Mann v R

(2023) 311 A Crim R 162; [2023] NSWCCA 256

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Evidence
2. › Admissions
3. › Criminal proceedings
4. › Exclusion of improperly obtained evidence
5. › Police interview of vulnerable person
6. › Whether desirability of admitting evidence outweighed undesirability
7. › Difficulty of obtaining evidence without impropriety
8. › Whether factor weighs for or against admission where impropriety deliberate
9. › Evidence Act 1995 (NSW), s 138
1. Evidence
2. › Admissions
3. › Criminal proceedings
4. › Impropriety in obtaining admissions
5. › Indigenous person with intellectual impairment
6. › Protections for vulnerable persons under LEPRA Regulation
7. › Police commencing interview after being told applicant did not wish to be interviewed
8. › Whether conduct substantially improper
9. › Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), cll 31, 34, 36, 37
1. Appeal
2. › Criminal appeal
3. › Standard of appellate review
4. › Decision to admit or exclude evidence under s 138 of the Evidence Act 1995 (NSW)
5. › Whether correctness standard or House v The King standard applies
6. › Whether appeal court may reconsider admissibility where error established
7. › Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 8
1. Appeal
2. › Criminal appeal
3. › Appellate review of findings of fact
4. › Advantages of trial judge who saw and heard witnesses
5. › Whether Crown's challenge to findings of fact should be accepted
6. › Fox v Percy (2003) 214 CLR 118

Quick Take

Where Police deliberately obtain admissions from a vulnerable person in contravention of LEPRA Regulation protections — particularly by commencing an interview after being told the person does not wish to be interviewed — the difficulty of obtaining the evidence without impropriety weighs against admission under s 138(3)(h), applying Kadir. The probative value and importance of the evidence, even for very serious charges, will not necessarily outweigh the undesirability of admitting evidence obtained through substantial impropriety directed at a vulnerable person. The standard of appellate review for s 138 decisions (correctness vs House v The King) remains unresolved.