R v Nean [2023] NSWDC 34

R v Nean [2023] NSWDC 34

The ERISP was excluded under s 138 of the Evidence Act 1995 because it was obtained in contravention of Australian law and improperly. The custody manager and investigating police breached multiple obligations under the Law Enforcement (Powers and Responsibilities) Regulation 2016 concerning the 18 year old Aboriginal Accused as a vulnerable person, including failures to assist him to exercise his rights, to ensure and defer for a support person, and to re-administer the caution in the support person's presence. The investigating police also deliberately did not tell the support person that they intended to interview the Accused before she left the police station. Although the admissions...

Jurisdiction
Australia
Judgment Date
30 January 2023
Procedural Posture
Criminal / Voir Dire / Pre Trial Notice of Motion Seeking Exclusion of Electronically Recorded Interview Conducted on 10 June 2021
Outcome
The ERISP conducted with the Accused by police on 10 June 2021 was excluded from the evidence.
Legal Topics
['admissibility of Erisp' 'admissions' 'police Impropriety' 'vulnerable Persons in Police Custody' 'aboriginal Accused Support Person Rights' 'exclusion of Improperly Obtained Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Erisp' 'admissions' 'police Impropriety' 'vulnerable Persons in Police Custody' 'aboriginal Accused Support Person Rights' 'exclusion of Improperly Obtained Evidence']

Case Brief

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Procedural Posture

Criminal / Voir Dire / Pre Trial Notice of Motion Seeking Exclusion of Electronically Recorded Interview Conducted on 10 June 2021

Legal Issues

  1. 1 ['Whether the electronically recorded interview with the Accused on 10 June 2021 should be excluded under sections 84, 90 or 138 of the Evidence Act 1995.' 'Whether police and the custody manager breached obligations under the Law Enforcement (Powers and Responsibilities) Act 2002 and the Law Enforcement (Powers and Responsibilities) Regulation 2016 in dealing with the Accused as an Aboriginal vulnerable person in custody.' 'Whether the ERISP was obtained improperly or in contravention of Australian law.' 'Whether, if the ERISP was obtained improperly or in contravention of Australian law, the desirability of admitting it outweighed the undesirability of admitting evidence obtained in that way.']

Ratio Decidendi

The ERISP was excluded under s 138 of the Evidence Act 1995 because it was obtained in contravention of Australian law and improperly. The custody manager and investigating police breached multiple obligations under the Law Enforcement (Powers and Responsibilities) Regulation 2016 concerning the 18 year old Aboriginal Accused as a vulnerable person, including failures to assist him to exercise his rights, to ensure and defer for a support person, and to re-administer the caution in the support person's presence. The investigating police also deliberately did not tell the support person that they intended to interview the Accused before she left the police station. Although the admissions...

Court Disposition

The ERISP conducted with the Accused by police on 10 June 2021 was excluded from the evidence.

Orders

  • ['The record of interview conducted with the Accused by the police on 10 June 2021 is not to be admitted into evidence in the Crown case.']