Director of Public Prosecutions v Yerbury [2020] NSWSC 905

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Yerbury [2020] NSWSC 905 Hearing dates: 14 July 2020 Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Common Law Before: Fagan J Decision: (1) The ruling made by Magistrate J Huber in the Local Court at Downing Centre, Sydney on 6 March 2020, that the Electronically Recorded Interview of the defendant conducted on 13 November 2018 not be admitted into evidence in the prosecution of the first defendant under Court Attendance Notice H69844258 (Sequences 1, 3, 6 and 7), is set aside. (2) The proceedings against the first defendant on the said Court Attendance Notice are remitted to the Local Court to be dealt with according to law. Catchwords: CRIME – appeal and review – appeal by prosecutor against evidentiary ruling by Local Court in summary proceedings – not "an interlocutory order" – ruling not amenable to a grant of leave to appeal EVIDENCE – improperly or unlawfully obtained – record of interview conducted following arrest – whether magistrate failed to apply correct onus of proof in determining whether arrest was unlawful – whether magistrate then erred in excluding interview pursuant to s 138 Evidence Act 1995 (NSW) – jurisdictional error established – order to exclude evidence set aside ADMINISTRATIVE LAW – where magistrate erred with respect to onus of proving that evidence was unlawfully obtained – magistrate proceeded to exercise discretionary judgment to exclude – jurisdictional error Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1911 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Director of Public Prosecutions (NSW) v Izod [2020] NSWSC 381 Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 LS v Director of Public Prosecutions (NSW) [2011] NSWSC 1016 Parker v Comptroller-General of Customs [2009] HCA 7 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 R v Kaewklom (No 1) [2012] NSWSC 1103 R v Lisoff [1999] NSWCCA 364 R v O'Neill [2001] NSWCCA 193 R v Steffan (1993) 30 NSWLR 633 Russell v Scott [2017] NSWSC 1720 Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357 Category: Principal judgment Parties: Office of the Director of Public Prosecutions (plaintiff) Karen Patricia Yerbury (defendant) Representation: Counsel: D Kell SC with E Jones (plaintiff) R Hood (defendant)