R v KS (No 2) [2023] NSWSC 1475

R v KS (No 2) [2023] NSWSC 1475

Although there was compliance with the statutory formalities (s 13 Children (Criminal Proceedings) Act), the combination of circumstances—including KS's vulnerability as a child, the inadequate fulfillment of the support person's protective role, KS's lack of appreciation of his rights, the absence of legal advice, and the continuation of questioning despite expressed reluctance—meant that, having regard to all circumstances, it would be unfair to admit the ERISP into evidence pursuant to s 90 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
22 June 2023
Procedural Posture
Criminal / Procedural Ruling on Admissibility of Evidence During Sentencing Hearing
Outcome
ERISP held inadmissible; objection to admissibility upheld.
Legal Topics
['admissibility of Evidence' 'children (criminal Proceedings)' 'police Questioning of Juveniles' 'sentencing – Murder' 'unfairness Discretion']
['criminal Law'] ['admissibility of Evidence' 'children (criminal Proceedings)' 'police Questioning of Juveniles' 'sentencing – Murder' 'unfairness Discretion']

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Procedural Posture

Criminal / Procedural Ruling on Admissibility of Evidence During Sentencing Hearing

Legal Issues

  1. 1 ['Whether the Electronically Recorded Interview (ERISP) with KS is admissible in sentencing proceedings' 'Whether police complied with s 13 of the Children (Criminal Proceedings) Act 1987 (NSW)' 'Whether evidence was obtained improperly or in contravention of an Australian law (s 138 Evidence Act 1995 (NSW))' 'Whether use of the evidence would be unfair to KS (s 90 Evidence Act 1995 (NSW))']

Ratio Decidendi

Although there was compliance with the statutory formalities (s 13 Children (Criminal Proceedings) Act), the combination of circumstances—including KS's vulnerability as a child, the inadequate fulfillment of the support person's protective role, KS's lack of appreciation of his rights, the absence of legal advice, and the continuation of questioning despite expressed reluctance—meant that, having regard to all circumstances, it would be unfair to admit the ERISP into evidence pursuant to s 90 of the Evidence Act 1995 (NSW).

Court Disposition

ERISP held inadmissible; objection to admissibility upheld.

Orders

  • ['The record of interview conducted with KS on 18 September 2021 is not admissible in these proceedings.']