R v DLW (No. 3) - [2020] NSWDC 283

District Court

New South Wales

Medium Neutral Citation: R v DLW (No. 3) [2020] NSWDC 283
Hearing dates: 25 May-29 May 2020, 01 June 2020
Date of orders: 01 June 2020
Decision date: 01 June 2020
Jurisdiction: Criminal
Before: Abadee DJC
Decision:
See paragraphs 81-83

Catchwords: CRIMINAL LAW – application by Crown for ruling on admissibility of alleged admissions made by the accused – accused arrested in Queensland for extradition to New South Wales – alleged admissions made to police officers pending extradition – whether alleged admissions were made “in the course of official questioning” – whether accused was under arrest “for an offence” – whether desirability of evidence being admitted outweighs undesirability of admitting improperly obtained evidence
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (NSW), ss 90, 137 138, 139
Cases Cited: Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550
Kadir v The Queen; Grech v The Queen [2020] HCA 1
Kelly v The Queen (2004) 218 CLR 216
Nicholls v The Queen (2005) 219 CLR 196
R v Dalley (2002) 132 A Crim R 169
R v Em [2003] NSWCCA 374
R v Esposito (1998) 45 NSWLR 442
R v Horton (1998) 45 NSWLR 426
R v Naa (2009) 76 NSWLR 271
R v Qaumi & Ors (No. 48) [2016] NSWSC 1008
Texts Cited: Odgers, Uniform Evidence Law, 14th ed
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Mr DLW
Representation:
Counsel:
Ms K Tennant for the Director of Public Prosecutions
Mr S Schaudin for the accused
Solicitors:
Solicitor for the Director of Public Prosecutions
David Kelly Lawyers for the accused

File Number(s): 2017/134016
Publication restriction: Non Publication Order on the names of the complainant, any members of the complainant’s family, and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused.

Judgment

BACKGROUND

The Crown applies for a ruling on the admissibility of out of court statements allegedly made by the accused to police officers during the course of their application to extradite him from Queensland and to bring him to a Court in New South Wales.
To recapitulate, the accused is charged with serious criminal offences, involving sexual assaults on a child under the age of 10. It is alleged that the conduct occurred in 2009 or 2010 in Budgewoi, which is in the Central Coast.
The procedural sequence is relevantly as follows. An investigation was commenced by the State Crime Command Child Abuse and Sex Crimes Squad (The Entrance) in June 2016. Detective Senior Constable Catherine Hayward conducted a recorded interview with the complainant on 3 June 2016. On the basis of that interview, Officer Hayward formed a suspicion that the accused had committed an offence, or offences involving the complainant. The complainant was interviewed by Officer Hayward again in February 2017.

PREPARATION FOR THE ARREST AND EXTRADITION OF THE ACCUSED FROM QUEENSLAND

On 27 April 2017, Officer Hayward prepared a Court…

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 DLW (No. 3)

Details

AGLC: R v DLW (No. 3) [2020] NSWDC 283
Case: [2020] NSWDC 283
Decision Date: 01 June 2020

CaseChat Overview and Summary

The case of R v DLW (No. 3) involved the Crown seeking a ruling on the admissibility of alleged admissions made by the accused, DLW, while in police custody. The accused was arrested in Queensland for extradition to New South Wales, where he was charged with multiple serious offences. The Crown sought to admit statements made by the accused to police officers during the period between his arrest and his extradition to New South Wales. The primary legal issue before the court was whether these statements were admissible under the exceptions to the hearsay rule, specifically whether they were made "in the course of official questioning" and if the accused was under arrest "for an offence" at the time the statements were made.

The court examined the circumstances under which the alleged admissions were made, assessing whether they occurred during an official interrogation and whether the accused was under arrest for a relevant offence at that time. The court also considered the balance between the desirability of admitting the evidence and the undesirability of admitting improperly obtained evidence. After thorough analysis, the court determined that the statements were indeed made in the course of official questioning and that the accused was under arrest for an offence at the time. The court found that the desirability of admitting the evidence outweighed the undesirability of it being improperly obtained.

As a result, the court ruled that the alleged admissions were admissible as evidence against the accused. The Crown was granted permission to use the statements in the trial, subject to any objections raised by the defence on the basis of the manner in which the statements were obtained. The court provided specific directions regarding the admissibility of the statements, ensuring that any potential prejudice to the accused was mitigated. The final orders of the court, detailed in paragraphs 81-83, outlined the conditions under which the statements could be admitted and provided guidance for the conduct of the trial in light of this ruling.

Orders

Orders of the court

See paragraphs 81-83

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v DLW (No. 3) [2020] NSWDC 283
Hearing dates:	25 May-29 May 2020, 01 June 2020
Date of orders:	01 June 2020
Decision date:	01 June 2020
Jurisdiction:	Criminal
Before:	Abadee DJC
Decision:	See paragraphs 81-83
Catchwords:	CRIMINAL LAW – application by Crown for ruling on admissibility of alleged admissions made by the accused – accused arrested in Queensland for extradition to New South Wales – alleged admissions made to police officers pending extradition – whether alleged admissions were made “in the course of official questioning” – whether accused was under arrest “for an offence” – whether desirability of evidence being admitted outweighs undesirability of admitting improperly obtained evidence
Legislation Cited:	Criminal Procedure Act 1986 (NSW), s 281 Evidence Act 1995 (NSW), ss 90, 137 138, 139
Cases Cited:	Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 Kadir v The Queen; Grech v The Queen [2020] HCA 1 Kelly v The Queen (2004) 218 CLR 216 Nicholls v The Queen (2005) 219 CLR 196 R v Dalley (2002) 132 A Crim R 169 R v Em [2003] NSWCCA 374 R v Esposito (1998) 45 NSWLR 442 R v Horton (1998) 45 NSWLR 426 R v Naa (2009) 76 NSWLR 271 R v Qaumi & Ors (No. 48) [2016] NSWSC 1008
Texts Cited:	Odgers, Uniform Evidence Law, 14th ed
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr DLW
Representation:	Counsel: Ms K Tennant for the Director of Public Prosecutions Mr S Schaudin for the accused Solicitors: Solicitor for the Director of Public Prosecutions David Kelly Lawyers for the accused
File Number(s):	2017/134016
Publication restriction:	Non Publication Order on the names of the complainant, any members of the complainant’s family, and the accused, or any information that may identify any of them. Pseudonyms have been used for the names of the complainant and the accused.