Citation: Landsman v R [2014] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 19 December 2014
Judges: Beazley P (with Hidden J and Fullerton J agreeing)
Background
The appellant was convicted in the Local Court of two counts of assault occasioning actual bodily harm following a summary hearing. He had not given evidence at trial, relying instead on a submission that the prosecution's identification evidence was insufficient. After conviction, the Local Court ordered him to undergo an assessment by a Corrective Services officer to determine his suitability for an intensive correction order (ICO) before sentencing.
During that assessment interview, the officer told the appellant to tell the truth. The appellant then made a statement admitting he had struck each of the two complainants once. He was subsequently sentenced to an ICO and lodged a conviction appeal to the District Court.
On that appeal, the Crown applied for leave under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to adduce as fresh evidence the Corrective Services officer's account of the appellant's admission. Chief Judge Blanch granted leave and then stated a question of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW), asking whether granting such leave was capable of being in the interests of justice.
Legal Issues
- Whether the question posed by the Chief Judge was a question of law suitable for determination under s 5B of the Criminal Appeal Act 1912 (NSW), or merely a question of fact.
- Whether it is capable of being in the interests of justice, under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW), to grant the prosecution leave to adduce as fresh evidence an admission made by an accused person to a Corrective Services officer during a court-ordered ICO suitability assessment.
- Whether the circumstances in which the admission was obtained effectively denied the appellant his common law right to silence.
Decision
Beazley P first addressed the Crown's jurisdictional objection. Her Honour found that the question did raise a question of law, noting that the phrase "interests of justice" is a legal standard and that the question, properly understood, asked whether those interests were capable of being satisfied in the particular legal circumstances described. The Court accepted jurisdiction to proceed.
On the substantive question, Beazley P held that the answer was "No." The assessment interview was conducted pursuant to a court order made after conviction. The appellant had no meaningful choice but to participate, and he was told to tell the truth. In that setting, the appellant was effectively denied his common law right of silence, a right the Court characterised as fundamental to the legal system.
Her Honour emphasised that the admission was obtained through the court-ordered process itself. The Crown could not, consistently with the interests of justice, use evidence extracted in those compelled circumstances to prove its case on a conviction appeal. The Court drew a distinction between the broader "interests of justice" standard under s 18(2) and the narrower statutory concepts of unfairness in ss 90 and 137 of the Evidence Act 1995 (NSW), but noted that those admissibility questions did not need to be resolved.
Beazley P also observed some ambiguity in the stated case as to whether the Chief Judge had granted leave merely to adduce the evidence (subject to admissibility being separately determined) or had ruled it admissible outright. The Court noted potential questions under ss 90 and 137 of the Evidence Act but did not decide them, as it was not necessary to do so.
Orders Made
• The question submitted by Blanch J, Chief Judge of the District Court, pursuant to the Criminal Appeal Act is answered "No"
Key Takeaways
- The Court of Criminal Appeal confirmed that the phrase "interests of justice" in s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) involves a legal standard capable of generating a question of law suitable for a stated case under s 5B of the Criminal Appeal Act 1912 (NSW).
- Where a post-conviction admission is obtained during a court-ordered ICO assessment in which the accused was directed to tell the truth, the circumstances effectively deny the accused the common law right of silence, a factor that goes directly to whether adducing the evidence is in the interests of justice.
- Under s 18(2), granting the prosecution leave to adduce such an admission as fresh evidence on a conviction appeal is not capable of being in the interests of justice when the statement was obtained through the compelled, court-ordered assessment process.
- The "interests of justice" standard in s 18(2) is broader than the concept of "unfairness" in ss 90 and 137 of the Evidence Act 1995 (NSW), meaning a s 18(2) determination is analytically distinct from an admissibility ruling under those provisions.
- The decision does not resolve whether the admission would separately have been excluded under the Evidence Act; those questions remained open on the facts.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 11, 18, 28
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Regulation 2010 (NSW)
- Evidence Act 1995 (NSW), ss 90, 137
Cases:
- Andrews v The Queen [1968] HCA 84; 126 CLR 198
- Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
- Gerakiteys v R [1984] HCA 8; 153 CLR 317
- King v The Queen [1986] HCA 59; 161 CLR 423
- Landsman v DPP [2013] NSWCA 369
- Coco v The Queen [1994] HCA 15; 179 CLR 427
- Dietrich v R [1992] HCA 57; 177 CLR 292
- Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
- Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
- Hammond v R [2013] NSWCCA 93