MIH v Regina [2007] NSWCCA 199

New South Wales Court of Criminal Appeal

CITATION: MIH v Regina [2007] NSWCCA 199

HEARING DATE(S): 8 May 2007

JUDGMENT DATE: 5 July 2007

JUDGMENT OF: Campbell JA at 1; Hidden J at 68; Smart AJ at 69

DECISION: (1) Leave to appeal granted.; (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence" – where admission made to ambulance officers treating defendant's dying infant son – whether unfair to defendant to admit the evidence – Evidence Act 1995, s 90 - CRIMINAL LAW – manslaughter – autopsy report – cause of death – reasonable doubt – whether alternative hypothesis concerning cause of death created reasonable doubt - CRIMINAL LAW – offences against the person – assault – inflict grievous bodily harm – reasonable doubt – whether alternative hypothesis concerning how injuries inflicted created reasonable doubt - EVIDENCE – criminal proceedings – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, "having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence" – unfairness – Evidence Act 1995, s 90 - CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – role of court when considering appeal by unrepresented person against conviction

LEGISLATION CITED: Evidence Act 1995

R v Damic [1982] 2 NSWLR 750 R v Edelsten (1990) 21 NSWLR 542 CASES CITED: R v Sophear Em [2003] NSW CCA 374 R v Swaffield (1998) 192 CLR 159 Regina v Fernando [1999] NSWCCA 66