R v Franklin (No 2) [2020] NSWSC 1191

Supreme Court New South Wales

Medium Neutral Citation: R v Franklin (No 2) [2020] NSWSC 1191 Hearing dates: 10 - 27 August 2020 Date of orders: 24 August 2020 Decision date: 04 September 2020 Jurisdiction: Common Law Before: Button J Decision: Discretion to exclude admission declined Catchwords: CRIMINAL LAW – admissibility of evidence – murder and arson – special hearing – whether an admission allegedly made by accused – discretion to exclude admission pursuant to s 90 of the Evidence Act 1995 (NSW) – reliability of admission made by a severely and chronically mentally ill accused – admission heard by a civilian witness – discretion to exclude admission declined Legislation Cited: Evidence Act 1995 (NSW), ss 88, 90 Cases Cited: Foster v The Queen (1993) 67 ALJR 550; (1993) 66 A Crim R 112; [1993] HCA 80 R v Franklin [2020] NSWSC 1134 R v Lee (1950) 82 CLR 133; [1950] HCA 25 R v Swaffield; R v Pavic (1998) 192 CLR 159; [1998] HCA 1 Category: Procedural and other rulings Parties: Regina (Crown) Cody Franklin (Accused) Representation: Counsel: R Kimbell (Crown) I Nash (Accused)

Solicitors: Solicitor for Public Prosecutions (Crown) Cunninghams – The Law Practice (Accused) File Number(s): 2017/202326

Judgment 1. Introduction 2. On 24 August 2020, towards the conclusion of the evidence in a special hearing by judge alone conducted in the Supreme Court sitting at Orange, I declined to exercise my discretion to exclude an admission allegedly made by Mr Cody Franklin (the accused), pursuant to s 90 of the Evidence Act 1995 (NSW). 3. That section reads: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if— (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. Note— Part 3.11 contains other exclusionary discretions that are applicable to admissions. 1. I indicated to the parties on that occasion that I was not in a position to provide my reasons then, but would do so as soon as reasonably practicable. This judgment constitutes those reasons. 2. To avoid fruitless repetition, this judgment does not repeat the deeper background of the matter to be found in my recent reasons for verdict that brought the special hearing to an end: see R v Franklin [2020] NSWSC 1134.