Citation: Regina v Jason Michael Kane [2004] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 19 March 2004
Judge(s): Sully J, Studdert J, Dunford J
Background
The appellant was convicted by a jury in the District Court in October 2002 of armed robbery while carrying a knife, contrary to s 97(1) of the Crimes Act 1900. The offence involved the robbery of a TAB agency in Mascot late at night, during which the lone employee was threatened and approximately $2,389 was taken. The appellant was sentenced to eight years' imprisonment with a non-parole period of six years.
The Crown case was circumstantial. A balaclava discarded near the scene was recovered by police and yielded a DNA profile. That profile matched DNA obtained from a cigarette the appellant later discarded and from a hair sample taken after his arrest. The victim, a regular customer of the agency, recognised the assailant's general demeanour and physical characteristics.
The appellant appealed against both his conviction and his sentence, advancing several grounds in each.
Legal Issues
- Whether the DNA evidence was admissible, given alleged breaches of the Crimes (Forensic Procedures) Act 2000, particularly s 82
- Whether the trial judge erred in declining to direct a verdict of acquittal at the close of the Crown case
- Whether the verdict was unsafe and unsatisfactory
- Whether the sentence of eight years with a six-year non-parole period was manifestly excessive, having regard to sentencing guidelines and statistics
Decision
DNA evidence and s 82 of the Forensic Procedures Act
The second ground of appeal challenged the admission of the DNA evidence on the basis that the forensic procedures used had not complied with the Crimes (Forensic Procedures) Act 2000. Section 82 of that Act provides that evidence derived from non-compliant forensic procedures may be excluded unless the court is satisfied, among other things, that admitting the evidence is more desirable than the undesirability of admitting improperly obtained evidence. The Court considered the scope of the relevant definitions and the operation of s 82, and was not persuaded that any error had been established in the trial judge's decision to admit the evidence.
Directed verdict and unsafe verdict
The third ground, that the trial judge should have directed an acquittal at the close of the Crown case, and the first ground, that the verdict was unsafe and unsatisfactory, were both rejected. The Court found the DNA evidence, combined with the victim's identification of the appellant's characteristics, provided sufficient material to support the conviction.
Sentence appeal
The Court also dismissed the sentence appeal. It rejected the submission that the case fell substantially within the parameters of the guideline judgement in R v Henry, noting the appellant was not a young offender, had a significant criminal history, the sum taken was not small, there was a degree of planning, and there was no plea of guilty. The Court found the case was more serious than the scenario contemplated in R v Henry, which pointed to a head sentence exceeding the four to five year range identified in that guideline. While reference was made to Judicial Commission statistics, the Court reaffirmed that such statistics must be used with caution and have limited value. No error in the sentencing judge's reasoning was identified, and the sentence was not considered excessive.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
- Appeal against conviction dismissed
Key Takeaways
- Section 82 of the Crimes (Forensic Procedures) Act 2000 provides a discretionary exclusionary regime for evidence derived from non-compliant forensic procedures, but evidence need not be excluded where the court is satisfied the desirability of admission outweighs the undesirability of admitting improperly obtained material.
- A balaclava discarded near a crime scene and yielding a DNA profile constitutes forensic material capable of supporting a conviction when matched against samples taken from the accused.
- In dismissing the sentence appeal, the Court confirmed that the R v Henry guidelines for armed robbery do not assist an offender who is not young, has a significant criminal history, did not plead guilty, and committed a planned offence.
- Judicial Commission sentencing statistics carry limited weight and must be used with caution, particularly when the maximum penalty for the offence is substantial, as Greg James J observed in R v Wu.
- No error was established in the trial judge's refusal to direct an acquittal where circumstantial DNA evidence and witness recognition together provided a sufficient basis for the jury to convict.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1)
- Crimes (Forensic Procedures) Act 2000 (NSW), ss 3, 82, 83
Cases
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Bloomfield (1998) 44 NSWLR 734
- R v Wu [2002] NSWCCA 214