JW v R [2022] NSWCCA 206

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JW v R [2022] NSWCCA 206 Hearing dates: 05 August 2022 Date of orders: 23 September 2022 Decision date: 23 September 2022 Before: Bell CJ; Mitchelmore JA; Hamill J Decision: (1) Grant leave to appeal against the penalties imposed. (2) Dismiss the appeal against the qualified findings of guilt and penalties imposed. Catchwords: STATUTORY INTERPRETATION – commencement and duration – transitional provisions – where accused found unfit to be tried for a number of criminal offences – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to "proceedings the hearing of which began before the commencement of the amendment" – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing EVIDENCE – admissions – criminal proceedings – improperly obtained – admission of evidence pursuant to s 138 of the Evidence Act 1995 (NSW) – where complainant recorded telephone call with accused without the accused's consent, in contravention of s 7 of the Surveillance Devices Act – where phone call contained admissions made by the accused – where primary judge declined to exclude the recorded phone call pursuant to s 138 of the Evidence Act – whether primary judge erred in assessing the relevant considerations enumerated in s 138(3) – whether probative value was reduced by reason of the accused's intellectual disability – whether importance of phone call in proceedings was reduced by the existence of other evidence containing admissions – whether primary judge erred in finding that the public interest in admitting the phone call outweighed the public interest in its exclusion EVIDENCE – tendency evidence – criminal proceedings – where accused found unfit to be tried for a number of criminal offences, including one of aggravated sexual assault – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where Crown sought to adduce tendency evidence given by a former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to "proceedings the hearing of which began before the commencement of the amendment" – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – where special hearing conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed a number of offences, including one of aggravated sexual assault – where Crown sought to adduce tendency evidence given by former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to "proceedings the hearing of which began before the commencement of the amendment" – whether the relevant "hearing" began on the finding of unfitness to be tried, or at the beginning of the special hearing – whether the amendments to the Evidence Act applied to the admission of tendency evidence SENTENCING – appeal against sentence – severity – sentence manifestly excessive – appeal against limiting term imposed pursuant to s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether sentencing judge gave adequate weight to the appellant's intellectual disability in assessing the need for general deterrence – whether sentencing judge gave effect to recognised principles that people with intellectual disabilities may be inappropriate vehicles through whom to send messages of deterrence – whether limiting term was plainly wrong, unreasonably or unjust Legislation Cited: Crimes Act 1900 (NSW) ss 61, 61J(1), 80AF Crimes (Sentencing Procedure) Act 1999 (NSW) s 54D Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 6(1) Evidence Act 1995 (NSW) ss 90, 94, 97, 97A, 101, 138; Sch 2, cl 28 Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) 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) Cases Cited: Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379 Champion v R (1992) 64 A Crim R 244 Cherry v R [2017] NSWCCA 150 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (NSW) v Sullivan [2022] NSWCCA 183 GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230 Goodridge v R [2014] NSWCCA 37 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 House v The King (1936) 55 CLR 499; [1936] HCA 40 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 James v R [2021] NSWCCA 23 Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1 Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v AB [2015] NSWCCA 57 R v Adamcik (Court of Criminal Appeal (NSW), 22 November 1996, unrep), R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) R v Pearson (Court of Criminal Appeal (NSW), 5 March 1996, unrep) R v Riley [2020] NSWCCA 283 R v Simmons; R v Moore (No 3) [2015] NSWSC 189 Rogerson v R [2021] NSWCCA 160 Ryan v Regina [2017] NSWCCA 209 Stephens v The Queen [2022] HCA 31 The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Yaman v R [2020] NSWCCA 239 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020 at 1917 Category: Principal judgment Parties: JW (Appellant) The Crown (Respondent) Representation: Counsel: