R v Alharbi [2019] NSWDC 87

District Court New South Wales

Medium Neutral Citation: R v Alharbi [2019] NSWDC 87 Hearing dates: 21 March – 22 March 2019 Date of orders: 26 March 2019 Decision date: 26 March 2019 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: Pursuant to s 138 of the Evidence Act 1995 (NSW) the ERISP is to be excluded and not admitted as evidence in the trial. Catchwords: CRIMINAL LAW - Judgment on voir dire - Admissibility of ERISP - LEPRA Regulations - Vulnerable person - Non English speaking background - non Compliance with Part 9 rights - Police Procedure - ERISP inadmissible Legislation Cited: Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act Cases Cited: Adams v Kennedy (2000) 49 NSWLR 78 R v FD [2013] NSWSC 1692 R v Phung & Huynh [2001] NSWSC Texts Cited: LEPRA Regulations Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) Muaddi Fahad Alharbi (Accused) Representation: Counsel: C Smith SC (Accused) D Clarke (Accused)

Solicitors: Director or Public Prosecutions File Number(s): 2017/391396 Publication restriction: Statutory non-publication pursuant to s 578A Crimes Act 1900 in relation to any matter that may identify the complainants.

Judgment

Introduction 1. By an indictment dated 21 June 2018 the accused is charged with four counts of indecent assault upon the first complainant and one count of sexual intercourse without consent of the second complainant knowing the second complainant was not consenting. 2. Each of the charges is said to have occurred on 26 or 27 December 2017. 3. On 27 December 2017 the accused took part in an electronic recorded interview (ERISP) at the Sydney City Police Station in Day Street. 4. Prior to the empanelment of the jury the accused seeks to have the ERISP excluded from the evidence. The basis for the accused's application is section 138 of the Evidence Act 1995 (NSW). By that section evidence obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law may be excluded. The accused argues that the ERISP was undertaken improperly or in contravention of an Australian law. More particularly the accused argues that the Law Enforcement (Powers and Responsibilities) Act 2002 and the Law Enforcement (Powers and Responsibilities) Regulation 2016 (the LEPRA Act and the LEPRA Regulation) have been contravened.