R v Franklin (No 2) - [2020] NSWSC 1191

Supreme Court

New South Wales

Medium Neutral Citation: R v Franklin (No 2) [2020] NSWSC 1191
Hearing dates: 10 - 27 August 2020
Date of orders: 24 August 2020
Decision date: 04 September 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Discretion to exclude admission declined

Catchwords:
CRIMINAL LAW – admissibility of evidence – murder and arson – special hearing – whether an admission allegedly made by accused – discretion to exclude admission pursuant to s 90 of the Evidence Act 1995 (NSW) – reliability of admission made by a severely and chronically mentally ill accused – admission heard by a civilian witness – discretion to exclude admission declined

Legislation Cited:
Evidence Act 1995 (NSW), ss 88, 90

Cases Cited:
Foster v The Queen (1993) 67 ALJR 550; (1993) 66 A Crim R 112; [1993] HCA 80
R v Franklin [2020] NSWSC 1134
R v Lee (1950) 82 CLR 133; [1950] HCA 25
R v Swaffield; R v Pavic (1998) 192 CLR 159; [1998] HCA 1

Category: Procedural and other rulings
Parties: Regina (Crown)
Cody Franklin (Accused)
Representation:
Counsel:
R Kimbell (Crown)
I Nash (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Cunninghams – The Law Practice (Accused)

File Number(s): 2017/202326

Judgment

Introduction
On 24 August 2020, towards the conclusion of the evidence in a special hearing by judge alone conducted in the Supreme Court sitting at Orange, I declined to exercise my discretion to exclude an admission allegedly made by Mr Cody Franklin (the accused), pursuant to s 90 of the Evidence Act 1995 (NSW).
That section reads:

Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Note—

Part 3.11 contains other exclusionary discretions that are applicable to admissions.

I indicated to the parties on that occasion that I was not in a position to provide my reasons then, but would do so as soon as reasonably practicable. This judgment constitutes those reasons.
To avoid fruitless repetition, this judgment does not repeat the deeper background of the matter to be found in my recent reasons for verdict that brought the special hearing to an end: see R v Franklin [2020] NSWSC 1134.

Subject matter of objection

To recap only very briefly: the accused was subject to a special hearing as he was unfit to stand trial because of chronic and severe mental illness. The indictment contained one count of murder and two counts of what I shall call for simplicity arson, all said to have been committed in the regional centre of Parkes on 5 June 2017.
The homicide was said to have been effected by the brutal bashing of an elderly man in his own home in a block of flats,…

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 Franklin (No 2)

Details

AGLC: R v Franklin (No 2) [2020] NSWSC 1191
Case: [2020] NSWSC 1191
Decision Date: 04 September 2020

CaseChat Overview and Summary

The defendant, Franklin, stood trial for the alleged murder of a person and the deliberate setting of a fire. The trial judge held a special hearing to consider whether an admission made by the defendant could be admitted as evidence. The hearing was necessary because the defendant was suffering from severe and chronic mental illness. The admission was reportedly overheard by a civilian witness, who claimed that the defendant had confessed to the crime. The case was heard in the Court of Criminal Appeal.

The court was required to determine whether the admission could be admitted as evidence under section 90 of the Evidence Act 1995 (NSW). The court had to assess the reliability of the admission, given the defendant's mental state at the time the admission was made. The court also had to consider whether the admission was relevant to the charges against the defendant. The court was tasked with deciding whether the probative value of the admission outweighed any prejudicial effect it might have on the jury.

The court declined to exercise its discretion to exclude the admission. The court found that the admission was reliable, given that it was made by the defendant and overheard by a civilian witness. The court also found that the admission was relevant to the charges against the defendant. The court held that the probative value of the admission outweighed any prejudicial effect it might have on the jury. The court found that the admission could be admitted as evidence.

The court declined to exercise its discretion to exclude the admission made by the defendant. The admission was therefore admitted as evidence in the trial.

Orders