R v R Abokhalil [2015] NSWDC 48

District Court New South Wales

Medium Neutral Citation: R v R Abokhalil [2015] NSWDC 48 Hearing dates: 12,13, 16/03/2015 Decision date: 16 March 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Criminal - Evidence: exclusion of electronic interview, admissions, 'guidelines' for mentally disabled suspects. Catchwords: Criminal – Application, exclusion of electronic interview, admissions, Legislation Cited: Evidence Act 1995 - ss 85, 90,138 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) - Part 9 Schedule 2 Mental Health Act 2007 - s 22 Cases Cited: EM v The Queen [2007] HCA 46 Forster v The Queen (1993) 67 ALJR 550 R v Fernando [1999] NSWCCA 66 Category: Procedural and other rulings Parties: Director of Public Prosecutions Raja Abokhalil – Accused. Representation: Counsel: Mr P Hogan – Crown Mr R McCrudden – Offender

Solicitors: Director of Public Prosecutions Macquarie Lawyers Burwood – Offender File Number(s): 2013/288153

Judgment

Introduction 1. HIS HONOUR: The prosecution seeks to tender in its case against the accused Raja Abokhalil the recording of the interview conducted with him between 6.09am and 6.52am on 24 September 2013 shortly after the accused's arrest. The accused seeks the exclusion of that recorded interview and the related transcript primarily on the basis that the prosecution has not demonstrated that the truth of the admissions recorded within the document was unlikely to have been adversely affected given the circumstances in which relevant admissions were made (s 85(2) Evidence Act 1995). It is further submitted on behalf of the accused that the Court would exercise its discretion pursuant to s 90 Evidence Act 1995, or, alternatively, the discretion available pursuant to s 138 Evidence Act 1995, to exclude the contents of the interview.