Crime — murder — where the young person is a 16 year-old child — where the young person has pleaded guilty to murder — where there is an issue as to the basis of murder — whether the young person is to be sentenced on the basis of an intention to kill or an intention to inflict grievous bodily harm — where the prosecution relies upon the Electronically Recorded Interview (ERISP) as part of the evidence supporting an intention to kill — where the ERISP contains an admission of an intention to kill — whether the custody manager “assisted” the young person to obtain legal advice — whether the support person fulfilled that role appropriately — whether there was an obligation on police to obtain consent from the young person as to the nominated support person — whether the evidence was obtained improperly or in contravention of an Australian law — having regard to the circumstances in which the admission was made, whether it would be unfair to use the evidence — strict protections afforded by LEPRA provisions — ERISP not admissible.

Evidence — s 189 Evidence Act — voir dire — admissibility of ERISP.

Children (Criminal Proceedings) Act 1987 ss 14, 15 — Appeal against sentence — applicant found guilty of aggravated break, enter and committing serious indictable offence, robbery in company — sentenced to 12 years imprisonment, with a non-parole period of 8 years — court erred in admitting evidence regarding applicant’s Children’s Court criminal history — Bugmy principles applied — youth and history of dysfunction — appeal allowed — applicant re-sentenced to 10 years of imprisonment with a non-parole period of 6 years and 6 months.

Evidence — s 13 Children (Criminal Proceedings) Act 1987 — objection to admissibility of alleged confession to murder — accused aged 17 years at time of interview — no parent, guardian, adult or lawyer present at interview — no rules mandating presence of support person in 1971 — low intellect, immaturity, disturbed upbringing, disturbed mental state and personal vulnerability of accused considered — record of interview inadmissible in the “particular circumstances of the case”.

Admissibility of tendency evidence — ss 97 and 101(2) Evidence Act 1995 — presumption of doli incapax as appellant under 14 years of age — tendency incidents subject of acquittals based on failure to prove offender capable of criminal intent — principle that prosecutor cannot rely upon conduct, which has been the subject of a previous charge and acquittal, in a way which would controvert the acquittal — evidence has little or no probative value, but involves a significant risk of prejudicial effect — evidence of appellant’s alleged prior sexual conduct should not have been admitted — appeal upheld, conviction quashed.

Submission by Attorney General to court of Criminal Appeal of questions of law after the accused is acquitted of the murder of a child — trial judge sitting alone in the Supreme Court made order for the production by Department of Family and Community Services of reports concerning the deceased child — whether court precluded from making such an order by s 29 Care Act — s 29 should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of s 29 reports that are relevant to the issues at the trial — principle of legality requires that the general words of s 29 should be read down so as not to interfere with the accused’s fundamental right to a fair trial.

15-year-old girl — improperly obtained evidence — whether grave improprieties — failure to caution the accused prior to or during questioning — interview conducted notwithstanding initial refusal to answer questions — whether unfair deprivation of right to silence — failure to take the accused to the custody manager who was obliged, since she was a vulnerable person, to assist her to exercise her legal rights — the accused’s rights under Pt 9 Law Enforcement (Powers and Responsibilities) Act 2002 were neither read out nor explained to her — interview with the accused excluded — improperly obtained evidence from a juvenile excluded under ss 90, 138 and 139 Evidence Act 1995.

Young offenders aged 17 years at the time of arrest and interview — murder — admissibility of certain statements — application for evidence to be excluded under s 90 Evidence Act 1995 — police gave no indication that the young offenders were under arrest or suspected of murder — whether each offender could be deemed to have been arrested — whether the accepted support person attending the interview with each offender was appropriate — whether each offender was made aware of his entitlements or properly advised as to the seriousness of his position — failure to be told of the right to obtain free legal advice — the offenders were not afforded the protection the legislature intended — evidence tendered was inadmissible by virtue of s 90 and in breach of s 138 Evidence Act as evidence improperly obtained.

Young offender aged 17 years — armed robbery and murder — admissibility of certain statements — objection to two electronic records of interview — compliance with s 13 Children (Criminal Proceedings) Act 1987 and Pt 10A (rep) Crimes Act 1900 as to the provision of a support person — whether the accused was properly advised as to his entitlements — whether offered the opportunity of obtaining legal assistance — overall irregularity in compliance with the statutory regime although various irregularities were not contumelious or deliberate — serious concern as to whether the rights of the accused were properly protected — in combination, there were sufficient circumstances involving non compliance with the statutory regime, so as to give rise to serious concern as to whether the accused, a 17-year-old with a somewhat disturbed background, had been sufficiently advised as to his rights, and as to whether those rights were adequately protected, to require exclusion of the evidence under ss 90 and 138 Evidence Act 1995.