R v FE [2013] NSWSC 1692

R v FE [2013] NSWSC 1692

Both police interviews with the accused are excluded. At the material time, the accused was a suspect, and police were obliged to caution her but failed to do so. As a 15-year-old with limited understanding, she was not able to properly exercise her right to silence, and her mother, though present as a support person, was unable to protect her interests due to language limitations. The impropriety of obtaining the interviews was grave and not outweighed by the probative value or seriousness of the offences. In the second interview, police persisted in questioning despite clear instructions and the accused's expressed wish not to participate, compounding the impropriety. Exclusion is...

Jurisdiction
Australia
Judgment Date
12 November 2013
Procedural Posture
Criminal / Voir Dire on Admissibility of Evidence Before Trial
Outcome
Interviews excluded; evidence inadmissible
Legal Topics
['improperly Obtained Evidence' 'right to Silence' 'cautioning of Suspects' 'vulnerable Persons—juveniles' 'unfairness—s 90 Evidence Act' 'affray' 'murder']
['criminal Law' 'evidence Law' 'juvenile Justice'] ['improperly Obtained Evidence' 'right to Silence' 'cautioning of Suspects' 'vulnerable Persons—juveniles' 'unfairness—s 90 Evidence Act' 'affray' 'murder']

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Procedural Posture

Criminal / Voir Dire on Admissibility of Evidence Before Trial

Legal Issues

  1. 1 ['Whether admissions made by the accused in two police interviews should be excluded under s 138 or s 90 of the Evidence Act 1995 due to failure to caution and deprivation of right to silence;' 'Whether the accused was properly treated as a suspect requiring caution;' 'Whether police conduct towards a vulnerable person (15-year-old) and her support person complied with statutory obligations;' 'Whether continuous police questioning after legal advice not to participate rendered evidence inadmissible.']

Ratio Decidendi

Both police interviews with the accused are excluded. At the material time, the accused was a suspect, and police were obliged to caution her but failed to do so. As a 15-year-old with limited understanding, she was not able to properly exercise her right to silence, and her mother, though present as a support person, was unable to protect her interests due to language limitations. The impropriety of obtaining the interviews was grave and not outweighed by the probative value or seriousness of the offences. In the second interview, police persisted in questioning despite clear instructions and the accused's expressed wish not to participate, compounding the impropriety. Exclusion is...

Court Disposition

Interviews excluded; evidence inadmissible

Orders

  • ['Exclude the interview with the accused on 12 July 2012 and the ERISP conducted with the accused on 2 August 2012.']