R v Russell [2018] NSWSC 343

R v Russell [2018] NSWSC 343

The accused was more likely than not an incapable person when the forensic procedure was authorised, so the Senior Police Officer procedure did not comply with the Crimes (Forensic Procedures) Act 2000; however, the swab evidence was urgent, there was no deliberate or reckless breach, and the desirability of admitting the forensic results outweighed the undesirability of admitting evidence obtained without compliance. Unsolicited statements at arrest and before or during the forensic procedure were admissible because they were probative and not unfairly prejudicial, and the recorded statement during the swab could not be fabricated and arose largely from the accused's belligerence....

Jurisdiction
Australia
Judgment Date
14 March 2018
Procedural Posture
Criminal Proceedings for Murder / Procedural and Evidentiary Rulings on Objections Before Jury Trial
Outcome
Evidence admitted in part and excluded in part; ruling on Mr Cooley's evidence deferred pending further context.
Legal Topics
['admissibility of Admissions' 'forensic Procedures' 'improperly or Illegally Obtained Evidence' 'unfair Prejudice' 'vulnerable Persons in Custody' 'intoxication and Intent']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Admissions' 'forensic Procedures' 'improperly or Illegally Obtained Evidence' 'unfair Prejudice' 'vulnerable Persons in Custody' 'intoxication and Intent']

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Procedural Posture

Criminal Proceedings for Murder / Procedural and Evidentiary Rulings on Objections Before Jury Trial

Legal Issues

  1. 1 ["Whether the forensic procedure and results obtained from swabs of apparent blood on the accused's hands were admissible despite non-compliance with the Crimes (Forensic Procedures) Act 2000." 'Whether statements allegedly made by the accused at the scene of arrest, at Wollongong Police Station, during the forensic procedure, and on return from the interview room were admissible.' 'Whether an interview recording and ERISP were admissible in circumstances where Pt 9 procedures under the Law Enforcement (Powers and Responsibilities) Act 2002 had not yet been completed.' 'Whether evidence from Tanya Dunn and William Cooley about earlier alleged threats by the accused was admissible.']

Ratio Decidendi

The accused was more likely than not an incapable person when the forensic procedure was authorised, so the Senior Police Officer procedure did not comply with the Crimes (Forensic Procedures) Act 2000; however, the swab evidence was urgent, there was no deliberate or reckless breach, and the desirability of admitting the forensic results outweighed the undesirability of admitting evidence obtained without compliance. Unsolicited statements at arrest and before or during the forensic procedure were admissible because they were probative and not unfairly prejudicial, and the recorded statement during the swab could not be fabricated and arose largely from the accused's belligerence....

Court Disposition

Evidence admitted in part and excluded in part; ruling on Mr Cooley's evidence deferred pending further context.

Orders

  • ['The forensic procedure and results thereof are admissible as evidence;' 'The statements made by the accused at the scene of the arrest are admissible;' 'The statements made by the accused at the Police Station before and during the forensic procedure are admissible;' 'The statements made by the accused at the...