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Court of Criminal Appeal 14 May 2007

KAMM v R

[2007] NSWCCA 275

Sexual offences
CRIMINAL LAW SECTION 5F APPLICATION PRE TRIAL EVIDENCE

Citation: KAMM v R [2007] NSWCCA 275
Court: New South Wales Court of Criminal Appeal
Date: 14 May 2007
Judge(s): McClellan CJ at CL; Hidden J; Price J

Background

The applicant faced twelve charges of a sexual nature, arising from six alleged incidents, with two alternative charges per incident. The Crown's case relied significantly on the evidence of two witnesses, referred to here as SH and SC.

During pre-trial hearings on tendency and coincidence evidence, both witnesses gave evidence disputing the authenticity of statements attributed to them. SH said some content in a statement dated 25 June 2003 was incorrect and that her signature on it was a forgery. SC similarly disavowed a statement bearing his name, also alleging forgery. The Crown did not intend to call SC in its case, but the defence sought to cross-examine him.

The applicant sought leave to appeal a District Court decision under section 5F(3)(b) of the Criminal Appeal Act 1912, arguing that unless these forgery allegations were properly investigated before trial, he would be denied a fair trial.

  • Whether the applicant would be denied a fair trial if the alleged statement forgeries were not investigated before trial proceeded
  • Whether a handwriting expert inquiry into the disputed signatures could produce admissible evidence, and on whom the obligation to pursue that inquiry fell
  • Whether other surrounding allegations (including a media deal and illegal recording) provided grounds to delay the trial

Decision

The Court found no sufficient merit in the application and refused leave. McClellan CJ at CL, with Hidden J and Price J agreeing, observed that the core concern was whether proceeding to trial without further investigation into the forgery allegations would cause injustice. On examination, that concern did not hold up.

The Court noted that the police officers who took the disputed statements had not yet given evidence at the pre-trial hearings but were available to do so. The Crown indicated it would call those officers if the defence requested it. The Court found that any such inquiry would take only a short period of time and could be pursued before the trial judge, who would likely accede to such an application.

On the handwriting expert question, the Court was clear: the opportunity to obtain expert analysis of the disputed signatures was equally available to the defence and the Crown. There was no basis for requiring the Crown to take that step. Whether any such expert evidence would ultimately be admissible at trial was a matter the Court left for the trial judge to consider carefully.

The additional allegations raised by the applicant's counsel, including an alleged paid media arrangement with the television program Today Tonight, an alleged extortion letter, and an alleged illegal recording of the applicant, were noted but the Court found they played no real part in the application as ultimately framed.

Orders Made

  • Leave to appeal refused
  • Non-publication order made in respect of both the application and the reasons, until the conclusion of the applicant's trial

Key Takeaways

  • Refusing leave, the Court of Criminal Appeal held that unresolved pre-trial credit issues, including disputed signatures on witness statements, do not automatically amount to a denial of fair trial warranting intervention before verdict.
  • Where a defence seeks handwriting expert analysis of allegedly forged signatures, the obligation to commission and fund that inquiry rests equally with the defence; there is no requirement for the Crown to initiate it.
  • Sufficient avenues remained available within the trial process to investigate the forgery allegations, including calling the police officers who took the statements, meaning pre-trial appellate intervention was not justified.
  • The Court confirmed that the admissibility of any handwriting expert evidence at trial remained a matter for the trial judge to determine, and was not resolved by this application.
  • Surrounding allegations of a media deal, extortion, and illegal recording were raised but ultimately played no operative part in the section 5F leave application as the court analysed it.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(b)

Cases cited: No cases were cited in the judgment.