R v Blackman - [2018] NSWSC 395

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Blackman [2018] NSWSC 395
Hearing dates: 5 March 2018 – 23 March 2018
Decision date: 29 March 2018
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
(1) All five sets of admissions objected to are excluded.

Catchwords:
CRIMINAL LAW – count of murder – special hearing – judge alone – lengthy voir dire – judicial discretion to admit or exclude evidence – objections under s 84, 85, 90, 138 and 139 of the Evidence Act – objection under s 281 of the Criminal Procedure Act – all admissions excluded under s 84 of the Evidence Act – ancillary rulings provided

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (NSW), ss 84, 85, 86A, 90, 138, 139
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 8, Part 9
Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
R v Donnelly (1997) 96 A Crim R 432
R v Naa (2009) 76 NSWLR 271; NSWSC 851

Category: Procedural rulings
Parties: Regina
Gary Clifford Blackman
Representation:
Counsel:
P Rosser QC (Crown)
J Watts (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Universal Law (Accused)

File Number(s): 2014/00104664
Publication restriction: Name of the child is a pseudonym

Judgment

Introduction

On 5 March 2018, Gary Clifford Blackman (the accused) was arraigned on a count of murder in the Supreme Court sitting at Lismore. The proceedings were a special hearing, not a criminal trial, because the accused was unfit to stand trial. Because neither party had sought to have the proceedings conducted before a jury, the special hearing proceeded before me alone.
A lengthy voir dire was conducted with regard to the admissibility of a number of admissions the accused had allegedly made with regard to having fatally assaulted Ms Nicole Weate (the deceased) at the relevant time.
This judgment constitutes my reasons for excluding all of those admissions at the conclusion of the voir dire.

Various aspects of the proceedings and of this judgment

A number of logistical and procedural aspects can conveniently be noted at this stage.
First, the majority of the evidence placed before me was expressed to be on the voir dire alone. Some of it, however, was expressed to be received in the special hearing. That was done to avoid the inconvenience of some witnesses possibly needing to be called twice. The parties (each of whom was represented by counsel extremely experienced in criminal law) were agreed that all of the evidence received in the special hearing could be taken into account in the voir dire. In due course, as necessary, evidence on the voir dire could be “re-tendered” in the special hearing. The transcript makes perfectly clear which evidence was tendered on the special hearing and in the voir dire.
Secondly, it will be understood that all of the admissions are merely alleged to have been made. For the…

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 R v Blackman

Details

AGLC: R v Blackman [2018] NSWSC 395
Case: [2018] NSWSC 395
Decision Date: 29 March 2018

CaseChat Overview and Summary

In this case, the respondent was charged with the murder of a police officer. The matter proceeded to a special hearing before a judge alone, which involved a lengthy voir dire concerning the admissibility of certain evidence. The Crown sought to adduce statements made by the respondent, however, the respondent objected to the admission of these statements under various provisions of the Evidence Act and Criminal Procedure Act. The judge found that all of the statements were inadmissible under section 84 of the Evidence Act, and provided the parties with ancillary rulings on the basis of these findings. The Crown then appealed the judge’s findings, seeking to have the statements admitted.

The court was required to determine whether the judge was correct to exclude all of the respondent’s admissions from evidence. The court considered whether the statements were properly excluded by section 84 of the Evidence Act, which provides that evidence of a person’s admission is not admissible to prove that the person committed an offence. The court also considered whether the statements were properly excluded under sections 85, 90, 138 and 139 of the Evidence Act, which provide that evidence may be excluded on various grounds, including the protection of the public interest and the protection of a party to the proceedings. The court also considered whether section 281 of the Criminal Procedure Act required the statements to be admitted.

The court found that the statements were properly excluded under section 84 of the Evidence Act, which precluded the need to consider the other provisions of the Evidence Act and the Criminal Procedure Act. The court held that the statements were admissions, and as such were properly excluded. The court held that the statements did not fall within any of the exceptions to section 84, and therefore could not be admitted. The court also held that section 281 of the Criminal Procedure Act did not require the statements to be admitted.

The court dismissed the Crown’s appeal and affirmed the findings of the judge that the statements were inadmissible. The court made an order that the statements remain excluded from evidence.

Orders