R v Malula [2023] NSWDC 283

R v Malula [2023] NSWDC 283

Due to the accused's acute and severe mental illness at the relevant times, he was an incapable person under the Crimes (Forensic Procedures) Act 2000. Police failed to comply with the Act by not obtaining a magistrate's order before conducting the forensic procedure and obtaining DNA evidence; the breach was deliberate, grave, and deprived the accused of statutory protections. The desirability of admitting the DNA evidence does not outweigh the undesirability of admitting evidence obtained in breach. The ERISP contains no reliable admissions against interest, and the circumstances—including the accused's mental state—render its admission grossly unfair under ss 85, 90, and 138 of the...

Parties
Prosecution: Director of Public Prosecutions (The Crown); Accused: Papy Malula
Jurisdiction
Australia
Judgment Date
26 July 2023
Procedural Posture
Criminal / Pre Trial Application (special Hearing)
Outcome
Applications granted; exclusion orders made.
Legal Topics
Admissibility of DNA Evidence, Mental Health and Cognitive Impairment, Improper Forensic Procedures, Voluntariness and Reliability of Admissions, Pre Trial Exclusionary Rulings
Criminal Law Evidence Law Police Powers Admissibility of DNA Evidence Mental Health and Cognitive Impairment Improper Forensic Procedures Voluntariness and Reliability of Admissions Pre Trial Exclusionary Rulings

Case Brief

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Parties

Director of Public Prosecutions (The Crown)

Prosecution

Papy Malula

Accused

Procedural Posture

Criminal / Pre Trial Application (special Hearing)

Legal Issues

  1. 1 Whether DNA evidence should be excluded due to police non-compliance with the Crimes (Forensic Procedures) Act 2000 in relation to an incapable person
  2. 2 Whether the ERISP (recorded interview) should be excluded under ss 85, 90, and 138 of the Evidence Act 1995 due to the accused's mental illness and associated unreliability

Ratio Decidendi

Due to the accused's acute and severe mental illness at the relevant times, he was an incapable person under the Crimes (Forensic Procedures) Act 2000. Police failed to comply with the Act by not obtaining a magistrate's order before conducting the forensic procedure and obtaining DNA evidence; the breach was deliberate, grave, and deprived the accused of statutory protections. The desirability of admitting the DNA evidence does not outweigh the undesirability of admitting evidence obtained in breach. The ERISP contains no reliable admissions against interest, and the circumstances—including the accused's mental state—render its admission grossly unfair under ss 85, 90, and 138 of the...

Court Disposition

Applications granted; exclusion orders made.

Orders

  • The Crown is not permitted to adduce into evidence Exhibit A13, the DNA expert certificate dated 11 November 2020, or any other evidence relating to the accused's DNA.
  • The ERISP of the accused dated 8 September 2020 is not admissible in the special hearing.