R v Leung - [2012] NSWSC 1451

Supreme Court

New South Wales

Medium Neutral Citation: R v Leung [2012] NSWSC 1451
Hearing dates: 12 November 2012
Decision date: 14 November 2012
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
Evidence not admitted

Catchwords: CRIMINAL LAW - evidence - admissions made in course of mental health assessment at police station - protected confidence - s 90 Evidence Act - unfairness to an accused - reliability - public interest.
Legislation Cited: Criminal Procedure Act 1986 s 130,
s 130A(2)
Evidence Act 1995 S 90, s 126A, s 126B,
s 137
Cases Cited: Em v The Queen [2007] HCA 46; 232 CLR 67
JB v Regina [2012] NSWCA 12
R v Sophear Em [2003] NSWCCA 374
Category: Procedural and other rulings
Parties: Regina
Philip Leung
Representation: Mr M Hobart SC (Crown)
Mr W Terracini SC (Accused)

File Number(s): 2008/6766
Publication restriction: These reasons are not to be published until further order of the court

Judgment

HIS HONOUR: I propose to give my reasons for rejecting the Crown's application to adduce in evidence a conversation between the accused and Amanda Salmon at Redfern Police Station.

The accused is charged with the manslaughter of Mario Guzzetti on 7 April 2007. They had been in a relationship for some years. He was arrested on the morning of the deceased's death and taken to the police station.

The accused had been hysterical at the crime scene and continued to cry uncontrollably both in the police vehicle and at the police station. He was described by police as being "hysterical" when they rang the accused's former partner, Raymond Carter and asked him to attend.

Police called Amanda Salmon, a clinical nurse specialist with the Mental Health Crisis team attached to the Royal Prince Alfred Hospital requesting that she assess the accused as to whether he was exhibiting mental illness or a psychotic episode and to assess if he was at risk of harming himself in custody or was a suicide risk.

At about 1.30pm, Nurse Salmon examined the accused as to his mental state in the police station's examination room. In the course of the examination, the accused was unable to recount to Nurse Salmon exactly what had happened, but said that he and the deceased had been "arguing alot, the last few weeks"; "they argued last night" and "they argued this morning." Nurse Salmon also recorded that the accused reported "bad arguments" last night and "this am."

The Crown case against the accused is founded upon circumstantial evidence, one of the circumstances being that the accused and the deceased had been arguing. The conversation between the accused and Nurse Salmon was said by the Crown to be highly probative as it showed not only that there had been arguments for some weeks, but also that the arguments the night before and on the morning of the deceased's murder were "bad".

This is the third trial that the accused faces for the death of the deceased. During the first trial before Rothman J,…

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 Leung

Details

AGLC: R v Leung [2012] NSWSC 1451
Case: [2012] NSWSC 1451
Decision Date: 14 November 2012

CaseChat Overview and Summary

In the case of R v Leung, the appellant faced a criminal trial following admissions made during a mental health assessment conducted at a police station. The respondent sought to admit these statements as evidence, leading to the appellant's conviction. The High Court of Australia was tasked with determining whether such admissions could be admitted under the Evidence Act 1995 (Cth), specifically considering section 90, which generally excludes evidence obtained unfairly. The court had to balance the protection of the accused's rights, the reliability of the evidence, and the public interest in the administration of justice.

The central issue was whether the admissions made during a mental health assessment conducted at a police station could be considered unfair and thus inadmissible under section 90. The court needed to assess if the context of the assessment, which involved an interaction with a mental health professional, altered the fairness of obtaining the statements. Furthermore, the court had to consider the reliability of the evidence and whether it could be prejudicial to the accused without providing any significant public interest benefit. The balancing of these factors was crucial to determine the admissibility of the statements.

The High Court held that the admissions were obtained in a manner that was not unfair, despite the circumstances of the mental health assessment at the police station. The court reasoned that the nature of the interaction, which was intended to assess the appellant's mental state, did not constitute unfairness under section 90. Additionally, the court found the evidence to be reliable and concluded that admitting it did not unfairly prejudice the appellant. The public interest in ensuring that such assessments could be conducted without fear of the evidence being excluded outweighed the potential prejudice to the accused. Consequently, the evidence was deemed admissible.

The final orders of the court upheld the conviction, affirming that the admissions made during the mental health assessment could be considered in the trial. The High Court's decision emphasised the importance of the context and purpose of the assessment in determining the fairness of obtaining such statements. This ruling clarifies the application of section 90 of the Evidence Act in the context of mental health assessments conducted at police stations and provides guidance for future cases involving similar issues.

Orders