R v Rajapakse - [2024] NSWSC 1226

Supreme Court

New South Wales

Medium Neutral Citation: R v Rajapakse [2024] NSWSC 1226
Hearing dates: 27-28 August 2024
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Common Law
Before: Chen J
Decision:
The accused’s application to exclude the evidence contained within the investigator’s note prepared by Detective Senior Constable Gillett on 2 November 2020, and the note itself, is rejected.

Catchwords:
EVIDENCE – Discretions – Exclusion of evidence – Criminal proceedings – Application by accused to exclude evidence of witness’ “off-the-record” conversation with police under s 138 of the Evidence Act 1995 (NSW) because it was improperly obtained and/or under s 137 because the probative value is outweighed by the danger of unfair prejudice to the accused - No impropriety by police officer established – Danger of unfair prejudice not outweighed by probative value of evidence – Application to exclude evidence rejected

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418

Category: Procedural rulings
Parties: Rex (Crown)
Russel Rajapakse (Accused)
Representation:
Counsel:
C Young (Crown)
N Carroll (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Simon Joyner Lawyers (Accused)

File Number(s): 2020/00308992
Publication restriction: Nil

JUDGMENT

HIS HONOUR: The accused, Russel Rajapakse, stands trial for the murder of Corey Breceljnik (‘the deceased’) allegedly committed on 25 October 2020, outside the front of 11 Slim Close, Watanobbi, New South Wales. The trial commenced on 27 August 2024.
On 26 August 2024, a Basha enquiry was conducted in relation to a witness Shannon Dunk. Mr Dunk gave some evidence about his interactions with the police following his arrest on 2 November 2020.
By application made 27 August 2024, the accused seeks two orders arising out of that evidence:

first, that, pursuant to s 138 of the Evidence Act 1995 (NSW), any evidence proposed to be given by Detective Senior Constable Gillett, following an “off the record” conversation that occurred between himself and Shannon Dunk at Batemans Bay police station on 2 November 2020 be excluded because it was improperly obtained; and

secondly, that, pursuant to s 137 of the Evidence Act, the evidence relating to the accused, as recorded in a summary in the Investigator’s Note dated 2 November 2020 (‘the investigator’s note’), be excluded as being unfairly prejudicial “to the extent it contains impermissible opinion of the NSW police”. During the course of submissions, the basis for making this order was revised. The argument advanced was that the evidence that Mr Dunk gave about what police allegedly said – essentially to the effect that “they were trying to lean towards that Russ was the one involved in it” (Tcpt, 26 August 2024, p 57(35)-(36)) – should be excluded pursuant to that section.

A further argument was also raised as an alternative to the first one. It was that, given the investigator’s note was, in substance, a summary, it should be excluded,…

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 Rajapakse

Details

AGLC: R v Rajapakse [2024] NSWSC 1226
Case: [2024] NSWSC 1226
Decision Date: 28 August 2024

CaseChat Overview and Summary

The case of R v Rajapakse was heard in a criminal court in New South Wales. The defendant, Rajapakse, was facing charges and sought to exclude certain evidence that had been obtained from an "off-the-record" conversation between a witness and the police. This evidence was sought to be excluded on the grounds that it was either improperly obtained, thus falling under section 138 of the Evidence Act 1995 (NSW), or that the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused, under section 137 of the same Act.

The central legal issues before the court were whether the evidence obtained from the witness' conversation with the police was improperly obtained and, if not, whether the probative value of the evidence was outweighed by the risk of unfair prejudice. The court had to carefully consider the nature of the conversation, the circumstances under which it was obtained, and the potential impact of admitting this evidence on the fairness of the trial.

In examining the matter, the court found no evidence of impropriety by the police officer in obtaining the conversation from the witness. Furthermore, the court determined that the probative value of the evidence did not sufficiently outweigh the potential for unfair prejudice to the accused. As a result, the application to exclude the evidence was rejected. The court concluded that the evidence could be admitted as it would not unfairly prejudice the defendant to the extent that it would deny him a fair trial.

As a consequence of the court's decision, the evidence obtained from the "off-the-record" conversation between the witness and the police was admitted, and the trial proceeded with this evidence included. The final orders of the court were that the application to exclude the evidence was dismissed, allowing the prosecution to use the contested evidence in its case against the defendant.

Orders