R v Rossi-Murray; R v Byrnes (No 3) [2019] NSWSC 481

R v Rossi-Murray; R v Byrnes (No 3) [2019] NSWSC 481

Positive responses in the accused's ERISP are admissible; responses such as refusals to answer, denials based on legal advice, statements of 'I can't remember' and 'I don't know' are inadmissible, as admitting them would be unfair having regard to the accused's right to silence, cultural considerations, and would risk unfair prejudice exceeding their probative value.

Jurisdiction
Australia
Judgment Date
02 May 2019
Procedural Posture
Criminal / Application on the Voir Dire Regarding Admissibility of ERISP Evidence
Outcome
Application on voir dire partially allowed: only positive answers in ERISP admissible; refusals and similar responses are inadmissible.
Legal Topics
['admissibility of Evidence' 'right to Silence' 'admissions' 'evidence of Aboriginal Defendants']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'right to Silence' 'admissions' 'evidence of Aboriginal Defendants']

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 / Application on the Voir Dire Regarding Admissibility of ERISP Evidence

Legal Issues

  1. 1 ['Whether certain answers in the ERISP of the accused Rossi-Murray are admissible' 'Whether responses such as refusals to answer or statements indicating legal advice not to answer can be admitted as evidence' 'Application of s 90 and s 137 of the Evidence Act 1995 (NSW) in the context of Aboriginal accused and police interviews']

Ratio Decidendi

Positive responses in the accused's ERISP are admissible; responses such as refusals to answer, denials based on legal advice, statements of 'I can't remember' and 'I don't know' are inadmissible, as admitting them would be unfair having regard to the accused's right to silence, cultural considerations, and would risk unfair prejudice exceeding their probative value.

Court Disposition

Application on voir dire partially allowed: only positive answers in ERISP admissible; refusals and similar responses are inadmissible.

Orders

  • ['In the ERISP of the accused Rossi-Murray, the questions and answers to which are positive are admissible.' "In the ERISP of the accused Rossi-Murray, the questions and answers in which the answers consist of words to the effect of 'I will not answer that'; 'I will not answer that on legal advice'; 'I can't...