R v Hunter (No 7) - [2014] NSWSC 1150

Supreme Court

New South Wales

Medium Neutral Citation: R v Hunter (No 7) [2014] NSWSC 1150
Hearing dates: 4 July 2014
Decision date: 10 July 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
I do not exclude the evidence of the exchange of 21 June 2011 or the evidence of the exchange of 20 October 2011.

Catchwords: CRIMINAL LAW - EVIDENCE - admissibility - Evidence Act 1995 s 138 - exclusion of improperly or illegally obtained evidence - accused a vulnerable person - whether requirements of Law Enforcement (Powers and Responsibilities) Act 2002 and Law Enforcement (Powers and Responsibilities) Regulation 2005 complied with
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), s 35
Criminal Procedure Act 1986 (NSW), s 281
Evidence Act 1995 (NSW) s 138
Law Enforcement (Powers and Responsibilities) Act 2002 NSW, s 99, Pt 9
Law Enforcement (Powers and Responsibilities) Regulation 2005, cll 24, 27, 33
Cases Cited: R v Powell [2010] NSWDC 84
Category: Interlocutory applications
Parties: Regina
Paul Andrew Hunter
Representation: Counsel:
M Cinque (Crown)
D Carroll (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Shiranica Danieli Lawyers (Accused)

File Number(s): 2011/397367

Judgment

Objection has been taken by defence counsel to the contents of two conversations between the accused and police officers in which it is alleged that he made admissions. The objection is based on s 138 of the Evidence Act 1995 (NSW) and is chiefly founded on the submission that, on each occasion, the police did not comply with the requirements of the Law Enforcement (Powers and Responsibilities) Act 2002 NSW ("LEPRA") and the Law Enforcement (Powers and Responsibilities) Regulation 2005 ("the Regulations").

Subject matter of objections

The first conversation allegedly occurred on 21 June 2011, and the second conversation on 20 October 2011.

The first conversation is contained in [16] of the statement of Senior Constable Hind-Spiteri of 12 January 2012, which became voir dire exhibit 2, and [22] of the statement of Detective Sergeant Evans completed 22 February 2012, which became voir dire exhibit 3. These passages are relevantly identical, and it is convenient to extract the relevant passages from the former statement. The portions of the first conversation that are objected to are emphasised:

Detective Sergeant EVANS said, "Paul my name is Detective Sergeant EVANS and this is Detective Senior Constable HIND-SPITERI. We are Detectives here at Mt Druitt."

Paul HUNTER said, "Yeah."

Detective Sergeant EVANS said, "Paul Detective Senior Constable HIND-SPITERI and I are investigating some matters and I want you to understand that you are not obliged to say or do anything and anything you say or do will be recorded and may later be used in evidence at court. Do you understand that?"

Paul HUNTER said, "Yeah."

Detective Sergeant EVANS said, "Paul I want you to understand that you are under arrest for and [sic] affray which occurred at 9 Livingston Avenue Dharruk. You are not obliged to say or do anything and anything you say or do will be recorded and…

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 Hunter (No 7)

Details

AGLC: R v Hunter (No 7) [2014] NSWSC 1150
Case: [2014] NSWSC 1150
Decision Date: 10 July 2014

CaseChat Overview and Summary

The case of R v Hunter (No 7) before the court involved the defendant, Hunter, who faced charges relating to the admissibility of evidence obtained under circumstances that raised questions of compliance with legislative requirements. The defendant argued that the evidence against him was improperly obtained and therefore should be excluded under the Evidence Act 1995. Additionally, Hunter claimed to be a vulnerable person, which necessitated a closer examination of whether the police powers exercised were compliant with the Law Enforcement (Powers and Responsibilities) Act 2002 and the Law Enforcement (Powers and Responsibilities) Regulation 2005.

The court was required to determine whether the evidence obtained by law enforcement officers was admissible under section 138 of the Evidence Act 1995, which permits the exclusion of evidence obtained improperly or illegally. The court needed to consider whether the officers had adhered to the legislative requirements set out in the Law Enforcement (Powers and Responsibilities) Act 2002 and the associated regulations when obtaining the evidence. Furthermore, the court had to assess whether Hunter's status as a vulnerable person warranted any additional consideration in the admissibility assessment.

The court meticulously reviewed the circumstances of the evidence collection and found that while the officers had acted in accordance with the statutory provisions, there were certain procedural deviations. These deviations, however, did not amount to a significant breach of the legislative framework. Consequently, the court ruled that the evidence could be admitted as the breaches were not severe enough to render the evidence inadmissible under the Evidence Act 1995. The court concluded that Hunter's status as a vulnerable person did not change the outcome, as the statutory compliance was largely maintained.

The final orders of the court were that the evidence obtained by law enforcement officers would be admitted in the trial, and the case would proceed to the substantive hearing on the merits of the charges against Hunter. The court's decision highlighted the importance of strict compliance with legislative requirements in the collection of evidence, particularly in cases involving vulnerable individuals.

Orders