R v Nean [2023] NSWDC 34

District Court New South Wales

Medium Neutral Citation: R v Nean [2023] NSWDC 34 Hearing dates: 12, 13 December 2022 Date of orders: 30 January 2023 Decision date: 30 January 2023 Jurisdiction: Criminal Before: Buscombe DCJ Decision: ERISP conducted with the Accused by the police on 10 June 2021 is excluded from the evidence Catchwords: ERISP – Admissibility – Police impropriety – Whether Police conduct in obtaining evidence was improper ERISP – Admissibility – Vulnerable person – Police conduct Legislation Cited: Evidence Act 1995 sections: 84,90, 138, 189(3) Law Enforcement (Powers and Responsibilities) Act 2002 and the regulation made thereunder. Cases Cited: EM v The Queen (2007) 232 CLR 67 Higgins v The Queen [2007] NSWCCA 56 R v Phung and Huynh [2001] NSWSC 115 R v Sumpton [2014] NSWSC 1432 Texts Cited: Odgers: Uniform Evidence Law 17th Edition Category: Consequential orders Parties: Director of Public Prosecutions (Crown)

Jaiven Nean (Accused) Representation: Counsel: Mr B. Allison (Crown)

Mr R Pettit (Accused)

Solicitors:

Director of Public Prosecutions (Crown)

Ryan Payten Le (Accused) File Number(s): 2021/00167861

JUDGMENT

Introduction 1. The Accused, Jaiven Nean, is to face trial listed to commence on 27 February 2023 on an indictment containing the following 3 counts: 2. Count 1 alleges that on 5 March 2021 at Rose Bay he remained on land at 8 Churchill Road, Rose Bay with intent to commit an indictable offence of larceny at the residential premises at that address. 3. Count 2 alleges that on 5 March 2021 at Rose Bay he remained on land at 6 Churchill Road, Rose Bay with intent to commit an indictable offence of larceny at those residential premises. 4. Counts 1 and 2 are allegations of breaches of s.114(1)(d) of the Crimes Act. 5. Count 3 on the indictment alleges that on 5 March 2021 at Greystanes the Accused in company with BK, Chayce Jensen and a person unknown, robbed Buu Tin Diep and My Du of a cash register containing $250 in Australian Currency, the property of Buu Tin Diep, and that Chayce Jensen at the time of the robbery wounded Buu Tien Diep. Count 3 is an allegation brought under s.98 of the Crimes Act. 6. On 10 June 2021 police executed a search warrant at the Accused's residential address in Ashfield. He was cautioned, placed under arrest and taken to Burwood Police Station. While detained at Burwood Police Station the Accused participated in an electronically recorded interview with police. In that interview the Accused made a number of admissions in relation to his involvement in the offences, and I will return to the content of that interview later in this judgment. 7. The Accused moved the Court by way of a notice of motion seeking the exclusion from the trial of the recorded interview conducted with him by the police on 10 June 2021. 8. I will refer later in greater detail to the submissions advanced on behalf of the Accused in support of his argument that the record of interview should be excluded, however, in summary the Accused argued that the record of interview is not admissible against him relying upon the following provisions of the Evidence Act 1995 (EA): sections 84; 90 and 138. The Accused argued that the conduct by the interviewing police and the custody manager at Burwood Police station involved breaches of the Law Enforcement (Powers and Responsibilities) Act (LEPRA) and the regulation made thereunder in relation to the treatment of "vulnerable persons" when in police custody. 9. The Crown argued that each of the Accused's arguments should be rejected.