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Supreme Court 22 June 2026

R v GH

[2026] NSWSC 740

Homicide
EVIDENCE

Citation: R v GH [2026] NSWSC 740
Court: Supreme Court of New South Wales
Date: 22 June 2026
Judge(s): Rigg J

Background

The accused, GH, is a young woman charged with the murder of a man at a house in Tregear between 7 and 10 June 2023. She was 16 years and 5 months old at the time of the alleged offence. Two co-accused, DA and DT, have pleaded guilty to murder; a fourth participant pleaded guilty to manslaughter and has been sentenced.

The Crown case alleges the deceased was repeatedly assaulted over four days by all four persons until he died from blunt force head injury. The prosecution relies on eyewitness accounts, three videos depicting the assaults, and admissions made by the accused in a recorded police interview conducted on 10 July 2023 at Muswellbrook police station.

The trial is proceeding before Rigg J sitting alone. Pre-trial argument focused on the admissibility of the recorded interview. Following the hearing, the Crown did not press two other bodies of evidence that had also been the subject of objection, leaving the admissibility of the interview as the sole question for determination.

  • Whether the admissions in the recorded interview were inadmissible under s 85 of the Evidence Act 1995 (NSW), on the basis that the circumstances made it unlikely their truth was not adversely affected
  • Whether, even if technically admissible, the court should exclude the interview under s 90 of the Evidence Act, on the basis that admitting the admissions would be unfair to the accused having regard to the circumstances in which they were made
  • Whether the interview should also be excluded under s 138 of the Evidence Act as improperly or illegally obtained evidence, and, if so, whether the desirability of admitting it outweighed the undesirability of doing so

Decision

Section 85 (reliability of admissions): The court considered the circumstances in which the interview was conducted. The accused had a mild intellectual developmental disorder, placing her below 99% of her peers across cognitive skills including attention, working memory, reasoning, problem solving and judgment. She was 16 years old, had a background of significant developmental trauma, was mentally unstable in the period leading up to the interview, and had discovered she was pregnant the day before the interview took place. The court found those circumstances gave rise to significant reliability concerns, particularly given the accused's likely motivation to minimise her own role and exaggerate the conduct of others in order to assist police and distance herself from her co-accused.

Section 90 (fairness discretion): The court found that admitting the admissions would be unfair to the accused. Several procedural failures by police contributed to this finding. The Aboriginal Legal Service, which was still acting for the accused, was not contacted by investigating police before the interview, even though it should have been and would have been able to provide advice. The accused's status during the interview was blurred: she was treated partly as a witness and partly as a suspect, which the court found significantly compromised her right to silence. There was no mechanism put in place to protect a person who wished to assist police but was also potentially criminally concerned, and the accused plainly lacked the capacity to seek such protection herself. The court found unfairness established and noted the Crown advanced no reason why the discretion should nonetheless be exercised in favour of admission.

Section 138 (improper obtaining): The court also considered whether the evidence had been improperly obtained. Given the findings on ss 85 and 90, the s 138 analysis was addressed in the context of the overall circumstances, including the failures to comply with protective measures applicable to a person with the accused's vulnerabilities.

Scope of exclusion: Although the interview contained material beyond admissions alone, no basis was advanced for admitting only part of it if the admissions within it were excluded under s 90. Accordingly, the entirety of the recorded interview was excluded.

Orders Made

  • The Crown is not permitted to adduce in evidence the recorded interview between the accused and police conducted on 10 July 2023 at Muswellbrook police station.

Key Takeaways

  • A mild intellectual disability is not a minor condition. The Supreme Court accepted expert evidence that a person with mild intellectual developmental disorder operates below 98 to 99 percent of their peers across cognitive, adaptive and social functioning, and treated this as a significant factor bearing on the reliability and fairness of admissions made during police questioning.

  • Under s 90 of the Evidence Act, a court may exclude admissions where their use would be unfair to the accused having regard to the circumstances in which they were made. Here, the court found unfairness arising from a combination of the accused's cognitive and emotional vulnerabilities, her blurred witness/suspect status, and police failure to contact her existing legal representatives before the interview.

  • Where police fail to contact a legally vulnerable suspect's existing legal representatives before conducting a recorded interview, that failure is a relevant circumstance in assessing both the reliability of admissions under s 85 and the fairness of admitting them under s 90.

  • The motivational context in which admissions are made is relevant to reliability under s 85. The court identified the accused's likely motivation to minimise her own role and highlight the conduct of others, in circumstances where she had just learned she was pregnant and feared repercussions, as a factor undermining the reliability of even apparently probative parts of the interview.

  • Where no basis is advanced for admitting part of an interview that contains excluded admissions, and no severance is proposed, the entire interview falls to be excluded.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 85, 90, 138
- Children (Criminal Proceedings) Act 1987 (NSW)
- Court Suppression and Non-publication Orders Act 2010 (NSW)
- Crimes Act 1900 (NSW), ss 18(1)(a), 18(1)(b)
- Criminal Procedure Act 1986 (NSW), s 132
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW)

Cases:
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Mann v R [2023] NSWCCA 256; (2023) 311 A Crim R 162
- Douglass v R [2020] NSWCCA 284
- R v Riley, Christopher [2020] NSWCCA 283
- Pavitt v R [2007] NSWCCA 88; (2007) 169 A Crim R 452
- R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
- R v Ladocki [2004] NSWCCA 336
- R v Em [2003] NSWCCA 374
- R v Rooke (NSWCCA, unreported, 2 September 1997)
- Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550
- R v KS (No 2) [2023] NSWSC 1475
- R v Pham [2024] NSWSC 1687
- R v Tarantino (No 6) [2019] NSWSC 1174
- R v Munce [2001] NSWSC 1072
- R v Helmout [2000] NSWSC 185
- R v Ye Zhang [2000] NSWSC 1099
- R v Lou [2017] ACTSC 127
- Director of Public Prosecutions v Kaba [2014] VSC 52; (2014) 247 A Crim R 300