Mann v R [2023] NSWCCA 256

Mann v R [2023] NSWCCA 256

The deliberate overbearing by Police of the applicant's communicated wish, after legal advice, not to be interviewed amounted to substantial impropriety. The balancing exercise under s 138 Evidence Act 1995 (NSW), properly performed, required exclusion of the ERISP. As the convictions on some counts depended solely on this evidence, those were quashed and acquittals entered. Other convictions relying partially on the ERISP were quashed and remitted for retrial. Sentence imposed on other counts was also quashed and remitted for resentencing.

Parties
Applicant: Beau Mann; Crown: Rex
Jurisdiction
Australia
Judgment Date
11 October 2023
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence From District Court to Court of Criminal Appeal
Outcome
Appeal upheld. Convictions quashed or set aside as specified. Retrials and resentencing directed.
Legal Topics
Appeal Against Conviction, Child Sexual Offences, Admissibility of Evidence, Improperly Obtained Admissions, Police Conduct and Cognitive Impairment, Exclusion of Evidence Under S 138 Evidence Act 1995 (nsw)
Criminal Law Evidence Appeal Against Conviction Child Sexual Offences Admissibility of Evidence Improperly Obtained Admissions Police Conduct and Cognitive Impairment Exclusion of Evidence Under S 138 Evidence Act 1995 (nsw)

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Parties

Beau Mann

Applicant

Rex

Crown

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence From District Court to Court of Criminal Appeal

Legal Issues

  1. 1 Whether electronically recorded interview (ERISP) with Police was improperly obtained and inadmissible under s 138 Evidence Act 1995 (NSW)
  2. 2 Appropriate standard of appellate review under s 138 Evidence Act 1995 (NSW)
  3. 3 Whether trial judge erred in balancing exercise under s 138(3)

Ratio Decidendi

The deliberate overbearing by Police of the applicant's communicated wish, after legal advice, not to be interviewed amounted to substantial impropriety. The balancing exercise under s 138 Evidence Act 1995 (NSW), properly performed, required exclusion of the ERISP. As the convictions on some counts depended solely on this evidence, those were quashed and acquittals entered. Other convictions relying partially on the ERISP were quashed and remitted for retrial. Sentence imposed on other counts was also quashed and remitted for resentencing.

Court Disposition

Appeal upheld. Convictions quashed or set aside as specified. Retrials and resentencing directed.

Orders

  • Grant leave to appeal (if required) and uphold the appeal.
  • Quash the appellant's convictions on counts 21-24, 26-28, 30, 32, 34 and 36-38 on the indictment and enter judgments of acquittal.