R v FE

Case [2013] NSWSC 1692 12 November 2013

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Supreme Court

New South Wales

Medium Neutral Citation: R v FE [2013] NSWSC 1692
Hearing dates: 11, 12 November 2013
Decision date: 12 November 2013
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Exclude the interview with the accused on 12 July 2012 and the ERISP conducted with the accused on 2 August 2012.

Catchwords:
EVIDENCE - s 138 and s 139 Evidence Act 1995 - improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 - unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl
CRIMINAL LAW - right to silence- requirement for caution- provisions relating to juveniles
Legislation Cited: Children (Criminal Proceedings) Act 1987, s 13
Evidence Act 1995, s 90, s 138, s 138(3)(a)-(c), s 139, s 139(1), s 139(5)(a)-(c)
Law Enforcement (Powers and Responsibilities) Act 2002
Law Enforcement (Powers and Responsibilities) Regulation 2005, reg 21, reg 24, reg 25, reg 29, reg 30
Cases Cited: Bunning v Cross [1978] HCA 22; 141 CLR 54
Em v The Queen [2007] HCA 46; 232 CLR 67
Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
Petty v The Queen [1991] HCA 34; 173 CLR 95
R v Dalley [2002] NSWCCA 284; 132 A Crim R 169
R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
R v Em [2003] NSWCCA 374
R v Ireland [1970] HCA 21; 126 CLR 321
R v Phung and Huynh [2001] NSWSC 115
R v Plevac (1995) 84 A Crim R 570
R v Swaffield [1998] HCA 1; 192 CLR 159
Reid v Howard [1995] HCA 40; 184 CLR 1
The King v Lee [1950] HCA 25; 82 CLR 133
X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858
Category: Interlocutory applications
Parties: Regina (Crown)
FE (Accused)
Representation: Counsel:
J Crespo (Crown)
N M Steel (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Mark Klees & Associates (Accused)

File Number(s): 2012/241043
Publication restriction: Yes Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child offender. Identifying information has been removed from this version of the judgment to comply with the statute.

Judgment

Introduction

At about 2am on Sunday 8 July 2012, Christopher Brilliantes stabbed Patrick Crowe at the Parramatta Transport Interchange. Crowe died a few hours later from the stab wound inflicted by the knife that had pierced his lung. Brilliantes pleaded guilty to murder and was sentenced on 8 November 2013.

By indictment presented on 11 November 2013, FE, the accused, pleaded not guilty to both counts:

1. On 8 July 2012 at Parramatta in the State of New South Wales used unlawful violence towards Patrick CROWE by conduct that would cause a person of reasonable firmness present at the scene to fear for his…

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.

Continue reading R v FE

Details

AGLC: R v FE [2013] NSWSC 1692
Case: [2013] NSWSC 1692
Decision Date: 12 November 2013

CaseChat Overview and Summary

The case involved a 15-year-old girl, the complainant, who alleged she had been sexually assaulted. The accused, FE, faced criminal charges arising from the incident. The dispute centred on the admissibility of statements made by FE during a police interview, where he allegedly confessed to the offence. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether the statements should be excluded under s 138 and s 139 of the Evidence Act 1995 due to being improperly obtained because the accused was not cautioned at the outset of the interview. Additionally, the court needed to decide if FE's right to silence was unfairly deprived under s 90 of the Evidence Act 1995, particularly given his age and any vulnerabilities.

The court began by examining whether FE was cautioned before the interview. It found that he was not, which violated the statutory requirement. Despite the initial refusal to answer questions, the police continued the interview, leading to a confession. The court considered whether this continued questioning unfairly deprived FE of his right to silence. Given his age and potential vulnerabilities, the court found that his rights were indeed unfairly compromised. The court concluded that the evidence obtained should be excluded under s 138 of the Evidence Act 1995 because it was obtained in breach of the statutory requirement to caution. Furthermore, the court held that the evidence was inadmissible under s 139 because it was obtained by unfairly taking advantage of FE's vulnerability.

The final orders of the court were that the statements made by FE during the police interview were excluded from evidence. The court's ruling highlighted the importance of adhering to statutory requirements for caution and protecting the rights of vulnerable individuals in the criminal justice process.

Orders