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Court of Criminal Appeal 17 February 2012

JB v Regina

[2012] NSWCCA 12

Also reported as (2012) 83 NSWLR 153
HomicidePublic order & justice offences
CRIMINAL LAW APPEAL CONVICTION ADMISSIONS S 90 EVIDENCE AC 1995 APPEAL

Citation: JB v Regina [2012] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 17 February 2012
Judge(s): Whealy JA; Hislop J; Grove AJ

Background

The appellant, a young man of Sudanese origin aged 15 at the time of the offence, was convicted of murder following a fatal stabbing in the early hours of 21 April 2008 in Granville. The killing arose from a street confrontation between two groups of men after a dispute at Granville Railway Station. The deceased, described by the trial judge as an innocent bystander who had taken no part in the fighting, was stabbed three times by the appellant, dying from a severed femoral artery.

The appellant was sentenced to a non-parole period of 16 years, with a balance of term of seven years, giving a total head sentence expiring in April 2031. Two days after the incident, a youth liaison officer named Sean Clayton attended Merrylands Police Station at the request of police to act as a support person for the appellant. In a private conversation, the appellant told Clayton he had stabbed a man and disclosed where he had concealed the knife.

The appellant appealed against both conviction and sentence. The conviction appeal challenged the admission of the statements made to Clayton and the trial judge's refusal to leave self-defence to the jury. The sentence appeal argued a statutory error in the parole ratio, manifest excess, and failure to take account of all mitigating factors.

  • Whether the trial judge erred in admitting the appellant's admissions to a community support person under s 90 of the Evidence Act 1995 (NSW), having regard to fairness and potential privilege or protected confidence
  • Whether those admissions attracted client legal privilege under s 118 or qualified as a "protected confidence" under s 126B of the Evidence Act
  • Whether the trial judge erred in declining to leave self-defence to the jury, notwithstanding that the appellant's own case at trial was that he was not the person who did the stabbing
  • Whether the sentence contained a statutory error in the ratio of the non-parole period to the head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence was manifestly excessive, and whether the sentencing judge gave adequate weight to mitigating factors including the appellant's youth, lack of prior criminal record, and difficult background

Decision

Admissions to the support person (Ground 1)

The Court upheld the trial judge's admission of the statements made to Clayton. Clayton was a community liaison officer, not a lawyer, and the admissions did not attract client legal privilege under s 118 of the Evidence Act. They also did not qualify as protected confidences under s 126B. The Court found that the appellant spoke freely and without any compulsion, and that there was no unfairness in admitting the statements under s 90. The communications were characterised as unguarded incriminating statements made in circumstances where the appellant's freedom to speak or remain silent was not compromised.

Self-defence (Ground 2)

The Court confirmed that a trial judge must leave a defence to the jury if there is evidence capable of supporting it, even where the accused's own case at trial contradicts that defence. This principle derives from Pemble v R (1971) 124 CLR 107. However, the Court found that there was simply no evidence on which the jury could have concluded that the appellant believed it was necessary to act in self-defence. The deceased was an innocent bystander, unarmed, standing away from the fighting, and posing no threat. There was also no evidence of what the appellant personally believed at the time he inflicted the wounds. The trial judge's refusal to leave self-defence was not an error.

Sentence appeal

The Court granted leave to appeal on the ground that the statutory ratio between the non-parole period and the head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 had been miscalculated. However, the Court found that this error did not result in any practical injustice in the circumstances, and the appeal against sentence was dismissed. On the question of manifest excess, Whealy JA acknowledged genuine concern about whether sufficient weight had been given to the appellant's age of 15 at the time of the offence and his deeply troubled upbringing as a refugee. Ultimately, the Court concluded that the sentencing judge had carefully balanced the competing factors and had not fallen into error. The objective seriousness of the offence and the need for general and personal deterrence justified the sentence imposed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 90 of the Evidence Act 1995 (NSW), admissions made by an accused to a community support person at a police station are not automatically excluded; where the accused speaks freely and without compulsion, and no privilege or protected confidence applies, the court retains a discretion to admit them and may find no unfairness in doing so.
  • Statements to a non-lawyer support person do not attract client legal privilege under s 118 of the Evidence Act, nor do they necessarily qualify as protected confidences under s 126B.
  • The Pemble principle requires a trial judge to leave a defence to the jury if evidence capable of supporting it exists, regardless of the accused's own case theory. However, no evidence capable of supporting self-defence existed here, given the deceased was an unarmed bystander posing no threat and there was no material as to the accused's subjective belief.
  • A statutory miscalculation in the parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 does not automatically produce a successful sentence appeal; the appellate court considers whether the error caused practical injustice.
  • In sentencing juvenile offenders for serious offences, the Court of Criminal Appeal will scrutinise whether adequate weight was given to age and disadvantaged background, but will not intervene where the sentencing judge has carefully balanced those factors against the objective gravity of the offence and the need for deterrence.

Legislation and Cases Referenced

Legislation

  • Evidence Act 1995 (NSW), ss 90, 118, 126B, 127
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 44
  • Children (Criminal Proceedings) Act 1987 (NSW), s 13
  • Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cls 27(4), 34(2)

Cases