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Supreme Court 1 May 2025

Rex v Dates and Dates

[2025] NSWSC 415

Homicide
CRIMINAL LAW EVIDENCE IMPROPERLY OBTAINED EVIDENCE ALLEGATION OF MURDER VULNERABLE PERSON LEPRA AND REGULATIONS

Citation: [2025] NSWSC 415
Court: Supreme Court of New South Wales
Date: 1 May 2025
Judge(s): Hamill J

Background

An 18-year-old Aboriginal man (the accused) was charged with the murder of a man who died from a stab wound to the neck during a confrontation at a gathering in Miller, western Sydney, on the night of the 2023 NRL grand final. A fight broke out between groups, and the stabbings occurred during the melee. The accused's brother was jointly charged on the same indictment with a separate wounding offence.

The accused had already pleaded guilty to a related charge of wounding with intent to cause grievous bodily harm. At trial, the prosecution sought to rely on two statements the accused made to police: first, roadside comments made shortly after his arrest on 10 October 2023, and second, answers given during a formal recorded interview (ERISP) at the police station later that day. In both, the accused claimed he was "at home" watching the grand final at the time of the stabbings, which the prosecution said was a lie relevant to his credibility.

The accused objected to both pieces of evidence under section 138 of the Evidence Act 1995 (NSW), arguing they were obtained improperly or in contravention of Australian law.

  • Whether the roadside statements and the ERISP were obtained improperly or in contravention of Australian law, having regard to the requirements of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and its Regulation, particularly provisions protecting vulnerable persons including Aboriginal people.
  • Whether, if impropriety was established, the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in that way, under the balancing test in s 138 of the Evidence Act.
  • Whether the police conduct was deliberate or reckless, or merely inadvertent, and what weight to give to police officers' explanations for their conduct.

Decision

The roadside statements. At the roadside, police questioned the accused about the events of the relevant night despite him having shaken his head or declined to comment when asked whether he had anything to say about the allegations. The officers asked further questions including "Who were you with on the grand final night?" and "Where were you on the grand final?", eliciting the false claim that he was at home. Hamill J found that these questions went beyond what was necessary for the arrest and amounted to an improper attempt to obtain admissions from a vulnerable person outside the safeguards of a formal interview. The prosecution conceded impropriety in relation to this evidence. The Court excluded the roadside statements.

The ERISP. The ERISP raised more serious concerns. After the accused was taken into custody, the Aboriginal Legal Service (ALS) solicitor, Ms Hartley, spoke to him by telephone via the Custody Notification Service. She took his instructions and gave legal advice. She then telephoned the officer in charge and sent a clear email stating that her client wished to exercise his right to silence and did not wish to participate in an interview. Despite this, detectives proceeded to conduct the ERISP. During the interview, the accused was asked leading questions that effectively repeated the false claim he had made at the roadside, giving him the opportunity to confirm the lie on the formal record.

Hamill J rejected police explanations for proceeding with the interview. The investigating officers suggested they conducted the ERISP out of "fairness" to the accused, to give him an opportunity to put forward his version. His Honour found this explanation not credible. The accused had clearly, through his lawyer, indicated he wished to remain silent. The regulations under LEPRA (particularly regs 28, 29(1), and 37) impose specific obligations when police are dealing with Aboriginal and Torres Strait Islander persons, including ensuring the person has access to legal advice and that their expressed wishes are respected. Police also failed to ensure compliance with requirements regarding a support person. The Court characterised the police conduct as "calculated to infringe" the accused's rights and found the impropriety to be "grave." The conduct was assessed as deliberate or reckless rather than inadvertent.

Applying the s 138 balancing test, Hamill J weighed the seriousness of the charge (murder), the probative value of the evidence (relevant, but not of the highest order since it went only to credibility and not to consciousness of guilt), and the gravity of the impropriety. The gravity of the police conduct decisively tipped the balance. The evidence from both the roadside and the ERISP was excluded.

Orders Made

  • The roadside statements made by the accused to police on 10 October 2023 were excluded.
  • The ERISP conducted at Merrylands Police Station on 10 October 2023 was excluded.

Key Takeaways

  • Where a legal representative communicates an Aboriginal or Torres Strait Islander accused person's instruction to remain silent clearly and in writing, police who proceed to interview despite that notification face a serious risk of the resulting evidence being excluded. The existence of a clear paper trail, such as the solicitor's email in this case, significantly strengthened the exclusion argument before the Supreme Court.

  • Compliance with LEPRA and its Regulation, particularly the protections for vulnerable persons in Part 3 of the Regulation, was held to be essential when the prosecution sought to rely on police interview evidence. The Supreme Court rejected general claims of "fairness" as justification for interviewing a suspect whose lawyer had communicated a clear instruction to remain silent.

  • Hamill J drew a clear distinction between administering a caution and asking substantive questions about the offence at the scene of arrest, particularly when the suspect had already declined to comment. Roadside "follow-up" questions were treated as improper attempts to circumvent formal interview safeguards, and the prosecution conceded the impropriety of that evidence.

  • Even where the charge is extremely serious (murder) and the evidence has some probative value, grave and deliberate impropriety by police can be sufficient to exclude evidence under s 138 of the Evidence Act. The Supreme Court held that the seriousness of the offence does not automatically trump serious police misconduct in the balancing exercise.

  • In assessing the officers' explanations, Hamill J found the "fairness" rationale for departing from the suspect's expressed wishes unconvincing. Close scrutiny of police credibility was central to the finding of deliberate impropriety underpinning the s 138 exclusion.

Legislation and Cases Referenced

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

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