Rex v Dates and Dates - [2025] NSWSC 415

Supreme Court

New South Wales

Medium Neutral Citation: Rex v Dates and Dates [2025] NSWSC 415
Hearing dates: 28 and 29 April 2025
Date of orders: 01 May 2025
Decision date: 01 May 2025
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) The evidence contained in the body worn video and audio recordings, and associated transcripts, is not admissible.
(2) The electronically recorded interview is not admissible.

Catchwords:
CRIMINAL LAW – evidence – improperly obtained evidence – allegation of murder – vulnerable person – LEPRA and regulations – 18 year old Aboriginal accused – where conduct of police calculated to infringe rights provided under legislation and regulation – where prosecution concedes impropriety – relevant considerations – assessment of police explanations for conduct – suggestion that questions asked out of “fairness” not accepted – whether impropriety deliberate or reckless – accused interviewed despite clear email from Aboriginal Legal Service that he wished to remain silent – grave impropriety – evidence excluded

Legislation Cited:
Evidence Act 1995 (NSW), ss 138, 138(1), 138(3)(a)-(h)
International Covenant on Civil and Political Rights
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 112
Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), regs 28, 29(1), 37

Cases Cited:
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Johnston v The King [2023] VSCA 49; (2023) 306 A Crim R 247
Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
Mann v R [2023] NSWCCA 256
R v Hawkins [2023] NSWSC 1370
R v Taleb [2019] NSWSC 241; (2019) 277 A Crim R 21
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Texts Cited:
N/A

Category: Principal judgment
Parties: Rex (Prosecution)
Wesley Dates (Defendant)
Peter Dates (Defendant)
Representation:
Counsel:
Mr A McMaster (Rex)
Mr T Quilter (W Dates)
Mr D Stewart (P Dates)
Solicitors:
Office of the Director of Public Prosecutions (Rex)
SJT Law (W Dates)
Ross Hill & Associate Solicitors (P Dates)

File Number(s): 2023/00321260; 2023/00321365
Publication restriction: N/A

JUDGMENT

Wesley Dates (the accused) stands charged with the murder of George Woods, an offence which allegedly occurred on 1 October 2023 at Miller in western Sydney. Mr Woods died of “complications of a stab wound to the left side of [his] neck”. The accused’s brother, Peter Dates, stands charged on the same indictment with wounding Joshua Ratu with intent to cause him grievous bodily harm. The accused was also charged with the wounding of Mr Ratu with intent to cause grievous bodily harm, but pleaded guilty to that offence on arraignment on 13 December 2024. That allegation against the accused has been removed from the current indictment. The parties indicated that there will be an agreed fact that the accused pleaded guilty to that offence.
The events giving rise to those charges occurred during a confrontation at around the time of, or shortly after, the 2023 rugby league grand final between the Penrith Panthers…

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 Rex v Dates and Dates

Details

AGLC: Rex v Dates and Dates [2025] NSWSC 415
Case: [2025] NSWSC 415
Decision Date: 01 May 2025

CaseChat Overview and Summary

The accused, an 18 year old Aboriginal man, was charged with the murder of a vulnerable person. The prosecution sought to admit evidence obtained during a police interview which the defence submitted was improperly obtained. The question for the court was whether the police conduct amounted to a deliberate or reckless infringement of the accused's rights under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the regulations, and if so, whether the evidence should be excluded under section 138 of the Evidence Act 1995 (NSW). The court considered the relevant statutory provisions, the evidence given by police officers about their conduct, and the circumstances in which the interview took place.

The court found that the police conduct in interviewing the accused was a grave impropriety. The accused had clearly indicated through his legal representative that he wished to remain silent. Despite this, the police proceeded to interview him. The court rejected the suggestion that the police had acted out of a sense of "fairness". The court concluded that the impropriety was deliberate and that the evidence obtained should be excluded. The court held that the exclusion of the evidence was necessary to uphold the integrity of the judicial process and to protect the rights of the accused under the legislation.

The court's reasoning was that the statutory framework provided clear rights to the accused, and it was the duty of the police to respect those rights. The court emphasised the importance of the legislative protections for vulnerable persons, such as the accused in this case, and found that the police had not acted in accordance with their obligations. The court found that the evidence was obtained in a manner that was a deliberate infringement of the accused's rights, and that the prejudice to the accused outweighed any public interest in admitting the evidence.

The court ordered that the evidence obtained during the police interview be excluded from the trial. The accused's application for exclusion of the evidence was therefore granted.

Orders