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Supreme Court 28 April 2025

R v Wrigley (No 2)

[2025] NSWSC 380

HomicideTheft & propertyPublic order & justice offences
EVIDENCE DISCRETIONS EXCLUSION OF EVIDENCE STATUTORY CONSTRUCTION WHERE BALANCING EXERCISE UNDERTAKEN

Citation: R v Wrigley (No 2) [2025] NSWSC 380
Court: Supreme Court of NSW
Date: 28 April 2025
Judge: Ierace J

Background

The accused faces a charge of murder, together with three counts relating to the alleged theft and disposal of property. The Crown alleges that on the night of 22 to 23 January 2023, the accused drove to a remote rural property near Nyngan, killed a man who was residing there alone, and then stole the deceased's vehicle and tools before destroying the vehicle by fire in the early hours of 23 January 2023.

The Crown's case is largely circumstantial, with the exception of alleged admissions the accused is said to have made to others. A key witness placed the accused in the vicinity of the deceased's property at the relevant time, and the accused was observed the following morning carrying a jemmy bar and wearing jeans with a large unexplained stain.

Police interviewed the accused twice before and once following his arrest. These reasons concern a pre-trial ruling, delivered on 14 April 2025, on the admissibility of two recorded police interviews and body worn video footage. The accused challenged all three on the basis that each was improperly obtained.

Legal Issues

  • Whether the accused was a "protected suspect" within the meaning of s 110(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) when questioned on 28 February 2023.
  • What degree of belief is required before a police officer must treat a person as a "protected suspect" under the second limb of that definition.
  • Whether the court may reject an officer's evidence that they did not hold the requisite belief and find that they did, on the totality of the evidence.
  • Whether the desirability of admitting the 28 February interview and body worn video outweighed the undesirability of admitting improperly obtained evidence, under s 138(1) of the Evidence Act 1995 (NSW).
  • Whether police conduct immediately before and during the 28 March ERISP was improper, having regard to the accused's status as an Aboriginal person and the request by his solicitor for further legal advice before any change of instructions.
  • Whether the desirability of admitting the 28 March ERISP outweighed the undesirability of admitting it.

Decision

Issue 1: Meaning of "protected suspect" and whether the accused met that definition on 28 February 2023

Ierace J held that the second limb of the "protected suspect" definition in s 110(1) of LEPRA requires that, based on available evidence at the time, the police officer is inclined to the view that the person committed the offence (at [54]). This is a lower threshold than the standard for arrest, which requires suspicion on reasonable grounds, and falls well short of proof. The presence of potentially exculpatory explanations for incriminating evidence does not prevent the formation of such a belief (at [84]).

The officer in charge, DS Gardiner, gave evidence that he regarded the accused only as a "person of interest" and not as a suspect or protected suspect, because he considered the incriminating evidence might have innocent explanations. Ierace J rejected that evidence as unconvincing (at [83]). The court found the totality of the evidence known to police by 28 February, including the witness's detailed account, the phone records, the intercepted calls about tool sales, the jemmy bar, and the investigator's note describing the stain as suspected blood, plainly established the accused as a protected suspect under the proper construction of s 110(1) (at [84]).

Issue 2: Exclusion of the 28 February interview and body worn video

Because the accused was a protected suspect but was not treated as one, the interview and body worn video were improperly obtained, engaging s 138(1) of the Evidence Act. The court also found that the accused was not given a proper caution before being questioned, as required by s 139(2) of the Evidence Act (at [88]).

In the balancing exercise under s 138(3), the court weighed the seriousness of the murder charge against the fact that the accused, as an Aboriginal person, was denied the additional protections of the LEPRA Regulations, including access to the Aboriginal Legal Service Custody Notification Hotline (at [87]). The accused had also been misled, to some degree, into thinking the interview was a routine check. The court was not satisfied the desirability of admitting the evidence outweighed the undesirability, and excluded both the body worn video and the 28 February interview (at [90]).

Issue 3: Exclusion of the 28 March ERISP

After the accused's arrest, his solicitor from the Aboriginal Legal Service advised police orally and by email that the accused did not wish to be interviewed, and requested that any apparent change of instructions be confirmed through the ALS Hotline before police proceeded (at [92]-[93]). DS Gardiner proceeded to invite the accused to participate in an interview, and the custody manager failed to act on the solicitor's request. DS Gardiner's claim that he had not read the relevant part of the solicitor's email was found not to be credible (at [110]).

Ierace J found the conduct of interviewing police immediately before and during the ERISP was improper (at [110]). Given the accused's recognised vulnerability as an Aboriginal person, the solicitor's request for a further consultation before any change of instructions was both reasonable and appropriate, and the analogy with an instructing solicitor present in person was directly applicable (at [108]). The impropriety was characterised as grave (at [117]). The limited probative value of the ERISP, the availability of other evidence to similar effect, and the gravity of the impropriety led the court to conclude that the desirability of admitting the ERISP did not outweigh the undesirability of doing so (at [117]-[118]).

Orders Made

  • The police interview and body worn video of the accused on 28 February 2023 is excluded from evidence pursuant to s 138(1) of the Evidence Act 1995 (NSW).
  • The police interview of the accused on 28 March 2023 is excluded from evidence pursuant to s 138(1) of the Evidence Act 1995 (NSW).

Key Takeaways

  • The "belief" required to trigger protected suspect status under the second limb of s 110(1) of LEPRA requires only that the officer is inclined to the view the person committed the offence based on available evidence. The existence of potentially exculpatory explanations does not negate that belief (at [54], [84]).

  • A court may reject an officer's evidence that they did not hold the requisite belief and find, on the whole of the evidence, that they did hold it. Alternatively, impropriety under s 138(1) of the Evidence Act may be established where an officer did not hold the belief but ought to have done so on the facts known at the time (at [68], [85]).

  • Where an Aboriginal person suspected of a serious offence has received legal advice through the ALS Custody Notification Hotline not to be interviewed, and the solicitor requests that any change of instructions be confirmed by further legal advice, police proceeding without honouring that request constitutes improper conduct for the purposes of s 138(1), having regard to the person's recognised vulnerability (at [110], [117]).

  • Under the LEPRA Regulations, additional protective obligations apply to Aboriginal persons who are protected suspects or detained persons, including positive steps to assist them in accessing legal advice. Failure to provide those protections is a factor weighing against admissibility in the s 138(3) balancing exercise (at [87]).

  • Ierace J observed that the second limb of the "protected suspect" definition in s 110(1) of LEPRA remains unclear in its terms, and respectfully suggested that it be reviewed to provide greater certainty for police, suspects, and legal advisors (at [91]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss, 352, 352(2), 354, 355, 355(2), 355(2)(a), 356B, Pt 10A (repealed)
- Crimes Act 1914 ( Cth), ss 23B, 23B(2), 23B(2)(c)(i)
- Evidence Act 1995 (NSW), ss 138(1), 138(3), 139(1)(a), 139(2), 139(2)(b), 139(5)(a), 139(5)(c)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 109, 110(1), 110(1)(b), 111(1), 112(1), 122, 130, Pt 9
- Law Enforcement (Powers and Responsibilities) Act 2014 (NSW)
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW), rr 3, 28(1)(d), 29, 37 (1), 38, Div 3 of Pt 3

Cases
- Director of Public Prosecutions (ACT) v Okwechime (No 2) (2024) 385 FLR 1; [2024] ACTSC 34
- DPP v Nicholls (2001) 123 A Crim R 66; [2001] NSWSC 523
- George v Rockett (1990) 170 CLR 104; [1990] HCA 26
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v FE [2013] NSWSC 1692
- R v Hunt (2014) 286 FLR 59; [2014] NTSC 19
- R v Ireland (1970) 126 CLR 321; [1970] HCA 21
- R v Phan (2001) 53 NSWLR 480; [2001] NSWCCA 29
- R v Pitts (No 1) (2012) 229 A Crim R 387; [2012] NSWSC 1652
- R v Taleb (2019) 277 A Crim R 21; [2019] NSWSC 241
- SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34