Regina v Amir Ibrahim El Mostafa [2007] NSWDC 328

Regina v Amir Ibrahim El Mostafa [2007] NSWDC 328

The admission that the accused was also known as Abu Fajr was not excluded under s 85 because the court was satisfied on the balance of probabilities that the circumstances made it unlikely the truth of the admission was adversely affected. The ERISP was not excluded under s 90 because its use at trial, including the identity and line-up evidence, would not be unfair in the relevant sense. No deemed impropriety arose under s 139 from the translation issue. However, answers to questions 18 to 22 were obtained improperly for s 138 because the custody management record disclosed mental illness and prior attempted suicide that ought to have been drawn to the interviewing officers' attention,...

Jurisdiction
Australia
Judgment Date
18 April 2007
Procedural Posture
Criminal Proceeding Concerning Admissibility of ERISP Evidence / Pre Trial Evidentiary Ruling on Applications Under the Evidence Act 1995
Outcome
ERISP admissible except for questions and answers 18 to 22, which are not to be admitted.
Legal Topics
['admissibility of Evidence' 'erisp' 'admissions' 'mental Illness' 'interpreter and Translation' 'requests for Legal Representation' 'improperly Obtained Evidence']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'erisp' 'admissions' 'mental Illness' 'interpreter and Translation' 'requests for Legal Representation' 'improperly Obtained Evidence']

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Procedural Posture

Criminal Proceeding Concerning Admissibility of ERISP Evidence / Pre Trial Evidentiary Ruling on Applications Under the Evidence Act 1995

Legal Issues

  1. 1 ['Whether admissions in the ERISP, particularly the answer that the accused was also known as Abu Fajr, were inadmissible under s 85 of the Evidence Act 1995.' 'Whether the ERISP or parts of it should be excluded under s 90 of the Evidence Act 1995 because it would be unfair to the accused to use the evidence.' "Whether the ERISP or parts of it were improperly obtained for the purposes of s 138 of the Evidence Act 1995, including by reason of the accused's mental illness, need for medication, requests for a lawyer and lack of English as a first language." 'Whether any inadequacy in translation of the caution gave rise to deemed impropriety under s 139 of the Evidence Act 1995.' "Whether questions and answers concerning the accused's participation in an identification line-up should be admitted."]

Ratio Decidendi

The admission that the accused was also known as Abu Fajr was not excluded under s 85 because the court was satisfied on the balance of probabilities that the circumstances made it unlikely the truth of the admission was adversely affected. The ERISP was not excluded under s 90 because its use at trial, including the identity and line-up evidence, would not be unfair in the relevant sense. No deemed impropriety arose under s 139 from the translation issue. However, answers to questions 18 to 22 were obtained improperly for s 138 because the custody management record disclosed mental illness and prior attempted suicide that ought to have been drawn to the interviewing officers' attention,...

Court Disposition

ERISP admissible except for questions and answers 18 to 22, which are not to be admitted.

Orders

  • ['The application under s 85 of the Evidence Act 1995 in respect of the whole ERISP was rejected.' "The application under s 85 of the Evidence Act 1995 in respect of the answers concerning the accused's name was rejected." 'The application under s 90 of the Evidence Act 1995 concerning the whole ERISP was rejected.'...