Citation: R v Franklin (No 2) [2020] NSWSC 1191
Court: Supreme Court of New South Wales
Date: 4 September 2020
Judge(s): Button J
Background
The accused faced a special hearing (a modified trial process for an accused found unfit to stand trial) on one count of murder and two counts of arson arising from events in Parkes on 5 June 2017. The accused was unfit to stand trial due to chronic and severe mental illness. The agreed position of both parties was that, if the physical elements of the offences were established, the accused should be found not guilty on the ground of mental illness. That outcome ultimately followed.
A civilian witness, Ms Willis, gave evidence that shortly after the fire she heard the accused say words to the effect of "the fuck'n cunt got what he deserved" in response to a question about what had happened. The accused had appeared from the burning apartment building and was observed by a number of bystanders at the time.
Defence counsel objected to that alleged admission being used against the accused. This judgment sets out Button J's reasons for declining to exclude the evidence under s 90 of the Evidence Act 1995 (NSW), delivered after the conclusion of the special hearing.
Legal Issues
- Whether it was "reasonably open" to find that the accused made the alleged admission, as required by s 88 of the Evidence Act 1995 (NSW) before the court could consider admissibility.
- Whether the court should exercise its discretion under s 90 of the Evidence Act 1995 (NSW) to exclude the admission on the basis that, having regard to the circumstances in which it was made, it would be unfair to use it against the accused.
Decision
Section 88: Was it reasonably open to find the words were said?
Button J acknowledged the significant reliability concerns surrounding the alleged admission. Ms Willis's account contained internal inconsistencies: her 2017 police statement attributed the question to Ms Dixon (not herself), and reversed the order of the words. She also conceded in cross-examination that she may have misremembered, before affirming in re-examination that she did hear the words. Importantly, Ms Dixon, who was present throughout, said she could not understand anything the accused said. No other bystander, despite a large crowd, reported hearing the words.
Despite those concerns, Button J found it was "reasonably open" to conclude the words were said. The standard under s 88 requires only that such a finding be reasonably open on the evidence, not that it be affirmatively established. The evidence of Senior Constable Mann demonstrated that the accused was capable of intelligible speech at around the same time and location, which supported the possibility that Ms Willis heard what she claimed to have heard.
Section 90: Should the discretion to exclude be exercised?
Button J declined to exclude the admission under s 90. The section requires that exclusion be warranted by the circumstances in which the admission was made, with unfairness to the accused as the operative consideration. His Honour acknowledged the connection between unreliability and unfairness identified in cases such as R v Lee and Foster v The Queen, but treated those as related rather than coextensive concepts. An admission can be potentially unreliable without the circumstances of its making giving rise to unfairness, and vice versa.
The alleged admission was made spontaneously to a civilian in a public setting. There was no conduct by police or investigating authorities that could attract criticism. The accused's mental illness was a relevant factor, but Button J found that, on all the evidence before him, it did not in this particular case warrant discretionary exclusion. The significant possibility of unreliability was a weighty consideration, but not determinative of the s 90 question.
Orders Made
- The court found it was reasonably open, for the purposes of s 88 of the Evidence Act 1995 (NSW), that the accused made the alleged admission.
- The court declined to exercise its discretion under s 90 of the Evidence Act 1995 (NSW) to exclude evidence of what the witness said the accused said.
Key Takeaways
- Under s 88 of the Evidence Act 1995 (NSW), the threshold for admissibility is whether it is "reasonably open" to find that an accused made an admission. Significant reliability concerns do not automatically defeat that threshold.
- The Supreme Court confirmed that unreliability and unfairness under s 90 are related but distinct considerations. Evidence may be potentially unreliable without the circumstances of its making giving rise to unfairness warranting exclusion.
- Where an alleged admission is made spontaneously to a civilian witness in a public setting, with no improper conduct by investigators, the absence of those circumstances weighs against exercise of the s 90 discretion.
- Severe and chronic mental illness in an accused person is a relevant factor in the s 90 analysis, but it does not automatically result in exclusion. The question remains whether, on all the evidence, the accused's condition rendered use of the admission unfair in the particular circumstances.
- Inconsistencies in a witness's account of an alleged admission, including reversal of word order and shifting attribution of questions between witnesses, go to the weight and reliability of the evidence but do not necessarily place it beyond the "reasonably open" threshold in s 88.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 88, 90
Cases
- R v Franklin [2020] NSWSC 1134 (the associated reasons for verdict)
- R v Lee (1950) 82 CLR 133; [1950] HCA 25
- Foster v The Queen (1993) 67 ALJR 550; (1993) 66 A Crim R 112; [1993] HCA 80
- R v Swaffield; R v Pavic (1998) 192 CLR 159; [1998] HCA 1