R v R Abokhalil [2015] NSWDC 48

R v R Abokhalil [2015] NSWDC 48

Although the prosecution discharged its burden under s 85(2) because the accused's answers were unlikely on balance to have been adversely affected in truth by his condition, the interviewing officer was put on notice at question 34 by the accused's reference to mental health and s 22. The officer then failed to stop the interview and consider whether LEPRA and Regulation protections for a vulnerable person were required. That failure rendered the subsequent questioning unfair, warranting exclusion of the interview under s 90 of the Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
16 March 2015
Procedural Posture
Criminal Evidence Ruling / Voir Dire on Application to Exclude Electronic Interview and Admissions
Outcome
The recorded interview was excluded under s 90 of the Evidence Act 1995.
Legal Topics
['admissibility of Admissions' 'exclusion of Electronic Interview' 'mentally Disabled or Vulnerable Suspects' 'police Questioning and Custody Safeguards' 'fairness Discretion']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Admissions' 'exclusion of Electronic Interview' 'mentally Disabled or Vulnerable Suspects' 'police Questioning and Custody Safeguards' 'fairness Discretion']

Case Brief

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Procedural Posture

Criminal Evidence Ruling / Voir Dire on Application to Exclude Electronic Interview and Admissions

Legal Issues

  1. 1 ["Whether the prosecution established under s 85(2) of the Evidence Act 1995 that the circumstances in which the accused's admissions were made were such as to make it unlikely that their truth was adversely affected." 'Whether the recorded interview should be excluded under the fairness discretion in s 90 of the Evidence Act 1995.' 'Whether police were put on notice that the accused may be a vulnerable person requiring consideration of protections under the Law Enforcement (Powers and Responsibilities) Act 2002 and its Regulation.' 'Whether it was necessary to consider exclusion under s 138 of the Evidence Act 1995.']

Ratio Decidendi

Although the prosecution discharged its burden under s 85(2) because the accused's answers were unlikely on balance to have been adversely affected in truth by his condition, the interviewing officer was put on notice at question 34 by the accused's reference to mental health and s 22. The officer then failed to stop the interview and consider whether LEPRA and Regulation protections for a vulnerable person were required. That failure rendered the subsequent questioning unfair, warranting exclusion of the interview under s 90 of the Evidence Act 1995.

Court Disposition

The recorded interview was excluded under s 90 of the Evidence Act 1995.

Orders

  • ['The contents of the interview are excluded.' 'It is unnecessary to consider s 138 of the Evidence Act 1995.']