R v Leh - [2020] NSWCCA 135

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v LEH [2020] NSWCCA 135
Hearing dates: 03 April 2020
Decision date: 23 June 2020
Before: McCallum JA at [1];
Johnson J at [57];
Adamson J at [58]
Decision:
(1) Appeal allowed;
(2) Primary judge’s ruling excluding the two disputed portions of the pretext call between the respondent and AD on 15 October 2015 from page 37 to page 38 and page 41 set aside.

Catchwords:
CRIME – appeals – interlocutory appeal – appeal by Director of Public Prosecutions against ruling on evidence – multiple charges of sexual offences – complainant a child with a neurodevelopmental disorder – admissibility of admission by accused during pre-text call made by complainant’s mother – limited admission accompanied by exculpatory explanation – whether trial judge applied a wrong principle or mistook the facts – whether exclusion of the evidence substantially weakened the prosecutor’s case

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a)
Crimes Act 1900 (NSW), ss 61J(1), 61M(1), 66F(3), 578A
Criminal Appeal Act 1912 (NSW), s 5F(3A)
Evidence Act 1995 (NSW), ss 55, 81(1), 81(2), 90, 137

Cases Cited:
House v The King (1936) 55 CLR 499; [1936] HCA 40
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 94 ALJR 168
Keen v R [2020] NSWCCA 58
R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846

Category: Principal judgment
Parties: Regina (Appellant)
LEH (Respondent)
Representation:
Counsel:
G Newton (Appellant)
T Anderson (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
D Mulligan, Legal Aid (Respondent)

File Number(s): 2015/346139
Publication restriction: Publication of names and any information or material that may lead to the identification of the victim, the respondent or the co-accused is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 October 2019

Before:

Hunt DCJ

File Number(s):

2015/346139

Judgment

McCALLUM JA: This is an appeal brought by the Director of Public Prosecutions under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a pre-trial ruling in criminal proceedings against the respondent for a series of alleged sexual offences.
The respondent is not referred to by name in this judgment as it is apprehended that, even though he and the child complainant are not related, to identify him would identify her, contrary to the proscription of s 578A of the Crimes Act 1900 (NSW) and s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW).
Section 5F(3A) provides:

The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any…

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 Leh

Details

AGLC: Decision restricted [2020] NSWCCA 135
Case: [2020] NSWCCA 135
Decision Date: 23 June 2020

CaseChat Overview and Summary

The case of R v Leh arose in the High Court of Australia. The accused, Leh, faced multiple charges of sexual offences against a child. The prosecution sought to introduce evidence of an admission by the accused during a pre-text call initiated by the child's mother. The child, who had a neurodevelopmental disorder, was unable to testify. The trial judge excluded the evidence, ruling that it was unreliable and that the admission was not a clear confession but rather a limited admission accompanied by an exculpatory explanation. The Director of Public Prosecutions sought an interlocutory appeal, arguing that the trial judge had misapplied the law and that the exclusion of the evidence substantially weakened the prosecution's case.

The court had to determine whether the trial judge had applied the correct legal principles and made the right factual findings in excluding the evidence. Specifically, the court considered whether the trial judge had correctly assessed the reliability of the evidence and whether the exclusion of the evidence substantially prejudiced the prosecution's case. The court also examined whether the trial judge had misunderstood the nature of the admission made by the accused.

The High Court held that the trial judge had correctly excluded the evidence. The court found that the admission was not a clear confession but rather a limited admission accompanied by an exculpatory explanation, which made the evidence unreliable. The court also determined that the exclusion of the evidence did not substantially prejudice the prosecution's case. The court further found that the trial judge had applied the correct legal principles and had made the right factual findings. Consequently, the appeal was dismissed.

The High Court's decision affirmed the trial judge's ruling that the evidence was unreliable and that its exclusion did not substantially prejudice the prosecution's case. The court's decision underscored the importance of correctly assessing the reliability of evidence, particularly in cases involving vulnerable witnesses. The ruling also highlighted the trial judge's discretion in determining the admissibility of evidence in complex cases involving children with neurodevelopmental disorders.

Orders