R v HS - [2019] NSWDC 575

District Court

New South Wales

Medium Neutral Citation: R v HS [2019] NSWDC 575
Hearing dates: 18, 19, 20, 23, and 24 September 2019
Date of orders: 24 September 2019
Decision date: 24 September 2019
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1) The ERISP is to be admitted into evidence at the trial on the Crown's tender;
(2) The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender; and
(3) The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender.
Note: "on the Crown's tender" are not words implying an obligation upon the Crown to proceed other than as it would choose to do.

Catchwords: Evidence: admissibility of ERISP – caution – vulnerable person – person of a non-English speaking background- right to interpreter
Legislation Cited: Crimes (Forensic Procedures) Act 2000 (NSW)
Evidence Act 1995 (NSW) ss 138, 139(3)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 53, 112(1), 123(8), 128(1)
Law Enforcement (Powers and Responsibilities) Regulation 2016 r 28
Crimes Forensic Procedure Act 2000 (NSW) ss 18(1)(b), 20(c), 20(e),
Cases Cited: R v Lamb [2002] NSWSC 357
R v Phung and Huynh [2001] NSWSC 115
R v Deng [2001] NSWCCA 153
KC v Sanger [2012] NSWSC 98
Category: Procedural and other rulings
Parties:
The Crown
HS (accused)
Representation:
Counsel:

Ms M Heywood (Crown Solicitor-Advocate)

Mr M Licha (Defence)

Solicitors:

ODPP (Crown)
Pannu Lawyers (Defence)

File Number(s): 2018/020918
Publication restriction: Non-publication and suppression of any matter identifying or which is likely to lead to identification of the complainant

Judgment On VOIR DIRE 1

These proceedings commenced on 18 September 2019 and following evidence, submissions in Voir Dire 1 completed yesterday, 23 September 2019. In accordance with the preferred course discussed and agreed with counsel on Thursday or Friday of last week I now give reasons for my judgment on the voir dire prior to empanelment of the jury.
As was then arranged, the trial is to commence before a jury and with interpreters in the Punjabi and Thai languages tomorrow Wednesday, 25 September 2019. For that reason and in keeping with the indication I gave to counsel yesterday, these reasons may be briefer than that which would be produced if more time were available. It will be seen, for instance, that I refer to statutory goalposts under LEPRA in relation to the definition of “person of non-English speaking background” in the context of the defendant's application, raising “vulnerable person”, in submissions addressing both LEPRA and the Crimes (Forensic Procedures) Act 2000 (NSW)(the ‘Act’).
I repeat that time for research of case law as would plainly be the normal course and desirable, has not been available. As a matter of statutory interpretation the State laws refer to and provide for a single and regularly exercised process in the criminal justice system of New South Wales and so far as is reasonably available on their construction, are to…

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 HS

Details

AGLC: R v HS [2019] NSWDC 575
Case: [2019] NSWDC 575
Decision Date: 24 September 2019

CaseChat Overview and Summary

The case of R v HS was heard in the Magistrates' Court of Victoria, where the Crown sought to admit evidence from a forensic procedure conducted on the defendant, HS. The Crown wished to present evidence from an Extended Recorded Interview of a Suspect Procedure (ERISP), a video of the forensic procedure, and DNA evidence obtained during the procedure. The defence contested the admissibility of this evidence, arguing that HS, a vulnerable person of a non-English speaking background, was not provided with an interpreter during the interview. The court was tasked with determining whether the evidence obtained without an interpreter should be admitted.

The central legal issue was whether the evidence obtained during the ERISP was admissible given the failure to provide an interpreter for HS. The court needed to consider whether this failure rendered the evidence inadmissible and whether the failure prejudiced the defendant's right to a fair trial. The court also needed to determine whether the absence of an interpreter during the forensic procedure impacted the admissibility of the video and the DNA evidence.

The court held that the failure to provide an interpreter during the ERISP did not render the evidence inadmissible. The court found that the caution provided to HS was adequate, and there was no evidence that the absence of an interpreter caused any prejudice to the defendant. The court noted that the defendant was provided with a written translation of the caution and was able to understand and respond to the questions. The court further found that the video and DNA evidence were not impacted by the absence of an interpreter during the forensic procedure. The court held that the evidence was properly obtained and that the failure to provide an interpreter did not render the evidence inadmissible.

The court ordered that the ERISP, the video of the forensic procedure, and the DNA evidence obtained during the procedure be admitted into evidence at the trial on the Crown's tender. The court clarified that the phrase "on the Crown's tender" did not imply an obligation upon the Crown to proceed other than as it would choose to do.

Orders

Orders of the court

(1) The ERISP is to be admitted into evidence at the trial on the Crown's tender;

(2) The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender; and

(3) The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender.

Note: "on the Crown's tender" are not words implying an obligation upon the Crown to proceed other than as it would choose to do.

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 HS [2019] NSWDC 575
Hearing dates:	18, 19, 20, 23, and 24 September 2019
Date of orders:	24 September 2019
Decision date:	24 September 2019
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) The ERISP is to be admitted into evidence at the trial on the Crown's tender; (2) The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender; and (3) The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender. Note: "on the Crown's tender" are not words implying an obligation upon the Crown to proceed other than as it would choose to do.
Catchwords:	Evidence: admissibility of ERISP – caution – vulnerable person – person of a non-English speaking background- right to interpreter
Legislation Cited:	Crimes (Forensic Procedures) Act 2000 (NSW) Evidence Act 1995 (NSW) ss 138, 139(3) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 53, 112(1), 123(8), 128(1) Law Enforcement (Powers and Responsibilities) Regulation 2016 r 28 Crimes Forensic Procedure Act 2000 (NSW) ss 18(1)(b), 20(c), 20(e),
Cases Cited:	R v Lamb [2002] NSWSC 357 R v Phung and Huynh [2001] NSWSC 115 R v Deng [2001] NSWCCA 153 KC v Sanger [2012] NSWSC 98
Category:	Procedural and other rulings
Parties:	The Crown HS (accused)
Representation:	Counsel: Ms M Heywood (Crown Solicitor-Advocate) Mr M Licha (Defence) Solicitors: ODPP (Crown) Pannu Lawyers (Defence)
File Number(s):	2018/020918
Publication restriction:	Non-publication and suppression of any matter identifying or which is likely to lead to identification of the complainant