R v R Abokhalil

[2015] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:	R v R Abokhalil [2015] NSWDC 48
Hearing dates:	12,13, 16/03/2015
Decision date:	16 March 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Criminal - Evidence: exclusion of electronic interview, admissions, 'guidelines' for mentally disabled suspects.
Catchwords:	Criminal – Application, exclusion of electronic interview, admissions,
Legislation Cited:	Evidence Act 1995 - ss 85, 90,138 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) - Part 9 Schedule 2 Mental Health Act 2007 - s 22
Cases Cited:	EM v The Queen [2007] HCA 46 Forster v The Queen (1993) 67 ALJR 550 R v Fernando [1999] NSWCCA 66
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Raja Abokhalil – Accused.
Representation:	Counsel: Mr P Hogan – Crown Mr R McCrudden – Offender Solicitors: Director of Public Prosecutions Macquarie Lawyers Burwood – Offender
File Number(s):	2013/288153

Judgment

Introduction

1. HIS HONOUR: The prosecution seeks to tender in its case against the accused Raja Abokhalil the recording of the interview conducted with him between 6.09am and 6.52am on 24 September 2013 shortly after the accused's arrest. The accused seeks the exclusion of that recorded interview and the related transcript primarily on the basis that the prosecution has not demonstrated that the truth of the admissions recorded within the document was unlikely to have been adversely affected given the circumstances in which relevant admissions were made (s 85(2) Evidence Act 1995). It is further submitted on behalf of the accused that the Court would exercise its discretion pursuant to s 90 Evidence Act 1995, or, alternatively, the discretion available pursuant to s 138 Evidence Act 1995, to exclude the contents of the interview.

Issues

2. The primary issue identified relevant to consideration of both s 85 and s 90 of the Act is that the accused had a history of mental instability and a long-standing intellectual disability which relevant police who dealt with him after his arrest and during the interview either knew about, or reasonably ought to have known about, or ought to have made inquiry about, in the circumstances of the matter.

3. The presentation of the accused, it was submitted, during the interview and certain admissions he made during the recorded interview gave suggestion of him being affected by prohibited drugs, particularly methylamphetamine. Particularly in circumstances where part of the Crown case against the accused was the presence of an ice pipe nearby to the vehicle in which the accused was sitting at the time he was first seen and spoken to by police, shortly after 3.30am on 24 September. These circumstances were either known to police, or ought to have been known to relevant police officers it was submitted.

4. It is also submitted that a certain disclosure by the accused during the early part of the interview rendered the possibility that the accused was a ‘vulnerable person’ within the terms of the Law Enforcement (Powers and Responsibilities) Act 2002(LEPRA) and the related Regulation of 2005.

The Voir Dire