Police v Beckett - [2012] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation: Police v Beckett [2012] NSWLC 5
Hearing dates: 02/03/2012
Decision date: 29 June 2012
Jurisdiction: Criminal
Before: Heilpern LCM
Decision:
The ERISP is admitted in evidence

Catchwords: EVIDENCE - s 138 Evidence Act 1995 - admissibility of evidence improperly or illegally obtained - balancing exercise - whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained improperly or illegally - failure of police to comply with LEPRA requirements - ALS not notified of Aboriginal defendant in custody for questioning - failure not deliberate - seriousness of offence charged
Legislation Cited: Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Bunning v Cross (1978) 141 CLR 54
Campbell v Director of Public Prosecutions (NSW) [2008] NSWSC 1284
DPP v Carr [2002] NSWSC 194
Parker v Comptroller-General of Customs [2007] NSWCA 348
R v Ali Alkan [2010] NSWLC 1
R v APC & CP (District Court, unreported, 7 April 2006, Nicholson SC DCJ)
R v Camilleri [2007] NSWCCA 36
R v Dalley [2002] NSWCCA 284
R v Dorothy Riley (District Court, unreported, 12 February 2002, Shadbolt DCJ)
R v Helmhout [2000] NSWSC 208
R v Phan [2003] NSWCCA 205
Ridgeway v R (1995) 184 CLR 19
Category: Procedural and other rulings
Parties: Police
Dennis Beckett (the defendant)
Representation: Ms Kennedy for the Police
Mr Behan for the defendant

File Number(s): 2011/232421

Judgment

Reasons for Decision

This judgement follows a voir dire as to the admissibility of an ERISP in a criminal matter. The key section is section 138 of the Evidence Act 1995.

The defendant was arrested following an altercation. He was charged with three offences, however the charge being pursued is one of affray. The facts have not been tendered on the voir dire, however the ERISP has, and it contains significant admissions and a version of events.

Michael Dillon is the new partner of the defendant's ex. There has been tension between the defendant and Michael Dillon over the defendant's children. Gary Beckett is the defendant's brother. Michael Dillon is currently in the District Court awaiting trial for his role in the same events.

The defendant went to the house of his former partner with a view to sorting out some issues with his former partner's new partner, Michael Dillon. He had his brother Gary Beckett for back up. It was not perceived by either party to be a pleasant cup of tea. On arrival, the defendant was met at the front door by Michael Dillon, who had a hammer. The defendant had scissors. The hammer won in the first altercation, with the defendant being hit in the head, and the defendant and his brother retreated toward their car. The defendant got out an iron bar and threatened Michael Dillon and another man. Gary Beckett took the iron bar from his brother and fought for some time with Michael Dillon. The hammer won again with Gary receiving serous head injuries, and the brothers retreated to their car, which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Beckett

Details

AGLC: Police v Beckett [2012] NSWLC 5
Case: [2012] NSWLC 5
Decision Date: 29 June 2012

CaseChat Overview and Summary

The matter in Police v Beckett before the court involved the admissibility of evidence obtained through breaches of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The defendant, Beckett, was arrested and in police custody for questioning, but the required notification of his Aboriginal status to the Aboriginal Legal Services (ALS) was not made. The police argued that the failure to notify was not deliberate and sought to admit the evidence obtained through the interview. The court had to determine whether the desirability of admitting the evidence outweighed the undesirability of its admission due to the police's failure to comply with the LEPRA requirements.

The primary legal issue before the court was whether the evidence obtained from Beckett, which was in breach of the statutory requirements of the LEPRA, should be admitted under s 138 of the Evidence Act 1995 (Cth). The court was required to weigh the desirability of admitting the evidence against the undesirability of its admission due to the procedural breach. The court considered the seriousness of the offence charged and the circumstances surrounding the breach, including whether it was deliberate or not.

In delivering its decision, the court found that the desirability of admitting the evidence significantly outweighed the undesirability of admitting evidence obtained through the procedural breach. The court acknowledged the importance of the notification requirement under LEPRA, designed to protect the rights of Aboriginal persons in custody. However, the court held that the failure to comply with the notification requirement was not deliberate and did not substantially prejudice the fairness of the proceedings. The seriousness of the offence, which involved allegations of serious criminal activity, further supported the admissibility of the evidence. The court concluded that the evidence was relevant and could not be excluded under s 138 of the Evidence Act.

The court ordered that the evidence obtained from Beckett, despite the procedural breach, be admitted in the proceedings. The decision underscores the court's approach to balancing the public interest in admitting probative evidence against the need to uphold procedural safeguards, particularly in cases involving Aboriginal persons in custody.

Orders

Orders of the court

The ERISP is admitted in evidence

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Police v Beckett [2012] NSWLC 5
Hearing dates:	02/03/2012
Decision date:	29 June 2012
Jurisdiction:	Criminal
Before:	Heilpern LCM
Decision:	The ERISP is admitted in evidence
Catchwords:	EVIDENCE - s 138 Evidence Act 1995 - admissibility of evidence improperly or illegally obtained - balancing exercise - whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained improperly or illegally - failure of police to comply with LEPRA requirements - ALS not notified of Aboriginal defendant in custody for questioning - failure not deliberate - seriousness of offence charged
Legislation Cited:	Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Bunning v Cross (1978) 141 CLR 54 Campbell v Director of Public Prosecutions (NSW) [2008] NSWSC 1284 DPP v Carr [2002] NSWSC 194 Parker v Comptroller-General of Customs [2007] NSWCA 348 R v Ali Alkan [2010] NSWLC 1 R v APC & CP (District Court, unreported, 7 April 2006, Nicholson SC DCJ) R v Camilleri [2007] NSWCCA 36 R v Dalley [2002] NSWCCA 284 R v Dorothy Riley (District Court, unreported, 12 February 2002, Shadbolt DCJ) R v Helmhout [2000] NSWSC 208 R v Phan [2003] NSWCCA 205 Ridgeway v R (1995) 184 CLR 19
Category:	Procedural and other rulings
Parties:	Police Dennis Beckett (the defendant)
Representation:	Ms Kennedy for the Police Mr Behan for the defendant
File Number(s):	2011/232421