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Court of Criminal Appeal 25 July 2001

R v Kluska

[2001] NSWCCA 284

Homicide
CRIMINAL LAW NO QUESTION OF PRINCIPLE

Citation: Kluska v R [2001] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 25 July 2001
Judge(s): Ipp AJA, Hulme J, Sperling J

Background

The applicant was convicted of murder in May 1990 following a jury trial before Grove J in the Supreme Court. Because the applicable law at the time required it in the absence of mitigating circumstances, Grove J imposed a life sentence. An earlier appeal against conviction and an application for leave to appeal against sentence were both dismissed in 1994.

In November 1998, the applicant sought redetermination of the life sentence under s 13A of the Sentencing Act 1989 (since repealed). By that time, he had been certified mentally ill and was being managed as a forensic patient in the prison hospital. Grove J declined to redetermine the sentence and directed that the applicant not re-apply for three years.

The applicant filed a late application for leave to appeal against that decision in April 2001. The Court of Criminal Appeal extended time for the application, attributed the delay to the applicant's mental state, and granted leave, but ultimately dismissed the appeal.

  • Whether Grove J erred in declining to redetermine the life sentence under s 13A of the Sentencing Act 1989
  • Whether the three-year bar on re-application was excessive, given that the same period would have applied automatically in any event
  • Whether the SORC report and psychiatric reports were admissible in the redetermination proceedings
  • Whether the correct standard of proof applied to the facts stated in those reports

Decision

Sperling J (with whom Ipp AJA and Hulme J agreed) found no error in Grove J's decision to defer redetermination. The evidence incontrovertibly established that the applicant had been certified mentally ill, had a history of serious offending shortly after earlier parole releases, and that the Serious Offenders Review Council (SORC) was unable to formulate a definitive management programme until his mental state stabilised. Grove J concluded that further investigation was needed before any minimum and additional terms could properly be set.

On admissibility, the Court held that the Evidence Act 1995 does not apply to sentencing proceedings unless the court so directs, by operation of s 4(2) of that Act. Accordingly, the histories recorded in the medical and SORC reports were admissible as evidence of the truth of their contents. The Court noted that even if the Evidence Act had applied, the same result would have followed under s 60.

On the standard of proof, the Court found it unnecessary to resolve the question. Where the only rational evidence is clear and ostensibly sound, and there is no rational basis to reject it, the standard of proof becomes immaterial to the outcome. The applicant's assertion of bias on the part of SORC was not established.

The Court also noted that the three-year bar on re-application imposed by Grove J could not be impugned on the basis that it should have been shorter: the same period would have operated automatically under s 13A(8B) even had no direction been given. The applicant was free to make a fresh application from December 2001, and the Court expressly stated that nothing in its judgment was intended to indicate the outcome of any such future application.

Orders Made

  • Extension of time for the application for leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 13A of the Sentencing Act 1989, a sentencing court could decline to redetermine a life sentence where the evidence supported deferral, including where a prisoner's mental state prevented SORC from formulating a definitive management programme.
  • The Court of Criminal Appeal confirmed that the Evidence Act 1995 does not apply to sentencing proceedings (including redetermination applications) unless the court directs otherwise, pursuant to s 4(2) of that Act.
  • Histories recorded in psychiatric and SORC reports tendered in redetermination proceedings were admissible as evidence of the truth of their contents, without the usual hearsay constraints of the Evidence Act.
  • Where the evidence in favour of a finding is clear, rational, and uncontradicted by any credible material, the precise standard of proof applicable to that finding need not be resolved.
  • In dismissing the appeal, the Court was careful to make no indication as to the likely outcome of any future redetermination application, preserving the applicant's ability to seek fresh consideration from December 2001.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A (including subss (8B) and (9)(b))
- Evidence Act 1995 (NSW), s 4(2), s 60

Cases:
- Welsh (1996) 90 A Crim R 364