Citation: R v Alharbi [2019] NSWDC 87
Court: District Court of NSW
Date: 26 March 2019
Judge: Priestley SC DCJ
Background
The accused faced an indictment containing four counts of indecent assault and one count of sexual intercourse without consent, relating to events alleged to have occurred on 26 and 27 December 2017. The charges arose from an encounter between the accused and two complainants who had met through a "couch surfing" application, spent the evening sightseeing and drinking in Sydney, and ultimately shared a hotel room at the Pullman Hotel.
The accused was arrested at his Ultimo home at approximately 11:55 AM on 27 December 2017, appearing to have been disturbed from sleep. He was taken to Sydney City Police Station in Day Street, where an Electronic Record of Interview (ERISP) commenced at 1:46 PM and concluded at 3:02 PM.
Before the jury was empanelled, the accused applied under section 138 of the Evidence Act 1995 (NSW) to have the ERISP excluded. The basis of the application was that the police had contravened the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and the Law Enforcement (Powers and Responsibilities) Regulation 2016 by failing to meaningfully comply with the Part 9 rights owed to the accused as a vulnerable person.
Legal Issues
- Whether police had complied with Part 9 of the LEPRA Act and the LEPRA Regulation in their treatment of the accused as a vulnerable person, specifically regarding the custody manager's obligations under regulation 29
- Whether the ERISP was obtained improperly or in contravention of an Australian law within the meaning of section 138 of the Evidence Act 1995 (NSW)
- Whether the discretion under section 138 should be exercised to exclude the ERISP, having regard to the desirability of admitting the evidence weighed against the undesirability of admitting evidence obtained through improper conduct
Decision
The District Court found that, while police had gone through the formal steps of completing custody assessment forms and reading the Form 31 summary of Part 9 rights, this process was carried out so rapidly and perfunctorily as to constitute a failure to meaningfully assist the accused in exercising his rights. The three assessments were completed within five minutes of arrival, and the Form 31 document (approximately one and a quarter pages of small type, containing the caution and summaries of rights including access to a lawyer, friend, and consular official) was read and signed within a further five minutes.
Regulation 29 of the LEPRA Regulation requires the custody manager to assist a vulnerable person in exercising their Part 9 rights "as far as practicable." The accused was a non-citizen from a non-English-speaking background who appeared dishevelled and at least bordering on disoriented, consistent with having consumed large quantities of alcohol the previous evening. His PhD and strong English literacy did not, in the court's view, address the question of whether he had been genuinely assisted to understand and exercise his rights in those conditions.
His Honour found that Sergeant Wood's approach appeared to be his standard practice, suggesting the contravention was deliberate rather than inadvertent. The court also noted that had LEPRA been properly complied with, the accused would likely have sought assistance from friends, the Saudi Arabian consulate, and a lawyer, and there was a real prospect he would have declined to participate in the interview at all. This finding weighed significantly in favour of exclusion.
Applying the section 138 balancing exercise, the court concluded that the public interest in excluding improperly obtained evidence outweighed the desirability of admitting the ERISP. The seriousness of the charges (carrying a maximum penalty of 14 years) was noted, but the gravity of the contravention, its apparently deliberate nature, and the likelihood that the interview would not have proceeded had rights been properly explained all pointed firmly toward exclusion.
Orders Made
- The ERISP recorded on 27 December 2017 is excluded from evidence pursuant to section 138 of the Evidence Act 1995 (NSW).
Key Takeaways
- Formal compliance with Part 9 of LEPRA, such as reading the required forms aloud, is insufficient if the custody manager fails to take meaningful steps to assist a vulnerable detainee in actually exercising those rights.
- Under regulation 29 of the LEPRA Regulation 2016, the custody manager's obligation to assist a vulnerable person is substantive, not merely procedural; completing assessments and readings within minutes, without genuine engagement, can constitute a contravention.
- The District Court treated evidence that the custody manager's cursory approach was his standard practice as indicating a deliberate, rather than inadvertent, contravention, which weighed heavily in the section 138 analysis.
- Where a court finds it probable that an accused would not have participated in an interview had their rights been properly explained, that conclusion is a significant factor favouring exclusion under section 138, even where the underlying charges are serious.
- A detainee's high level of English literacy and educational attainment does not, by itself, discharge the custody manager's obligation to provide meaningful practical assistance, particularly where the detainee's condition at the time of the interview is visibly impaired.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 138, 139
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), reg 29
Cases:
- Adams v Kennedy (2000) 49 NSWLR 78
- R v FD [2013] NSWSC 1692
- R v Phung & Huynh [2001] NSWSC