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

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

The evidence of the accused's answers on 6 August 2013 and the handwritten note provided on 14 August 2013 was not shown to have been improperly or illegally obtained. Section 14 of LEPRA was validly invoked because police had reasonable grounds to suspect the accused's vehicle may have been used in connection with the murder, and nothing in s 14 confined police to a single question. The subsequent questions were directed to ascertaining the driver at the relevant time after evasive or incomplete answers. The accused was not a suspect and no caution was required. The later note was provided pursuant to an arrangement made by the accused's solicitor and was not unfairly received. There was...

Jurisdiction
Australia
Judgment Date
09 September 2016
Procedural Posture
Criminal Evidence Ruling in Proceedings for Accessory After the Fact to Murder / Voir Dire Application by David Younes to Exclude Evidence of Questioning Pursuant to S 14 of the Law Enforcement (powers and Responsibilities) Act 2002 (nsw) Under Ss 138 and 90 of the Evidence Act 1995 (nsw)
Outcome
Application refused.
Legal Topics
['accessory After the Fact to Murder' 'exclusion of Improperly or Illegally Obtained Evidence' 'admissions' 'right to Silence' 'police Request for Disclosure of Driver or Passenger Identity Under S 14 of Lepra' 'caution During Police Questioning']
['evidence' 'criminal Law' 'criminal Procedure' 'police Powers'] ['accessory After the Fact to Murder' 'exclusion of Improperly or Illegally Obtained Evidence' 'admissions' 'right to Silence' 'police Request for Disclosure of Driver or Passenger Identity Under S 14 of Lepra' 'caution During Police Questioning']

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Procedural Posture

Criminal Evidence Ruling in Proceedings for Accessory After the Fact to Murder / Voir Dire Application by David Younes to Exclude Evidence of Questioning Pursuant to S 14 of the Law Enforcement (powers and Responsibilities) Act 2002 (nsw) Under Ss 138 and 90 of the Evidence Act 1995 (nsw)

Legal Issues

  1. 1 ['Whether questions asked of the accused after the initial s 14 LEPRA request were outside the scope of s 14 and therefore improperly obtained evidence for s 138 of the Evidence Act 1995 (NSW).' 'Whether the accused was required to be cautioned before further questioning about who had used or driven his vehicle.' 'Whether the handwritten note provided to police on 14 August 2013 was improperly obtained or unfairly received.' 'Whether the evidence should be excluded as an admission under s 90 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The evidence of the accused's answers on 6 August 2013 and the handwritten note provided on 14 August 2013 was not shown to have been improperly or illegally obtained. Section 14 of LEPRA was validly invoked because police had reasonable grounds to suspect the accused's vehicle may have been used in connection with the murder, and nothing in s 14 confined police to a single question. The subsequent questions were directed to ascertaining the driver at the relevant time after evasive or incomplete answers. The accused was not a suspect and no caution was required. The later note was provided pursuant to an arrangement made by the accused's solicitor and was not unfairly received. There was...

Court Disposition

Application refused.

Orders

  • ['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.']