R v Mercury [2019] NSWSC 81

R v Mercury [2019] NSWSC 81

Although there was proper and sufficient reason for the absence of a support person at the 1971 interview—because no such requirement existed—the manner in which the interview was conducted and the accused's particular vulnerabilities meant that, in the particular circumstances of the case, the record of interview should not be admitted. Additionally, to admit the evidence would be unfair under s 90 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Criminal / Ruling on Admissibility of Evidence (pre Trial)
Outcome
objection to admissibility upheld
Legal Topics
['admissibility of Confessions' 'children and Vulnerable Persons' 'support Persons in Police Interviews' 'statutory Interpretation' 'procedural Fairness']
['criminal Law' 'evidence Law' 'child Law'] ['admissibility of Confessions' 'children and Vulnerable Persons' 'support Persons in Police Interviews' 'statutory Interpretation' 'procedural Fairness']

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Procedural Posture

Criminal / Ruling on Admissibility of Evidence (pre Trial)

Legal Issues

  1. 1 ['Whether s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) applies to statements made before its enactment' 'Whether the absence of a parent, guardian, adult support person, or lawyer at the 1971 police interview renders the confession inadmissible' 'Whether there was proper and sufficient reason for the absence of a support person' "Whether 'in the particular circumstances of the case' the confession should nevertheless be admitted" 'Whether the confession should be excluded under ss 85 or 90 of the Evidence Act 1995 (NSW) for unreliability or unfairness']

Ratio Decidendi

Although there was proper and sufficient reason for the absence of a support person at the 1971 interview—because no such requirement existed—the manner in which the interview was conducted and the accused's particular vulnerabilities meant that, in the particular circumstances of the case, the record of interview should not be admitted. Additionally, to admit the evidence would be unfair under s 90 of the Evidence Act 1995 (NSW).

Court Disposition

objection to admissibility upheld

Orders

  • ['The record of the interview of the accused on 29 April 1971 is inadmissible.']