R v Hunter (a pseudonym) [2019] NSWDC 543

R v Hunter (a pseudonym) [2019] NSWDC 543

The accused was a vulnerable person by reason of intellectual disability. The custody manager failed to give proper regard to the protective regime, including by inadequate assessment of vulnerability and failure to ascertain whether the accused understood the caution. The interview itself showed the accused did not understand the caution, his disability should have prompted further investigation by interviewing officers, and his answers were in many respects unreliable because he appeared to give answers he thought would please police. The accused discharged the onus under the Evidence Act provisions relied on, and the established unfairness or prejudice outweighed any probative value,...

Jurisdiction
Australia
Judgment Date
23 August 2019
Procedural Posture
Criminal / Voir Dire in Special Hearing Concerning Admissibility of Electronically Recorded Interview
Outcome
Electronically recorded interview of accused by Police excluded from being admitted into evidence in the Special Hearing.
Legal Topics
['vulnerable Person' 'police Interview' 'admissibility of Evidence' 'exclusion of Evidence' 'right to Silence' 'intellectual Disability' 'lepra Regime']
['criminal Law' 'evidence' 'mental Health and Forensic Procedure'] ['vulnerable Person' 'police Interview' 'admissibility of Evidence' 'exclusion of Evidence' 'right to Silence' 'intellectual Disability' 'lepra Regime']

Case Brief

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Procedural Posture

Criminal / Voir Dire in Special Hearing Concerning Admissibility of Electronically Recorded Interview

Legal Issues

  1. 1 ['Whether the electronically recorded interview with the accused was admissible in the Crown case in the special hearing.' 'Whether police complied with the legislative regime protecting vulnerable persons during custody and interview.' 'Whether statutory unfairness or prejudice justified exclusion of the electronically recorded interview and preceding hand-held interview.']

Ratio Decidendi

The accused was a vulnerable person by reason of intellectual disability. The custody manager failed to give proper regard to the protective regime, including by inadequate assessment of vulnerability and failure to ascertain whether the accused understood the caution. The interview itself showed the accused did not understand the caution, his disability should have prompted further investigation by interviewing officers, and his answers were in many respects unreliable because he appeared to give answers he thought would please police. The accused discharged the onus under the Evidence Act provisions relied on, and the established unfairness or prejudice outweighed any probative value,...

Court Disposition

Electronically recorded interview of accused by Police excluded from being admitted into evidence in the Special Hearing.

Orders

  • ['The electronically recorded interview, and the preceding hand-held interview, are excluded from evidence in the special hearing.']