P v M [2004] NSWLC 5

P v M [2004] NSWLC 5

The young person clearly communicated a refusal of consent to be interviewed and exercised the right not to answer questions, but police continued to ask questions beyond merely recording that refusal. The passive presence of the young person's mother did not sufficiently protect his rights. The ERISP material was obtained improperly through persistent questioning of a juvenile who had declined to participate, the impropriety was reckless, and the breached right to silence was important; therefore the transcript should be excluded under Evidence Act s 138.

Jurisdiction
Australia
Judgment Date
17 September 2004
Procedural Posture
Children's Court Ruling on Admissibility of an ERISP Transcript / Voir Dire
Outcome
The tender of the ERISP transcript was rejected.
Legal Topics
['erisp Interview' 'right to Silence' 'improperly Obtained Evidence' 'exclusion of Evidence' 'support Person for Young Person']
['criminal Law' 'evidence' "children's Court"] ['erisp Interview' 'right to Silence' 'improperly Obtained Evidence' 'exclusion of Evidence' 'support Person for Young Person']

Case Brief

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Procedural Posture

Children's Court Ruling on Admissibility of an ERISP Transcript / Voir Dire

Legal Issues

  1. 1 ['Whether the young person clearly refused consent to participate in the ERISP interview.' 'Whether police questioning after the young person declined to be interviewed meant the ERISP transcript was improperly obtained.' 'Whether the ERISP transcript should be excluded under Evidence Act s 138.' 'Whether, alternatively, the ERISP transcript should be excluded under Evidence Act s 90 as unfair to the accused.']

Ratio Decidendi

The young person clearly communicated a refusal of consent to be interviewed and exercised the right not to answer questions, but police continued to ask questions beyond merely recording that refusal. The passive presence of the young person's mother did not sufficiently protect his rights. The ERISP material was obtained improperly through persistent questioning of a juvenile who had declined to participate, the impropriety was reckless, and the breached right to silence was important; therefore the transcript should be excluded under Evidence Act s 138.

Court Disposition

The tender of the ERISP transcript was rejected.

Orders

  • ['The tender of the ERISP transcript is rejected.']