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Court of Criminal Appeal 11 October 2023

Mann v R

[2023] NSWCCA 256

Also reported as (2023) 311 A Crim R 162
Sexual offences

Citation: Mann v R [2023] NSWCCA 256
Court: Court of Criminal Appeal, NSW
Date: 11 October 2023
Judge(s): Kirk JA (primary judgment); N Adams J and R A Hulme AJ (agreeing)

Background

The appellant was an Indigenous man with an intellectual impairment, aged 22 at the time of his arrest. He faced 38 charges relating to the alleged sexual abuse of two young children, aged between 3 and 7 years old at the time of the offending. Because of his Indigenous status and intellectual impairment, he was a "vulnerable person" for the purposes of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRA Regulation), which provides specific protections when police question such individuals.

A solicitor from the Aboriginal Legal Service had advised the appellant not to be interviewed and communicated that advice to police. The detective in charge was told of this advice and then asked the appellant's mother, who was present as his support person under the LEPRA Regulation, whether he wished to be interviewed. She confirmed he did not. Despite this, the detective led the appellant into the interview room without explanation and commenced the recorded interview (known as an ERISP). A caution was given, but the detective did not ask the appellant or his mother whether they consented to the questioning.

At a voir dire (a preliminary hearing to determine admissibility), the primary judge, Madgwick ADCJ, found the ERISP had been improperly obtained but admitted it on the basis that the desirability of the evidence outweighed the undesirability of admitting it. The jury ultimately convicted the appellant on 33 counts. For 13 of those counts, the only significant evidence was the admissions made in the ERISP. The appellant was sentenced to an aggregate term of 11 years imprisonment with a non-parole period of 5 years.

  • Whether the standard of appellate review of a s 138 Evidence Act decision requires established error of the kind described in House v The King (1936), or whether a correctness standard applies.
  • Whether, if error is established in the primary judge's s 138 decision, the Court of Criminal Appeal could itself reassess admissibility rather than remit the matter.
  • Whether the primary judge's findings of fact regarding police conduct should be accepted.
  • Whether the primary judge erred in the balancing exercise under s 138(3), particularly in treating the difficulty of obtaining the evidence by lawful means as a factor favouring admission.
  • Whether the ERISP was admissible under s 138 of the Evidence Act when reconsidered by the Court of Criminal Appeal.
  • What orders were appropriate given the inadmissibility of the ERISP and its role in various categories of conviction.

Decision

Standard of review. The Court noted genuine uncertainty about whether the correctness standard or the more restrained House v The King standard applies to appellate review of a s 138 balancing exercise. The Court described this question as "complex, borderline and important" but declined to resolve it, because House v The King error was in any event established. N Adams J noted that significant textual differences between ss 97(1)(b) and 138(1) and (3) of the Evidence Act may limit the usefulness of High Court authority on the analogous question.

The primary judge's error. The primary judge erred in treating the difficulty of obtaining the ERISP by lawful means as a factor favouring admission under s 138(3)(h). The Court held this factor should have weighed against admission, not in favour of it. Deterrence of police "cutting corners" to obtain evidence from vulnerable suspects was a relevant consideration. This constituted a House v The King error, rendering the decision to admit the ERISP legally flawed.

Reconsidering admissibility. Having found error, the Court was satisfied it was open to reconsider admissibility itself, noting that any conclusion it reached on inadmissibility would be a significant factor in assessing the interests of justice when determining the appropriate orders. The detective's conduct was characterised as a substantial departure from minimum standards of acceptable police conduct. He had acted to nullify the protective effect of cll 31, 34, 36 and 37 of the LEPRA Regulation, provisions specifically designed to safeguard vulnerable persons in police custody. The impropriety was deliberate, directed at a vulnerable person, and the circumstances were ones where obtaining the evidence lawfully would likely have been difficult. Balancing all the s 138(3) factors, the Court held the desirability of admitting the evidence did not outweigh the undesirability of doing so, notwithstanding the high probative value of the ERISP and the seriousness of the charges.

Consequences for the convictions. The 13 convictions that depended solely on the ERISP were quashed and acquittals entered. The remaining 20 convictions, while supported by other evidence (including testimony from the two children), had also relied on the ERISP admissions as tendency evidence. The Crown accepted those convictions should be quashed and a retrial ordered. The aggregate sentence, which also covered 12 counts to which the appellant had earlier pleaded guilty, was necessarily set aside because it had been imposed together with the convictions now quashed, and the matter was remitted for resentencing on the guilty plea counts.

Orders Made

  • Leave to appeal granted (if required) and the appeal upheld.
  • Convictions on counts 21-24, 26-28, 30, 32, 34 and 36-38 of the indictment quashed; acquittals entered in their place.
  • Convictions on counts 1-20 of the indictment quashed; those counts to be subject to a retrial.
  • Aggregate sentence imposed on 20 August 2021 quashed; matter remitted to the District Court for resentencing on counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the plea indictment.
  • Matter listed in the arraignment list in the District Court on 20 October 2023.

Key Takeaways

  • Under s 138(3)(h) of the Evidence Act, the difficulty of obtaining evidence by lawful means weighs against admission, not in favour of it. Where police conduct deliberately sidesteps legal protections to obtain a statement from a vulnerable suspect, that difficulty reinforces the case for exclusion.
  • The LEPRA Regulation provides meaningful procedural protections for vulnerable persons during police questioning, including Indigenous people and those with intellectual impairments. A detective who nullifies those protections by proceeding with an interview after being told, by both a legal representative and a support person, that the suspect does not wish to be questioned, commits a substantial impropriety.
  • In assessing admissibility under s 138, even highly probative evidence in serious criminal proceedings may be excluded where the impropriety was deliberate, directed at a vulnerable person, and would have been difficult to obtain by legitimate means. High probative value and offence seriousness are relevant but not determinative.
  • The Court of Criminal Appeal left unresolved whether the correctness standard or the House v The King error standard applies to appellate review of the s 138 balancing exercise, observing the question is complex and important. The point remains open for a future case with a contradictor.
  • Where an appellate court finds a police interview inadmissible, that conclusion is itself a significant factor in the interests-of-justice analysis when deciding between ordering a retrial and entering acquittals. Convictions that rest entirely on inadmissible evidence are likely to attract acquittals, while convictions supported by other evidence but tainted by reliance on that evidence may warrant a retrial.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 138 (exclusion of improperly obtained evidence), s 90, s 97(1)(b)
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), cll 27-31, 34-38 (protections for vulnerable persons)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 109(c), 112(1), 122
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(5)(b), 6(1), 8
- Criminal Procedure Act 1986 (NSW), ss 130A(1), 281
- Crimes Act 1900 (NSW), s 66A(1