R v Barakat; R v Younes (No 2) [2016] NSWSC 1255

Supreme Court New South Wales

Medium Neutral Citation: R v Barakat; R v Younes (No 2) [2016] NSWSC 1255 Hearing dates: 07 September 2016 Decision date: 09 September 2016 Jurisdiction: Common Law - Criminal Before: N Adams J Decision: The application by the accused David Younes to have evidence of questioning pursuant to s 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) excluded is refused. Catchwords: EVIDENCE – accessory after the fact to murder – application under s 138 of the Evidence Act 1900 (NSW) to exclude evidence said to be obtained improperly – where request made to owner of vehicle under s 14(1)(c) of LEPRA to disclose driver of vehicle – whether s 14(1)(c) permitted questions asked – whether accused ought to have been cautioned – evidence not obtained improperly – application refused

EVIDENCE – application to exclude an admission under s 90 of the Evidence Act 1900 (NSW) – whether it would be unfair to accused to use the evidence having regard to the circumstances in which the admission was made – no unfairness – application dismissed

WORDS AND PHRASES – "require" Legislation Cited: Australian Crime Commission Act 2002 (Cth) Crimes Act 1900 (NSW), ss 316, 349(1) Evidence Act 1995 (NSW), s 90, 138 Interpretation Act 1987 (NSW), s 34 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 11, 14(1)(c), 17(1) Cases Cited: Director of Public Prosecutions (NSW) v Horwood (2009) 78 NSWLR 32; [2009] NSWSC 1447 Papakosmas v The Queen (1999) 196 CLR 297 R v Abuquta, Haytham [2011] NSWDC 12 R v Cornwell (2003) 57 NSWLR 82; [2003] NSWSC 97 R v Coulstock (1998) 99 A Crim R 143 R v Dalley [2002] NSWCCA 284 R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 Robinson v Woolworths Limited (2005) 64 NSWLR 612; [2005] NSWCCA 426 X7 v Australian Crime Commission & Another [2013] HCA 29 Category: Procedural and other rulings Parties: David Younes Regina Representation: Counsel: G Stanton with M Fozzard (Accused Younes) D Dalton SC (Accused Barakat) P McGrath SC (Crown)