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Supreme Court 15 February 2019

R v Mercury

[2019] NSWSC 81

HomicidePublic order & justice offences

Citation: R v Mercury [2019] NSWSC 81
Court: Supreme Court of New South Wales
Date: 15 February 2019
Judge: R A Hulme J

Background

A three-year-old girl disappeared from Fairy Meadow Beach in January 1970. The accused, who was 15 at the time, was not charged until 2017, following a re-investigation that commenced in 2016. He is referred to by the pseudonym "Mercury" in compliance with a statutory prohibition on identifying the accused.

In April 1971, when the accused was 17, police conducted a recorded interview in which he confessed to abducting and murdering the child. No parent, guardian, adult relative, or lawyer was present during the interview. Police at the time were not satisfied they had enough corroborating evidence to charge the accused, and the matter lay dormant for decades.

The accused was charged with murder in 2017, with trial listed for May 2019. He objected to the admissibility of the typewritten, signed record of the 29 April 1971 interview. The Crown accepted that its case could not succeed without that evidence.

  • Whether section 13(1) of the Children (Criminal Proceedings) Act 1987 (NSW) applied to a confession obtained before the Act was enacted, and if so, whether the absence of a support person rendered the interview inadmissible
  • Whether "proper and sufficient reason" existed for the absence of a support person during the 1971 interview
  • Whether the "particular circumstances of the case" nonetheless warranted exclusion of the record
  • Whether the interview should be excluded on the ground of unfairness under section 90 of the Evidence Act 1995 (NSW)
  • Whether section 85 of the Evidence Act 1995 (NSW) provided an additional basis for exclusion

Decision

Application of s 13 of the Children (Criminal Proceedings) Act 1987

Both parties accepted, and Hulme J agreed, that section 13(1) of the Children (Criminal Proceedings) Act 1987 applied retrospectively to the admissibility of the 1971 confession. Drawing on the earlier Court of Criminal Appeal reasoning in R v Aquilina concerning the predecessor provision in the Child Welfare Act 1939, the Court confirmed that such provisions operate as procedural limitations on admissibility and apply to evidence regardless of when it was obtained.

Proper and Sufficient Reason for Absence

Section 13(1) renders a record of interview inadmissible unless a parent, guardian, or other approved adult was present, unless there was a "proper and sufficient reason" for that absence. The Court found that proper and sufficient reason did exist in this instance: in 1971 there was no legislative requirement, and no binding rule, mandating the presence of a support person. Police could not reasonably have been expected to comply with a standard that did not yet exist.

Particular Circumstances of the Case

Despite finding proper and sufficient reason for the absence, the Court went on to consider whether the interview should nonetheless be excluded having regard to the "particular circumstances of the case," a separate discretionary inquiry required by the legislation. Hulme J concluded it should be excluded. The Court gave significant weight to the accused's low intellectual functioning, immaturity, disturbed upbringing, disturbed mental state at the time, and overall personal vulnerability. Psychiatric evidence from two eminent psychiatrists was considered. Together, these factors meant that admitting the record would be unfair in the circumstances.

Exclusion Under the Evidence Act

The Court also found the interview should be excluded on the basis of unfairness under section 90 of the Evidence Act 1995. The combination of the accused's personal vulnerabilities and the manner in which the interview was conducted supported exclusion on this independent ground as well.

Orders Made

  • The record of the interview of the accused conducted on 29 April 1971 is inadmissible.

Key Takeaways

  • Section 13(1) of the Children (Criminal Proceedings) Act 1987 applies to confessions made by children before the Act was enacted, operating as a prospective procedural rule on admissibility regardless of when the confession was obtained.
  • A "proper and sufficient reason" for the absence of a support person can be established where no legislative or binding rule mandated such presence at the time of the interview, even if the absence would be impermissible today.
  • Finding a proper and sufficient reason does not end the inquiry. The court retains a separate discretion to exclude the record having regard to the "particular circumstances of the case," including the accused's vulnerability, mental state, and the manner in which the interview was conducted.
  • Where a juvenile accused presents with low intellect, immaturity, a disturbed upbringing, and significant psychological vulnerability, those factors carry substantial weight in the discretionary exclusion analysis under the Children (Criminal Proceedings) Act 1987 and section 90 of the Evidence Act 1995.
  • In cold case prosecutions where key admissions were obtained decades earlier from a young person without any support person, the Crown faces significant admissibility obstacles even if the absence was consistent with the standards of the time.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 13(1)
- Evidence Act 1995 (NSW), ss 85, 90
- Child Welfare Act 1939 (NSW), s 81C
- Child Welfare (Amendment) Act 1977 (NSW)
- Child Welfare (Further Amendment) Act 1977 (NSW)
- Criminal Code (Tas)

Cases
- 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 Glasby [2000] NSWCCA 83; 115 A Crim R 465
- R v T [2001] NSWCCA 210; 122 A Crim R 206
- R v H (1996) 85 A Crim R 481
- R v Haas (1997) 90 A Crim R 149
- R v Duncan and Perre [2004] NSWCCA 431
- Rodway v The Queen (1990) 169 CLR 517; [1990] HCA 19
- Dixon v McCarthy [1975] 1 NSWLR 617
- McKellar v Smith [1982] 2 NSWLR 950
- R v Warren [1982] 2 NSWLR 360
- R v Pratt; R v Baker; R v White (1965) 83 WN (Pt 1) (NSW) 358
- R v Williams (Supreme Court (NSW), Roden J, 9 August 1982, unrep)
- R v Phung and Huynh [2001] NSWSC 115
- R v Huynh and Phung [2001] NSWSC 357
- R v ME and LT (Supreme Court (NSW), Dowd J, 3 October 2002, unrep)
- R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep)