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

1. 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.

2. 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 and the Brisbane Broncos. The accused and his brother were visiting friends at an apartment block in Miller and were watching the game on television when, for reasons which are difficult to discern, an argument developed with Mr Woods and Mr Ratu. A group gathered outside and a fight broke out. The stabbings occurred during the melee. The prosecution case statement contains far greater details of these events but it is unnecessary to go into further detail for present purposes.

3. Before the trial commenced, the accused raised objection to two related pieces of evidence. In each instance, the evidence involved the accused telling police officers that he was at home watching the grand final at the time of the stabbings. While I understand that the evidence will be that he watched the game, the assertion that he was “at home” was untrue. There were other statements which, as I understand it, were also untrue. The prosecution seeks to rely on the evidence that this was a lie that impacts on the credibility of the accused if he puts forward an exculpatory version of events. It is important to emphasise that the Prosecutor does not seek to rely on the lie(s) as evidence that the accused was betraying a consciousness of guilt in the sense discussed in cases such as Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63: cfZoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28.

4. The first of the statements was made by the accused a little after he was arrested at about 10:25am on 10 October 2023. The second statement was made during an electronically recorded interview (ERISP) which commenced at around 2:00pm at the Merrylands Police Station. The accused submits that the evidence was obtained improperly or in contravention of Australian law and that the discretion to admit such evidence in s 138 of the Evidence Act 1995 (NSW) ought not to be exercised in favour of the prosecution.

The evidence on the voir dire

5. The prosecution tendered two bundles of material on the voir dire and these were marked as Ex VD-A and Ex VD-B:

(1) Indictment

(1A) Wesley Dates – Criminal Antecedents

(2) Crown Case Statement

(2A) Form 31 Summary – Part 9 Document

(3) Statement of DSC Teigen YUNG

(4) Statement of DSC Simeun SAVIC

(5) Statement of SC Randal GRIMSLEY

(6) Transcript of Video Footage – Caution by DSC YUNG

(7) Transcript of Bodyworn Video Footage – DSC SAVIC

(8) ERISP Transcript of Wesley DATES

(9) Custody Management Record – Wesley DATES

(10) Statement of DSC Dusan BJELIAN (OIC)

6. In addition to that material, a disc was tendered as Ex VD-C which contained two body worn videos which recorded the interactions between the accused and police at the time of his apprehension as well as the video and audio recording of the ERISP.

7. Three police officers were called to give evidence on the voir dire and each was cross-examined by Mr Quilter of counsel who appears for the accused.

8. The accused read an affidavit of Ms Grace Hartley (which became Ex VD-1). Ms Hartley was a solicitor with the Aboriginal Legal Service (ALS) who was working on the Custody Notification Service (CNS) at the time of the accused’s arrest. She provided the accused with legal advice, took instructions from him, and notified police by telephone and in an email of her client’s intention to exercise his right to silence.

The arrest of the accused and the impugned statements made by the roadside

9. Detectives Savic and Yung had been working on the investigation since the day after the stabbings. Each had taken statements from witnesses, reviewed CCTV footage and were up to date with the progress of the investigation. By 10 October 2023, the accused was a firm suspect. The two officers attended the area of his home in a unit complex in Church Street, North Parramatta at around 10:00am. They were undertaking surveillance but intended to arrest the accused if he was seen that day. At around 10:25am, Ms Yung recognised the accused from CCTV footage and approached him, confirmed his identity and placed him under arrest “for the murder of George Woods in Miller on 1 October 2023”.

10. Ms Yung said in her statement and gave evidence that she administered a caution. Her statement, reproduced in the form in which it was tendered (including typographical and other errors) included the following narrative of the arrest and caution:

“About 10:00am, I noticed a male know as Dylan ELPICK walking towards the unit complex. I alerted to Detective Senior Constable Simeun SAVIC of Dylan’s presence, and we approached him. We introduced ourselves and Detective Senior Constable Simeun SAVIC had a further conversation with Dylan whilst I made further enquiries. I reapproached Detective Senior Constable Simeun SAVIC and requested to obtain a version on body worn video whist I continued conducting surveillance of the unit complex.

About 10:25am, I was standing outside 541 Church Street, North Parramatta which is the next building to DATES unit complex. I saw a male wearing a black hooded jumper, with ‘GANT’ logo on the front, black jeans and purple/green/black neon Nike brand shoes. He had his hoodie on, however I recognised him as Wesley DATES from reviewing CCTV footage obtained during the investigation. I approached DATES and introduced myself. I was holding a recording device and I initially thought I had pressed record, however halfway through our conversation I released it was not recording and so I repeated our conversation.

I SAID: Wesley.. Wesley Dates?

HE SAID: ‘What?’ We were standing a few metres away and I noticed ‘Dates’ tattoo on his right hand.

I SAID: ‘Wesley Dates, my name is Detective Senior Constable Teigen YUNG from Liverpool Police Station. You are currently under arrest for the murder of George WOODS in Miller on 1 October 2023. You do you not have to say or do anything. Do you understand?

HE SAID: ‘Yeah’

I SAID: ‘What you say and do is being recorded and can be used as evidence in court. Do you understand?’

HE SAID: ‘Yeah.’

I SAID: ‘Can you please take take a seat and cross your legs. Do you have anything in your pockets? If so please remove and put it next to you’.”

11. The officer realised her body worn video was not recording, switched it on and repeated the caution. The following conversation is recorded (again, as it is produced in the exhibit without correction of errors):

“YUNG – Sorry, just for the recording my name is Detective Yung from Liverpool Police Station. You’re currently under arrest for the murder of Woods on the 1^st of October 2023 at Miller. You do not have to say or do anything unless you wish to do so. Whatever you say or do is being recording and can be used as evidence in court. Do you understand that?

WD – Yeah.

YUNG – Do you have any ID on you?

WD – Nah.

YUNG – Do you identify, so on your hand you’ve got ‘Dates.’ You always leave(?) ‘Dates’ is that correct?

WD – Yeah.

YUNG – Alright not a problems. Sorry, just so you understand that our conversation, recording is being electronically recorded. Do you understand that?

WD – Yeah.

YUNG – No problems. Liverpool 106. Liverpool 106. Yeah thanks radio, I have one in custody, my current location is 537 Church Street in North Parramatta. Do you have anything to say in regards to the allegations as put through to you?

WD – [Shakes head].

YUNG – You’re also being arrested for the assault on Joshua Ratu. Do you understand that?

WD – Yeah.

YUNG – And you’re also, you do not have to say or do anything unless you wish to do so. Whatever you say or do is being recorded and can be used as evidence in court. Do you understand that?

WD – Yeah.

YUNG – Do you have anything you want to talk to me about at this stage?

WD – Nah.

YUNG – Where abouts were you heading to?

WD – Just going to go get a haircut.

YUNG – A haircut?

WD – Yeah.

YUNG – Alright, if I can just get you to take off your hoodie for me. Thank you. Sorry um, can you just keep recording?

MCCARTNEY – Yeah

YUNG – Just bear with me, I’ll just let my partner know.

MCCARTNEY – Yeah no worries. What’s your name mate?

WD – Wesley.

MCCARTNEY – Sorry?

WD – Wesley.

MCCARTNEY – My name is Chantelle, I’m from Parramatta Police ok? So just to let you know, I’ve now taken over the recording. Wesley, what’s your last name?

WD – Dates.

MCCARTNEY – Dates?

WD – Yeah.

MCCARTNEY – And how do you spell that?

WD – D-A-T-S.

MCCARTNEY – And what’s your date of birth?

WD – 1st of the 1st, 0-5.

MCCARTNEY – Can you just call the team?

Police officer: Yep. Are they, is there a job already … here?

MCCARTNEY – Yep, 537 Church.

YUNG: So just on record, you’ve got an Oppo mobile phone. What’s the key for?

WD – For my house.

YUNG – Yeah and what unit is that?

WD - …

YUNG – 11? And then, just on record, you got two 20 dollar notes? Is that correct?

WD – Yeah.

YUNG – Plus … so we’re gonna take that into custody now. And then we’ll just need you to get searched as well.

SAVIC – Do you want me to chuck the body worn on?

YUNG – Yep.”

12. At that stage, Mr Savic took over the recording of the conversations by using his body worn equipment. The transcript, which seemed to be accurate based on the playing of the video during the voir dire, records the interaction as follows:

“SAVIC - Alright Wes, I’m Senior Constable Savic from Liverpool Detectives. I’ve just activated body worn camera. So it’s going to record our conversations and actions. You understand?

WD - Yeah.

SAVIC - Alright do you understand at this point in time, you’re under arrest? You’re not free to leave you understand?

WD - Yeah

SAVIC - I mean, just due to the nature and the seriousness of offence and given we’re near a road I’m going to put these handcuffs on you. To make sure you don’t run away or hurt yourself or any of us, ok?

WD - Yeah

SAVIC - Alright no worries. Alright can you stand up for me please? Anything on you?

WD - Nah.

SAVIC - Alright man as I said before, you can turn around. At this point in time, you’re under arrest for murder.

WD - Yeah

SAVIC - You don’t have to say or do anything if you don’t want to. Do you understand?

WD - Yeah

SAVIC - We’ll record what you say and do but we can use the recording in court, alright?

WD - Yeah

SAVIC - So it’s for the murder of George Woods. Ok? At Miller. Two Sundays ago, on the 1^st of the 10^th, however long that is. So we’re gonna take you back to Parramatta, I believe. Also your necklace and all that is going to have to come off and your cord.

WD - Yeah

SAVIC - Alright and we’ll go from there.

Officer in background - I was just gonna call for a cage …

SAVIC - Yeah thank you.

MCCARTNEY - Do you just wanna sit back down for me mate? Just while we wait for a cage.

WD - Yep cheers

SAVIC - Is there anything you can tell us about what happened on that day?

WD - [Shakes head].

SAVIC - Where abouts where you heading today?

WD - I was just going to the barber shop.

SAVIC - Yeah fair enough. What barber shop?

WD - The one up there …

SAVIC - Who were you with on the grand final night?

WD - Nobody.

SAVIC - Nobody? Fair enough. You Aboriginal, Torres Strait Islander?

WD - Yeah

SAVIC - No worries. Is anyone else in the unit?

WD - Nobody.

SAVIC - Yep. Was it just his key, Sarge?

MCCARTNEY - On the floor? It was just his key, the notes, his phone and the earphones I believe.

SAVIC - And his phone?

MCCARTNEY - Yeah.

SAVIC - Yeah. Hey what’s the PIN code to your phone?

WD - I don’t feel comfortable handing it out.

SAVIC - The cuffs aren’t too tight on ya?

WD - Nah, nah, they’re fine.

SAVIC - Ok sweet. You have any family nearby?

WD - Nah.

SAVIC - Just you?

WD - [Nods]

Officer in the background - So we’re just going to sit tight here for a little bit longer. Just waiting for extra resources.

SAVIC - Yep. …

Officer in background - No …

SAVIC - … phone, keys, notes …

Officer in background - phone, keys, money, twenty dollar notes, and headphones …

YUNG - Wesley, you said your key was to Unit 11 is that correct?

WD - Mmm.

YUNG - Yeah, who else is in that unit?

WD - Nobody.

YUNG - Nobody? So no one else is in there at the moment.

WD - Nah, just my cat.

YUNG - Just your cat? What’s your cat’s name?

WD - Doesn’t listen to his name anyways so yeah.

YUNG - Oh really? What does anyone else have access to the unit?

WD - [Shakes head].

YUNG - No? So you’re the only one with the key?

WD - Yeah.

YUNG - How long have you been in the unit for? Unit 11?

WD - Almost a year.

YUNG - A year? Who’s it through? Like, Housing—

WD - I forgot the name. Oh yeah, something like that?

YUNG - Housing, is it privately owned or?

WD - I’m not sure. I just moved in after I got out of the refuge.

YUNG - Oh ok. So no one else lives there with you?

WD - Nah.

YUNG - Or spots there or?

WD - Nah.

YUNG - No? Where’s your family?

WD - … in Newcastle.

YUNG - In Newcastle?

WD - Yeah.

YUNG - And who’s that?

WD - Just, I don’t got like family I talk to. That’s just, I just know they’re up there.

YUNG - What about like mum, dad, brothers, sisters?

WD - No. Don’t know where they are.

YUNG - So no blood relatives? Anyone you call a sister or brother?

WD - …

YUNG - No? So the phone that we have who’s phone is that?

WD - It’s mine.

YUNG - Yours? What’s the number for it?

WD - I don’t know the number.

YUNG - You don’t know?

WD - Nah.

YUNG - When was the last time you used it?

WD - Today.

YUNG - Today?

WD - Yeah.

YUNG - Yeah, who did you call?

WD - Just called my case worker.

YUNG - Yeah?

WD - That’s who I was gonna go … my haircut.

YUNG - Your case worker? And where were you gonna get(?) your caseworker?

WD - Doonside.

YUNG - Where?

WD - Doonside.

YUNG - Doonside?

WD - Yeah.

YUNG - And your case worker? Where is she at?

WD - She works at Doonside so that’s where I go see her.

YUNG - Ok. Is it like a scheduled meeting today or?

WD - Yeah I was supposed to be there at 11:30.

YUNG - If you want we can call her and let her know that you’re with us. What’s her details?

WD - I don’t even know her name and that. I just, she’s my new case worker.

YUNG - Ok. But she’s at Doonside?

WD - Yeah.

YUNG - How are you guys going to--- sorry, how were you going to get to Doonside?

WD - I was just gonna catch the train.

YUNG - Do you use like an Opal card or anything?

WD - Yeah I was gonna go barber, a single trip ticket.

YUNG - How much is that normally?

WD - Three dollars.

YUNG - Where have you been the last few days?

WD - Just been at home.

YUNG - At home?

WD - Just chilling, yeah. Just looking for work and stuff.

YUNG - Yeah? What kind of work are you looking for?

WD - Just anything. Happening …

YUNG - So you understand that like I said to you, talking to you in regards to an incident which occurred in Miller on the 1^st of October?

WD - Yeah?

YUNG - Ok, what can you tell me about that?

WD - … [shrugs shoulders].

YUNG - Sorry, you were saying where were you on the 1st of October?

WD - … watching grand finals at home.

YUNG - Watching grand final at home?

WD - Yeah.

YUNG - Yeah, who was playing?

WD - The Panthers and, the Panthers and the Broncos.

YUNG - So when you say home, whereabouts is that?

WD - Right there.

YUNG - In here? So Unit 11 of 537?

WD - Yeah.

YUNG - Was anyone here with you?

WD - Just me and my cat.

YUNG - Can you tell me anything else, what you did on that day? Sorry?

WD - Just watched the grand final.

YUNG - Ok, what time, what time did you start watching it?

WD - Seven.

YUNG - Seven. And what time did you finish it?

WD - I can’t really remember.

YUNG - And what did you do afterwards?

WD - Just went to sleep.

YUNG - Yeah? Did you have your phone on you at that time?

WD - Can’t remember.

YUNG - What did you do the next day?

WD - Can’t remember.

YUNG - Did you talk to anyone during the grand final?

WD - Can’t remember.

YUNG - So you know what you did earlier on the third(?)

WD - Can’t remember. Honestly can’t remember.

YUNG - Can you tell me your whereabouts over the last week?

WD - Can’t remember.

YUNG - Do you take any medication?

WD - Nah.

YUNG - No? Did you take any alcohol or drugs?

WD - [Shakes head].

SAVIC - Do you take any sort of medication for anything?

YUNG - Like prescription?

WD - [Shakes head].

YUNG - So you said you were gonna meet up with your caseworker. What was that for?

WD - Just to look for jobs and stuff.

YUNG - Yeah.

WD - Just talk about band(?) and then talk about … what’s going on.

YUNG - So we’ll see if we can get the, is it the necklace that you have?

SAVIC - … take it off … if they can.

YUNG - The clothes that you’re wearing, when was the last time they were washed?

WD - Honestly can’t remember. I don’t remember.

YUNG - No?

SAVIC - How often do you do a wash?

WD - I wash whenever, just whenever I feel like it when they’re, they’re dirty or whatever.

SAVIC - Is it fair to say, like once a week?

WD - Say if I’ve been wearing them like, no if I wear them a lot I wash them, you know what I mean?

SAVIC - Sure.

WD - Just like how I usually wash my clothes.

SAVIC - Have you done a load in the last ten days?

WD - Nah.

SAVIC - Where do you normally get it done?

WD - Just whenever I need to wash them---

SAVIC - Yeah, where I mean, is there like facilities here or is there somewhere else like a laundry mat?

WD - I don’t know, I don’t wanna answer your questions anymore.

SAVIC - You don’t wanna tell me why you wash your clothes?

WD - Obviously like, in a washing machine.

SAVIC - Yeah I know but some of these units don’t have washing machines.

WD - Yeah.

SAVIC - That’s why people go to laundry mats. That’s all. Alright man, hopefully this is for us. And then we’ll take you to Merrylands alright? … the guys might just give you a quick pat down before they take you to the back alright? You’ll be given a search but if you’re happy to chuck him in.

Uniformed police officer - He’s been searched?

SAVIC - Yeah I gave him a pat down. Just take your necklace off.

WD - Yeah.

YUNG - Alright, thanks bro appreciate it.”

13. I have italicised those parts of the conversations which appear to be, or are arguably, false. As I perceive it these are the statements upon which the prosecution seeks to rely and to which the current objections relate. Certainly, the statement that the accused was at home at the time of the stabbings is the centrepiece of the falsehood that the prosecution seeks to establish in order to undermine the credibility of the accused or any innocent account he may advance at the trial.

The accused was a vulnerable person and the knowledge of the police officers

14. The question asked by Mr Savic “You Aboriginal, Torres Strait Islander?” and the accused’s affirmative answer shows that the investigating police knew by that stage of the interaction that the accused was an Aboriginal person. Each officer agreed that they knew he was therefore a “vulnerable person” under the relevant legislation.

15. Section 112 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA) allows for regulations to be made in respect of “(b) Aboriginal persons or Torres Strait Islanders”. Division 3 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (the Regulation) relates to “vulnerable persons” and reg 28 defines a vulnerable person to include a person who is an Aboriginal person. Again, both officers said they were aware of the significance of this at the time they were dealing with the accused. I will return to the requirements of the Regulation in terms of the protections provided to vulnerable persons.

16. Whether the two police officers knew that the accused was a vulnerable person before his arrest, or during the initial interaction by the roadside, is more difficult. I found Mr Savic’s evidence on this issue, and the related issue of the accused’s age, to be somewhat unpersuasive. He said he made inquiries directed to the security and safety of the police. Had this involved looking at the police records of the accused’s criminal record, he would have seen he was dealing with an 18-year-old Aboriginal man. It is unnecessary to resolve this issue because the officers were plainly aware of the accused’s status and rights under the Regulation by the time the impugned statements were made.

The events at the police station, the involvement of the ALS and the ERISP

17. Once the accused was taken to the Merrylands Police Station, he was introduced to the Custody Manager and provided with information as to his rights. In accordance with accepted protocols, he was allowed to have contact with the ALS. According to Ms Hartley’s affidavit, which was largely based on her notes and other contemporaneous records, she made inquiries as to the accused’s well-being and explained the process to him. She took instructions from the accused that, based on her advice, he wanted to exercise his right to silence and did not want to be interviewed. Ms Hartley spoke to the Custody Manager and his assistant, Mr Grimsley and explained the position to them. It seems she also spoke to Detective Savic.

18. At 12:28pm, Ms Hartley sent an email to the Custody Manager and to Detective Savic, who she believed to be the Officer in Charge of the investigation. That email was annexed to her affidavit and is in the following terms:

“Dear Detective Savic,

As requested in our phone conversation, please accept this formal confirmation on behalf of Wesley Dates, DOB 01/01/2005 that they:

1. Do not want to do an interview with police.

2. Do not want to go into the interview room.

3. Do not want to go on tape recording.

4. Do not want to make or sign any statements, including any statements or conversations recorded in a police notebook.

5. Do not consent to any forensic procedure.

6. Do not wish to participate in a line-up.

I confirm that I have also verbally advised your Custody Manager of these instructions and asked it to be noted in the Custody Management Record. If there is any problem or change to these instructions, then please contact the ALS Custody Notification Hotline on [phone] as any change must be confirmed after further legal advice. Thank you for your assistance.

Regards,

Grace

All Custody Notifications must be directed to the ALS Custody Notification Service on [phone].”

19. Mr Savic gave evidence that he received that email. He asserted that he understood the email to set out only the advice with which the accused was provided. He claimed that, at the time, he did not appreciate that the email informed him that the accused intended to exercise his right to silence and his express desire not to be taken to the interview room. The detective said this several times in evidence. He accepted, when asked to read the email in the witness box, that the email – in fact – stated that the accused did not want to be taken to the interview room and sought to exercise his right to silence. I found aspects of this evidence to be quite unconvincing although, like Ms Yung, Mr Savic did not present as dishonest. I did not form the impression, based on his demeanour, that Mr Savic was being deliberately obtuse or evasive. However, a judge must be cautious in basing their findings of fact and credibility on the demeanour of a witness: Fox v Percy (2003) 214 CLR 118 at 128-9; [2003] HCA 22 at [30]-[31].

20. Neither Mr Savic nor Ms Yung could provide evidence as to any interaction they had with the Custody Manager. I note in passing that the Custody Manager is on extended sick leave and did not give evidence on the voir dire. Ms Yung said she relied on Mr Savic, with whom she had worked a lot and in whom she placed considerable trust. She seemed to be oblivious to the fact that the ALS had sent an email stating that the accused sought to exercise his right to silence and did not want to be interviewed or taken to the interview room. She said, had she known this, she would not have proceeded with the interview.

21. At around 2:00pm, the accused was taken to an interview room and the police asked him about 100 questions over a period of approximately 15 minutes.

22. It is unnecessary to go into the details of the interview other than to note:

• At question 9, Mr Savic asked the accused to agree that he had spoken to the ALS. No follow up question was asked as to whether the accused sought to act on the advice he received.

• After a series of introductory questions, the police started to ask about what the accused did on 1 October 2023. Between questions 36 to 44, the accused responded “no comment” on seven occasions. On an eighth occasion he said “no comment, I can’t remember.”

• At question 46, Ms Yung sought to have the accused confirm what he had said while under arrest at the roadside. At question 50, the accused confirmed that he told the detective “I was at home, just watching the NRL”.

• Between questions 65 and 94, the accused answered “no comment” on about 17 occasions.

23. Under cross-examination on the voir dire, Ms Yung gave the following evidence:

“Q. So you knew at an early stage in the interview that the Aboriginal Legal Service had spoken to Mr Dates?

A. Yes.

Q. Do you see that straight after that, coming back to the part of the page that his Honour just took you to, Detective Savic then goes straight into the next question without, for instance, asking whether the Aboriginal Legal Service had given him advice or spoken on his behalf or anything like that?

A. Yes.

Q. And then if you turn three pages, this is page 5 on his Honour’s copy, do you have the words ‘anything, mm, whatever you say or do will be recorded and can be used in evidence’, at the top of the page?

A. Yes.

Q. If you go to what is not the next question, but the question after that, do you see that Detective Savic asks a question and the answer is, ‘no comment’?

A. Yes.

Q. So at that stage of the interview you knew that Mr Dates was facing a charge of murder, correct?

A. Yes.

Q. And he had spoken to the custody manager by then?

A. Yes, he did.

Q. He had spoken to the Aboriginal Legal Service by then?

A. Yes.

Q. And he answered in response to a very general question about what happened on the 1^st of October, that he has no comment; do you see that?

A. Yes.

Q. Did that convey to you that he was attempting to exercise his right to silence?

A. Without comment for that question?

Q. Yes?

A. Yes.

Q. And the question is, can you tell me what you did on that day; that is the last part of the question, do you agree?

A. Yes.

Q. And he doesn’t want to comment on that, by his answer; do you agree with that?

A. Yes.

Q. So do you accept that he’s attempting, from your perspective, to exercise his right to silence about the allegations that have been made against him on 1^st of October?

A. I can see that he didn’t want to answer that question.

Q. Well, the question is about the 1^st of October, correct?

A. Yes.

Q. And that is the incident that was being investigated, the incidents that occurred on 1 October?

A. Yes.

Q. So do you maintain the answer you gave a moment ago that there was something specific about that question that he wanted to exercise his right to silence about?

A. Sorry, can you repeat the question?

Q. Well, what I’m really asking you is, do you accept by that answer that he was conveying that he did not, or he wanted to exercise his right to silence about the incidents that occurred on 1 October 2023?

A. I can’t comment whether he wanted to exercise his rights to silence. His answer was ‘no comment’ to. He didn’t want to answer that question. I can’t comment on what he wanted.

Q. Having a look at the next five questions and answers, just have a read of those to yourself?

A. Yes.

Q. Then the next three questions after that, which should go on to the next page?

A. Yes. The answers vary.

Q. Do you accept, or did it appear to you that this was a young man attempting to exercise his right to silence about the incident that occurred on 1 October 2023?

A. No.

HIS HONOUR

Q. What would he have needed to say for that to occur to you?

A. That he didn’t want to participate in the interview or if he, there was certain words where he says, like, I can’t remember. To me, I’m like, he wants, you know, he’s not just saying the same thing over and over again with the ‘no comment’, we are giving him right to explain, giving him an opportunity to talk. If he said ‘I don’t want to be here’, you know, then of course that is clear, we will take him out. But he’s saying answers to ‘I can’t remember’, so we were asking things to see if he could remember.

HIS HONOUR: Thank you.

QUILTER

Q. Are you saying that if he didn’t add the little tag at the end of it, ‘I can’t remember’, the situation would be different or not?

A. I’m just trying to recall his demeanour and everything in the interview room. He was, like he wasn’t asking. If he was asking to leave, if he was asking he didn’t want to participate, if he doesn’t want to be there, then of course we’re going we take him out.

Q. But if it was just repetitive answers of ‘no comment’, that would not lead to that course of action of taking him out; is that what you’re saying?

A. I can’t answer that.

Q. What do you say, looking back on it with the benefit of hindsight, I’m not asking about your mindset then; I am asking you about your mindset today. Do you take the view that, having given those answers that I’ve just directed your attention to, that the interview should have been terminated at that point?

A. The very first, is that what you’re saying, where he said ‘no comment’ to start with?

Q. Well, I have referred you to two pages?

A. Yes.

Q. Do you see at some point you ask a question. Your question being, ‘yes, um Wesley’; do you agree, do you see that question?

A. Yes.

QUILTER: Question 46 for your Honour’s benefit.

Q. Before you asked a question?

A. Yes.

Q. Having regard to the answers he had given in the lead up to you asking a question, with the benefit of hindsight and looking at those answers today, do you take the view that the interview should have been terminated before you asked the questions that you ended up asking?

A. No.

Q. And why is that?

A. Because we were asking questions to Mr Dates. He was responding. His answers and his demeanour didn’t show that he was refusing to participate or showing, like, cause to terminate. We were asking questions, yes, he would say no comment, but other times he would continue answering, as in like just I can’t remember. Okay, well, we will help you. We will give you an opportunity to answer some questions that might help you. It might help us help us in terms of evidence. So I was just trying to get him, trying to assist him. That’s when I asked the question, do you remember our conversation, and answering the question. Well, that just helps with, you know, when he said, I can’t remember a lot of things when I asked him, do you remember our conversation. And he said, yes. That is, again, just building that rapport with him to see whether he remembers.

Q. The interview did end; are you able to say why?

A. It would have been the case that there was, I can’t give you an actual reason why it ended. Asking some questions and going back and forth. He was answering and then we just realised that, I can’t give an exact reason why it ended.

Q. You mentioned rapport building in your second last answer?

A. Yes.

Q. Is rapport building an attempt to get the suspect talking after they have indicated that they want to make no comment?

A. No. Like I said, he said ‘no comment’, and then he’s answered some questions.

Q. What do you say to the suggestion that the idea of rapport building, as you used that phrase, is really an attempt to get him to talk about the allegations and, therefore, to stop exercising his right to silence; what do you say to that?

A. No, no.

Q. Is the technical technique of rapport building something that you are taught to do?

A. We are taught rapport building in terms of, just talking, just communicating with someone. So it’s not really us rapport building, it’s just us communicating, just communication.

Q. When someone is making, answering ‘no comment’ on several occasions, is it something you are taught to get the suspect talking about something so that you can then start asking them again about the relevant incident?

A. No.”

The evidence was improperly obtained

24. The Prosecutor conceded that the evidence was improperly obtained. This was a fair and proper concession, and I accept it. I will state my reasons relatively briefly.

The questioning shortly after the arrest

25. As to the statements made by the roadside, the Prosecutor submitted that the questioning of the accused about his whereabouts on 1 October 2023 and the events of that day “should have been deferred until after the … relevant provisions of LEPRA had been complied with”. [1] Mr Quilter submitted that the effect of the police conduct was to circumvent the important protections that should be afforded to vulnerable persons under the Regulation. The Prosecutor conceded that this was so in his further written submissions filed after the evidence on the voir dire was taken (MFI 4 at [10]):

“The accused was cautioned by both DSC Yung and DSC Savic on arrest, but the questioning on arrest had the effect of circumventing the LEPRA provisions protecting the rights of the accused.”

1. Written submissions dated 28/4/25 at [26].

26. I accept Mr Quilter’s submission and the Prosecutor’s concession. By questioning him by the roadside, the accused was not given the opportunity to be assisted by a custody management officer, who is independent of the investigating police and charged with the responsibility of assisting a vulnerable person to exercise their rights under Part 9 of the LEPRA: reg 29(1). As Mr Quilter submitted, the accused was being entirely compliant, was handcuffed and seated cross-legged on the ground (as he had been instructed to do) and the police station was just a few kilometres away. Similarly, the accused did not have the opportunity to have a support person present, although it should be noted that he ultimately declined to receive such assistance from a relative or friend. Most significantly, the requirements of clause 37 were avoided. That part of the Regulation provides:

(1) If a detained person or protected suspect is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must--

(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified--

(i) that the person is being detained in respect of an offence, and

(ii) of the place at which the person is being detained, and

(b) notify such a representative accordingly.

(2) If an Aboriginal person or Torres Strait Islander (the ‘detainee’ ) is detained under Part 16 of the Act in an authorised place of detention, the custody manager or other relevant detention officer must--

(a) immediately inform the detainee that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified--

(i) that the detainee is being detained under Part 16 of the Act, and

(ii) of the place at which the detainee is being detained, and

(b) notify such a representative accordingly.

The ERISP

27. As to the ERISP, I accept the joint position of the parties that the evidence was obtained improperly. By taking the vulnerable person – an 18-year-old Aboriginal man – into the interview room, the police disregarded the unambiguous correspondence from Ms Hartley which Mr Savic said he had received. Furthermore, as soon as the interrogation was directed to the events of 1 October 2023 the accused answered, “no comment”. He answered in that way seven (or eight) times before the most significant answer was given.

28. I am unable to accept Ms Yung’s evidence that she did not recognise this as an attempt by the accused to exercise his right to silence.

Conclusion

29. The accused, who bears the onus on the issue, has established on the balance of probabilities that both (i) the statements he made to police under questioning at the roadside and (ii) the entirety of the ERISP constituted evidence that was obtained improperly or in contravention of an Australian law: Evidence Act, s 138(1).

The power to admit improperly obtained evidence

30. Section 138(1) of the Evidence Act provides that evidence that was obtained improperly “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.” Section 138(3) provides a non-exhaustive list of matters to be taken into account.

31. The operation of these provisions, particularly in the context of vulnerable persons, received authoritative consideration in the case of Mann v R [2023] NSWCCA 256. The judgment of Kirk JA, with whom both N Adams J and R A Hulme AJ agreed, is of considerable assistance to trial judges in navigating the legislative provisions, understanding the responsibilities of investigating police officers and evaluating the relevant considerations. Mr Quilter also reminded me of some earlier judgments of mine, [2] and took me to the decision of the Victorian Court of Appeal in Johnston v The King [2023] VSCA 49; (2023) 306 A Crim R 247. While reference to these authorities was very helpful, none of those judgments are on all fours with the present case. Each case must be decided based on its own particular facts and circumstances.

    2. R v Taleb [2019] NSWSC 241; (2019) 277 A Crim R 21, R v Hawkins [2023] NSWSC 1370.

30. The most significant factor militating in favour of admission of the evidence is the seriousness of the offence with which the accused stands charged: s 138(3)(c). Mr Quilter acknowledged properly and correctly that the offence of murder is of such seriousness that it supports the admission of the evidence. However, he submits that otherwise the s 138(3) criteria point strongly against the admission of the evidence.

31. Different considerations arise in relation to the evidence obtained at the roadside to those which will determine the admissibility of the ERISP. However, I accept Mr Quilter’s submission that the two events are connected. In particular, I am satisfied that the attitude of the police officers established by their persistent questioning in the ERISP may also impact on my evaluation of their attitude when questioning the accused at the roadside. I propose to deal with the evidence in reverse chronological order because, on my assessment, the ERISP is very clearly inadmissible.

The ERISP

34. The probative value of the evidence obtained in the ERISP is slight: s 138(3)(a). It really does little more than confirm conversations that were already recorded by the roadside. Not many of the responses to other questions – each of which was put improperly to the accused – are capable of advancing the prosecution case at all. Further, the evidence is not relied on as evidence demonstrating a consciousness of guilt and will only be put to the jury as evidence that may impact on the credibility of any account the accused provides by testifying or advances through cross-examination or in counsel’s address.

35. Similarly, and for the same reasons, this is not important evidence: s 138(3)(b). The fact that the substance of the evidence is available in the body worn video is a more potent consideration under this sub-paragraph than it is in assessing the probative value of the evidence.

36. The impropriety involved in taking a vulnerable person into the interview room and interrogating him, in the face of the email from his ALS solicitor, is extremely grave: s 138(3)(d). It constituted improper conduct calculated to undermine the very purpose of the protective provisions provided in the LEPRA and the Regulation. No satisfactory explanation was provided for failing to respect the clearly expressed wishes of the accused. As I have said, I found the explanations for persisting once the accused said “no comment” seven (or eight) times when the interrogation turned to the subject matter of the investigation to be implausible and unpersuasive.

37. It is difficult to resist the conclusion that this impropriety was deliberate: s 138(3)(e). However, given that I was generally impressed with the way the officers conducted themselves in the witness box, including the concession made by each of them that with the benefit of hindsight they may have behaved differently, I will proceed on the basis that the impropriety involved a very high degree of recklessness as to the rights of the accused: s 138(3)(e).

38. The accused had rights under the International Covenant on Civil and Political Rights that were not respected: s 138(3)(f).

39. It is unlikely that any other action will be taken in relation to the impropriety, but I consider this to be a neutral factor in the circumstances: s 138(3)(g). See Mann v R at [99]-[100] applying Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1. I do not consider this to be a case in the same category as Johnston v The King, where the Victorian Court of Appeal dealt with what the Court described at [162] as a “wilful contumelious disregard of the applicant’s rights”.

40. The subject evidence had already been obtained by other means albeit that the evidence was also obtained improperly: s 138(3)(h).

41. As I have said, the factors enumerated in s 138(3) are not exhaustive. I have also taken into account the fact that police should be on notice that if they choose to ignore, deliberately or recklessly, such a clear indication from the ALS that a vulnerable person does not wish to be interviewed or placed in front of a video camera, that assertions such as those made in evidence on Monday that they are acting out of “fairness” to the suspect will ring hollow. Police should also be aware that the courts will be reluctant to rule that evidence obtained in such a way is admissible.

42. Taking all those matters into account, the desirability of admitting the evidence is not outweighed by the undesirability of admitting evidence obtained in the way that it was.

43. The entirety of the ERISP is inadmissible.

The interrogation by the roadside

44. The earlier questioning of the accused raises different considerations and the evaluative judgment called for under s 138 is more difficult.

45. I accept that the evidence has slightly more probative value and is somewhat more important than the adoption of the same statements in the subsequent ERISP: s 138(3)(a) and (b).

46. However, as the Prosecutor put it in his written submissions (MFI 4 at [4]), “the probative value of the evidence is low”. I do not accept that “the evidence assumes importance” because it is anticipated that self-defence may be in issue in the trial. The parties agree that the jury will be aware that the accused was present at the scene and has pleaded guilty to the wounding (with intent) of Mr Ratu. The false statement that he was “at home” and was alone (or with his cat) will have little importance in evaluating the reasonableness of the accused’s conduct, whether he stabbed both of the victims, or whether the prosecution eliminates the possibility that he acted in self-defence in the sense that he believed what he did was necessary to defend himself or his brother.

47. Again, as I said earlier, the nature and seriousness of the charge (murder) is a strong factor in favour of admitting the evidence: s 138(3)(c).

48. The Prosecutor accepts that the gravity of the impropriety was “substantial”. I accept that concession and have independently reached the view, having heard the explanations provided by the officers, that the impropriety was very grave: s 138(3)(d). This was an Aboriginal man who had only recently obtained his adulthood. He was being entirely compliant. While the police were entitled to call for the aid of a caged truck, there was no obvious need for them to do so and certainly no warrant to commence the interrogation before the “vulnerable person” was afforded the protections to which he was entitled under the LEPRA. The accused was in a supplicant position, seated cross-legged (as directed) on the ground in handcuffs, while (at least) three police officers stood over him or near to him. The officers knew he was an Aboriginal man and entitled to certain protections under the legislation and regulations. The police station was just up the road.

49. The evidence of Ms Yung was to the effect that the conversation drifted from matters of the accused’s identification into the substance of the allegations and that she then stopped asking questions. That is not how the conversation unfolded although I accept that Ms Yung may have been under the impression that it did. In other words, I did not conclude that she was being deliberately dishonest. Ms Yung’s evidence in chief on the voir dire included:

“Q. When you were at the scene of the arrest you asked Wesley Dates certain questions about the alleged incident, is that right?

A. During that conversation, yes.

Q. Yes. At the scene of the arrest did you turn your mind to deferring questioning the accused about the date of the alleged incident until after he had been assisted by a custody manager at a police station?

A. It had crossed my mind, yes.

Q. Is there any reason why you didn’t defer asking questions of the accused about the date of the incident until after he had been assisted by a custody manager?

A. Initially I was just getting a little bit, some identification information from him, which did lead into the offence, and then I stopped questioning further.”

50. However, the reality is that the shift in the conversation was stark. Having confirmed the suspect’s identity, by reference to his tattoos and otherwise, the detective asked bluntly if he had anything to say about the allegations. The accused shook his head which the officer accepted indicated that he did not wish to respond. That occurred quite early in the interaction and yet the interrogation continued for some time. This was so even though it had “crossed [her] mind” to defer the interrogation. [3]

    3. Tcpt (28/4/25) p 16 ln 35.

51. In cross-examination, the officer gave the following evidence on this subject:

“Q. Do you agree that by the end of that transcript that I’ve just taken you to that you had informed Mr Dates as to why he was under arrest?

A. Yes.

Q. You had established that Mr Dates had that name tattooed on his hand?

A. Yes.

Q. You had recognised him from CCTV footage?

A. Yes.

Q. And he had said to you, or he had conveyed to you, both through his body language and his words, that he did not want to say anything?

A. Yes.

Q. You were satisfied by that stage that you had Wesley Dates in your custody, do you agree?

A. Yes.

Q. And you said in answer to the prosecutor that you were aware at the time that there were particular safeguards that apply to Aboriginal persons who are arrested?

A. Yes, I am aware.

Q. And you knew Wesley Dates was a young man?

A. Yep. Yes.

Q. He was by himself?

A. Yes.

Q. And you were all around about the footpath area waiting for a cage truck to take him to the police station?

A. Yes.

Q. So that he could be further processed in relation to this charge of murder, is that right?

A. That is correct.

Q. Why did you ask him further questions, later on, on the roadside about the incident on 1 October?

A. So it all initiated with waiting for the cage truck, and as I do with anyone I communicate with I just build a rapport, and by building a rapport I was just asking just general questions, and also just knowing our safety mechanisms, like if we were expecting a second person. That’s why I was asking questions like, ‘Where are you headed to, who are you meeting?’ You know, I even said to him I would help him contact - I believe he was going to an appointment - so we were just having a general conversation with him, then it led to that date, and usually I just lead down do, ‘Well, did you want to talk more about it?’ and then when I realised I was asking more questions I stopped.”

52. While I found the evidence about “rapport building” to be a little unconvincing, I accept that the officers were not behaving aggressively or with any intention to intimidate. Even so, the decision to move from asking about his tattoos to direct questioning about the incident under investigation was a choice that was made with the knowledge the accused had certain rights under the LEPRA.

53. In all of the circumstances, including the vulnerability of the accused, the proximity of the police station and the power dynamics then at play, I am satisfied the impropriety was very grave: s 138(3)(d). It subverted the purpose of the protections to which the accused was entitled as a “vulnerable person” under the LEPRA and the Regulation.

54. Ms Yung had turned her mind to the possibility of deferring the interview and yet both officers persisted with the questioning while the accused was in a supplicant physical position, with the police station – and the Custody Manager – a short distance away. At the very least, the conduct represented a reckless and improper infringement of the rights to which the accused was entitled: s 138(3)(e).

55. I have dealt with the provisions in sub-paragraphs (f) and (g) in dealing with the ERISP. They are either neutral considerations or militate in favour of the exclusion of the evidence.

56. I appreciate that there were limited other methods of obtaining the evidence (s 138(3)(h)) because the accused ultimately accepted legal advice and exercised (or tried to exercise) his right to silence. However, I do not consider this is a factor of great moment given the nature of the impropriety in question.

57. Considering these matters and giving each appropriate weight, the prosecution has not established that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this improper manner.

58. The evidence of the statements made at the roadside is not admissible.

Orders

59. Accordingly, I make the following evidentiary rulings:

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.

**********

Endnotes