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Court of Criminal Appeal 23 September 2022

JW v R

[2022] NSWCCA 206

Also reported as (2022) 302 A Crim R 365
Sexual offencesAssault & violenceDomestic & family violence
STATUTORY INTERPRETATION COMMENCEMENT AND DURATION TRANSITIONAL PROVISIONS ADMISSIONS CRIMINAL PROCEEDINGS IMPROPERLY OBTAINED

Citation: JW v R [2022] NSWCCA 206
Court: Court of Criminal Appeal (NSW)
Date: 23 September 2022
Judge(s): Bell CJ; Mitchelmore JA; Hamill J

Background

The appellant was committed for trial on three counts of common assault and one count of aggravated sexual assault, all alleged against a complainant with whom he had been in a domestic relationship. He was 18 at the time of the offending; the complainant was 15 or 16. Following committal, the appellant was diagnosed with an intellectual disability and found permanently unfit to be tried.

Because the appellant could not be tried in the ordinary way, the District Court conducted a "special hearing" under s 19 of the now-repealed Mental Health (Forensic Provisions) Act 1990 (NSW). The purpose of a special hearing is to determine, on the limited evidence available, whether the accused committed the offences charged, to the criminal standard of proof. The primary judge made qualified findings of guilt on all four counts and imposed a total limiting term of 3 years and 3 months, together with a community corrections order of 12 months.

The appellant appealed the qualified findings of guilt on two evidentiary grounds: first, that tendency evidence from a former sexual partner was wrongly admitted; and second, that a secretly recorded telephone call containing his admissions was wrongly admitted despite having been obtained in breach of the Surveillance Devices Act 2007 (NSW). He also sought leave to appeal the penalties as manifestly excessive.

  • Whether the amended tendency evidence provisions in the Evidence Act 1995 (NSW), introduced by the Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW), applied to the special hearing, given that the amendments commenced after the appellant was committed for trial but before the special hearing began.
  • Whether the primary judge erred in admitting the first of two recorded telephone calls under s 138 of the Evidence Act, where that recording was obtained without consent in breach of s 7(1) of the Surveillance Devices Act 2007 (NSW).
  • Whether the appellant's intellectual disability was relevant to the probative value of the admissions in that recording, and whether the existence of other similar admissions reduced its importance in the proceedings.
  • Whether the limiting term imposed was manifestly excessive, having regard in particular to the appellant's intellectual disability and its relevance to general deterrence.

Decision

Tendency evidence and transitional provisions

The Court held that the relevant "hearing" for the purposes of cl 28 of Schedule 2 to the Evidence Act was the special hearing itself, not the earlier fitness proceedings. Because the special hearing commenced after 1 July 2020, the 2020 amendments to the tendency evidence provisions applied. Counsel for the appellant had conceded at the outset that, if the later version of the Act applied, the first ground of appeal must fail. The primary judge had mistakenly proceeded on the basis that the earlier version applied, but that error operated in the appellant's favour and therefore did not produce a substantial miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW).

The illegally recorded telephone call

The Court declined to determine the precise standard of appellate review applicable to s 138 decisions, concluding that no appealable error existed regardless of which standard applied. The appellant's intellectual disability did not diminish the probative value of the recorded admissions as a matter of evidence law. Whether that disability affected the weight to be given to those admissions was a question of fact for the tribunal. The Court also rejected the argument that the phone call's importance was reduced by the existence of other evidence containing admissions: the admissions in the first phone call were substantially more direct and unambiguous than anything else in evidence.

The Court added important qualifications to its conclusion. It emphasised that admitting the recording did not endorse the illegal use of recording devices, particularly where the target is a person with an intellectual disability. Where police knowingly target such a person using an illegal recording, that factor is likely to weigh strongly in favour of exclusion. More broadly, s 138 requires a global balancing exercise, and the disability of the recorded person may be relevant in multiple ways within that exercise.

Manifestly excessive sentence

The Court accepted that the limiting term for the aggravated sexual assault count was a stern one in light of the appellant's youth, prior good character, and intellectual disability. However, reviewing the primary judge's remarks on sentence as a whole, the Court was not satisfied that general deterrence had been given undue weight or that the intellectual disability had been insufficiently considered. The offending was very serious, and the Court could not conclude that the limiting term was plainly wrong, unreasonable, or unjust.

Orders Made

  • Leave to appeal against the penalties imposed was granted.
  • The appeal against the qualified findings of guilt was dismissed.
  • The appeal against the penalties imposed was dismissed.

Key Takeaways

  • Under cl 28 of Schedule 2 to the Evidence Act, the relevant "hearing" that triggers transitional provisions is the hearing at which the evidence is tendered. In the mental health context, a special hearing conducted under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is that relevant hearing, not any earlier fitness proceedings.
  • An intellectual disability affecting an accused does not, as a matter of law, reduce the probative value of admissions for the purposes of s 138(3)(a) of the Evidence Act. The disability is relevant instead to the weight a fact-finder gives those admissions.
  • Where other evidence containing admissions is already before the court, that does not automatically diminish the importance of a separately obtained (and improperly obtained) admission. The comparative directness and clarity of the evidence in question remains a relevant consideration.
  • The Court of Criminal Appeal confirmed that the standard applicable to appellate review of manifestly excessive limiting terms is the same as for ordinary sentences: the limiting term must be shown to be plainly wrong, unreasonable, or unjust before an appellate court will intervene.
  • The court's endorsement of the admission of the illegally recorded call was expressly confined to the particular facts. It noted that where police knowingly target a person with an intellectual disability using a covert recording device, that is likely to be a strong factor militating against admission under s 138.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 61, 61J(1)
  • Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(1)
  • Evidence Act 1995 (NSW), ss 90, 94, 97, 97A, 101, 138; Schedule 2, cl 28
  • Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
  • Mental Health (Forensic Provisions) Act 1990 (NSW) (now repealed), ss 8, 10, 12, 16, 19, 21, 22
  • Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 63, 65
  • Surveillance Devices Act 2007 (NSW), s 7(1)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D

Cases

  • Carroll v The Queen [2009] HCA 13
  • Champion v R (1992) 64 A Crim R 244
  • Cherry v R [2017] NSWCCA 150
  • Dinsdale v The Queen [2000] HCA 54
  • GG v R [2010] NSWCCA 230; (2010) 79 NSWLR 194
  • Goodridge v R [2014] NSWCCA 37
  • House v The King [1936] HCA 40; (1936) 55 CLR 499
  • IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
  • James v R [2021] NSWCCA 23
  • Kadir v The Queen; Grech v The Queen [2020] HCA 1; (2020) 267 CLR 109
  • Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
  • Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
  • R v AB [2015] NSWCCA 57
  • R v Adamcik (NSWCCA, 22 November 1996, unreported)
  • R v Janceski [2005] NSWC