R v Mercury - [2019] NSWSC 81

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Mercury [2019] NSWSC 81
Hearing dates: 5, 6 February 2019
Decision date: 15 February 2019
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
The record of the interview of the accused on 29 April 1971 is inadmissible.

Catchwords: EVIDENCE — Discretions — Exclusion of evidence — Criminal proceedings –Objection to admissibility of alleged confession to murder – Confession contained in typewritten record of interview dated 29 April 1971 – Accused aged 17 years at time of interview – No parent, guardian, adult or lawyer present at interview – s 13 Children (Criminal Proceedings) Act 1987 (NSW) applies – Whether “proper and sufficient reason” for absence of a support person considered – No rules mandating presence of support person in 1971 – Low intellect, immaturity, disturbed upbringing, disturbed mental state and personal vulnerability of accused considered – Record of interview inadmissible in the “particular circumstances of the case”
Legislation Cited: Child Welfare Act 1939 (NSW), s 81C
Child Welfare (Amendment) Act 1977 (NSW)
Child Welfare (Further Amendment) Act 1977 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW), s 13(1)
Criminal Code (Tas)
Evidence Act 1995 (NSW), ss 85, 90
Cases Cited: Dixon v McCarthy [1975] 1 NSWLR 617
McKellar v Smith [1982] 2 NSWLR 950
R v Aquilina [1978] 1 NSWLR 358
R v Close (Supreme Court (NSW), Carmichael J, 20 October 1977, unrep)
R v Cotton (1990) 19 NSWLR 593
R v Duncan and Perre [2004] NSWCCA 431
R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)
R v Phung and Huynh [2001] NSWSC 115
R v Glasby [2000] NSWCCA 83; 115 A Crim R 465
R v H (1996) 85 A Crim R 481
R v Haas (1997) 90 A Crim R 149
R v Huynh and Phung [2001] NSWSC 357
R v ME and LT (Supreme Court (NSW), Dowd J, 3 October 2002, unrep)
R v Pratt; R v Baker; R v White (1965) 83 WN (Pt 1) (NSW) 358
R v T [2001] NSWCCA 210; 122 A Crim R 206
R v Warren [1982] 2 NSWLR 360
R v Williams (Supreme Court (NSW), Roden J, 9 August 1982, unrep)
Rodway v The Queen (1990) 169 CLR 517; [1990] HCA 19
Texts Cited: Proceedings of the Institute of Criminology No 18, University of Sydney Faculty of Law, Police Questioning and Confessional Statements, May 1965-November 1970
New South Wales Police, Rules and Instructions, (1957)
Category: Procedural and other rulings
Parties: Regina
Mercury (a pseudonym)
Representation:
Counsel:
Mr D Scully (Crown)
Mr R Wilson (Accused)
Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s): 2017/81732

Judgment

HIS HONOUR: A three-year old girl disappeared from the vicinity of the Fairy Meadow Beach shower block on 12 January 1970. An extensive police investigation was carried out. There was intense public and media interest in the case.
The accused was aged 15 at the time the little girl disappeared. Section 15A 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.

Continue reading R v Mercury

Details

AGLC: R v Mercury [2019] NSWSC 81
Case: [2019] NSWSC 81
Decision Date: 15 February 2019

CaseChat Overview and Summary

The case of R v Mercury involved a criminal proceeding where the key issue was the admissibility of a confession allegedly made by the accused to committing a murder. The confession was contained in a typewritten record of an interview dated 29 April 1971, conducted when the accused was 17 years old. At the time of the interview, no parent, guardian, adult, or lawyer was present, raising questions about the fairness and reliability of the confession. The court was required to determine whether there was a "proper and sufficient reason" for the absence of a support person during the interview, as mandated by section 13 of the Children (Criminal Proceedings) Act 1987 (NSW). This was particularly pertinent given the accused's low intellect, immaturity, disturbed upbringing, disturbed mental state, and personal vulnerability.

The legal issue before the court was whether the record of the interview could be admitted into evidence under the particular circumstances of the case. The court needed to consider the statutory requirement for a support person to be present during interviews with children, as well as the broader context of the accused's background and state of mind. The court had to balance the statutory mandate with the historical context, where no rules mandated the presence of a support person in 1971, and assess whether the absence of such a person could be justified by the circumstances.

In its reasoning, the court concluded that the absence of a support person during the interview, coupled with the accused's low intellect, immaturity, disturbed upbringing, and disturbed mental state, constituted a significant procedural irregularity. The court found that the particular circumstances of the case warranted the exclusion of the confession, as there was no proper and sufficient reason for the absence of a support person. Given the vulnerability of the accused and the potential unreliability of the confession obtained under such conditions, the court ruled that the record of the interview was inadmissible. The court's decision highlighted the importance of procedural safeguards in protecting the rights of vulnerable individuals during criminal proceedings.

The final orders of the court were that the record of the interview, which contained the alleged confession, be excluded from evidence in the criminal proceedings. This ruling underscored the court's commitment to ensuring that confessions obtained under unfair or unreliable conditions are not used against the accused, particularly when the accused's vulnerable circumstances are taken into account.

Orders