R v Jai [2023] NSWChC 9

R v Jai [2023] NSWChC 9

The ERISP was obtained improperly because the police officer did not take appropriate steps required by cl 38 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) to ensure that the 12-year-old protected suspect understood the caution, and did not comply with s 7(b) of the Young Offenders Act 1997 (NSW) by informing the young person of the right to obtain legal advice and giving an opportunity to obtain it. Applying s 138 of the Evidence Act 1995 (NSW), the Court was not satisfied that the desirability of admitting the ERISP outweighed the undesirability of admitting evidence obtained in that way, particularly given the low probative value, the gravity of the...

Jurisdiction
Australia
Judgment Date
21 July 2023
Procedural Posture
Criminal / Voir Dire on Admissibility of Prior ERISP
Outcome
Evidence not admitted.
Legal Topics
['admissibility of Erisp' 'improperly Obtained Evidence' 'police Caution to Child' 'legal Advice for Young Person' 'support Person' 'doli Incapax' 'protected Admissions' 'section 90 Unfairness Discretion']
['criminal Law' 'evidence' "children's Criminal Proceedings"] ['admissibility of Erisp' 'improperly Obtained Evidence' 'police Caution to Child' 'legal Advice for Young Person' 'support Person' 'doli Incapax' 'protected Admissions' 'section 90 Unfairness Discretion']

Case Brief

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Procedural Posture

Criminal / Voir Dire on Admissibility of Prior ERISP

Legal Issues

  1. 1 ['Whether the conduct of the police officer was improper.' 'Whether the ERISP was obtained improperly.' 'Whether, striking the balance mandated by s 138 of the Evidence Act 1995 (NSW), the evidence was inadmissible.' 'Whether the Court should exercise its discretion under s 90 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The ERISP was obtained improperly because the police officer did not take appropriate steps required by cl 38 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) to ensure that the 12-year-old protected suspect understood the caution, and did not comply with s 7(b) of the Young Offenders Act 1997 (NSW) by informing the young person of the right to obtain legal advice and giving an opportunity to obtain it. Applying s 138 of the Evidence Act 1995 (NSW), the Court was not satisfied that the desirability of admitting the ERISP outweighed the undesirability of admitting evidence obtained in that way, particularly given the low probative value, the gravity of the...

Court Disposition

Evidence not admitted.

Orders

  • ['The ERISP is not admitted.']