R v Farrell - [2024] NSWDC 547

District Court

New South Wales

Medium Neutral Citation: R v Farrell [2024] NSWDC 547
Hearing dates: 8 October 2024
Decision date: 09 October 2024
Jurisdiction: Criminal
Before: Hopkins DCJ
Decision:
The DNA evidence relating to the sample taken from the applicant while he was in custody on 22 November 2023 is excluded.

Catchwords:
Police informed applicant did not consent to forensic procedure by Custody Notification Scheme solicitor - vulnerable person - whether subsequent request for consent justified - informed consent - express and voluntary waiver of right to presence of an interview friend - undermining of legislative safeguards - evidence obtained in contravention of Crimes (Forensic Procedure) Act 2000 (NSW)- desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence

Legislation Cited:
Crimes (Forensic Procedures) Act 2000 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement (Powers and Responsibilities) Regulations 2016

Cases Cited:
R v Coombe (NSWCCA, 24 April 1997, unrep)
R v Ryan and Fitzhenry (NSWDC, English DCJ, 19 October 2011, unrep)
R v Greenaway (NSWDC, Lerve DCJ, 12 April 2013, unrep)
R v Hookey (NSWDC, Marien DCJ, 3 October 2013, unrep)
R v Phung and Huynh [2001] NSWSC 115
Mann v R [2023] NSWCCA 256

Category: Procedural rulings
Parties: Rex (Crown)
Ethan Farrell (Accused)
Representation:
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service NSW/ACT (for the applicant)

File Number(s): 2023/00422769
Publication restriction: Nil

Judgment

In the matter of Ethan Farrell, the defence make application to exclude the expert certificate sought to be relied on by the Crown, being a certificate from the forensic and analytical science service which analysed the applicant’s buccal sample, which was taken from him while he was in custody on 22 November 2023.
The application is made pursuant to s 82 of Crimes (Forensic Procedures) Act 2000 (NSW) on the grounds that there has been a breach of or a failure to comply with the legislation and the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence.
Should the Court refuse the application under the Crimes (Forensic Procedures) Act 2000, the applicant brings an application under s 138 of the Evidence Act 1995 (NSW) to exclude the DNA evidence obtained in consequence of breaches of provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) and the Law Enforcement (Powers and Responsibilities) Regulations 2016.
The Applicant is charged with three counts of aggravated break and enter, the victims of the offences all being residents of the Caroona Nursing Home in Goonellabah. The Crown case relies solely on the applicant’s DNA being located inside one of the complainant’s dwellings allegedly broken into on 25 - 26 October 2024. On 22 November 2023, the applicant was arrested for unrelated offending. While in police custody, a search was conducted of the police system which indicated his DNA was a match for the break and enter offences.

Chronology

The chronology of events as set…

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 Farrell

Details

AGLC: R v Farrell [2024] NSWDC 547
Case: [2024] NSWDC 547
Decision Date: 09 October 2024

CaseChat Overview and Summary

In the matter of R v Farrell, the respondent, who is also the applicant, contested the admissibility of DNA evidence obtained from a sample taken while he was in custody. The dispute was heard in the Supreme Court of New South Wales. The primary concern was whether the subsequent request for consent to the forensic procedure was justified, considering the police had already informed the applicant that his solicitor under the Custody Notification Scheme did not consent to the procedure. Additionally, the court considered whether the request for consent to the forensic procedure was made to a vulnerable person and whether the evidence obtained was in contravention of the Crimes (Forensic Procedure) Act 2000 (NSW). The court was required to determine if the evidence should be excluded because it was obtained in a manner that undermined the legislative safeguards designed to protect the rights of individuals in custody.

The court examined the concept of informed consent and whether the applicant's consent was express and voluntary, given the circumstances. The court also considered whether the presence of an interview friend, a safeguard under the legislative scheme, was waived by the applicant. The court found that the request for consent to the forensic procedure was made to a vulnerable person and that the evidence was obtained in contravention of the Crimes (Forensic Procedure) Act 2000 (NSW). The court concluded that the desirability of admitting the evidence did not outweigh the undesirability of admitting the evidence obtained in breach of the legislative safeguards.

The court held that the DNA evidence relating to the sample taken from the applicant while in custody on 22 November 2023 is excluded. This decision underscores the importance of adhering to legislative safeguards designed to protect individuals in custody and the significance of obtaining informed consent in compliance with the law.

Orders

Orders of the court

The DNA evidence relating to the sample taken from the applicant while he was in custody on 22 November 2023 is excluded.

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 Farrell [2024] NSWDC 547
Hearing dates:	8 October 2024
Decision date:	09 October 2024
Jurisdiction:	Criminal
Before:	Hopkins DCJ
Decision:	The DNA evidence relating to the sample taken from the applicant while he was in custody on 22 November 2023 is excluded.
Catchwords:	Police informed applicant did not consent to forensic procedure by Custody Notification Scheme solicitor - vulnerable person - whether subsequent request for consent justified - informed consent - express and voluntary waiver of right to presence of an interview friend - undermining of legislative safeguards - evidence obtained in contravention of Crimes (Forensic Procedure) Act 2000 (NSW)- desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence
Legislation Cited:	Crimes (Forensic Procedures) Act 2000 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Enforcement (Powers and Responsibilities) Regulations 2016
Cases Cited:	R v Coombe (NSWCCA, 24 April 1997, unrep) R v Ryan and Fitzhenry (NSWDC, English DCJ, 19 October 2011, unrep) R v Greenaway (NSWDC, Lerve DCJ, 12 April 2013, unrep) R v Hookey (NSWDC, Marien DCJ, 3 October 2013, unrep) R v Phung and Huynh [2001] NSWSC 115 Mann v R [2023] NSWCCA 256
Category:	Procedural rulings
Parties:	Rex (Crown) Ethan Farrell (Accused)
Representation:	Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service NSW/ACT (for the applicant)
File Number(s):	2023/00422769
Publication restriction:	Nil