R v Powell, Steven [2010] NSWDC 84

R v Powell, Steven [2010] NSWDC 84

The ERISP was excluded because the accused was unlawfully arrested for the purpose of questioning, police did not comply with required safeguards for vulnerable persons under LEPRA, and the caution given was inadequate to ensure the accused understood his rights. The desirability of admitting the evidence was outweighed by its undesirability due to improper and unlawful police conduct.

Jurisdiction
Australia
Judgment Date
08 March 2010
Procedural Posture
Criminal / Interlocutory Application
Outcome
application granted
Legal Topics
['exclusion of Evidence' 'unlawful Arrest' 'vulnerable Persons' 'aboriginal Persons' 'right to Silence']
['criminal Law'] ['exclusion of Evidence' 'unlawful Arrest' 'vulnerable Persons' 'aboriginal Persons' 'right to Silence']

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Procedural Posture

Criminal / Interlocutory Application

Legal Issues

  1. 1 ['Whether evidence of the record of interview (ERISP) should be excluded' 'Whether the accused was lawfully arrested' 'Whether police complied with safeguards for vulnerable persons under LEPRA' 'Adequacy of caution given to the accused']

Ratio Decidendi

The ERISP was excluded because the accused was unlawfully arrested for the purpose of questioning, police did not comply with required safeguards for vulnerable persons under LEPRA, and the caution given was inadequate to ensure the accused understood his rights. The desirability of admitting the evidence was outweighed by its undesirability due to improper and unlawful police conduct.

Court Disposition

application granted

Orders

  • ['The ERISP is not to be admitted in evidence against the accused.' 'Copy of the judgment to be forwarded to the Attorney General for consideration of redrafting LEPRA Part 9 Caution/Summary document.']