R v HS [2019] NSWDC 575

R v HS [2019] NSWDC 575

The ERISP, video of the forensic procedure and DNA evidence were admissible because, although the accused was in fact a person of non-English speaking background and therefore a vulnerable person, he communicated in English with reasonable fluency, understood the cautions and advice about his rights, and police reasonably believed no interpreter was required. The accused was afforded time and assistance to obtain legal advice before the forensic procedure; after that delay he did not provide consent, so police could proceed on the basis that he had not consented. The requirements of ss 18(1)(b), 20(c) and 20(e) of the Crimes (Forensic Procedures) Act 2000 (NSW) were satisfied, and the...

Jurisdiction
Australia
Judgment Date
24 September 2019
Procedural Posture
Criminal / Voir Dire Ruling on Admissibility of Erisp, Video of Forensic Procedure and DNA Evidence Before Jury Trial
Outcome
The accused's objections were rejected and the ERISP, video of the forensic procedure and DNA evidence were admitted at trial on the Crown's tender.
Legal Topics
['admissibility of Erisp' 'police Caution' 'vulnerable Person' 'person of Non English Speaking Background' 'right to Interpreter' 'forensic Procedure' 'dna Evidence']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Erisp' 'police Caution' 'vulnerable Person' 'person of Non English Speaking Background' 'right to Interpreter' 'forensic Procedure' 'dna Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal / Voir Dire Ruling on Admissibility of Erisp, Video of Forensic Procedure and DNA Evidence Before Jury Trial

Legal Issues

  1. 1 ['Whether the ERISP should be excluded because the accused was not effectively cautioned in compliance with ss 138 and 139(3) of the Evidence Act 1995 (NSW).' 'Whether police were required to obtain an interpreter because the accused was a person of non-English speaking background or vulnerable person.' 'Whether the video of the forensic procedure and DNA evidence should be excluded because police failed to comply with ss 18(1)(b), 20(c) and 20(e) of the Crimes (Forensic Procedures) Act 2000 (NSW).' 'Whether the accused had not consented to the forensic procedure after being given time to obtain legal advice and failing to provide a yes or no response.']

Ratio Decidendi

The ERISP, video of the forensic procedure and DNA evidence were admissible because, although the accused was in fact a person of non-English speaking background and therefore a vulnerable person, he communicated in English with reasonable fluency, understood the cautions and advice about his rights, and police reasonably believed no interpreter was required. The accused was afforded time and assistance to obtain legal advice before the forensic procedure; after that delay he did not provide consent, so police could proceed on the basis that he had not consented. The requirements of ss 18(1)(b), 20(c) and 20(e) of the Crimes (Forensic Procedures) Act 2000 (NSW) were satisfied, and the...

Court Disposition

The accused's objections were rejected and the ERISP, video of the forensic procedure and DNA evidence were admitted at trial on the Crown's tender.

Orders

  • ["The ERISP is to be admitted into evidence at the trial on the Crown's tender." "The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender." "The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender."]