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Court of Criminal Appeal 7 May 2012

R v Jarrett

[2012] NSWCCA 81

Sexual offences
CRIMINAL LAW

Citation: R v Jarrett [2012] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 7 May 2012
Judge(s): Basten JA, Blanch J, Hall J

Background

The respondent stood trial in the District Court at Lismore on charges of indecent assault and sexual intercourse with a child under 16, alleged to have occurred over a weekend in late June and early July 2007. The complainant was a 12-year-old girl who had stayed overnight at the respondent's home as a friend of his daughter.

A central feature of the Crown case was a series of admissions made by the respondent after he presented himself to the Emergency Department of Lismore Base Hospital in early October 2007, apparently in a state of acute distress and threatening suicide. Over the following days, hospital staff and a Department of Community Services worker each recorded the respondent making statements acknowledging sexual contact with the young girl.

At trial, Judge Black in the District Court rejected all four pieces of confession evidence, finding it would be unfair to admit them under s 90 of the Evidence Act 1995, primarily because a consultant psychiatrist had at the time classified the respondent as a "mentally disordered person." The Crown appealed that ruling to the Court of Criminal Appeal.

  • Whether the rejection of the confession evidence "substantially weakened" the prosecution case, thereby satisfying the threshold for a Crown appeal under s 5F(3A) of the Criminal Appeal Act 1912
  • Whether the trial judge correctly exercised the discretion under s 90(b) of the Evidence Act 1995 to exclude the admissions on the basis that their use at trial would be unfair to the respondent
  • Whether a bare diagnosis of mental disorder, without supporting evidence of its actual effect on the respondent, was sufficient to discharge the accused's onus of establishing unfairness under s 90

Decision

The Court of Criminal Appeal was satisfied the s 5F(3A) threshold was met. Without the confessions, the Crown case rested only on the complainant's evidence and some evidence of complaint. The admissions were plainly the strongest part of the prosecution case, and their exclusion substantially weakened it. The Court cited R v Shamouil for the proposition that even a case otherwise likely to succeed can be "substantially weakened" when cogent evidence is withheld.

On the substance of the s 90 discretion, the Court found that the trial judge had erred. Under s 90(b), it is the use of the admission at trial that must be characterised as unfair, having regard to the circumstances in which it was made, per Em v The Queen (2007) 232 CLR 67. The onus of establishing that unfairness rests on the accused.

The trial judge's reasoning rested on the psychiatrist's classification of the respondent as "mentally disordered," but that doctor was not called to give evidence. Looking at the hospital notes, the Court found the only identifiable basis for the mental disorder classification was the respondent's distress about the prospect of going to gaol and his suicidal ideation. That bare assertion, without actual evidence of the respondent's mental state and its effect on the admissions, was not sufficient to discharge the accused's onus.

The Court also rejected the trial judge's secondary reasoning that admitting the evidence might prolong the trial through reliability arguments. That consideration was irrelevant to the s 90 discretion. The admissions appeared spontaneous and were not the product of police questioning. The Crown appeal was allowed and the matter remitted for trial.

Orders Made

  • The Crown appeal was allowed
  • The order rejecting the confessions was set aside
  • The case was remitted to the District Court at Lismore for trial

Key Takeaways

  • Under s 90(b) of the Evidence Act 1995, it is the use of an admission at trial that must be characterised as unfair; the onus of establishing that unfairness rests on the accused, not the Crown.
  • A bare clinical label of "mentally disordered" is insufficient, without more, to justify exclusion of confession evidence as unfair. Actual evidence of the accused's mental state and how it affected the making of the admissions is required.
  • The anticipated trial complexity arising from reliability arguments about an admission is not a relevant consideration when exercising the s 90 discretion.
  • The Court of Criminal Appeal confirmed that evidence can "substantially weaken" a Crown case for the purposes of s 5F(3A) of the Criminal Appeal Act 1912 even where the remaining case might still have some prospect of success, provided the excluded evidence was of real cogency.
  • Distinguishing R v Medcalfe [2002] ACTSC 83, the Court noted that case involved a prior finding of unfitness to plead, detailed psychiatric evidence, and admissions produced through police questioning; none of those features were present here.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Crimes Act 1900 (NSW), ss 61J, 61M(2)
- Evidence Act 1995 (NSW), s 90
- Mental Health Act 2007 (NSW), s 15

Cases:
- R v Shamouil [2006] NSWLR 228
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- R v Medcalfe [2002] ACTSC 83