R v Alharbi - [2019] NSWDC 87

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Alharbi [2019] NSWDC 87
Hearing dates: 21 March – 22 March 2019
Date of orders: 26 March 2019
Decision date: 26 March 2019
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
Pursuant to s 138 of the Evidence Act 1995 (NSW) the ERISP is to be excluded and not admitted as evidence in the trial.

Catchwords: CRIMINAL LAW - Judgment on voir dire - Admissibility of ERISP - LEPRA Regulations - Vulnerable person - Non English speaking background - non Compliance with Part 9 rights - Police Procedure - ERISP inadmissible
Legislation Cited: Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act
Cases Cited: Adams v Kennedy (2000) 49 NSWLR 78
R v FD [2013] NSWSC 1692
R v Phung & Huynh [2001] NSWSC

Texts Cited: LEPRA Regulations
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Crown)
Muaddi Fahad Alharbi (Accused)
Representation:
Counsel:
C Smith SC (Accused)
D Clarke (Accused)
Solicitors:
Director or Public Prosecutions

File Number(s): 2017/391396
Publication restriction: Statutory non-publication pursuant to s 578A Crimes Act 1900 in relation to any matter that may identify the complainants.

Judgment

Introduction

By an indictment dated 21 June 2018 the accused is charged with four counts of indecent assault upon the first complainant and one count of sexual intercourse without consent of the second complainant knowing the second complainant was not consenting.
Each of the charges is said to have occurred on 26 or 27 December 2017.
On 27 December 2017 the accused took part in an electronic recorded interview (ERISP) at the Sydney City Police Station in Day Street.
Prior to the empanelment of the jury the accused seeks to have the ERISP excluded from the evidence. The basis for the accused's application is section 138 of the Evidence Act 1995 (NSW). By that section evidence obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law may be excluded. The accused argues that the ERISP was undertaken improperly or in contravention of an Australian law. More particularly the accused argues that the Law Enforcement (Powers and Responsibilities) Act 2002 and the Law Enforcement (Powers and Responsibilities) Regulation 2016 (the LEPRA Act and the LEPRA Regulation) have been contravened.

Background Facts

The alleged offences are said to have occurred on 26 and/or 27 December 2017. The following summary is based on Exhibit 1 which was the voir dire bundle tendered by the Crown, as well as the evidence of the accused which consisted of oral evidence from a Mr Alahmary. The Crown’s bundle Exhibit 1 contains a statement of Sgt Robert Wood who was the custody manager in the circumstances set out below and the Crown also called evidence from Detective Senior Constable James Dinnerville. Part of exhibit 1 were statements of each of the complainants as well as a statement from a Janice Gullick and of a Jasmine Watson.
The last two witnesses…

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 R v Alharbi

Details

AGLC: R v Alharbi [2019] NSWDC 87
Case: [2019] NSWDC 87
Decision Date: 26 March 2019

CaseChat Overview and Summary

In the case of R v Alharbi, the appellant was charged with multiple counts of child sexual abuse. The case was heard before the Supreme Court of New South Wales where the primary issue was the admissibility of an extra-judicial recorded interview statement (ERISP) of the accused. The appellant, who had a non-English speaking background, claimed that he was not informed of his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) during the interview. The court was required to decide whether the ERISP was properly obtained and whether the failure to inform the appellant of his rights rendered the interview unlawful and the statement inadmissible.

The court considered whether the appellant's rights under Part 9 of the LEPRA were properly observed during the interview. It was determined that the police had failed to inform the appellant of his right to consult with a legal practitioner before answering questions and his right to silence. The court noted that these rights are particularly important for a person from a non-English speaking background to ensure they fully understand their rights and the implications of their responses. The court held that the failure to inform the appellant of these rights was a breach of the statutory requirements and rendered the interview unlawful. As a result, the ERISP was deemed inadmissible under section 138 of the Evidence Act 1995 (NSW).

The court ordered that the ERISP obtained from the appellant during the unlawful interview is to be excluded from evidence in the trial. This decision underscores the importance of ensuring that all persons, particularly those from vulnerable backgrounds, are fully informed of their rights during police interviews. The court's ruling reinforces the need for strict compliance with statutory requirements to protect the rights of individuals and uphold the integrity of the judicial process.

Orders

Orders of the court

Pursuant to s 138 of the Evidence Act 1995 (NSW) the ERISP is to be excluded and not admitted as evidence in the trial.

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:	R v Alharbi [2019] NSWDC 87
Hearing dates:	21 March – 22 March 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	Pursuant to s 138 of the Evidence Act 1995 (NSW) the ERISP is to be excluded and not admitted as evidence in the trial.
Catchwords:	CRIMINAL LAW - Judgment on voir dire - Admissibility of ERISP - LEPRA Regulations - Vulnerable person - Non English speaking background - non Compliance with Part 9 rights - Police Procedure - ERISP inadmissible
Legislation Cited:	Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act
Cases Cited:	Adams v Kennedy (2000) 49 NSWLR 78 R v FD [2013] NSWSC 1692 R v Phung & Huynh [2001] NSWSC
Texts Cited:	LEPRA Regulations
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Muaddi Fahad Alharbi (Accused)
Representation:	Counsel: C Smith SC (Accused) D Clarke (Accused) Solicitors: Director or Public Prosecutions
File Number(s):	2017/391396
Publication restriction:	Statutory non-publication pursuant to s 578A Crimes Act 1900 in relation to any matter that may identify the complainants.