R v KS (No 2)

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.