R v Kemp, Darren [2008] NSWDC 312

R v Kemp, Darren [2008] NSWDC 312

The recordings were excluded because the accused was arrested primarily to create a police-controlled opportunity for undercover operatives to elicit admissions, a purpose not authorised by LEPRA or the common law. The arrest for charging was not justified by any genuine purpose under s 99(3), and absent a lawful arrest the Part 9 investigation period was unavailable. The planned trickery and deception were used to void the accused's right to silence, the custody records were seriously inadequate and contributed to unfairness, and the admissions were central self-incriminatory evidence in an otherwise weak Crown case. Having regard to those circumstances, it would be unfair under s 90...

Jurisdiction
Australia
Judgment Date
29 July 2008
Procedural Posture
Criminal Law Trial Interlocutory Application Exclusion of Evidence of Admissions / Voir Dire Application Pursuant to S 90 Evidence Act 1995 to Exclude Evidence of Admissions
Outcome
The tender of the evidence of the recordings made by the undercover police in Cell 3 at the Newtown Police Station was rejected.
Legal Topics
['exclusion of Admissions' 'unfairness' 'unlawful Arrest' 'undercover Police Operatives' 'listening Device Evidence' 'right to Silence' 'law Enforcement (powers and Responsibilities) Act 2002']
['criminal Law' 'evidence' 'police Powers and Arrest'] ['exclusion of Admissions' 'unfairness' 'unlawful Arrest' 'undercover Police Operatives' 'listening Device Evidence' 'right to Silence' 'law Enforcement (powers and Responsibilities) Act 2002']

Case Brief

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Procedural Posture

Criminal Law Trial Interlocutory Application Exclusion of Evidence of Admissions / Voir Dire Application Pursuant to S 90 Evidence Act 1995 to Exclude Evidence of Admissions

Legal Issues

  1. 1 ["Whether the accused's arrest was improper or unlawful because it was effected primarily to place him in a police-controlled cell with undercover police operatives to obtain admissions." 'Whether Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 authorised the detention and undercover questioning after arrest.' 'Whether, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the recordings in evidence under s 90 Evidence Act 1995.' 'Whether the custody records and police conduct contributed to unfairness in admitting the recordings.']

Ratio Decidendi

The recordings were excluded because the accused was arrested primarily to create a police-controlled opportunity for undercover operatives to elicit admissions, a purpose not authorised by LEPRA or the common law. The arrest for charging was not justified by any genuine purpose under s 99(3), and absent a lawful arrest the Part 9 investigation period was unavailable. The planned trickery and deception were used to void the accused's right to silence, the custody records were seriously inadequate and contributed to unfairness, and the admissions were central self-incriminatory evidence in an otherwise weak Crown case. Having regard to those circumstances, it would be unfair under s 90...

Court Disposition

The tender of the evidence of the recordings made by the undercover police in Cell 3 at the Newtown Police Station was rejected.

Orders

  • ['The tender of recordings made by the undercover police in Cell 3 at the Newtown Police Station on 19 February 2005 is rejected.']