Legal Research
Cases
R v KS (No 2)

R v KS (No 2)

Case [2023] NSWSC 1475 22 June 2023

Mens Rea & Intention

Causation

Admissibility of Evidence

Compensatory Damages

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v KS (No 2) [2023] NSWSC 1475
Hearing dates: 21 June 2023; 22 June 2023
Date of orders: 22 June 2023
Decision date: 22 June 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
The record of interview conducted with KS on 18 September 2021 is not admissible

Catchwords:
CRIME — Murder — Where the young person is a 16 year-old child — Where the young person has pleaded guilty to murder — Where there is an issue as to the basis of murder — Whether the young person is to be sentenced on the basis of an intention to kill or an intention to inflict grievous bodily harm — Where the prosecution relies upon the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill — Where the ERISP contains an admission of an intention to kill — Whether the custody manager “assisted” the young person to obtain legal advice — Whether the support person fulfilled that role appropriately — Something more required than a “cardboard cut-out” — Whether the young person was essentially “left to his own devices”— Whether there was an obligation on the police to obtain consent from the young person as to the nominated support person — Whether the evidence was obtained improperly or in contravention of an Australian law — Having regard to the circumstances in which the admission was made, whether it would be unfair to use the evidence — Strict protections afforded by LEPRA provisions — ERISP not admissible

Legislation Cited:
Child Welfare Act 1939 (NSW), s 81C
Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(b)
Evidence Act 1995 (NSW), ss 4, 90, 138, 138(1), 139
Income Tax Assessment Act 1936 (Cth), s 46(3)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 9
Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), regs 24, 25, 28, 29, 30, 37
Children (Criminal Proceedings) Act 1987 (NSW), ss 13, 13(1)(a), 13(1)(a)(i), 13(1)(a)(ii), 13(1)(a)(iii), 13(1)(a)(iv), 13(2), 13(3)

Cases Cited:
Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494
R v Aquilina [1978] 1 NSWLR 358
R v Duncan and Perre [2004] NSWCCA 431
R v Dunn (Court of Criminal Appeal (NSW),15 April 1992, unrep)
R v FE [2013] NSWSC 1692
R v H (AChild) (1996) 85 A Crim R 481
R v Hawat(No 3) [2019] NSWSC 1701
R v Mercury [2019] NSWSC 81; (2019) 276 A Crim R 325
R v MEYN, John Michael (No 1) [2012] NSWSC 1441
R v Phung and Huynh [2001] NSWSC 115
R v Tang [2001] NSWCCA 210; (2001) 122 A Crim R 206
R v Tarantino (No 6) [2019] NSWSC 1174
R v Cotton (1990) 19 NSWLR…

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 KS (No 2)

Details

AGLC: R v KS (No 2) [2023] NSWSC 1475
Case: [2023] NSWSC 1475
Decision Date: 22 June 2023

CaseChat Overview and Summary

In the matter of R v KS (No 2), the defendant, a 16-year-old child, pleaded guilty to murder. The key issue in this case was whether the young person was to be sentenced based on an intention to kill or an intention to inflict grievous bodily harm. The prosecution sought to use the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill. The ERISP contained an admission of an intention to kill. The court had to determine if the custody manager had "assisted" the young person to obtain legal advice, and whether the support person fulfilled this role appropriately.

The court examined whether the young person was left essentially to his own devices and if there was an obligation on the police to obtain consent from the young person as to the nominated support person. The court also considered whether the evidence was obtained improperly or in contravention of Australian law. Furthermore, the court examined whether, given the circumstances in which the admission was made, it would be unfair to use the evidence. The court recognised the strict protections afforded by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) provisions, which rendered the ERISP inadmissible.

Ultimately, the court found that the evidence obtained was inadmissible due to the lack of appropriate support for the young person during the interview process. The court held that the LEPRA provisions required more than a "cardboard cut-out" to assist the young person in obtaining legal advice, and the support person did not fulfil that role adequately. Consequently, the admission in the ERISP could not be used against the young person in sentencing. The court decided that the young person was to be sentenced on the basis of an intention to inflict grievous bodily harm, rather than an intention to kill. The final orders of the court will reflect this decision.

Orders