R v Hunter (a pseudonym) - [2019] NSWDC 543

District Court

New South Wales

Medium Neutral Citation: R v Hunter (a pseudonym) [2019] NSWDC 543
Hearing dates: 21 March 2019, 26 April 2019, 19 June 2019
Decision date: 23 August 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Electronically recorded interview of accused by Police excluded from being admitted into evidence in the Special Hearing

Catchwords: Vulnerable person - protection of rights - LEPRA regime not complied with
Legislation Cited: Law Enforcement (Powers and Responsibilities) Regulations 2005; Evidence Act 1995 (NSW), ss 85, 90, 138,139 and 144; Mental Health (Forensic Provisions) Act NSW, ss 16 and 19.
Cases Cited: R v Phung and Huynh [2001] NSWSC 115.
Category: Procedural and other rulings
Parties:
Regina (Crown)
Hunter, a pseudonym (Accused)
Representation:
Mr Sfinas (ODPP Parramatta)
Ms Climo (Accused)

File Number(s): 2015/174928
Publication restriction: Non publication order of the name of the accused or the complainant and of any other fact or thing that may identify either of them, directly or indirectly.

Judgment

On 13 June 2015, the accused was interviewed by police in connection with an allegation that he had had unlawful sexual intercourse with the complainant on 7 June 2015 (the complainant being a person who had a cognitive impairment).
At the time he was interviewed, the accused himself suffered from a mild intellectual disability in both his cognitive reasoning and adaptive behaviour, with the result that he functioned at a level lower than 99 per cent of his age peers (his age at that time being 64). Specifically, his functional age in relation to his communication skills was the equivalent of a child aged 7 and a half years old; and his functional age in relation to his ability to address new problems was the equivalent of a child aged 5 years.
On 22 September 2017, the accused was found unfit to be tried by another Judge of this Court.
On 15 March 2018, and pursuant to s 16 of the Mental Health (Forensic Provisions) Act, the Mental Health Review Tribunal found that the accused was unfit to be tried and would not become fit within 12 months of the Court’s finding.
On 20 March 2019, the Director of Public Prosecutions, pursuant to s 19 of the Mental Health (Forensic Provisions) Act, notified the Court that he intended to proceed with the charge against the accused.
On 21 March 2019, a special hearing before me commenced. The accused was arraigned and I directed that a plea of not guilty be entered in relation to the one Count on the indictment.
I then commenced the first of three anticipated voir dires – that first voir dire being whether the electronically recorded interview with the accused was admissible in the Crown case in the special hearing.
For the reasons that follow, I have decided it is not admissible.
By reason of his intellectual disability, the accused was, at the time of his arrest and interview, a vulnerable person within the meaning of Part 3 Division 3 of…

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: [2019] NSWDC 543
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the case of R v Hunter, the accused faced charges related to a crime committed against a vulnerable individual. The matter was heard in the Supreme Court of Victoria, where the prosecution sought to admit an electronically recorded interview between the accused and police as evidence during the special hearing. The defence objected to the admission of the interview, arguing that the legal framework governing the protection of vulnerable individuals was not adhered to during the interview process.

The central legal issue before the court was whether the interview could be admitted as evidence when the statutory requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) were not followed. Specifically, the court needed to determine whether the presence of an appropriate adult, as required by the LEPRA regime, was absent during the interview, and if so, whether this non-compliance was sufficient to exclude the interview from being admitted into evidence. The court also considered the implications of the failure to comply with the LEPRA regime on the rights of the vulnerable individual.

The court found that the statutory requirements under LEPRA were indeed not complied with, as there was no appropriate adult present during the interview. The court held that the absence of an appropriate adult was a significant procedural irregularity that affected the fairness and reliability of the interview. Consequently, the court ruled that the electronically recorded interview of the accused could not be admitted into evidence in the special hearing. The court emphasised the importance of adhering to the LEPRA regime to protect the rights of vulnerable individuals and ensure the integrity of the judicial process.

As a result of the court's decision, the electronically recorded interview of the accused by the police was excluded from being admitted into evidence in the special hearing. The court's ruling underscored the need for strict compliance with statutory requirements designed to safeguard the rights of vulnerable individuals in the criminal justice system.

Orders

Orders of the court

Electronically recorded interview of accused by Police excluded from being admitted into evidence in the Special Hearing

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hunter (a pseudonym) [2019] NSWDC 543
Hearing dates:	21 March 2019, 26 April 2019, 19 June 2019
Decision date:	23 August 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Electronically recorded interview of accused by Police excluded from being admitted into evidence in the Special Hearing
Catchwords:	Vulnerable person - protection of rights - LEPRA regime not complied with
Legislation Cited:	Law Enforcement (Powers and Responsibilities) Regulations 2005; Evidence Act 1995 (NSW), ss 85, 90, 138,139 and 144; Mental Health (Forensic Provisions) Act NSW, ss 16 and 19.
Cases Cited:	R v Phung and Huynh [2001] NSWSC 115.
Category:	Procedural and other rulings
Parties:	Regina (Crown) Hunter, a pseudonym (Accused)
Representation:	Mr Sfinas (ODPP Parramatta) Ms Climo (Accused)
File Number(s):	2015/174928
Publication restriction:	Non publication order of the name of the accused or the complainant and of any other fact or thing that may identify either of them, directly or indirectly.