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Supreme Court 29 March 2018

R v Blackman

[2018] NSWSC 395

Assault & violenceHomicide
CRIMINAL LAW COUNT OF MURDER SPECIAL HEARING JUDGE ALONE LENGTHY VOIR DIRE ANCILLARY RULINGS PROVIDED

Citation: R v Blackman [2018] NSWSC 395
Court: Supreme Court of New South Wales
Date: 29 March 2018
Judge: Button J

Background

The accused faced a count of murder arising from the alleged fatal assault of a woman at a semi-rural property near Murwillumbah in mid-March 2014. Because the accused was found unfit to stand trial, the proceedings took the form of a special hearing rather than a criminal trial. Neither party sought a jury, so the matter proceeded before Button J alone.

The central evidentiary dispute concerned five sets of alleged admissions made by the accused across three days in April 2014, spanning two hospitals and a police station. The prosecution sought to rely on these statements; the defence challenged their admissibility on multiple grounds under both the Evidence Act 1995 (NSW) and the Criminal Procedure Act 1986 (NSW).

A lengthy voir dire (a hearing within a hearing to determine admissibility, conducted before the substantive proceedings) was held. This judgment sets out the court's reasons for excluding all five sets of alleged admissions.

  • Whether the alleged admissions were properly excluded under s 84 of the Evidence Act, which concerns admissions influenced by violent, oppressive, inhuman or degrading conduct
  • Whether the admissions should be excluded under s 85, which addresses reliability concerns arising from the circumstances in which admissions were made
  • Whether the court should exercise its discretion to exclude the admissions under s 90, which allows exclusion where it would be unfair to use an admission against a party
  • Whether the admissions were obtained in contravention of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and should be excluded under s 138 of the Evidence Act, which governs evidence obtained illegally or improperly
  • Whether the requirements of s 139 of the Evidence Act, relating to the caution that must be given before questioning, were breached
  • Whether the admissions were subject to exclusion under s 281 of the Criminal Procedure Act, which imposes conditions on the admissibility of admissions made to police during the investigation of serious indictable offences

Decision

Button J conducted a detailed assessment of each of the five sets of alleged admissions separately, applying each of the contested statutory provisions in turn. The results varied across the different grounds: some sets of admissions were admitted under particular provisions but excluded under others, and a number of the individual objections were not upheld.

Despite some admissions surviving individual challenges under ss 85, 90, 138, 139, and 281, all five sets were ultimately excluded under s 84 of the Evidence Act. Section 84 requires a court to exclude an admission if it was influenced by conduct that was violent, oppressive, inhuman or degrading, whether or not that conduct was lawful. The court found that this threshold was met across all five sets of alleged admissions, and that exclusion under s 84 was therefore mandatory rather than discretionary.

Because s 84 alone was sufficient to exclude all five sets of admissions, the exclusion of evidence under the other provisions (where those objections were upheld) operated as additional or alternative grounds rather than independent determinative findings. The court provided ancillary rulings on each of the remaining grounds for completeness.

The judgment also addressed a number of procedural matters particular to a special hearing, including the basis on which evidence tendered solely on the voir dire could be re-tendered in the special hearing itself, and how the court treated uncontested written statements from witnesses who were not cross-examined.

Orders Made

  • All five sets of alleged admissions objected to by the defence were excluded.

Key Takeaways

  • Section 84 of the Evidence Act 1995 (NSW) operates as a mandatory exclusionary rule: where a court is satisfied that an admission was influenced by violent, oppressive, inhuman or degrading conduct, the admission must be excluded regardless of whether that conduct was itself lawful.
  • A single successful ground of exclusion under s 84 is sufficient to exclude an admission, even where other grounds of objection (such as ss 85, 90, 138, 139 of the Evidence Act or s 281 of the Criminal Procedure Act) are not upheld.
  • In a special hearing for an accused found unfit to stand trial, the court may receive evidence on the voir dire and in the special hearing simultaneously to avoid the inconvenience of recalling witnesses, provided the basis on which evidence is tendered is clearly recorded on transcript.
  • Where opposing counsel does not cross-examine a witness and the witness's evidence is tendered by written statement, the Supreme Court proceeded on the basis that the contents of that statement were conceded by the opposing party.
  • The decision confirms that courts will scrutinise with particular care the circumstances surrounding admissions made by accused persons who have known cognitive impairments, particularly in the context of hospital and police station interviews conducted over multiple days.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 84, 85, 86A, 90, 138, 139
- Criminal Procedure Act 1986 (NSW), s 281
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Parts 8 and 9
- Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- R v Donnelly (1997) 96 A Crim R 432
- R v Naa (2009) 76 NSWLR 271; NSWSC 851