Citation: [2026] NSWSC 283
Court: Supreme Court of New South Wales
Date: 30 March 2026
Judge(s): Hamill J
Background
The accused, one of three men charged with the murder of Anthony Nugent at Hamilton South on 6 September 2022, was also charged with knowingly taking part in the supply of a pistol (which was in fact an air gun or gel-blaster deemed to be a firearm under the Firearms Act 1996 (NSW)). The prosecution alleged the motive for the murder was a fraudulent firearms transaction in which Mr Nugent sold the accused and his co-offenders a gel-blaster, representing it to be a real pistol, for $22,000 when he had purchased it for about $2,000.
The accused was arrested on 1 August 2023 and taken to Waratah Police Station, where he was cautioned and had his rights read to him by a custody manager. Detectives then conducted an electronically recorded interview (ERISP). At the conclusion of the interview, when the custody manager asked whether the accused had participated of his own free will, he stated he "had no choice" and was told he "had to do the interview."
Defence counsel objected to the tender of the ERISP recording, contending that the investigating officers had violated or diminished the accused's right to silence. The objection engaged sections 85, 90, and 138 of the Evidence Act 1995 (NSW).
Legal Issues
- Whether the evidence contained in the ERISP was obtained improperly, within the meaning of s 138 of the Evidence Act 1995 (NSW), by reason of the investigating officers' diminution or disregard of the accused's right to silence.
- Whether the evidence should be excluded under s 85 of the Evidence Act on the basis that the admissions were unreliable given the circumstances in which they were obtained.
- Whether the evidence should be excluded under s 90 of the Evidence Act on the ground that its admission would be unfair.
- If improperly obtained, whether the Court should nonetheless exercise its power under s 138 to admit the evidence, having regard to the balancing considerations in s 138(3)(a)-(h).
Decision
Hamill J found that the evidence was improperly obtained. The Court accepted that, notwithstanding the formal caution administered at the beginning of the interview, the accused's right to silence was diminished by the conduct of the investigating officers. Critical to this finding was the accused's statement at the conclusion of the ERISP that he "had no choice" and was told he "had to do the interview." The Court also noted the accused's expressions of fatigue and frustration during the interview (saying he was "over it" and wanted to sleep), which did not prompt the detectives to stop the process.
The Court assessed the credibility of the lead investigator, Detective Sergeant Keegan, who denied telling the accused he had to participate. Hamill J found the detective's responses in cross-examination were defensive and characterised by a "mantra or catchphrase" rather than candid engagement with the questions. The detective's evidence that he merely invited the accused to follow him to the interview room and gave him "a chance to be interviewed" was not accepted in the context of the accused's contemporaneous complaint. The role of the custody manager was also examined, with the Court noting that the formal advice that the accused did not have to say or do anything was followed by what amounted to imperative directions about what was going to happen.
Turning to the s 138 balancing exercise, the Court found the ERISP was both probative and important to the prosecution case, noting it was replete with prevarication and lies that could be used by the Crown. However, the gravity of the impropriety weighed decisively against admission. The accused was not required to go to the interview room, was not required to sit mute while allegations and evidence were put to him, and the conduct engaged the protections in Article 14(3)(g) of the International Covenant on Civil and Political Rights (the right not to be compelled to testify against oneself or to confess guilt). In light of these considerations, Hamill J excluded the evidence.
Orders Made
- The ERISP recording of the accused's interview on 1 August 2023 was excluded from evidence at trial.
Key Takeaways
- A formal caution does not, by itself, preserve the right to silence where the surrounding conduct of police effectively communicates to the suspect that participation in the interview is compulsory rather than voluntary.
- The Supreme Court confirmed that an accused person is not required to attend an interview room or to sit while police put allegations and evidence to them, and treating those steps as inevitable rather than voluntary constitutes an impropriety.
- In conducting the s 138(3) balancing exercise, the gravity of an impropriety involving the right to silence can outweigh the probative value and importance of the evidence, even where that evidence is significant to the prosecution case.
- Significant weight was given to the accused's contemporaneous complaint to the custody manager as a statement made at the time of the events, which informed the Court's adverse assessment of the investigating officer's credibility.
- Article 14(3)(g) of the International Covenant on Civil and Political Rights was treated as a relevant consideration in evaluating the seriousness of the impropriety under s 138(3) of the Evidence Act 1995 (NSW).
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 138, 138(1), 138(3), 138(3)(a)-(h)
- Firearms Act 1996 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 3
- International Covenant on Civil and Political Rights, Art 14(3)(g)
Cases:
- Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
- Mann v R [2023] NSWCCA 256; (2023) 311 A Crim R 162
- R v Cook [2004] NSWCCA 52
- R v KS (No 2) [2023] NSWSC 1475
- R v Raad, Tuli and Latham Aznan [2026] NSWSC 285
- R v Sievers [2004] NSWCCA 463; (2004) 151 A Crim R 426
- R v Taleb [2019] NSWSC 241; (2019) 277 A Crim R 21
- Rex v Dates and Dates [2025] NSWSC 415
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35