Citation: Regina v Fepuleai [2007] NSWCCA 286
Court: New South Wales Court of Criminal Appeal
Date: 4 October 2007
Judge(s): Hodgson JA, Hislop J, Latham J
Background
The Crown appealed against a sentence imposed on the respondent in the District Court before Murrell DCJ. In the course of the Crown appeal, the respondent sought to place new evidence before the Court of Criminal Appeal by way of two affidavits: one sworn by the respondent himself and one from a legal adviser annexing a medical report.
The critical feature of the proposed evidence was that the subject matter had arisen before the original sentencing proceedings and had been discussed by the respondent with his legal advisers at that time. Despite those discussions, the respondent had instructed his lawyers not to rely on the material during sentencing.
The application before the Court of Criminal Appeal was therefore whether this material could be received as fresh evidence on the appeal, or admitted on some other basis in the interests of justice.
Legal Issues
- Whether the affidavits constituted "fresh evidence" admissible on a Crown sentencing appeal
- Whether, if the material did not meet the ordinary requirements for fresh evidence, it should nonetheless be admitted in the interests of justice
- How the present application compared to the principles applied in R v Deng [2007] NSWCCA 216
Decision
Hodgson JA, with whom Hislop J and Latham J agreed, refused the application to admit the evidence. The core difficulty was that the subject matter of the affidavits pre-dated the original sentencing proceedings and had been considered and deliberately set aside by the respondent on his own instructions to his lawyers. This meant the material could not satisfy the ordinary threshold for fresh evidence on appeal.
The Court acknowledged a possible distinction from R v Deng, where the material had been withheld as a result of a tactical decision by lawyers rather than by the client's instructions. Hodgson JA accepted that this distinction existed in principle but did not consider it sufficient to carry the application.
His Honour also left open the possibility that evidence falling short of the fresh evidence standard might still be received in exceptional circumstances where justice strongly demanded admission. However, the circumstances here were not strong enough to reach that threshold. A significant portion of the weight the respondent sought to gain from the proposed evidence had in any event already been taken into account by the sentencing judge, who had considered the respondent's medical condition and vulnerability in custody.
Hodgson JA added that the particular circumstances alleged in the affidavits would have been strongly disputed by the Crown in any event, further weighing against admission.
Orders Made
- Application to admit the evidence refused.
Key Takeaways
- Evidence that arose before sentencing and was deliberately withheld on the defendant's own instructions does not ordinarily satisfy the requirements for fresh evidence on a sentencing appeal.
- The Court of Criminal Appeal confirmed that a distinction may exist between material withheld on a client's instructions and material withheld by lawyers as a tactical decision, though neither situation necessarily clears the fresh evidence bar.
- A residual discretion to admit evidence outside the fresh evidence rules exists in principle, but the interests of justice must strongly support admission before that discretion will be exercised.
- Where the sentencing judge has already accounted for the substance of the proposed evidence (such as a medical condition and custodial vulnerability), the marginal value of admitting the material on appeal is reduced.
- Proposed evidence that would be strongly contested by the Crown is a factor weighing against its admission in this context.
Legislation and Cases Referenced
Cases:
- R v Deng [2007] NSWCCA 216
Legislation: No specific legislation was cited in the text of this decision.