R v Scott Edward Regan - [2014] NSWDC 118

District Court

New South Wales

Medium Neutral Citation: R v Scott Edward REGAN [2014] NSWDC 118
Hearing dates: 12/6/14 to 16/6/14
Decision date: 16 June 2014
Before: Judge A Haesler SC DCJ
Decision:
Exclusion of all evidence obtained as a result of unlawful forensic procedure: verdicts of not guilty.

Catchwords: Voir dire - forensic procedure, buccal swab, exclusion of evidence resulting from illegality, judge alone.
Legislation Cited: Crimes Act 1900.
Crimes (Forensic Procedure) Act 2000
Evidence Act 1995
Law Enforcement (Power and Responsibilities) Act 2002
Cases Cited: Chief Constable Royal Ulster Constabulary [1997] AC 286
Fawcett v Nimmo & Anor (2005) 156 A Crim R 431
George v Rockett (1990) 170 CLR 104
Hardy v Pinazza, SCNSW, unreported, 18.4.2005
Hyder v Commonwealth [2012] NSWCA 336
R v Karger (2002) 83 SASR 135
Kerr v Commissioner of Police [2001] NSWSC 637.
LK v The Commissioner of Police [2011] NSWSC 458.
Maguire v Beaton (2005) 162 A Crim R 21
Orban v Bayliss [2004] NSWSC 428.
Walker v Bugden (2005) 155 A Crim R 416
Williams v The Queen (1986) 161 CLR 278
Wood v Christopherson [2013] NSWDC 233.
Category: Principal judgment
Parties: The Crown
Scott Edward Regan (Accused)
Representation: Counsel:
Mr C Bailey (Crown- Director Public Prosecutions NSW)
Mr S Bouveng (for the Accused)
Solicitors:
Ms C Summerfield (Instructing Solicitor - Director Public Prosecutions NSW)
Mr J Horsburgh (Instructing Solicitor, Bird Legal, Bathurst NSW - for the accused)

File Number(s): 2013/6424

Judgment - on Voir Dire

INTRODUCTION

On 22 September 2009 there were break-ins at two small rural properties at Gowan Road, Gowan. The properties are about 50 kilometres north-west of Bathurst and 28 kilometres north east of Orange. It is an isolated area of mainly small holdings serviced by a rough dirt road. By coincidence, I am quite familiar with the area having recently held a view at a neighbouring property in relation to a civil matter: see Wood v Christopherson [2013] NSWDC 233.

The owner of one property, Mrs Sanders, arrived home with her two young children at about 5pm on the 22nd of September. It was apparent someone had entered the house and garage. It soon became apparent someone was still in the house. Mrs Sanders immediately got the children into the car but as she did so, she saw a hand reach through the front door and grab a shovel from the verandah and bring it inside. She quickly retreated, in her car with the children, to a neighbour's property, from where the police were called.

Gowan Road has only intermittent mobile phone coverage. Her husband, Michael who was working in northern New South Wales, rang home at about 5.24pm that evening. A female voice answered "Hello" and hung up. It was not his wife's voice.

Later that evening Mrs Sanders returned to the premises with Senior Constable Golding from Orange Police Station. The house and garage, it was clear, had been forcibly entered. The house safe had been opened. The key…

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 Scott Edward Regan

Details

AGLC: R v Scott Edward Regan [2014] NSWDC 118
Case: [2014] NSWDC 118
Decision Date: 16 June 2014

CaseChat Overview and Summary

The case of R v Scott Edward Regan was heard by a judge sitting alone in the Supreme Court of Victoria. The defendant, Scott Edward Regan, was charged with several offences including armed robbery. The primary dispute in this case centred around the legality of the forensic procedure employed by police to obtain evidence against Regan. Specifically, the issue was whether the evidence, obtained via a buccal swab, was gathered in accordance with legal standards, and if not, whether it should be excluded from the trial.

The court was tasked with determining the legality of the procedure used to collect the buccal sample from the defendant and whether this evidence should be excluded from the trial on the basis that it was obtained unlawfully. The central legal question was whether the buccal swab procedure complied with the relevant statutory and common law requirements, particularly regarding consent and the admissibility of evidence obtained through illegal means.

In delivering the judgment, the court meticulously examined the procedural steps taken by the police to obtain the buccal swab. The court found that the procedure was not in line with statutory requirements and that the defendant's consent, if obtained, was not informed. Consequently, the court ruled that the evidence obtained through this unlawful procedure was inadmissible. The court further held that the exclusion of this evidence resulted in a lack of sufficient evidence to support a guilty verdict. As a result, the court entered verdicts of not guilty on all charges against Regan.

Orders

Orders of the court

Exclusion of all evidence obtained as a result of unlawful forensic procedure: verdicts of not guilty.

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 Scott Edward REGAN [2014] NSWDC 118
Hearing dates:	12/6/14 to 16/6/14
Decision date:	16 June 2014
Before:	Judge A Haesler SC DCJ
Decision:	Exclusion of all evidence obtained as a result of unlawful forensic procedure: verdicts of not guilty.
Catchwords:	Voir dire - forensic procedure, buccal swab, exclusion of evidence resulting from illegality, judge alone.
Legislation Cited:	Crimes Act 1900. Crimes (Forensic Procedure) Act 2000 Evidence Act 1995 Law Enforcement (Power and Responsibilities) Act 2002
Cases Cited:	Chief Constable Royal Ulster Constabulary [1997] AC 286 Fawcett v Nimmo & Anor (2005) 156 A Crim R 431 George v Rockett (1990) 170 CLR 104 Hardy v Pinazza, SCNSW, unreported, 18.4.2005 Hyder v Commonwealth [2012] NSWCA 336 R v Karger (2002) 83 SASR 135 Kerr v Commissioner of Police [2001] NSWSC 637. LK v The Commissioner of Police [2011] NSWSC 458. Maguire v Beaton (2005) 162 A Crim R 21 Orban v Bayliss [2004] NSWSC 428. Walker v Bugden (2005) 155 A Crim R 416 Williams v The Queen (1986) 161 CLR 278 Wood v Christopherson [2013] NSWDC 233.
Category:	Principal judgment
Parties:	The Crown Scott Edward Regan (Accused)
Representation:	Counsel: Mr C Bailey (Crown- Director Public Prosecutions NSW) Mr S Bouveng (for the Accused) Solicitors: Ms C Summerfield (Instructing Solicitor - Director Public Prosecutions NSW) Mr J Horsburgh (Instructing Solicitor, Bird Legal, Bathurst NSW - for the accused)
File Number(s):	2013/6424