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

Supreme Court New South Wales

Medium Neutral Citation: R v KS (No 2) [2023] NSWSC 1475 Hearing dates: 21 June 2023; 22 June 2023 Date of orders: 22 June 2023 Decision date: 22 June 2023 Jurisdiction: Common Law Before: Yehia J Decision: The record of interview conducted with KS on 18 September 2021 is not admissible Catchwords: CRIME — Murder — Where the young person is a 16 year-old child — Where the young person has pleaded guilty to murder — Where there is an issue as to the basis of murder — Whether the young person is to be sentenced on the basis of an intention to kill or an intention to inflict grievous bodily harm — Where the prosecution relies upon the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill — Where the ERISP contains an admission of an intention to kill — Whether the custody manager "assisted" the young person to obtain legal advice — Whether the support person fulfilled that role appropriately — Something more required than a "cardboard cut-out" — Whether the young person was essentially "left to his own devices"— Whether there was an obligation on the police to obtain consent from the young person as to the nominated support person — Whether the evidence was obtained improperly or in contravention of an Australian law — Having regard to the circumstances in which the admission was made, whether it would be unfair to use the evidence — Strict protections afforded by LEPRA provisions — ERISP not admissible Legislation Cited: Child Welfare Act 1939 (NSW), s 81C Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(b) Evidence Act 1995 (NSW), ss 4, 90, 138, 138(1), 139 Income Tax Assessment Act 1936 (Cth), s 46(3) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9 Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), regs 24, 25, 28, 29, 30, 37 Children (Criminal Proceedings) Act 1987 (NSW), ss 13, 13(1)(a), 13(1)(a)(i), 13(1)(a)(ii), 13(1)(a)(iii), 13(1)(a)(iv), 13(2), 13(3) Cases Cited: Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12 Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494 R v Aquilina [1978] 1 NSWLR 358 R v Duncan and Perre [2004] NSWCCA 431 R v Dunn (Court of Criminal Appeal (NSW),15 April 1992, unrep) R v FE [2013] NSWSC 1692 R v H (A Child) (1996) 85 A Crim R 481 R v Hawat (No 3) [2019] NSWSC 1701 R v Mercury [2019] NSWSC 81; (2019) 276 A Crim R 325 R v MEYN, John Michael (No 1) [2012] NSWSC 1441 R v Phung and Huynh [2001] NSWSC 115 R v Tang [2001] NSWCCA 210; (2001) 122 A Crim R 206 R v Tarantino (No 6) [2019] NSWSC 1174 R v Cotton (1990) 19 NSWLR 593 R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1 R v Williams (Supreme Court (NSW), Roden J, 9 August 1982, unrep) R v Warren [1982] 2 NSWLR 360 R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Texts Cited: D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 2 March 1977 Category: Procedural rulings Parties: Rex (Crown) KS (Young Person) Representation: Counsel: L Shaw (Crown) P Krisenthal (Defence)