Rex v Dates and Dates

1. [1]

   Wesley Dates (the accused) stands charged with the murder of George Woods, an offence which allegedly occurred on 1 October 2023 at Miller in western Sydney. Mr Woods died of “complications of a stab wound to the left side of [his] neck”. The accused’s brother, Peter Dates, stands charged on the same indictment with wounding Joshua Ratu with intent to cause him grievous bodily harm. The accused was also charged with the wounding of Mr Ratu with intent to cause grievous bodily harm, but pleaded guilty to that offence on arraignment on 13 December 2024. That allegation against the accused has been removed from the current indictment. The parties indicated that there will be an agreed fact that the accused pleaded guilty to that offence.

2. [2]

   The events giving rise to those charges occurred during a confrontation at around the time of, or shortly after, the 2023 rugby league grand final between the Penrith Panthers and the Brisbane Broncos. The accused and his brother were visiting friends at an apartment block in Miller and were watching the game on television when, for reasons which are difficult to discern, an argument developed with Mr Woods and Mr Ratu. A group gathered outside and a fight broke out. The stabbings occurred during the melee. The prosecution case statement contains far greater details of these events but it is unnecessary to go into further detail for present purposes.

3. [3]

   Before the trial commenced, the accused raised objection to two related pieces of evidence. In each instance, the evidence involved the accused telling police officers that he was at home watching the grand final at the time of the stabbings. While I understand that the evidence will be that he watched the game, the assertion that he was “at home” was untrue. There were other statements which, as I understand it, were also untrue. The prosecution seeks to rely on the evidence that this was a lie that impacts on the credibility of the accused if he puts forward an exculpatory version of events. It is important to emphasise that the Prosecutor does not seek to rely on the lie(s) as evidence that the accused was betraying a consciousness of guilt in the sense discussed in cases such as Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63: cf Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28.

4. [4]

   The first of the statements was made by the accused a little after he was arrested at about 10:25am on 10 October 2023. The second statement was made during an electronically recorded interview (ERISP) which commenced at around 2:00pm at the Merrylands Police Station. The accused submits that the evidence was obtained improperly or in contravention of Australian law and that the discretion to admit such evidence in s 138 of the Evidence Act 1995 (NSW) ought not to be exercised in favour of the prosecution.

The evidence on the voir dire

1. [5]

   The prosecution tendered two bundles of material on the voir dire and these were marked as Ex VD-A and Ex VD-B:

2. [6]

   In addition to that material, a disc was tendered as Ex VD-C which contained two body worn videos which recorded the interactions between the accused and police at the time of his apprehension as well as the video and audio recording of the ERISP.

3. [7]

   Three police officers were called to give evidence on the voir dire and each was cross-examined by Mr Quilter of counsel who appears for the accused.

4. [8]

   The accused read an affidavit of Ms Grace Hartley (which became Ex VD-1). Ms Hartley was a solicitor with the Aboriginal Legal Service (ALS) who was working on the Custody Notification Service (CNS) at the time of the accused’s arrest. She provided the accused with legal advice, took instructions from him, and notified police by telephone and in an email of her client’s intention to exercise his right to silence.

5. [9]

   Detectives Savic and Yung had been working on the investigation since the day after the stabbings. Each had taken statements from witnesses, reviewed CCTV footage and were up to date with the progress of the investigation. By 10 October 2023, the accused was a firm suspect. The two officers attended the area of his home in a unit complex in Church Street, North Parramatta at around 10:00am. They were undertaking surveillance but intended to arrest the accused if he was seen that day. At around 10:25am, Ms Yung recognised the accused from CCTV footage and approached him, confirmed his identity and placed him under arrest “for the murder of George Woods in Miller on 1 October 2023”.

6. [10]

   Ms Yung said in her statement and gave evidence that she administered a caution. Her statement, reproduced in the form in which it was tendered (including typographical and other errors) included the following narrative of the arrest and caution:

7. [11]

   The officer realised her body worn video was not recording, switched it on and repeated the caution. The following conversation is recorded (again, as it is produced in the exhibit without correction of errors):

8. [12]

   At that stage, Mr Savic took over the recording of the conversations by using his body worn equipment. The transcript, which seemed to be accurate based on the playing of the video during the voir dire, records the interaction as follows:

9. [13]

   I have italicised those parts of the conversations which appear to be, or are arguably, false. As I perceive it these are the statements upon which the prosecution seeks to rely and to which the current objections relate. Certainly, the statement that the accused was at home at the time of the stabbings is the centrepiece of the falsehood that the prosecution seeks to establish in order to undermine the credibility of the accused or any innocent account he may advance at the trial.

10. [14]

    The question asked by Mr Savic “You Aboriginal, Torres Strait Islander?” and the accused’s affirmative answer shows that the investigating police knew by that stage of the interaction that the accused was an Aboriginal person. Each officer agreed that they knew he was therefore a “vulnerable person” under the relevant legislation.

11. [15]

    Section 112 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (the LEPRA) allows for regulations to be made in respect of “(b) Aboriginal persons or Torres Strait Islanders”. Division 3 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) (the Regulation) relates to “vulnerable persons” and reg 28 defines a vulnerable person to include a person who is an Aboriginal person. Again, both officers said they were aware of the significance of this at the time they were dealing with the accused. I will return to the requirements of the Regulation in terms of the protections provided to vulnerable persons.

12. [16]

    Whether the two police officers knew that the accused was a vulnerable person before his arrest, or during the initial interaction by the roadside, is more difficult. I found Mr Savic’s evidence on this issue, and the related issue of the accused’s age, to be somewhat unpersuasive. He said he made inquiries directed to the security and safety of the police. Had this involved looking at the police records of the accused’s criminal record, he would have seen he was dealing with an 18-year-old Aboriginal man. It is unnecessary to resolve this issue because the officers were plainly aware of the accused’s status and rights under the Regulation by the time the impugned statements were made.

13. [17]

    Once the accused was taken to the Merrylands Police Station, he was introduced to the Custody Manager and provided with information as to his rights. In accordance with accepted protocols, he was allowed to have contact with the ALS. According to Ms Hartley’s affidavit, which was largely based on her notes and other contemporaneous records, she made inquiries as to the accused’s well-being and explained the process to him. She took instructions from the accused that, based on her advice, he wanted to exercise his right to silence and did not want to be interviewed. Ms Hartley spoke to the Custody Manager and his assistant, Mr Grimsley and explained the position to them. It seems she also spoke to Detective Savic.

14. [18]

    At 12:28pm, Ms Hartley sent an email to the Custody Manager and to Detective Savic, who she believed to be the Officer in Charge of the investigation. That email was annexed to her affidavit and is in the following terms:

15. [19]

    Mr Savic gave evidence that he received that email. He asserted that he understood the email to set out only the advice with which the accused was provided. He claimed that, at the time, he did not appreciate that the email informed him that the accused intended to exercise his right to silence and his express desire not to be taken to the interview room. The detective said this several times in evidence. He accepted, when asked to read the email in the witness box, that the email – in fact – stated that the accused did not want to be taken to the interview room and sought to exercise his right to silence. I found aspects of this evidence to be quite unconvincing although, like Ms Yung, Mr Savic did not present as dishonest. I did not form the impression, based on his demeanour, that Mr Savic was being deliberately obtuse or evasive. However, a judge must be cautious in basing their findings of fact and credibility on the demeanour of a witness: Fox v Percy (2003) 214 CLR 118 at 128-9; [2003] HCA 22 at [30]-[31].

16. [20]

    Neither Mr Savic nor Ms Yung could provide evidence as to any interaction they had with the Custody Manager. I note in passing that the Custody Manager is on extended sick leave and did not give evidence on the voir dire. Ms Yung said she relied on Mr Savic, with whom she had worked a lot and in whom she placed considerable trust. She seemed to be oblivious to the fact that the ALS had sent an email stating that the accused sought to exercise his right to silence and did not want to be interviewed or taken to the interview room. She said, had she known this, she would not have proceeded with the interview.

17. [21]

    At around 2:00pm, the accused was taken to an interview room and the police asked him about 100 questions over a period of approximately 15 minutes.

18. [22]

    It is unnecessary to go into the details of the interview other than to note:

19. [23]

    Under cross-examination on the voir dire, Ms Yung gave the following evidence:

The evidence was improperly obtained

1. [24]

   The Prosecutor conceded that the evidence was improperly obtained. This was a fair and proper concession, and I accept it. I will state my reasons relatively briefly.

2. [25]

   As to the statements made by the roadside, the Prosecutor submitted that the questioning of the accused about his whereabouts on 1 October 2023 and the events of that day “should have been deferred until after the … relevant provisions of LEPRA had been complied with”. [1] Mr Quilter submitted that the effect of the police conduct was to circumvent the important protections that should be afforded to vulnerable persons under the Regulation. The Prosecutor conceded that this was so in his further written submissions filed after the evidence on the voir dire was taken (MFI 4 at [10]):

3. [26]

   I accept Mr Quilter’s submission and the Prosecutor’s concession. By questioning him by the roadside, the accused was not given the opportunity to be assisted by a custody management officer, who is independent of the investigating police and charged with the responsibility of assisting a vulnerable person to exercise their rights under Part 9 of the LEPRA: reg 29(1). As Mr Quilter submitted, the accused was being entirely compliant, was handcuffed and seated cross-legged on the ground (as he had been instructed to do) and the police station was just a few kilometres away. Similarly, the accused did not have the opportunity to have a support person present, although it should be noted that he ultimately declined to receive such assistance from a relative or friend. Most significantly, the requirements of clause 37 were avoided. That part of the Regulation provides:

4. [27]

   As to the ERISP, I accept the joint position of the parties that the evidence was obtained improperly. By taking the vulnerable person – an 18-year-old Aboriginal man – into the interview room, the police disregarded the unambiguous correspondence from Ms Hartley which Mr Savic said he had received. Furthermore, as soon as the interrogation was directed to the events of 1 October 2023 the accused answered, “no comment”. He answered in that way seven (or eight) times before the most significant answer was given.

5. [28]

   I am unable to accept Ms Yung’s evidence that she did not recognise this as an attempt by the accused to exercise his right to silence.

6. [29]

   The accused, who bears the onus on the issue, has established on the balance of probabilities that both (i) the statements he made to police under questioning at the roadside and (ii) the entirety of the ERISP constituted evidence that was obtained improperly or in contravention of an Australian law: Evidence Act, s 138(1).

The power to admit improperly obtained evidence

1. [30]

   Section 138(1) of the Evidence Act provides that evidence that was obtained improperly “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.” Section 138(3) provides a non-exhaustive list of matters to be taken into account.

2. [31]

   The operation of these provisions, particularly in the context of vulnerable persons, received authoritative consideration in the case of Mann v R [2023] NSWCCA 256. The judgment of Kirk JA, with whom both N Adams J and R A Hulme AJ agreed, is of considerable assistance to trial judges in navigating the legislative provisions, understanding the responsibilities of investigating police officers and evaluating the relevant considerations. Mr Quilter also reminded me of some earlier judgments of mine, [2] and took me to the decision of the Victorian Court of Appeal in Johnston v The King [2023] VSCA 49; (2023) 306 A Crim R 247. While reference to these authorities was very helpful, none of those judgments are on all fours with the present case. Each case must be decided based on its own particular facts and circumstances.

3. [32]

   The most significant factor militating in favour of admission of the evidence is the seriousness of the offence with which the accused stands charged: s 138(3)(c). Mr Quilter acknowledged properly and correctly that the offence of murder is of such seriousness that it supports the admission of the evidence. However, he submits that otherwise the s 138(3) criteria point strongly against the admission of the evidence.

4. [33]

   Different considerations arise in relation to the evidence obtained at the roadside to those which will determine the admissibility of the ERISP. However, I accept Mr Quilter’s submission that the two events are connected. In particular, I am satisfied that the attitude of the police officers established by their persistent questioning in the ERISP may also impact on my evaluation of their attitude when questioning the accused at the roadside. I propose to deal with the evidence in reverse chronological order because, on my assessment, the ERISP is very clearly inadmissible.

5. [34]

   The probative value of the evidence obtained in the ERISP is slight: s 138(3)(a). It really does little more than confirm conversations that were already recorded by the roadside. Not many of the responses to other questions – each of which was put improperly to the accused – are capable of advancing the prosecution case at all. Further, the evidence is not relied on as evidence demonstrating a consciousness of guilt and will only be put to the jury as evidence that may impact on the credibility of any account the accused provides by testifying or advances through cross-examination or in counsel’s address.

6. [35]

   Similarly, and for the same reasons, this is not important evidence: s 138(3)(b). The fact that the substance of the evidence is available in the body worn video is a more potent consideration under this sub-paragraph than it is in assessing the probative value of the evidence.

7. [36]

   The impropriety involved in taking a vulnerable person into the interview room and interrogating him, in the face of the email from his ALS solicitor, is extremely grave: s 138(3)(d). It constituted improper conduct calculated to undermine the very purpose of the protective provisions provided in the LEPRA and the Regulation. No satisfactory explanation was provided for failing to respect the clearly expressed wishes of the accused. As I have said, I found the explanations for persisting once the accused said “no comment” seven (or eight) times when the interrogation turned to the subject matter of the investigation to be implausible and unpersuasive.

8. [37]

   It is difficult to resist the conclusion that this impropriety was deliberate: s 138(3)(e). However, given that I was generally impressed with the way the officers conducted themselves in the witness box, including the concession made by each of them that with the benefit of hindsight they may have behaved differently, I will proceed on the basis that the impropriety involved a very high degree of recklessness as to the rights of the accused: s 138(3)(e).

9. [38]

   The accused had rights under the International Covenant on Civil and Political Rights that were not respected: s 138(3)(f).

10. [39]

    It is unlikely that any other action will be taken in relation to the impropriety, but I consider this to be a neutral factor in the circumstances: s 138(3)(g). See Mann v R at [99]-[100] applying Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1. I do not consider this to be a case in the same category as Johnston v The King, where the Victorian Court of Appeal dealt with what the Court described at [162] as a “wilful contumelious disregard of the applicant’s rights”.

11. [40]

    The subject evidence had already been obtained by other means albeit that the evidence was also obtained improperly: s 138(3)(h).

12. [41]

    As I have said, the factors enumerated in s 138(3) are not exhaustive. I have also taken into account the fact that police should be on notice that if they choose to ignore, deliberately or recklessly, such a clear indication from the ALS that a vulnerable person does not wish to be interviewed or placed in front of a video camera, that assertions such as those made in evidence on Monday that they are acting out of “fairness” to the suspect will ring hollow. Police should also be aware that the courts will be reluctant to rule that evidence obtained in such a way is admissible.

13. [42]

    Taking all those matters into account, the desirability of admitting the evidence is not outweighed by the undesirability of admitting evidence obtained in the way that it was.

14. [43]

    The entirety of the ERISP is inadmissible.

15. [44]

    The earlier questioning of the accused raises different considerations and the evaluative judgment called for under s 138 is more difficult.

16. [45]

    I accept that the evidence has slightly more probative value and is somewhat more important than the adoption of the same statements in the subsequent ERISP: s 138(3)(a) and (b).

17. [46]

    However, as the Prosecutor put it in his written submissions (MFI 4 at [4]), “the probative value of the evidence is low”. I do not accept that “the evidence assumes importance” because it is anticipated that self-defence may be in issue in the trial. The parties agree that the jury will be aware that the accused was present at the scene and has pleaded guilty to the wounding (with intent) of Mr Ratu. The false statement that he was “at home” and was alone (or with his cat) will have little importance in evaluating the reasonableness of the accused’s conduct, whether he stabbed both of the victims, or whether the prosecution eliminates the possibility that he acted in self-defence in the sense that he believed what he did was necessary to defend himself or his brother.

18. [47]

    Again, as I said earlier, the nature and seriousness of the charge (murder) is a strong factor in favour of admitting the evidence: s 138(3)(c).

19. [48]

    The Prosecutor accepts that the gravity of the impropriety was “substantial”. I accept that concession and have independently reached the view, having heard the explanations provided by the officers, that the impropriety was very grave: s 138(3)(d). This was an Aboriginal man who had only recently obtained his adulthood. He was being entirely compliant. While the police were entitled to call for the aid of a caged truck, there was no obvious need for them to do so and certainly no warrant to commence the interrogation before the “vulnerable person” was afforded the protections to which he was entitled under the LEPRA. The accused was in a supplicant position, seated cross-legged (as directed) on the ground in handcuffs, while (at least) three police officers stood over him or near to him. The officers knew he was an Aboriginal man and entitled to certain protections under the legislation and regulations. The police station was just up the road.

20. [49]

    The evidence of Ms Yung was to the effect that the conversation drifted from matters of the accused’s identification into the substance of the allegations and that she then stopped asking questions. That is not how the conversation unfolded although I accept that Ms Yung may have been under the impression that it did. In other words, I did not conclude that she was being deliberately dishonest. Ms Yung’s evidence in chief on the voir dire included:

21. [50]

    However, the reality is that the shift in the conversation was stark. Having confirmed the suspect’s identity, by reference to his tattoos and otherwise, the detective asked bluntly if he had anything to say about the allegations. The accused shook his head which the officer accepted indicated that he did not wish to respond. That occurred quite early in the interaction and yet the interrogation continued for some time. This was so even though it had “crossed [her] mind” to defer the interrogation. [3]

22. [51]

    In cross-examination, the officer gave the following evidence on this subject:

23. [52]

    While I found the evidence about “rapport building” to be a little unconvincing, I accept that the officers were not behaving aggressively or with any intention to intimidate. Even so, the decision to move from asking about his tattoos to direct questioning about the incident under investigation was a choice that was made with the knowledge the accused had certain rights under the LEPRA.

24. [53]

    In all of the circumstances, including the vulnerability of the accused, the proximity of the police station and the power dynamics then at play, I am satisfied the impropriety was very grave: s 138(3)(d). It subverted the purpose of the protections to which the accused was entitled as a “vulnerable person” under the LEPRA and the Regulation.

25. [54]

    Ms Yung had turned her mind to the possibility of deferring the interview and yet both officers persisted with the questioning while the accused was in a supplicant physical position, with the police station – and the Custody Manager – a short distance away. At the very least, the conduct represented a reckless and improper infringement of the rights to which the accused was entitled: s 138(3)(e).

26. [55]

    I have dealt with the provisions in sub-paragraphs (f) and (g) in dealing with the ERISP. They are either neutral considerations or militate in favour of the exclusion of the evidence.

27. [56]

    I appreciate that there were limited other methods of obtaining the evidence (s 138(3)(h)) because the accused ultimately accepted legal advice and exercised (or tried to exercise) his right to silence. However, I do not consider this is a factor of great moment given the nature of the impropriety in question.

28. [57]

    Considering these matters and giving each appropriate weight, the prosecution has not established that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in this improper manner.

29. [58]

    The evidence of the statements made at the roadside is not admissible.

Orders

1. [59]

   Accordingly, I make the following evidentiary rulings:

   1. (1)

      The evidence contained in the body worn video and audio recordings, and associated transcripts, is not admissible.

   2. (2)

      The electronically recorded interview is not admissible.