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

BASTEN JA: I agree with Blanch J.

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.

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.

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.

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.

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.

The second…

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 Jarrett

Details

AGLC: R v Jarrett [2012] NSWCCA 81
Case: [2012] NSWCCA 81
Decision Date: 07 May 2012

CaseChat Overview and Summary

In the case of R v Jarrett, the defendant was charged with offences related to possessing child exploitation material. The Crown sought to appeal against the trial judge's decision to exclude certain evidence on the basis that it would substantially weaken the prosecution case. The dispute was heard in the NSW Court of Criminal Appeal.

The central legal issue before the court was whether the trial judge was correct in excluding the evidence. Specifically, the court had to determine if the evidence was relevant to assessing the fairness of the defendant's confession under section 90 of the Evidence Act 1995. The Crown argued that the evidence was necessary to challenge the voluntariness and reliability of the confession, which was a critical component of their case.

The court examined the role of evidence in assessing the fairness of a confession. It noted that section 90 of the Evidence Act 1995 allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. However, the court found that the excluded evidence was relevant to the fairness of the confession and should not have been excluded. The court held that the evidence was necessary to challenge the voluntariness of the confession, and its exclusion substantially weakened the prosecution case. Consequently, the court allowed the appeal and remitted the matter to the trial court for reconsideration.

The final orders of the court included a direction for the trial judge to reconsider the excluded evidence and determine whether it should be admitted in accordance with section 90 of the Evidence Act 1995. The case was to be re-trialled if the trial judge determined that the evidence should be admitted.

Orders