R v Kevin Pocknell [2015] NSWDC 333

R v Kevin Pocknell [2015] NSWDC 333

Although there was an impropriety in failing to revisit and re-read the Part 9 document when the accused was deemed ready to be interviewed, the interview commenced at 4.34 pm was not shown to have been obtained by or in consequence of that impropriety. In any event, the desirability of admitting the evidence outweighed the undesirability of admitting it. The accused's presentation and answers before the break showed sufficient lucidity, understanding and willingness to continue, so s 85(2) was satisfied and admission of that part was not unfair. However, after the 10 minute break the accused had clearly indicated that he had had enough and did not wish to be questioned further, no...

Jurisdiction
Australia
Judgment Date
31 March 2015
Procedural Posture
Criminal Proceeding Concerning Admissibility of Record of Interview in a Sexual Assault Trial / Voir Dire Objection to Admissibility of Electronic Record of Interview
Outcome
Application allowed in part; second part of interview excluded from Q266 onwards except for answers admitted by consent and the concluding questions by Leading Senior Constable Fitzhenry.
Legal Topics
['admissibility of Admissions' 'record of Interview' 'intoxication' 'right to Silence' 'improperly Obtained Evidence' 'unfairness Discretion']
['criminal Law' 'evidence'] ['admissibility of Admissions' 'record of Interview' 'intoxication' 'right to Silence' 'improperly Obtained Evidence' 'unfairness Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Proceeding Concerning Admissibility of Record of Interview in a Sexual Assault Trial / Voir Dire Objection to Admissibility of Electronic Record of Interview

Legal Issues

  1. 1 ['Whether the electronic record of interview was obtained improperly because the accused was too intoxicated to understand his Part 9 LEPRA rights and caution.' 'Whether the prosecution established under s 85(2) of the Evidence Act 1995 that the circumstances in which admissions were made were unlikely to have adversely affected their truth.' 'Whether the interview admissions should be excluded under s 90 of the Evidence Act 1995 because it would be unfair to use them against the accused.' 'Whether the second part of the interview after the 10 minute break should be excluded because the accused had indicated he did not wish to continue and further checks were not made.']

Ratio Decidendi

Although there was an impropriety in failing to revisit and re-read the Part 9 document when the accused was deemed ready to be interviewed, the interview commenced at 4.34 pm was not shown to have been obtained by or in consequence of that impropriety. In any event, the desirability of admitting the evidence outweighed the undesirability of admitting it. The accused's presentation and answers before the break showed sufficient lucidity, understanding and willingness to continue, so s 85(2) was satisfied and admission of that part was not unfair. However, after the 10 minute break the accused had clearly indicated that he had had enough and did not wish to be questioned further, no...

Court Disposition

Application allowed in part; second part of interview excluded from Q266 onwards except for answers admitted by consent and the concluding questions by Leading Senior Constable Fitzhenry.

Orders

  • ['Exclude the second part of the interview conducted after the 10 minute break from Q266 onwards with the exception of those answers to be admitted by consent.' 'The questions asked of the accused at the conclusion of the interview by Leading Senior Constable Fitzhenry are excepted from the exclusion.']