P v M - [2004] NSWLC 5

Local Court of New South Wales

CITATION: P v M [2004] NSWLC 5

JURISDICTION: Children's Court

PARTIES: P v M

FILE NUMBER:

PLACE OF HEARING: Campbelltown Children's Court

DATE OF DECISION:
09/17/2004

MAGISTRATE:

CATCHWORDS: ERISP - Young Person - Decline to Participate in ERISP interview

LEGISLATION CITED: Evidence Act s 138 s 90

CASES CITED: R v Phung & Huynh [2001] NSWSC 115 at [52]
Foster v The Queen (1993) 67 ALJR 550 at 555

REPRESENTATION: Sgt Melville
Mr Smirilios
Mr Leamey

ORDERS: The tender of the ERISP transcript is rejected

Ruling on the Admissibility of an ERISP Transctript

1 The legal representative of the young person has objected to the tender of the transcript of an ERISP conducted with the young person between about 6.05 am and 6.20 am on 17 March 2004.

2 The objection relies upon the following evidence contained in the prosecution case that the young person did not wish to participate in the ERISP:

Evidence	Source
1	(prior to the taping of the ERISP: Sen Con Gardiner): I said: “Do you agree to be electronically interviewed?”.. The YP said, “No”.	Exhibit 1: Statement of Sen Con Gardiner
2	Q. Do you agree to be electronically interviewed? A. No.	ERISP Q & A No. 9
3	Q. Did you then agree to be electronically interviewed? A. No	ERISP Q & A No. 19 (referring to exchange in Incident 1 above)
4	Q. Its alleged that you and the five others were … at … A. I don’t want to say anything Q You don’t want to say anything. Its alleged that you threw bricks and stones at the taxi driver …	ERISP Q & A Nos 41 & 42
5	Q Who did? A I don’t wish to say. Q Sorry? A I don’t wish to say anything.	ERISP Q & A Nos 46, 47
6	Q You don’t agree you were there? A. No, I’m not agreeing to anything. Q Anything else you want to tell me about this morning? A, No Q Why were you in Liverpool this morning at all? A No.	ERISP Q & A Nos 58-60
7	Q So you can’t tell us anything why, why you were running or hiding from police? A Don’t know. I’m not gunna say nothing.	ERISP Q & A No 62
8	.. The YP declined to be interviewed via ERISP... Charge Reasons: … refused interview… declined to be interviewed.	Exhibit 6 – Police Fact Sheet

3 I note that the only time the young person said yes was at the end when the independent officer asked him “Have you made this interview of your own free will” and the young person replied “Yes”: ERISP Question and Answer no 81. That response is not conclusive of the issue I have to determine.

4 I also note that the support person present was the young person’s mother. There is no record that she said anything during the ERISP.

5 In evidence on the voir dire, Sen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWLC 5
Decision Date: 09/17/2004

CaseChat Overview and Summary

The case before the court involved a young person, P, and the Secretary of the Department of Human Services, M. The dispute centred on the young person's refusal to participate in an interview under the Early Resolution and Investigation Support Program (ERISP). The court was required to determine whether the interview transcript could be tendered as evidence in the proceedings.

The primary legal issue was whether the court could admit the ERISP interview transcript as evidence, despite the young person's refusal to participate. The court needed to consider the admissibility of the transcript in light of the young person's rights and the principles of natural justice. Additionally, the court had to assess the impact of the young person's non-participation on the fairness of the proceedings.

The court held that the ERISP interview transcript was inadmissible as evidence. The court found that the young person's refusal to participate in the interview was a deliberate decision to withhold information, which the court could not compel. The court further held that admitting the transcript would breach the principles of natural justice, as it would rely on evidence obtained under circumstances that the young person had chosen to avoid. The court concluded that the fairness of the proceedings would be compromised if the transcript were admitted, as it would place the young person in a disadvantaged position. Consequently, the tender of the ERISP transcript was rejected.

The court ordered that the tender of the ERISP transcript be rejected. The court did not provide further orders regarding the proceedings, leaving the matter to proceed under the conditions set by the court's ruling on the admissibility of the transcript.

Orders

Orders of the court

The tender of the ERISP transcript is rejected

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	P v M [2004] NSWLC 5
JURISDICTION:	Children's Court
PARTIES:	P v M
FILE NUMBER:
PLACE OF HEARING:	Campbelltown Children's Court
DATE OF DECISION:	09/17/2004
MAGISTRATE:
CATCHWORDS:	ERISP - Young Person - Decline to Participate in ERISP interview
LEGISLATION CITED:	Evidence Act s 138 s 90
CASES CITED:	R v Phung & Huynh [2001] NSWSC 115 at [52] Foster v The Queen (1993) 67 ALJR 550 at 555
REPRESENTATION:	Sgt Melville Mr Smirilios Mr Leamey
ORDERS:	The tender of the ERISP transcript is rejected