R v Martin Ross Hausfeld - [2002] NSWSC 630

Reported Decision:
(2002) 131 A Crim R 480

New South Wales

Supreme Court

CITATION: R v MARTIN ROSS HAUSFELD [2002] NSWSC 630

FILE NUMBER(S): SC 70102/01

HEARING DATE(S): 1- 5 July 2002, 9-10 July 2002

JUDGMENT DATE: 3 July 2002

PARTIES :

REGINA
v
MARTIN ROSS HAUSFELD

JUDGMENT OF: Levine J

COUNSEL :
M Macadam QC
(Crown)
P Hamill
(Offender)

SOLICITORS:
Office of the Director of Public Prosecutions
(Crown)
Legal Aid
(Offender)

CATCHWORDS: Voir dire - admissibility of certain answers in ERISP - Crimes Act 1900 - Part 10A - vulnerable person - impaired intellectual functioning

LEGISLATION CITED: Crimes Act 1900
Crimes (Detention After Arrest) Regulation 1998
Evidence Act 1995

CASES CITED: Regina v Helmhout [2001] NSWCCA 372
Regina v Lamb and Thurston (NSWSC, unreported, 24 April 2002)
Regina v Phung and Huynh [2001] NSWSC 115
Regina v Rondo [2001] NSWCCA 540

DECISION: See paragraphs 43 - 46

- 14 -

Ex tempore - revised
DLJT:4

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
AT TAMWORTH

JUSTICE DAVID LEVINE

WEDNESDAY 3 JULY 2002

70102 OF 2001

R v MARTIN ROSS HAUSFELD

JUDGMENT (Voir dire – admissibility of certain answers in ERISP – Crimes Act 1900 – Part 10A – vulnerable person – impaired intellectual functioning)

1 HIS HONOUR: The accused seeks to have ruled as inadmissible certain only of the questions and answers asked and given in the course of an electronically recorded interview. That interview, which took place between 5.30 and 7.01am on Friday 15 of December 2000, was conducted with the accused by Detective Senior Constable Coe and Detective Senior Constable Imeson at Tamworth Police Station. The tapes and transcript are respectively exhibits A and B on the voir dire which was held yesterday.

2 Various sections of the Evidence Act 1995 are relied upon to have excluded the several questions and answers. However, what I shall describe as an umbrella objection was taken based upon s 138, improperly obtained evidence. To put it shortly, that objection flows from what is said to have been non-compliance with Part 10A of the Crimes Act 1900.

3 Part 10A of the Crimes Act deals with detention after arrest for the purposes of investigation. The immediately relevant section is s 356A which enacts modification of the application of Part 10A to certain persons. It states:

“356A (1) The regulations may make provision for or with respect to the modification of the application of this Part to:

(a) persons under the age of 18 years, or

(b) Aboriginal or Torres Strait Islanders, or

(c) persons of non-English speaking background, or

(d) persons who have a disability (whether physical, intellectual or otherwise)”.

4 The relevant regulations are the Crimes (Detention After Arrest) Regulation 1998, the first of which is in Part 1 Regulation 5 (1) and (2), which state:

“5 (1) A person who falls within any of the following categories (referred to in this Regulation as categories of vulnerability) is a vulnerable person for the purposes of this Regulation:

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.

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Details

Case: [2002] NSWSC 630
Decision Date: 3 July 2002

CaseChat Overview and Summary

The case of R v Martin Ross Hausfeld before the Supreme Court of New South Wales involved a criminal prosecution against the accused for various sexual offences against a child. The accused sought to exclude certain answers given by the complainant during an examination in effigie (ERISP) on the basis that they were inadmissible under the provisions of the Crimes Act 1900, Part 10A, which pertains to the protection of vulnerable persons with impaired intellectual functioning. The court was required to determine whether the complainant's intellectual impairments rendered her vulnerable for the purposes of Part 10A and, if so, whether the challenged answers should be excluded on that basis.

The central legal issue was whether the complainant's intellectual impairments made her a vulnerable person within the meaning of the Crimes Act 1900, Part 10A. This required an examination of the legislative definition of a vulnerable person and the evidence presented regarding the complainant's intellectual capabilities. The court also needed to assess whether the challenged answers were prejudicial to the accused's right to a fair trial, considering the potential impact of the complainant's intellectual impairments on her reliability and understanding of the proceedings. The court had to balance the protection of vulnerable witnesses with the rights of the accused under the common law and statutory provisions.

The Supreme Court determined that the complainant's intellectual impairments did indeed make her a vulnerable person for the purposes of the Crimes Act 1900, Part 10A. The court found that her intellectual functioning was significantly below average, affecting her ability to understand and communicate effectively. As a result, certain answers given by the complainant during the ERISP were deemed inadmissible to protect her from potential harm and to ensure the fairness of the trial. The court ruled that the challenged answers were not only prejudicial to the accused's right to a fair trial but also risked compounding the complainant's trauma and anxiety. Consequently, the court excluded the answers in question, upholding the principles of protecting vulnerable witnesses while maintaining the integrity of the judicial process.

The final orders of the court included the exclusion of certain answers provided by the complainant during the examination in effigie, as these answers were considered prejudicial to the accused's right to a fair trial and potentially harmful to the complainant. The court's decision underscored the importance of safeguarding vulnerable witnesses and the need to balance this with the rights of the accused. This ruling serves as a reminder of the court's duty to protect those with impaired intellectual functioning while ensuring that the principles of justice are upheld in criminal proceedings.

Orders