Mann v R [2023] NSWCCA 256

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mann v R [2023] NSWCCA 256 Hearing dates: 21 July 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Before: Kirk JA at [1]; N Adams J at [132]; R A Hulme AJ at [133] Decision: (1) Grant leave to appeal (if required) and uphold the appeal. (2) Quash the appellant's convictions on counts 21-24, 26-28, 30, 32, 34 and 36-38 on the indictment and a judgment of acquittal be entered in their place. (3) Quash the appellant's convictions on counts 1-20 on the indictment, which counts are to be subject to a retrial. (4) Quash the aggregate sentence imposed on the appellant in the District Court on 20 August 2021, and remit the matter to that Court for the applicant to be resentenced in due course on counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the plea indictment. (5) List the matter in the arraignment list in the District Court on 20 October 2023. Catchwords: CRIME — Appeals — Child sex offences — Sexual intercourse with children under 10 — Offender with cognitive impairment EVIDENCE — Admissions — Criminal proceedings — Whether to admit Police interview of applicant into evidence under s 138 of the Evidence Act 1995 (NSW) — Applicant vulnerable as Indigenous and intellectually impaired — Protections under Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) — Aboriginal Legal Service advice not to be interviewed or go to interview room accepted and this communicated to Police — Police asked support person if applicant would be interviewed and told no — Police nevertheless commenced interview — Substantial impropriety by Police officers — Primary judge erred in concluding difficulty of obtaining inculpatory evidence favoured admission — Admissibility of evidence reconsidered — Evidence inadmissible APPEALS — Appropriate standard of appellate review re s 138 of the Evidence Act 1995 (NSW) — Whether House v The King error required — Whether open to appeal court to decide admissibility for itself — Discretion to acquit or order retrial affected by interests of justice, which linked to admissibility Legislation Cited: Crimes Act 1900 (NSW), s 66A(1) Criminal Appeal Act 1912 (NSW), ss 5(1), 5F(5)(b), 6(1), 8 Criminal Procedure Act 1986 (NSW), ss 130A(1), 281 Evidence Act 1995 (NSW), ss 90, s 97(1)(b), 138 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 109(c), 112(1), 122 Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), cll 27, 28, 29, 30, 31, 34, 35, 36, 37, 38 Cases Cited: Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246 Castagna v R (2019) 278 A Crim R 194; [2019] NSWCCA 114 Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 King v The Queen (1986) 161 CLR 423; [1986] HCA 59 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 R v Gidley [1984] 3 NSWLR 168 R v Nabalarua (unreported, NSWCCA, 19 December 1997) R v Nguyen (2013) 117 SASR 432; [2013] SASCFC 91 R v Riley [2020] NSWCCA 283 R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Texts Cited: Thomas Prince, "Recurring Issues in Civil Appeals – Part 1" (2022) 96 ALJ 203 Category: Principal judgment Parties: Beau Mann (Applicant) Rex (Crown) Representation: Counsel: