AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 26 July 2023

R v Malula

[2023] NSWDC 283

Sexual offences
TEMPORE JUDGMENT SPECIAL HEARING PRE

Citation: R v Malula [2023] NSWDC 283
Court: District Court of New South Wales
Date: 26 July 2023
Judge(s): Mahony SC DCJ

Background

The accused faced a single count on indictment alleging sexual assault of a complainant in Haymarket on 14 March 2009. The Crown case centred on DNA evidence obtained from a sexual assault investigation kit taken from the complainant shortly after the alleged offence. The accused was found unfit to be tried in November 2021 and the matter proceeded as a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

The accused had been diagnosed with schizoaffective disorder in 2006, a condition complicated by polysubstance abuse and functional decline. He was arrested for an unrelated offence on 21 June 2020, at which point police obtained his DNA and were notified of a match with the complainant's sample. He was then re-arrested on 8 September 2020 and both participated in an electronically recorded interview with police (an ERISP) and provided a buccal swab by purported consent.

The accused brought pre-trial applications to exclude the DNA expert certificate and the ERISP from the special hearing. He argued that the forensic procedures were carried out in breach of the Crimes (Forensic Procedures) Act 2000, and that the interview was inadmissible under sections 85, 90 and 138 of the Evidence Act 1995.

Legal Issues

  • Whether the accused was an "incapable person" as defined by the Crimes (Forensic Procedures) Act 2000 on 21 June 2020 and 8 September 2020, such that a magistrate's order was required before any forensic procedure could be performed.
  • Whether the DNA evidence obtained in breach of the Act should be excluded under section 82(4), weighing the desirability of admitting the evidence against the undesirability of admitting evidence not obtained in compliance with the Act.
  • Whether the answers given in the ERISP constituted admissions against interest relevant to the fact in issue.
  • Whether the ERISP should be excluded under sections 85, 90 and 138 of the Evidence Act 1995, given the accused's mental state at the time of the interview.

Decision

Issue 1: Incapable person status

Both psychiatric experts, including the Crown's own expert Dr Martin, agreed that the accused was an "incapable person" within the meaning of the Crimes (Forensic Procedures) Act 2000 on both relevant dates. The court accepted that finding without reservation (at [59]-[61]). Accordingly, a magistrate's order under section 23 of the Act was required before any forensic procedure could lawfully be performed, and no such order was obtained.

Issue 2: Exclusion of DNA evidence under section 82

The court rejected the evidence of Detective May that the accused had been lucid and coherent during the consent process, characterising that account as an "ex-post facto rationalisation" (at [73]). Video evidence showed the accused laughing, speaking to himself, not listening, and signing the consent form under the name "Papy Lucifer" (at [64]). The court found the failure to comply with the Act was deliberate, constituting a grave failure amounting to a gross deprivation of the accused's statutory protections (at [74]). The court applied section 82(6), holding that the high probative value of the DNA evidence did not by itself justify admission (at [77]). Weighing all the factors under section 82(5), the court concluded the desirability of admitting the evidence did not outweigh the undesirability of receiving it (at [78]). Both R v Russell [2018] NSWSC 343 and the pre-Evidence Act authorities of Sinclair v The King and R v Parker were distinguished on the facts and applicable law (at [66]-[68]).

Issue 3: Admissions in the ERISP

The portions of the ERISP from questions 59 to 83, on which the Crown relied as admissions, were not found to constitute admissions against interest going to the fact in issue (at [69]-[70]). References to a black Hummer in 2009, a driver named Bob, and a blonde girl were characterised as vague and ambiguous (at [70]). The accused also denied the specific sexual assault allegations when they were directly put to him during the interview (at [88]).

Issue 4: Exclusion of the ERISP

The court found the accused's answers throughout the ERISP were substantially unresponsive, vague and tangential, and that police persisted with questioning despite clearly irrational responses (at [82]-[89]). The court was not satisfied the accused had received any legal advice before the interview commenced (at [81]). Under section 90 of the Evidence Act, the court found it would be grossly unfair to use evidence obtained in those circumstances (at [80]). Under section 138, the court found the evidence was improperly obtained and that the gravity of the breach warranted exclusion, particularly given the absence of any disciplinary proceedings and the fact that police could readily have complied with the relevant statutory requirements (at [93]-[95]).

Orders Made

  • The Crown is not permitted to adduce Exhibit A13 (the DNA expert certificate dated 11 November 2020) or any other evidence relating to the DNA of the accused.
  • The Crown is not permitted to adduce the ERISP of the accused conducted on 8 September 2020.

Key Takeaways

  • Section 82(6) of the Crimes (Forensic Procedures) Act 2000 performs real work in the admissibility framework: the District Court confirmed that high probative value of DNA evidence does not by itself justify admission of evidence obtained without compliance with the Act (at [77]-[78]).
  • Where an accused is an "incapable person" under the Act, police must obtain a magistrate's order before conducting a forensic procedure. The District Court found that proceeding in the face of clear and documented signs of acute mental illness, without seeking such an order, constituted a deliberate and grave breach rather than an innocent oversight (at [73]-[74]).
  • Compliance with the Crimes (Forensic Procedures) Act 2000 in respect of incapable persons is not an onerous threshold: the court noted a magistrate's order could be sought by telephone, and police resources presented no obstacle to compliance (at [76]).
  • An ERISP conducted while an accused is in acute psychiatric relapse, without confirmed legal advice, and producing substantially unresponsive and irrational answers, may be excluded under both section 90 and section 138 of the Evidence Act 1995, even if the accused appeared to respond to some questions during the interview (at [80]-[95]).
  • Purported consent to a forensic procedure carries no legal weight where the consenting person is an incapable person under the Act: the court found that consent signed under a false name, by a person demonstrably not listening to the officer explaining the procedure, cannot constitute informed consent (at [64], [74]).

Legislation and Cases Referenced

Legislation
- Crimes (Forensic Procedures) Act 2000
- Evidence Act 1995
- Law Enforcement ( Powers and Responsibilities) Act 2002.
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Cases
- DPP v AM (2006) 161 A Crim R 219; [2006] NSWSC 348
- R v Parker (1990) NSWCCA 19 NSWLR 177
- R v Russell [2018] NSWSC 343
- Sinclair v The King (1946) 73 CLR 316; [1946] HCA 55