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Supreme Court 22 June 2023

R v KS (No 2)

[2023] NSWSC 1475

HomicidePublic order & justice offences

Citation: R v KS (No 2) [2023] NSWSC 1475
Court: Supreme Court of New South Wales
Date: 22 June 2023
Judge: Yehia J

Background

KS, a 16-year-old, pleaded guilty in the Children's Court to one count of murder and one count of inflicting grievous bodily harm with intent, arising from a stabbing in September 2021. He was committed to the Supreme Court for sentence. In the sentencing proceedings, a dispute arose about the factual basis on which KS should be sentenced for the murder.

KS entered his guilty plea on the basis that he intended to inflict grievous bodily harm, not that he intended to kill. The prosecution sought to rely on an Electronically Recorded Interview (ERISP) conducted with KS at around 2:24am on 18 September 2021, shortly after his arrest, in which he made admissions capable of supporting an intention to kill.

KS objected to the tender of the ERISP on three grounds: breach of s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCPA), improper or unlawful obtaining of evidence under s 138 of the Evidence Act 1995 (NSW), and unfairness under s 90 of the Evidence Act.

  • Whether the custody manager complied with the obligation under s 13 of the CCPA to assist the young person in obtaining legal advice before the interview.
  • Whether the support person present during the interview adequately fulfilled that statutory role.
  • Whether, under s 13 CCPA, police were required to obtain KS's consent to the nomination of the support person.
  • Whether the ERISP was obtained improperly or in contravention of an Australian law, engaging the discretion to exclude under s 138 of the Evidence Act.
  • Whether, having regard to the circumstances in which the admissions were made, it would be unfair to use the evidence under s 90 of the Evidence Act.

Decision

The support person's role

KS's uncle, Mr Stewart, attended the police station as the nominated support person. The court found that Mr Stewart did not understand his role under the CCPA. He had been told only that KS was involved in something "really bad" and understood his role in general terms, but he did not appreciate that it included actively supporting KS in understanding his rights, including his right to remain silent. During the ERISP, Mr Stewart sat apart from KS rather than beside him at the interview table, and made no meaningful intervention even when KS signalled reluctance to answer questions. The court characterised this as something more than a mere procedural deficiency: a support person who plays no active part is no more than a "cardboard cut-out."

Compliance with s 13 of the CCPA

Section 13 of the CCPA imposes strict requirements when a child is taken into custody, including the obligation to assist the child to obtain legal advice. The court found that the custody manager's efforts to facilitate legal advice did not satisfy those obligations in the circumstances. The provisions of the CCPA and Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) were described as affording strict protections to young people in custody, and those protections were not adequately observed here. The court also found there was an obligation on police to obtain the young person's consent to the nominated support person, which had not occurred.

Unfairness under s 90 of the Evidence Act

Although the court was not persuaded that the conduct of police amounted to an impropriety or contravention of an Australian law sufficient to engage s 138, it did find that the cumulative circumstances rendered reliance on the ERISP unfair under s 90. Those circumstances included: the interview occurred in the early hours of the morning; KS, who was 16 and assessed as psychologically immature, did not obtain legal advice; his support person did not understand or perform his role; police had already decided before the interview to charge KS with murder and refuse bail; and during the interview KS indicated, by words and demeanour, that he did not wish to continue answering questions, yet questioning persisted. Taking these factors together, the court ruled the ERISP inadmissible.

Orders Made

• The interview is not admissible.

Key Takeaways

  • Under s 13 of the CCPA, police bear strict obligations when interviewing a child suspect, including actively assisting the child to obtain legal advice and ensuring a support person who genuinely understands and performs that role is present.
  • A support person who does not understand their function and remains passive throughout a custodial interview does not satisfy the statutory requirement: the court described such a presence as a "cardboard cut-out" rather than a meaningful safeguard.
  • The court confirmed a requirement that police obtain the young person's consent to the nomination of a support person; simply arranging attendance by a relative nominated by a family member is insufficient.
  • Even where police conduct does not rise to the level of impropriety or contravention of Australian law under s 138 of the Evidence Act, the cumulative circumstances of an interview may still render admission of the evidence unfair under s 90.
  • The admissibility ruling had direct sentencing consequences: because the ERISP contained admissions relevant to intent to kill, its exclusion meant the prosecution could not rely on those admissions to have KS sentenced on a more serious factual basis than the one underpinning his guilty plea.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(b)
- Evidence Act 1995 (NSW), ss 4, 90, 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), regs 24, 25, 28, 29, 30, 37

Cases
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
- R v Mercury [2019] NSWSC 81; (2019) 276 A Crim R 325
- R v H (A Child) (1996) 85 A Crim R 481
- R v FE [2013] NSWSC 1692
- R v Hawat (No 3) [2019] NSWSC 1701
- R v Tarantino (No 6) [2019] NSWSC 1174
- R v Tang [2001] NSWCCA 210; (2001) 122 A Crim R 206
- R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36
- R v Cotton (1990) 19 NSWLR 593
- R v Aquilina [1978] 1 NSWLR 358