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Court of Criminal Appeal 2 April 2007

Perkins v R

[2007] NSWCCA 80

Also reported as 169 A CRIM R 516
Assault & violence
SENTENCE APPEAL ADMISSION OF "FRESH" EVIDENCE

Citation: Perkins v R [2007] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 2 April 2007
Judge(s): McClellan CJ at CL, Barr J, Hoeben J

Background

The applicant pleaded guilty in the District Court to robbery with wounding, having robbed a taxi driver of car keys and cash and inflicted more than a dozen lacerations to the driver's neck and head in the course of the offence. The conduct occurred in April 2004 and arose in circumstances where the applicant appeared to be in a paranoid state, having consumed alcohol (with a blood alcohol level estimated at 0.12) while already managing chronic neck pain and depression through medication.

Freeman DCJ sentenced the applicant in December 2005 to 18 months' non-parole period followed by a balance of term of two years. The sentencing judge accepted that the conduct was out of character and gave weight to the applicant's psychological and medical circumstances, including references to a paranoid state, despite the absence of a formal psychiatric diagnosis.

On appeal, the applicant sought to introduce a psychiatric report prepared by Dr Bruce Westmore in October 2006, nearly a year after sentence was passed. The applicant's entire appeal depended on the Court admitting that report as fresh evidence.

  • Whether Dr Westmore's psychiatric report qualified as "fresh" evidence that could be admitted on a sentence appeal
  • Whether the evidence could have been obtained before sentencing through the exercise of due diligence
  • Whether the psychiatric report was of sufficient significance that the sentencing judge may have regarded it as having a real bearing on the sentence imposed

Decision

Hoeben J (with whom McClellan CJ at CL and Barr J agreed) refused leave to admit the psychiatric report, applying the established tests for fresh evidence on sentence appeals. Under those tests, evidence must both have been unavailable despite the exercise of due diligence, and be sufficiently significant that it might have materially influenced the sentencing judge.

On the significance question, the Court found that Dr Westmore's report added little to what the sentencing judge had already appreciated. The report's principal contribution was an opinion that a mental illness defence may have been available at the time of the offence, with other opinions flowing from that possibility. The sentencing judge had, however, already recognised the applicant's unusual and paranoid conduct, and had given that recognition considerable weight in imposing the sentence, even without a formal psychiatric diagnosis.

The Court also noted that the applicant failed to satisfy the first test: that the evidence could not have been obtained by reasonable diligence before sentencing. The application for leave to appeal was not filed until December 2006, and the applicant would be eligible for parole in June 2007, which the Court observed was not without significance in terms of timing.

Because the applicant conceded that the appeal could not proceed without the fresh evidence, the Court dismissed the appeal once the report was refused.

Orders Made

  • Leave to admit Dr Westmore's psychiatric report of 9 October 2006 as fresh evidence was refused
  • Leave to appeal against sentence was granted
  • The appeal was dismissed

Key Takeaways

  • To be admitted as fresh evidence on a sentence appeal, a report must satisfy at least two distinct tests: it must not have been obtainable by due diligence before sentencing, and it must be of sufficient significance that it may have materially influenced the sentencing outcome.
  • Where a sentencing judge has already identified and given substantial weight to the very matters contained in a later expert report, the report is unlikely to meet the threshold of significance required for admission as fresh evidence.
  • A psychiatric opinion confirming a possible mental illness defence did not constitute materially new evidence where the sentencing judge had, on the existing material, already concluded that the offender was in a paranoid state and treated his conduct as relevantly out of character.
  • The Court of Criminal Appeal noted the timing of the application, filed nearly a year after sentencing and shortly before parole eligibility, as a matter of relevance to the overall circumstances of the appeal.
  • In dismissing the appeal, the Court confirmed that an applicant who concedes there is no alternative ground of challenge bears the full weight of establishing the admissibility of any fresh evidence relied upon.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1)

Cases:
- Gallagher v The Queen (1986) 160 CLR 392
- Iglesias v Regina [2006] NSWCCA 261
- R v Abou-Chabake [2004] NSWCCA 356
- R v Ashton (2002) 137 A Crim R 73
- R v Bailey (1988) 35 A Crim R 458
- R v Ehrenburg (NSW CCA, unreported, 14 December 1990)
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Many (1990) 51 A Crim R 54
- R v Munday [1981] 2 NSWLR 177
- Stumbles v R [2006] NSWCCA 418