINA v KANE

[2000] NSWCCA 402

Homicide

Citation: Regina v Kane [2000] NSWCCA 402
Court: NSW Court of Criminal Appeal
Date: 11 October 2000
Judge(s): Wood CJ at CL, Adams J, Foster AJA

Background

The appellant was convicted by a jury of the murder of a man at his home unit in May 1990. The Crown alleged that the appellant and a co-accused visited the deceased, struck him with a baseball bat, bound him with adhesive tape, and placed a plastic bag over his head, causing death by suffocation. The co-accused was tried separately and acquitted of murder but convicted of manslaughter.

The Crown's case rested on a fingerprint found at the scene, alleged confessions made to the appellant's then-wife and her mother, and statements the appellant made in a recorded police interview. In that interview, the appellant said he and the co-accused had returned to the deceased's unit intending to assault him and recover photographs, following an earlier occasion on which they said the deceased had drugged, restrained and sexually assaulted them.

The appellant did not give evidence at trial. Three grounds of appeal were advanced, but the Court determined that one ground relating to the adequacy of the provocation direction was sufficient to require a new trial, making it unnecessary to fully resolve the remaining grounds.

  • Whether the trial judge's direction on provocation was adequate under s 23(2)(b) of the Crimes Act 1900, in particular whether it correctly identified the full range of intentions relevant to the provocation inquiry
  • Whether the trial judge's direction on the failure of the appellant to give evidence complied with the principles subsequently clarified in RPS (2000) 74 ALJR 449
  • Whether the trial judge should have discharged the jury following a Crown witness's failure to recall an alleged confession and a mid-trial change of defence counsel
  • Whether the trial judge's direction on causation adequately addressed the appellant's individual participation in the act causing death

Decision

The Court allowed the appeal on the ground that the provocation direction was materially deficient. Section 23(2)(b) of the Crimes Act 1900 requires the jury to consider whether the provocative conduct could have caused an ordinary person to lose self-control and form an intent either to kill or to inflict grievous bodily harm on the deceased. The trial judge's written direction omitted the second limb entirely, framing the question solely by reference to an intent to kill.

This omission was significant. The appellant was sixteen years old at the time of the alleged offence, and his co-accused had been acquitted of murder and convicted only of manslaughter. The incomplete direction effectively narrowed the jury's inquiry, depriving the appellant of the opportunity to have a lesser verdict returned. The jury may have concluded that the provocative conduct could have caused a person in the appellant's position to form an intent to cause grievous bodily harm, even if not necessarily an intent to kill.

The Court also rejected the Crown's submission that the proviso should be applied. The Crown had conceded at trial, and again on appeal, that the provocation issue was properly left to the jury. In those circumstances, the Court held it was not open to the Crown to rely on the proviso to resist a new trial. The misdirection also constituted a fundamental error, which independently precluded application of the proviso under the principles in Green (1997) 191 CLR 334.

On the remaining grounds, the Court made no final determinations. The direction on the accused's silence pre-dated the High Court's decision in RPS and would need to be reconsidered at retrial. The jury discharge and causation grounds were left for resolution in light of how the evidence emerged at any new trial.

Orders Made

  • Appeal allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • A provocation direction under s 23(2)(b) of the Crimes Act 1900 must put both limbs to the jury: whether the provocative conduct could have caused an ordinary person to form an intent to kill, or an intent to inflict grievous bodily harm. Omitting the second limb is a material misdirection.
  • Where the incomplete direction deprives an accused of a realistic opportunity to obtain a lesser verdict, a new trial is required rather than substitution of a lesser verdict, which remains a matter for the jury.
  • A fundamental misdirection on provocation is not amenable to the application of the proviso, consistent with the High Court's approach in Green (1997) 191 CLR 334.
  • The Court of Criminal Appeal confirmed that a Crown concession at trial that provocation was properly left to the jury is not easily resiled from in a subsequent proviso submission on appeal.
  • Where an appeal succeeds on one ground requiring a new trial, the Court may decline to finally determine other grounds whose resolution will depend on how the evidence develops at retrial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23(2)(b)

Cases
- 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