R v Leung [2012] NSWSC 1451

R v Leung [2012] NSWSC 1451

The accused's disclosures to Nurse Salmon were admissions because they were previous representations adverse to his interests in the trial. They were made during a confidential mental health assessment by a clinical nurse specialist acting in a professional capacity, after the accused had been told the assessment was to help with self-harm issues and without caution. Nurse Salmon regarded the examination as confidential and would disclose only information relevant to self-harm risk. The accused was distressed, anxious, in shock and had been described as hysterical, raising reliability concerns. Admission of the evidence would unfairly forensically disadvantage the accused. Having regard...

Jurisdiction
Australia
Judgment Date
14 November 2012
Procedural Posture
Criminal Proceeding; Manslaughter Charge / Procedural Evidentiary Ruling on the Crown's Application to Adduce a Conversation Between the Accused and a Mental Health Nurse at Redfern Police Station During the Accused's Third Trial
Outcome
Evidence not admitted; the Crown's application to adduce the conversation was rejected.
Legal Topics
['admissions' 'mental Health Assessment in Custody' 'protected Confidence' 'discretion to Exclude Admissions Under S 90 Evidence Act 1995' 'unfairness to an Accused' 'reliability' 'unfair Prejudice Under S 137 Evidence Act 1995' 'public Interest']
['criminal Law' 'evidence'] ['admissions' 'mental Health Assessment in Custody' 'protected Confidence' 'discretion to Exclude Admissions Under S 90 Evidence Act 1995' 'unfairness to an Accused' 'reliability' 'unfair Prejudice Under S 137 Evidence Act 1995' 'public Interest']

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Procedural Posture

Criminal Proceeding; Manslaughter Charge / Procedural Evidentiary Ruling on the Crown's Application to Adduce a Conversation Between the Accused and a Mental Health Nurse at Redfern Police Station During the Accused's Third Trial

Legal Issues

  1. 1 ["Whether the accused's statements to Nurse Salmon during a mental health assessment were admissions within the meaning of the Evidence Act 1995." 'Whether, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence under s 90 Evidence Act 1995.' 'Whether the professional relationship and confidentiality attaching to the mental health assessment supported exclusion of the evidence.' "Whether reliability concerns arising from the accused's distress, anxiety and shock supported rejection of the admissions."]

Ratio Decidendi

The accused's disclosures to Nurse Salmon were admissions because they were previous representations adverse to his interests in the trial. They were made during a confidential mental health assessment by a clinical nurse specialist acting in a professional capacity, after the accused had been told the assessment was to help with self-harm issues and without caution. Nurse Salmon regarded the examination as confidential and would disclose only information relevant to self-harm risk. The accused was distressed, anxious, in shock and had been described as hysterical, raising reliability concerns. Admission of the evidence would unfairly forensically disadvantage the accused. Having regard...

Court Disposition

Evidence not admitted; the Crown's application to adduce the conversation was rejected.

Orders

  • ['The evidence is rejected.']