R v Kevin Pocknell [2015] NSWDC 333

District Court New South Wales

Medium Neutral Citation: R v Kevin Pocknell [2015] NSWDC 333 Hearing dates: 24-26/03/2015 Decision date: 31 March 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Exclude the second part of the interview conducted after the 10 minute break from Q266 onwards with the exception of those answers to be admitted by consent. Catchwords: Criminal - Evidence - admissibility of record of interview, intoxication, right to silence. Legislation Cited: Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Em v The Queen [2007] HCA 46 R v Shamouil [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 Category: Consequential orders (other than Costs) Parties: Crown Kevin Pocknell - Applicant Representation: Counsel: Ms A Seeto – Director of Public Prosecutions Mr A Conwell - Applicant

Solicitors: Director of Public Prosecutions Nyman Gibson Miralis Lawyers - Applicant File Number(s): 2013/66506

Judgment: - Admissibility of record of interview

Introduction 1. The accused Mr Pocknell is being tried in respect of allegations of sexual assault allegedly committed by him on 10 or 11 May 2011 at Woolloomooloo against CS. Count 1 is an allegation of sexual intercourse without consent, with an alternative count of indecent assault, count 2 is an allegation of indecent assault. The Crown case in proof of guilt in relation to the allegation of sexual intercourse without consent is dependent almost entirely upon admissions made by the accused in the course of an interview conducted with him from 4.34 pm onwards on 4 March 2013 at Kings Cross Police Station. 2. Counsel for the accused, on his behalf, objects to the admissibility of the contents of the electronic interview (Exhibit 1 on the voir dire). The bases of the objection are either that the electronically recorded interview had been obtained improperly and thus ought be excluded in exercise of the powers pursuant to s 138 Evidence Act 1995 (the 'Act'). Alternatively, the Court should exclude the interview with the accused because the circumstances in which the admission(s) was made was such as to adversely affect the truth of any admission(s) that were made and thus the prosecution cannot discharge the burden upon it created by s 85(2) of the Act. 3. Alternatively, the Court should use its discretion pursuant to s 90 of the Act to refuse to admit the contents of the interview involving any admission(s) because having regard to the circumstances in which the admission was made it would be unfair to the accused to use the evidence. Nothing turned upon any judicial consideration of the width or operation of the relevant sections of relevant legislation.