Mann v R

Case [2023] NSWCCA 256 11 October 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mann v R [2023] NSWCCA 256
Hearing dates: 21 July 2023
Date of orders: 11 October 2023
Decision date: 11 October 2023
Before: Kirk JA at [1];
N Adams J at [132];
R A Hulme AJ at [133]
Decision:
(1)   Grant leave to appeal (if required) and uphold the appeal.
(2)   Quash the appellant’s convictions on counts 21-24, 26-28, 30, 32, 34 and 36-38 on the indictment and a judgment of acquittal be entered in their place.
(3)   Quash the appellant’s convictions on counts 1-20 on the indictment, which counts are to be subject to a retrial.
(4)   Quash the aggregate sentence imposed on the appellant in the District Court on 20 August 2021, and remit the matter to that Court for the applicant to be resentenced in due course on counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the plea indictment.
(5)   List the matter in the arraignment list in the District Court on 20 October 2023.

Catchwords:
CRIME — Appeals — Child sex offences — Sexual intercourse with children under 10 — Offender with cognitive impairment
EVIDENCE — Admissions — Criminal proceedings — Whether to admit Police interview of applicant into evidence under s 138 of the Evidence Act 1995 (NSW) — Applicant vulnerable as Indigenous and intellectually impaired — Protections under Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) — Aboriginal Legal Service advice not to be interviewed or go to interview room accepted and this communicated to Police — Police asked support person if applicant would be interviewed and told no — Police nevertheless commenced interview — Substantial impropriety by Police officers — Primary judge erred in concluding difficulty of obtaining inculpatory evidence favoured admission — Admissibility of evidence reconsidered — Evidence inadmissible
APPEALS — Appropriate standard of appellate review re s 138 of the Evidence Act 1995 (NSW) — Whether House v The King error required — Whether open to appeal court to decide admissibility for itself — Discretion to acquit or order retrial affected by interests of justice, which linked to admissibility

Legislation Cited:
Crimes Act 1900 (NSW), s 66A(1)
Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(5)(b), 6(1), 8
Criminal Procedure Act 1986 (NSW), ss 130A(1), 281
Evidence Act 1995 (NSW), ss 90, s 97(1)(b), 138
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 109(c), 112(1), 122
Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), cll 27, 28, 29, 30, 31, 34, 35, 36, 37, 38

Cases Cited:
Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246
Castagna v R (2019) 278 A Crim R 194; [2019] NSWCCA 114
Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
King v The Queen (1986)

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 Mann v R

Details

AGLC: Mann v R [2023] NSWCCA 256
Case: [2023] NSWCCA 256
Decision Date: 11 October 2023

CaseChat Overview and Summary

The case of Mann v R involved an appeal against the conviction of the appellant for sexual offences against children under the age of 10. The appellant, who has a cognitive impairment, was represented by counsel and argued that the evidence obtained from an unlawful police interview should not have been admitted at trial. The appeal was heard by the NSW Court of Criminal Appeal, which was tasked with determining whether the trial judge erred in admitting the evidence and whether the court should exercise its discretion to order a retrial.

The central legal issue before the court was whether the police interview of the appellant, which was conducted in breach of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), should be admitted under section 138 of the Evidence Act 1995 (NSW). The court had to consider whether the primary judge correctly exercised their discretion under the provision, whether the court of appeal could review the admissibility of the evidence itself, and whether the error was a House v The King error warranting automatic retrial. The court also had to weigh the interests of justice, which were intertwined with the admissibility of the evidence.

The court found that the primary judge had erred in admitting the evidence, as the difficulty in obtaining inculpatory evidence did not outweigh the substantial impropriety by the police officers. The court held that the admission of the evidence was a serious error, which affected the interests of justice. The court of appeal determined that it could review the admissibility of the evidence for itself, and the error was of such a serious nature that it warranted a new trial. The court concluded that the evidence should not have been admitted and that a retrial was necessary in the interests of justice.

The NSW Court of Criminal Appeal quashed the appellant's conviction and ordered a retrial. The court emphasised that the admissibility of evidence obtained in breach of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) should be carefully considered, and that the interests of justice must be prioritised in such cases. The court also highlighted the importance of ensuring that police officers adhere to the relevant regulations and that vulnerable individuals, such as those with cognitive impairments, are protected during police interviews.

Orders