Tender of Additional Evidence on Application
13 At the hearing in this Court, Mr Strickland SC, for the Applicant, sought to rely upon an affidavit of the Applicant affirmed 30 April 2008 and an affidavit of the Applicant's solicitor, Catherine Alice Ridge, also affirmed 30 April 2008. Both affidavits were read upon the basis that, if the Court found error, then the evidence would be relevant to the formation of the s.6(3) opinion and to the question of the length of any substitute preclusion period.
14 However, Mr Strickland SC contended that the affidavit of Ms Ridge was admissible on the application for leave to appeal itself. Ms Ridge's affidavit annexed a letter dated 10 March 2008 to the Applicant from the Executive Officer and Registrar of the Serious Offenders Review Council ("SORC") concerning classification guidelines for serious offenders. It stated that, unless exceptional circumstances apply, a serious offender would only be eligible for consideration for a reduction of security classification from category A2 to B at a point which was five years from the earliest possible release date. The letter also suggested that the Applicant contact the psychologist at Goulburn Correctional Centre to discuss suitable therapeutic programmes.
15 In support of the tender of the affidavit, Mr Strickland SC referred to R v Deng (2007) 176 A Crim R 1 at 10 [38]-[40]. He submitted that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the applicant and the existence of that evidence was not made known to his legal representatives at the time of sentencing. It was also submitted that there is a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54. It was submitted further that this evidence ought be admitted as it amplifies material which was before Bell J concerning the Applicant's classification: R v Deng at 10 [40].
16 The Crown opposed the tender of Ms Ridge's affidavit upon the basis that it was not admissible unless and until error had been demonstrated. The Crown submitted that R v Deng did not support the Applicant's contention. It was submitted that it had not been demonstrated that the evidence was fresh in the relevant sense. Further, the interests of justice did not require its admission nor did it amplify, in any relevant sense, material which was before Bell J. The Crown submitted that, absent sentencing error, this Court should resist attempts to place before it material which was not before the first-instance judge. Generally, before fresh or new evidence will be received by the Court, it must be shown that the sentencing of the applicant in the absence of the evidence resulted in a miscarriage of justice: R v Fordham (1997) 98 A Crim R 359 at 377. The Crown submitted that this had not been demonstrated in this case.
17 The Court determined that the admissibility of Ms Ridge's affidavit would be considered in the judgment on the application generally. The Crown was granted leave to file an affidavit in reply. The Crown filed an affidavit of Miriam Rottenberg affirmed on 20 May 2008 pursuant to this grant of leave. Thereafter, the Applicant filed a further affidavit of Ms Ridge affirmed 6 June 2008 on the same issues. The parties have made additional written submissions on the topic.
18 The Crown submitted that the evidence concerning classification guidelines was not fresh or new. The hearing before Bell J took place in 2006 and the classification guidelines were implemented in December 2002 (Annexure A, affidavit, CA Ridge, 6 June 2008). The Crown submitted further that any material concerning the current classification system was not a relevant matter in any event. To take it into account, the Crown submitted, would have required the Court to engage in a process of prediction about what executive or administrative action may be taken in relation to a prisoner's custody many years into the future. By way of analogy, the Crown relied upon the statements of Howie J (McColl JA and Studdert J agreeing) in R v Mostyn (2004) 145 A Crim R 304 at 331-332 [179] concerning the difficulty of a sentencing court taking into account possible executive or administrative action in respect of a prisoner's custody when predicting how a sentence will be served (in the context of protective custody). Even then, the Crown submits that the classification guidelines may be varied in "exceptional circumstances", which may catch the Applicant at some time in the future.
19 Mr Strickland SC conceded that the additional affidavit material was not fresh, as it was available at the time of the application before Bell J. He pressed the tender, however, upon the basis that the interests of justice required that course and that the affidavits amplified material before the sentencing judge. Mr Strickland SC submitted there was no basis to assume that the Applicant would be likely to fall into the category of "exceptional circumstances" for the purposes of the classification guidelines for serious offenders. He submitted, further, that the Court is entitled to consider current administrative arrangements in the way a sentence is to be served in determining an appropriate sentence, citing by way of example, the practice whereby a periodic detention order transforms into a community service order: R v Roberts (1994) 73 A Crim R 306 at 310-311. He submitted that the Court can do no more than act on the known fact that the classification guidelines apply now, although it is possible that they may be more or less onerous in the future.
20 I am not satisfied that the affidavits ought be admitted on the application for the purpose of determining whether error has been demonstrated. The classification guidelines were available at the time of the hearing of the application before Bell J having been implemented by the Commissioner for Corrective Services in December 2002. This was not fresh or new evidence.
21 Nor, in my view, do the interests of justice require the admission of this evidence. There was material before Bell J concerning the Applicant's A2 classification and the impact of that classification upon available therapeutic programmes: R v Norrie at [37], [41].
22 It has not been shown that the making of the 20-year preclusion order, in the absence of this evidence, resulted in a miscarriage of justice: R v Fordham at 377.
23 It is not necessary to determine the Crown's relevance objection to the tender of the material. Whether material concerning future classification ought be admitted at a life sentence redetermination application, despite the difficulty in predicting possible executive or administrative action in many years' time, will depend upon the circumstances of the particular case.
24 The affidavits of Ms Ridge and Ms Rottenberg ought not be admitted into evidence on the initial question whether error has been demonstrated. If error is otherwise demonstrated, then those affidavits may be admitted and taken into account in forming the s.6(3) opinion and on any re-exercise of the clause 6(1) discretion: Baxter v R.