R v Jarrett

[2012] NSWCCA 81

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Jarrett [2012] NSWCCA 81

Hearing dates:

23 April 2012

Decision date:

07 May 2012

Before:

Basten JA at [1]
Blanch J at [2]
Hall J at [20]

Decision:

(1) The Crown appeal be allowed.

(2) The order rejecting the confessions be set aside.

(3) The case be remitted to the District Court at Lismore for trial.

Catchwords:

Criminal law - s5F appeal by Crown against rejection of evidence substantially weakening prosecution case

Criminal law - relevant evidence is necessary to reject confession on the basis of unfairness under s90 Evidence Act 1995.

Legislation Cited:

Criminal Appeal Act 1912
Crimes Act 1900
Evidence Act 1995
Mental Health Act 2007

Cases Cited:

R v Shamouil [2006] NSWLR 228
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
R v Medcalfe [2002] ACTSC 83

Category:

Principal judgment

Parties:

Regina (Applicant)
John Charles Jarrett (Respondent)

Representation:

N Noman (Applicant)
D Imlah (Respondent)
S Kavanagh (Applicant)

File Number(s):

2009/158211

 Decision under appeal 

Jurisdiction:

9101

Citation:

R v John Charles Jarrett

Date of Decision:

2011-10-31 00:00:00

Before:

Black QC DCJ

File Number(s):

2009/158211

Judgment

1. BASTEN JA: I agree with Blanch J.

1. BLANCH J: The Crown appeals pursuant to s5F(3A) of the Criminal Appeal Act 1912 against a decision of his Honour Judge Black in the District Court at Lismore on 31 October 2011.

1. The respondent appeared for trial on an indictment alleging that between 29 June 2007 and 1 July 2007 he committed two offences of indecent assault contrary to s61M(2) Crimes Act 1900 and two offences of sexual intercourse with a child under 16 contrary to s61J Crimes Act 1900.

1. The Crown case was that the complainant, a 12 year old girl, stayed over at the home of her friend who was the daughter of the respondent. She said that her friend went to bed and the respondent then indecently assaulted her and then had penile vaginal intercourse with her. There was some evidence of complaint to a girlfriend in 2007 and also to a boyfriend. The complainant was not interviewed by police until 29 January 2009.

1. At trial the Crown sought to lead evidence of admissions made by the respondent to hospital staff and to Mr Greg Telford, an employee of the Department of Community Services, after he presented himself to the Emergency Department of Lismore Base Hospital.

1. The first piece of evidence sought to be led was a statement from Dr Petroff, a consultant psychiatrist who identified a form filled in by him on 2 October 2007. That form noted a confession by the respondent that he ",... sexually abused his daughter's 13 year old friend some months ago..." and noted the girl had abused him and he was terrified of going to gaol and was threatening to kill himself if discharged. The doctor ticked a box saying the respondent "is a mentally disordered person" and directed he be kept in casualty and treated.

1. The second piece of evidence was a statement from Denis Casey, a clinical nurse at the hospital and he identified the medical notes he made relating to the respondent and said they accurately reflected what the respondent said to him. Those notes reveal the respondent was lying in bed sobbing and said he had "interfered with a 13 year old girl." The girl rang him and said she "had had enough." He was terrified she would tell someone and he would "lose his kids and go to jail." The nurse noted he was not mentally ill but acutely stressed.

1. The third statement was from Dr Chris Donatsch who was the psychiatric registrar at the hospital at the relevant time. He identified hospital notes he made at the time and said they were true. Those notes begin "Self presented to E Dept with suicidal ideation. Claims he had a sexual relationship with a 13 y.o. girl 2 months ago. Feels remorseful, terrified of consequences ...".

1. The fourth statement was from Greg Telford who was an employee of the Department of Community Services in 2007. He said that between 2 October and 10 October 2007 he was asked by the hospital to come and talk to the respondent. He went to the hospital and told the respondent:

"I know what you're here for. I have to tell you straight up that prior to talking to me, that should you mention the young girl's name, I am a mandatory reporter and I will have to notify the authorities."

1. The following exchange occurred between the witness and the respondent:

Respondent: "Yeah that's ok".

Witness: "Is it true that you had sex with the young girl?"

Respondent: "Yeah and I've got to admit I wasn't the first."

Witness: "Regardless she is still a minor."

Respondent: "I want to take responsibility for my behaviour."

1. After objection was taken to the admission of the evidence the trial judge refused to admit the evidence from these four witnesses because it would be unfair within the meaning of that term in s90 of the Evidence Act 1995. He gave as the reason for doing this that at the time the admissions were made Dr Petroff had diagnosed the respondent as mentally disordered and quoted the definition in s15 of the Mental Health Act 2007 as follows:

"A person, whether or not the person is suffering from mental illness, is a mentally disordered person if the person's behaviour for the time being, is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary (a) for the person's own protection from serious physical harm; or (b) for the protection of others from serious physical harm."

1. The trial judge also noted that to admit the evidence might prolong any trial because of arguments as to how reliable the confessions were.

1. Because this is a Crown appeal pursuant to s5F(3A) of the Criminal Appeal Act 1912 the Crown must first establish that the rejection of the evidence "...eliminates or substantially weakens the prosecution's case." Here the case against the respondent in the absence of the confessions was the evidence of the complainant and some evidence of complaint. The evidence of the confessions was undoubtedly the strongest part of the Crown case and the rejection of that evidence did substantially weaken the Crown case. In R v Shamouil [2006] NSWLR 228 at [37] Spigelman CJ said:

"Even a case which is otherwise likely, even very likely, to succeed, may still be 'substantially weakened' if evidence of cogency or force is withheld."

1. Here the Crown case in the absence of the admissions may or may not succeed and the Crown is entitled to challenge the rejection of the evidence.

1. The rejection of the evidence by the trial judge was based on s90 of the Evidence Act 1995 which allows the rejection of evidence. Section 90(b) states "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." In Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Gummow and Hayne JJ noted that while the section requires that regard be had to the circumstances in which the admissions were made, it is the use of the evidence at the trial which is to be characterised as "unfair": at [107].

1. Although the trial judge did not refer in his reasons for rejecting the evidence to the case of R v Medcalfe [2002] ACTSC 83 it was a case submitted to the judge as relevant because of the exercise of the power to reject confession evidence under s90 based on the mental state of the accused. That was a completely different case because the accused had earlier been found unfit to plead and there was psychiatric material detailing his mental condition. It was also a case where the confession was as a result of police questioning and the judge in the ACT Supreme Court formed the view as a result of the medical evidence the accused did not understand the caution and was giving answers he thought would please.

1. In this case there was no evidence of the mental state of the respondent at the time of the admissions. A bare assertion that he was mentally disordered was not sufficient to conclude it would be unfair to admit the evidence. The doctor was not called to give evidence and it is plain from the hospital notes that the only basis for concluding the respondent was mentally disordered was his concern he might go to gaol as a result of committing the offences and was threatening to commit suicide.

1. The onus of establishing unfairness under s90 lies on an accused as it did at common law, see Em v The Queen supra at [63]. Here that onus was not discharged. The admissions made were apparently spontaneous and the consideration that their admission might prolong a trial because of arguments about reliability was an irrelevant consideration.

1. I propose:

(1)   The Crown appeal be allowed.

(2)   The order rejecting the confessions be set aside.

(3)   The case be remitted to the District Court at Lismore for trial.

1. HALL J: I agree with the orders proposed by Blanch J.

Decision last updated: 16 August 2013