R v Fazlilar (No 1) [2018] NSWSC 642

Supreme Court New South Wales

Medium Neutral Citation: R v Fazlilar (No 1) [2018] NSWSC 642 Hearing dates: 10 May 2018 Date of orders: 10 May 2018 Decision date: 01 June 2018 Jurisdiction: Common Law Before: N Adams J Decision: The accused's application to have his interview with police on 16 November 2015 excluded is refused Catchwords: EVIDENCE – Criminal Proceedings – Admissibility - Electronically recorded roadside interview – Caution given to accused – Whether question from the police officer undermined caution and created an impropriety – Whether evidence should be excluded under s 138 of the Evidence Act 1995 (NSW) Legislation Cited: Evidence Act 1995 (NSW), ss 138, 139 Firearms Act 1996 (NSW), s 7 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 14, 15 Cases Cited: R v Barakat; R v Younes (No 2) [2016] NSWSC 1255 Category: Procedural and other rulings Parties: Regina Hasan Fazlilar Representation: Counsel: K Gilson (Crown) M Austin (H Fazlilar)

Solicitors: Solicitor for Public Prosecutions Archbold & Co. (H Fazlilar) File Number(s): 2015/00349430 Publication restriction: Nil

Judgment 1. On 7 May 2018, Hasan Fazlilar was arraigned and pleaded not guilty to two counts: that on 13 November 2015, he possessed a pistol without being authorised to do so, contrary to s 7(1) of the Firearms Act 1996 (NSW); and that on 14 November 2015, he murdered Donovan Mileham. His trial commenced that day and continued before a jury of twelve. 2. On 10 May 2018, the fourth day of the trial, Mr Austin of counsel, who appeared for the accused, made an application to exclude an electronically recorded roadside interview, conducted between Detective Senior Constable Rogers-Falk and the accused, on the basis that the answers therein were improperly obtained and should be excluded under s 138 of the Evidence Act 1995 (NSW). 3. After listening to the interview and hearing submissions from the Crown Prosecutor and Mr Austin, I declined to exclude the interview and indicated that I would provide my reasons at a later date. These are my reasons for not excluding the interview under s 138 of the Evidence Act.