R v MARTIN ROSS HAUSFELD [2002] NSWSC 630

Reported Decision : (2002) 131 A Crim R 480

New South Wales Supreme Court

CITATION : R v MARTIN ROSS HAUSFELD [2002] NSWSC 630 FILE NUMBER(S) : SC 70102/01 HEARING DATE(S) : 1- 5 July 2002, 9-10 July 2002 JUDGMENT DATE : 3 July 2002

REGINA

PARTIES : v

MARTIN ROSS HAUSFELD JUDGMENT OF : Levine J

M Macadam QC (Crown) COUNSEL : P Hamill (Offender) Office of the Director of Public Prosecutions (Crown) SOLICITORS : Legal Aid (Offender) CATCHWORDS : Voir dire - admissibility of certain answers in ERISP - Crimes Act 1900 - Part 10A - vulnerable person - impaired intellectual functioning Crimes Act 1900 LEGISLATION CITED : Crimes (Detention After Arrest) Regulation 1998 Evidence Act 1995 Regina v Helmhout [2001] NSWCCA 372 CASES CITED : Regina v Lamb and Thurston (NSWSC, unreported, 24 April 2002) Regina v Phung and Huynh [2001] NSWSC 115 Regina v Rondo [2001] NSWCCA 540 DECISION : See paragraphs 43 - 46

- 14 - Ex tempore - revised DLJT:4

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION AT TAMWORTH

JUSTICE DAVID LEVINE

WEDNESDAY 3 JULY 2002

70102 OF 2001

R v MARTIN ROSS HAUSFELD

JUDGMENT (Voir dire – admissibility of certain answers in ERISP – Crimes Act 1900 – Part 10A – vulnerable person – impaired intellectual functioning)

1 HIS HONOUR: The accused seeks to have ruled as inadmissible certain only of the questions and answers asked and given in the course of an electronically recorded interview. That interview, which took place between 5.30 and 7.01am on Friday 15 of December 2000, was conducted with the accused by Detective Senior Constable Coe and Detective Senior Constable Imeson at Tamworth Police Station. The tapes and transcript are respectively exhibits A and B on the voir dire which was held yesterday. 2 Various sections of the Evidence Act 1995 are relied upon to have excluded the several questions and answers. However, what I shall describe as an umbrella objection was taken based upon s 138, improperly obtained evidence. To put it shortly, that objection flows from what is said to have been non-compliance with Part 10A of the Crimes Act 1900. 3 Part 10A of the Crimes Act deals with detention after arrest for the purposes of investigation. The immediately relevant section is s 356A which enacts modification of the application of Part 10A to certain persons. It states: "356A (1) The regulations may make provision for or with respect to the modification of the application of this Part to: (a) persons under the age of 18 years, or (b) Aboriginal or Torres Strait Islanders, or (c) persons of non-English speaking background, or (d) persons who have a disability (whether physical, intellectual or otherwise)".