Mann v R

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:

RJ Wilson SC (Applicant) M Millward (Crown)

Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/056138 2019/0025700 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 23 July 2021 Before: Madgwick ADCJ; Pickering DCJ File Number(s): 2017/00056138 2019/00025700

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant is an Indigenous man with an intellectual impairment. He was thus a vulnerable person for the purposes of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRA Regulation). He was charged with 38 offences relating to the alleged sexual abuse of two young children. For 18 of the 38 offences with which he was charged the only significant evidence against him was admissions he made in a recorded interview with Police (the ERISP). The applicant challenged the admissibility of the ERISP under s 138 of the Evidence Act 1995 (NSW). The ERISP was held to be admissible following a voir dire conducted prior to the trial. Madgwick ADCJ held that the interview and admissions were improperly obtained for the purposes of s 138 of the Evidence Act 1995 (NSW) but that they should nevertheless be admitted because the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. At trial a jury found the applicant not guilty of five charges and guilty of the other 13 which depended solely upon the ERISP. He was found guilty of all 20 of the other charges, which were supported by evidence of the two children. He was sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period of 5 years. The applicant appealed his convictions on the ground that the ERISP should not have been admitted into evidence. He also appealed his sentence. On the conviction appeal the following issues arose: (1) what standard of review should be applied on appeal and, relatedly, whether the Court could make its own assessment of admissibility if House v The King error was made out; (2) whether his Honour's findings of fact should be accepted in light of the critique of the Crown; (3) whether legal error was made out in the decision of Madgwick ADCJ; (4) whether the evidence was admissible under s 138. The Court upheld the conviction appeal and it was thus unnecessary to consider the sentence appeal (per Kirk JA, N Adams J and R A Hulme AJ agreeing) As to the approach on appeal

1. Uncertainty arose as to whether the proper standard of appellate review under s 138 of the Evidence Act was the correctness standard or a more restrained approach of the kind articulated in House v The King (1936) 55 CLR 499; [1936] HCA 40. The issue arose most acutely in the third step of the s 138 inquiry, namely the assessment and weighing up of various factors going to the desirability of admitting or not admitting the evidence: at [17]. The issue is complex, borderline and important, and the Court here had no contradictor. It was unnecessary to resolve this issue as House v The King error was established in any event: at [21]-[22]. Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1; R v Riley [2020] NSWCCA 283, considered.

JUDGMENT

1. KIRK JA: The applicant, Beau Mann, stood trial at the District Court at Sydney before Pickering DCJ and a jury in March and April 2021 charged with 38 offences relating to the alleged sexual abuse of two young children, SS and MS. The applicant was convicted on 33 counts. He had earlier pleaded guilty to another 12 offences relating to the same two children. For all of these offences he was sentenced to an aggregate sentence of 11 years with a non-parole period of 5 years, commencing on 16 August 2021.
2. The conduct was serious. SS was aged between 5 and 7 years old at the time of the offences in question and MS was aged between 3 and 7 years old. The applicant was found to have offended against the children together in the course of "games" that he encouraged or demanded they play. He was also found to have offended against each of the children individually. The charged conduct escalated over the period in question, from encouraging the two children to remove their pants and underwear and lay on one another, through to counts of penile anal intercourse.
3. The applicant is an Indigenous man who has an intellectual impairment. He was aged between 18-22 at the time of offending, and was aged 22 when he was arrested and interviewed. For 18 of the 38 offences with which he was charged the only significant evidence against him was admissions he made in a recorded interview with Police conducted on 22 February 2017 (the ERISP). The jury found him not guilty of five of those charges and guilty of the other 13. He was found guilty of all 20 of the other charges, which were supported by evidence of the two children.
4. The Police interview commenced at 4:48am, the applicant having been arrested sometime shortly after 10:50pm the night before. The ERISP was held to be admissible by Madgwick ADCJ following a voir dire conducted prior to the trial. His Honour held that the interview and admissions were improperly obtained for the purposes of s 138 of the Evidence Act 1995 (NSW) but that they should nevertheless be admitted because the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way. He also rejected an argument that the ERISP should be rejected pursuant to s 90 of the Evidence Act, holding that it would not be unfair to the applicant to use the evidence having regard to the circumstances in which the admissions were made. The pre-trial ruling made by Madgwick ADCJ was binding upon the trial judge, as no argument was put to Pickering DCJ that it was in the interests of justice that the ruling be departed from: Criminal Procedure Act 1986 (NSW), s 130A(1).

The provision

1. Section 138 provides as follows: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained - (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning - (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account - (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
2. When objection is taken under this section to the admissibility of evidence, the following steps are involved in resolving the issue: 1. The judicial officer must find the relevant facts (if not agreed) with respect to how the evidence was obtained. 2. It is then necessary to reach a conclusion as to whether the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such. Whether evidence was obtained as a result of a contravention of an Australian law involves a legal conclusion. Whether evidence was obtained as a result of impropriety involves a question of characterisation. If it was obtained by Police, then that issue is determined by reference to "minimum standards of acceptable police conduct": Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [14], quoting Ridgeway v The Queen (1995) 184 CLR 19 at 37; [1995] HCA 66. Section 138(2) and s 139 may also be relevant to finding impropriety. 3. If the judicial officer concludes that the evidence was obtained improperly or in contravention of an Australian law then the evidence is not admissible unless the judicial officer concludes that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Once impropriety or illegality is established, the onus of proof and persuasion is on the party seeking that the evidence be admitted: note Kadir at [47]; R v Riley [2020] NSWCCA 283 at [36]. The conclusion involves the evaluative weighing up of those factors listed in s 138(3) which are relevant in the particular case. That list is not exhaustive; the judicial officer may also take into account any other relevant matters. The factors listed in s 138(3) may themselves involve issues of evaluation, such as consideration of the probative value of the evidence (par (a)), its importance in the proceeding (par (b)) and the gravity of the impropriety or contravention (par (c)).

The standard of review on the appeal

1. The applicant's single ground of appeal with respect to his conviction is expressed as follows: The judge who considered the admissibility of the appellant's electronically recorded interview (ERISP) erred in permitting the interview to be admitted into evidence.
2. On its face this ground appears to fall within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), that is, it is said that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law. It has been held that "[t]he wrongful admission of evidence constitutes an error of law": R v Gidley [1984] 3 NSWLR 168 at 170 per Mahoney JA; see also Simic v The Queen (1980) 144 CLR 319 at 327; [1980] HCA 25. The Crown understood this to be a second limb case. However, in oral submissions senior counsel for the applicant suggested that it should also be understood as raising the third limb of s 6(1), that is, that there was a miscarriage of justice. The difference can be important not only because it may affect whether leave to appeal is required under s 5(1) of the Criminal Appeal Act, but because it may affect whether this Court considers the issue by reference to the evidence given on the voir dire, or rather looks more broadly to the evidence given in the trial proper: note the discussion in Bektasovski v R (2022) 407 ALR 125; [2022] NSWCCA 246 at [53]-[67]. In any event, the applicant here did not seek to rely in any material way on any evidence given in the trial, and it is appropriate to focus on the evidence given on the voir dire before Madgwick ADCJ.
3. Both the applicant and the Crown submitted that the appropriate standard of appellate review with respect to a decision under s 138 of the Evidence Act was the correctness standard, as discussed in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, as opposed to taking a more restrained approach of the kind articulated in House v The King (1936) 55 CLR 499; [1936] HCA 40.
4. Some care is required in considering how the standard of review would be applied to each of the three steps outlined above at [10]. As to the first - fact-finding - House v The King review extends to cases where the judicial officer has mistaken the facts (see at 505), so there is no apparent difference between the two standards in the current context. As to the second - characterising the way in which the evidence was obtained - insofar as the issue depends upon finding a contravention of Australian law, that is a legal issue. Such an issue permits of one correct answer, and an incorrect answer would involve acting upon a wrong principle. Thus, again, there is no apparent difference between the two standards. There is more room for reasonable differences of opinion in relation to whether or not evidence was obtained improperly. In any event, the issue arises most acutely for the third step, involving the assessment and weighing up of various factors going to the desirability of admitting or not admitting the evidence.

The relevant responsibilities of Police officers

1. The impropriety found by Madgwick ADCJ has to be understood in the context of the legislative regime as it stood on 22-23 February 2017, when the relevant events relating to the arrest and questioning of the applicant occurred.
2. Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) addresses the powers and responsibilities of the Police when detaining persons under arrest. The objects of the Part include "to provide for the rights of a person so detained": s 109(c). The regulations "may make provision for or with respect to the modification of the application of [the] Part" to certain vulnerable persons, including Aboriginal persons and persons with a disability: s 112(1).
3. Division 3 of Pt 9 is headed "Safeguards relating to persons under arrest and protected suspects". Amongst other safeguards in that division, s 122 provides that the custody manager at a police station must, as soon as practicable, caution the person (orally and in writing) that he or she does not have to say or do anything, but anything the person does say or do may be used in evidence. The custody manager is required to give the person a summary of the provisions of the Part in the form prescribed in the regulations and request the person to sign an acknowledgment that the information has been given.
4. The applicable regulations at the time were found in the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (LEPRA Regulation). The application of Pt 9 of the Act to "vulnerable persons" is modified by Div 3 of Pt 3 of that regulation: cl 28(2). It was and is common ground that the accused was a vulnerable person, as defined in cl 28, both because he is an Aboriginal person and had "impaired intellectual functioning" (a term defined in cl 27(1)).
5. The custody manager is required to assist, as far as practicable, a vulnerable person to exercise their rights under Pt 9 of the Act: cl 29. If the person is a child or a person with impaired intellectual or physical functioning, the custody manager must as soon as practicable attempt to ascertain the identity of the person responsible for the welfare of the detained person and contact that person: cl 36.
6. Where the detained person is an Aboriginal person or Torres Strait Islander then, unless the custody manager is aware that the person has arranged for a legal practitioner to be present, the custody manager must immediately inform the person that a representative of the Aboriginal Legal Service (ALS) will be notified of the person's detention in respect to an offence and of where they are being detained, and the manager must then notify such a representative accordingly: cl 37. The obvious purpose of this clause is to enable Aboriginal people and Torres Strait Islanders to have access to legal advice from the ALS following their detention.

His Honour's findings of fact

1. The voir dire occurred over three days on 13-15 November 2018, with his Honour delivering judgment on 23 November 2018. Evidence was given by the following Police officers, whose role is explained below: Sergeant Kirk, Senior Constable McSweeney and Detective Senior Constable Gibson. The applicant himself gave evidence, as did his mother, Ms Mann, and a solicitor from the ALS, Ms Gidlow. Relevant findings of Madgwick ADCJ were as follows.
2. The applicant's intellectual deficits were in the areas of reading, writing and comprehension. He also suffers from attention-deficit/hyperactivity disorder (ADHD) and at least earlier in his life was thought to have an "oppositional defiant disorder". He had been in special classes for slow learners at school since the age of about seven.
3. The applicant had been a visitor to, then boarder in, the home of the S family, which was headed by the grandmother of the two children, JS. When the applicant was boarding the family lived at a rural property in the mid North Coast region of the State. The applicant boarded under an arrangement between JS and Ms Mann, the applicant's mother. The applicant would help around the house and on the property. He received a disability support pension which was banked. He was not allowed to spend his own money as he wished. The only conventionally paid job he had had was working part-time as a kitchen hand some years before his arrest. He had had some difficulties with that job even though it required little intellectual acumen. He had never been in trouble with the Police before apart from being spoken to about the necessity of wearing a helmet while riding a bike.
4. On 22 February 2017 MS made some disclosures of the charged conduct to his grandmother or mother. JS rang the Police and indicated the general nature of the complaint against the accused and indicated that she would bring the applicant to the Police.
5. JS did not inform the applicant that she was taking him to the Police station, but rather told him that they were going to a Coles supermarket in a nearby town. She stopped in the Coles carpark in that town and rang the Police again, indicating that she would not take the applicant further. The applicant was unaware of all this because he was asleep in the back of the car, having been doing fencing work that day.

His Honour's resolution of the issues

1. Madgwick ADCJ first determined the s 138 issue then determined the s 90 objection. In addressing the former he referred only to impropriety by Detective Gibson, but in addressing s 90 he referred also to what he regarded as improprieties by Sergeant Kirk and Senior Constable McSweeney.
2. With respect to Detective Gibson, his Honour characterised the impropriety as follows: Detective Gibson did effectively require the accused to undergo the interview, contrary to what Det Gibson knew had been and continued to be his desire, as relayed by his mother, not to be interviewed. This was quite improper, deliberate and indicative of an attitude of mind that would effectively put at nought the protections established by the LEPRA regulations. … In my view, in this case there was a matter of serious impropriety and contravention of the legislation and of the accused's right to silence which, among other things the legislation, is in aid of, and the impropriety was deliberate. … [T]he impropriety and the relevant damage was done by Detective Gibson taking charge, de facto requiring the applicant to go to the interview room and commencing to question the accused.
3. His Honour said that it was not necessarily improper for a Police officer to ask if a suspect wishes to confirm the instructions given to the ALS which had been conveyed to the custody manager (ie that they did not wish to be interviewed). He qualified that this would depend on the circumstances, including the experience the suspect had with Police officers and criminal procedure.
4. Madgwick ADCJ then conducted the balancing exercise required by s 138, concluding that the evidence should be admitted: Thus in my opinion the undesirability of admitting the evidence is quite high. However, s 138 requires a balancing act and in the balance must be considered the following matters. Much of the record of interview is true and highly reliable. Secondly, it is of great importance to the Crown case. As matters presently stand, it is the only evidence capable of convicting the accused of several classes of the alleged offences, including a number of instances of sexual assault with a child under ten years of age, an offence which carries life imprisonment. Finally, it is no fault of the Crown that that is so. It is notoriously difficult for investigating officials to get the full story from a young child in cases of suspected sexual assault of them, even when specially trained people are trying to do it. To the extent that the accused acknowledges the statements are true, I think the desirability of his admissions being admitted is very high and outweighs the undesirability of the evidence being admitted. I do not come to this view easily.

Challenges to the findings going to impropriety

1. Both sides made some criticisms of his Honour's findings as to impropriety. It is sufficient here to focus on the Crown's challenge regarding the conduct of Detective Gibson. It is unnecessary to address the Crown's challenge to the judge's findings as to the conduct of Senior Constable McSweeney, noting that his Honour did not rely on that conduct in reaching his conclusion with respect to s 138.
2. The Crown disputed the finding that Detective Gibson "effectively required" the applicant to undergo the interview. To begin with, it is important to distinguish between Madgwick ADCJ's findings of fact as to what occurred (the first step of the analysis) and the potential characterisation of the found conduct of Detective Gibson as improper (the second step). Here, I will address just the Crown's challenge to the fact finding. I reach my own view as to the appropriate characterisation of his behaviour below.
3. The voir dire involved examination and cross-examination of a number of witnesses, giving conflicting evidence, over three days. In a number of respects Madgwick ADCJ indicated he preferred the evidence of other witnesses over that of Detective Gibson. At the least this involved a conclusion that Detective Gibson's evidence was not reliable in significant respects. His Honour gave reasons for his conclusions. Those reasons were not ones mainly dependent on comparison with objective, documentary evidence or the like. He was making findings as to whose evidence was believable. In so doing his Honour was taking advantage of having seen and heard all the witnesses. This Court should thus be disinclined to overturn his conclusions on the relevant issues of fact absent a compelling basis for doing so: note, analogously, Fox v Percy at [25]-[31]; Lee v Lee at [55]; Dansie at [14]-[17]. In any event, the Crown's arguments on this point are distinctly unpersuasive.
4. The Crown submits that the finding that Detective Gibson effectively required the applicant to undergo the interview is inconsistent with his Honour's statement that the impropriety was "de facto requiring the accused to go to the interview room and commencing to question the accused", and his later observation that the impropriety was "ultimately cured of unfairness or any contribution to it by the caution given by Detective Gibson in the interview". The latter statement was directed to the fairness analysis undertaken for the purposes of s 90, and is not inconsistent with the impugned finding.

The balancing exercise undertaken by Madgwick ADCJ

1. The applicant contends that Madgwick ADCJ erred, amongst other things, by failing to take into account two mandatory considerations in the balancing exercise: whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention (s 138(3)(g)) and the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law (s 138(3)(h)).
2. The High Court explained the significance of s 138(3)(g) in relation to Police misconduct in Kadir at [16] (citations omitted): The ALRC identified the deterrence of police misconduct as a consideration informing the public interest in not admitting evidence that has been improperly or illegally obtained. It proposed that the availability of alternatives to the exclusion of evidence, such as civil actions, criminal prosecutions and internal and external disciplinary procedures, should be an important factor in the exercise of the discretion. Where an officer is likely to be dealt with in another forum for his or her misconduct, the need to exclude evidence as a deterrent is reduced. ... Here, the trial judge appears, correctly, to have treated the fact that no proceedings are likely to be taken against any person in relation to the contravention of the SDA as a neutral factor.
3. The applicant argued that the onus was on the Crown to establish whether any other proceeding was likely to be taken in relation to the improprieties, it had not done so, and that meant "the full need for deterrence is there", which the judge did not take into account. The argument is unconvincing. If the Crown had established that some other action would have been taken against the improprieties then, as the High Court indicated, the need for deterrence is reduced. But there is nothing in the judgment to suggest that this factor was relevant here or acted to reduce the need for deterrence. It is simply not mentioned, no doubt because it was not raised by either side. Madgwick ADCJ did not err by not referring to a factor not raised and which, if made out, would have reduced the force of the considerations in favour of excluding the ERISP. Here, as in Kadir, par (g) was a neutral factor.
4. The argument as to s 138(3)(h) has more force. Madgwick ADCJ identified three considerations weighing in favour of admissibility (see the quotation above at [73]): that much of the interview is true and highly reliable; that the ERISP was of great importance to the Crown case; and that it "is notoriously difficult for investigating officials to get the full story from a young child in cases of suspected sexual assault of them, even when specially trained people are trying to do it". As regards the third consideration, although his Honour does not refer in terms to the difficulty of obtaining the evidence - ie the admissions in the ERISP - by using the language of difficulty of obtaining evidence in such cases his Honour invokes either s 138(3)(h) itself or a closely analogous factor (recalling that the list of factors in s 138(3) is not exhaustive). The High Court in Kadir at [37] similarly referred not only to the difficulty of obtaining the particular surveillance footage being considered there but also to the difficulty of lawfully obtaining evidence of the illegal activity in question.

Reconsidering the balancing exercise

1. For the reasons explained above at [33]-[36], I will now go on to consider the admissibility of the ERISP under s 138 of the Evidence Act.
2. It is sufficient to focus on the conduct of Detective Gibson. First, as to the relevant facts, they are as found by Madgwick ADCJ, as further elucidated at [86]-[87] above.
3. The second step is consider whether or not his conduct in obtaining the evidence should, in context, be characterised as improper in the relevant sense. That is an issue of characterisation, not merely fact. I consider that Detective Gibson's conduct was improper in the sense of being a significant departure from minimum standards of acceptable Police conduct as follows.
4. The conduct of Detective Gibson acted to nullify the protective effect of cll 31, 34, 36 and 37 of the LEPRA Regulation. The applicant was a vulnerable person in the sense employed in the LEPRA regulation both as an Aboriginal person and because he has an intellectual impairment. Detective Gibson was aware of those matters, having been told by Senior Constable McSweeney. Clause 37 of the LEPRA Regulation is directed towards facilitating Indigenous individuals having access to legal advice following their detention, and that was availed of here. Yet Detective Gibson ignored the fact, which had been communicated to him, that the applicant and his mother had accepted the advice of the ALS and had expressed that they did not want to be interviewed.
5. Clause 36 of the LEPRA Regulation requires that the person responsible for the welfare of a detained person with impaired functioning be notified, and that occurred. Clause 31 entitles a vulnerable person to have a support person present during an investigative procedure. Ms Mann attended the Police station in that context. Detective Gibson sought to persuade her to let the applicant be interviewed, thus recognising that in practice she was the responsible decision-maker on the issue. She said no.
6. Despite his knowledge of what had been communicated to ALS, and despite what he had been told by the applicant's mother, he took the applicant into an interview room and commenced an interview without explanation, and without asking either Ms Mann or the applicant if they wished to do the interview. No doubt Detective Gibson considered - correctly - that given the applicant's earlier admissions, the applicant would likely respond to questioning in frank terms. The motivation of an investigator to try to get the applicant talking on the record is understandable. It does not justify undermining the legal protections of vulnerable people.

Conclusion and orders

1. It was not in dispute that the applicant's convictions on 13 counts (numbered 21-24, 26-28, 30, 32, 34 and 36-38) were reliant on the applicant's admissions contained in the ERISP. As explained above at [36], in the circumstances of this case the conclusion that the ERISP was and is not admissible indicates that the interests of justice militate against ordering a retrial for those counts. The Crown accepted that if this Court concluded that the ERISP should not have been admitted then acquittals should be entered for those counts. That should occur.
2. It was also not in dispute that the applicant's convictions on the other 20 counts on which he had pleaded not guilty were supported by other evidence, but nevertheless relied on the admissions made in the ERISP, not least because those admissions were relied upon as tendency evidence. Thus the Crown accepted that the convictions on these counts should be quashed but a retrial ordered. The applicant did not dispute that a retrial should be ordered on those counts. That should occur.
3. The applicant had pleaded guilty to 12 further charges, described as counts 3, 9, 13, 15, 19, 21, 25, 27, 31, 33, 37 and 41 of the "plea indictment". The sentence on those charges was an aggregate one, imposed for those charges along with the other convictions which will now be set aside. The sentence on those 12 charges must therefore also be set aside and remitted for resentence.
4. The orders of the Court should be as follows: 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.
5. N ADAMS J: I have had the significant advantage of reading the judgment of Kirk JA in draft. I agree with the orders proposed by his Honour for the reasons provided. As his Honour has noted at [21], the question of the appropriate standard of appellate review with respect to a decision under s 138 of the Evidence Act is "complex, borderline and important". For example, there are significant textual differences between s 97(1)(b) and s 138(1) and (3) of the Evidence Act which, on one view, might limit the assistance to be had on this question from The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]. In the circumstances I agree with his Honour that this was not the case to determine the issue as it was unnecessary to do so in order to dispose of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2023