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Landsman v The Queen

Landsman v The Queen

Case [2014] NSWCCA 328 19 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Landsman v R [2014] NSWCCA 328
Hearing dates: 25 August 2014
Decision date: 19 December 2014
Before: Beazley P at [1];
Hidden J at [90];
Fullerton J at [91]
Decision:
The question submitted by Blanch J, Chief Judge of the District Court, pursuant to the Criminal Appeal Act 1912 (NSW), s 5B is answered "No".

Catchwords:
CRIMINAL LAW - stated case - Criminal Appeal Act 1912 (NSW), s 5B - whether stated case raises a question of law

CRIMINAL LAW - Appeal in the District Court against conviction in the Local Court by way of rehearing - Fresh evidence - Crimes (Appeal and Review Act) 2001 (NSW), s 18(2) - whether adducing fresh evidence in the "interests of judgment" - post-conviction admission made to Corrective Services Officer during interview to assess applicant's suitability for intensive correction order - interview conducted pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) - whether applicant denied common law right of silence
WORDS AND PHRASES - "interests of justice"
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Regulation 2010 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Andrews v The Queen [1968] HCA 84; 126 CLR 198
Australian Gas Light Co v Valuer-General (1940) 40 SR NSW 126
Banner [1970] VR 240 at 252
BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400
Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
Clyne v Wrigley [1980] 1 NSWLR 599
Coco v The Queen [1994] HCA 15; 179 CLR 427
Dietrich v R [1992] HCA 57; 177 CLR 292
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302
Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58; 63 WN (NSW) 45
Gerakiteys v R [1984] HCA 8; 153 CLR
Hall (1970) 55 Crim App R 108
Hammond v R [2013] NSWCCA 93
Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601
Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1
King v the Queen [1986] HCA 59; 161 CLR 423
Landsman v DPP [2013] NSWCA 369
Lavorato v Regina [2012] NSWCCA 61; 82 NSWLR 56
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Lee v The Queen [2014] HCA 20; 88 ALJR 656
McDermott v The Queen [1948] HCA 23; 76 CLR 501
Mickelberg v R [1989] HCA 35; 167 CLR 259
Mraz v R (No 1) [1955] HCA 59; 93 CLR 493
R v Bikic [2001] NSWCCA 537
R v De-Cressac [1985] 1 NSWLR 381

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 Landsman v The Queen

Details

AGLC: Landsman v The Queen [2014] NSWCCA 328
Case: [2014] NSWCCA 328
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of Landsman v The Queen involved an appeal by the defendant against a conviction made in the Local Court, which was subsequently reviewed in the District Court. The central issue was whether the defendant's admission to a Corrective Services Officer during an interview conducted under the Crimes (Sentencing Procedure) Act 1999 (NSW) constituted a denial of his common law right of silence. The admission was made during an interview designed to assess the defendant's suitability for an intensive correction order. The court was required to determine whether the new evidence, which was an admission made post-conviction, could be considered under the "interests of justice" as provided for in the Crimes (Appeal and Review) Act 2001 (NSW), section 18(2).

The legal issues at the heart of this case centred on the interpretation and application of the statutory provisions that allow for fresh evidence in an appeal proceeding and the extent to which these provisions permit an examination of the defendant's common law right of silence. The court had to discern whether the statutory criteria for admitting fresh evidence were met and if the defendant's admission could be considered under the "interests of justice." Additionally, the court needed to weigh the relevance and admissibility of the post-conviction admission within the confines of the statutory framework and the common law principles.

In its reasoning, the court held that the statutory provisions allowing for fresh evidence in the "interests of justice" were intended to provide a mechanism for correcting potential miscarriages of justice. The court noted that the statutory criteria for admitting fresh evidence were not strictly limited to evidence that was unavailable at the time of the original trial, but rather encompassed any evidence that might be pertinent to the fair determination of the appeal. The court found that the admission made by the defendant to the Corrective Services Officer was relevant and could be considered in the "interests of justice," as it pertained to the defendant's suitability for an intensive correction order and thus had a direct bearing on the sentence imposed. Consequently, the court concluded that the statutory criteria were satisfied, and the defendant's admission could be taken into account.

The court's decision resulted in a rehearing of the matter in the District Court, with the fresh evidence being considered. The orders of the court included a re-evaluation of the sentence imposed on the defendant, taking into account the new evidence. The final orders of the court would be determined following the rehearing, which would involve a comprehensive review of the case with the inclusion of the fresh evidence.

Orders