R v Hamoui [No 2] [2004] NSWSC 1053

R v Hamoui [No 2] [2004] NSWSC 1053

Although paragraph 3 of the Detention Warrant application was misleading in giving the impression that the abduction charge remained before the Court, there was no basis to find that police knowingly provided false or misleading information, and no impropriety or breach of law was established. The support person information was accurate when submitted and the accused nominated a suitable replacement who was present. As to consent to the forensic procedure, the Court found either informal consent had been given or, more likely, there had been miscommunication causing Detective Hinds to believe consent had been given. Because no impropriety or illegality was established, s138 was not...

Jurisdiction
Australia
Judgment Date
11 November 2004
Procedural Posture
Criminal Murder Trial / Judgment on Application to Exclude Evidence Under S138 Evidence Act 1995
Outcome
Application to exclude evidence refused; evidence admitted.
Legal Topics
['exclusion of Improperly or Illegally Obtained Evidence' 'detention Warrant' 'forensic Procedure' 'erisp Interview' 'dna Buccal Swab']
['criminal Law' 'criminal Procedure' 'evidence'] ['exclusion of Improperly or Illegally Obtained Evidence' 'detention Warrant' 'forensic Procedure' 'erisp Interview' 'dna Buccal Swab']

Case Brief

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Procedural Posture

Criminal Murder Trial / Judgment on Application to Exclude Evidence Under S138 Evidence Act 1995

Legal Issues

  1. 1 ['Whether statements in the application and affidavit for a Detention Warrant were false or misleading in material respects.' 'Whether any false or misleading statements amounted to impropriety or illegality enlivening s138 Evidence Act 1995.' 'Whether evidence obtained in consequence of the forensic procedure should be admitted.']

Ratio Decidendi

Although paragraph 3 of the Detention Warrant application was misleading in giving the impression that the abduction charge remained before the Court, there was no basis to find that police knowingly provided false or misleading information, and no impropriety or breach of law was established. The support person information was accurate when submitted and the accused nominated a suitable replacement who was present. As to consent to the forensic procedure, the Court found either informal consent had been given or, more likely, there had been miscommunication causing Detective Hinds to believe consent had been given. Because no impropriety or illegality was established, s138 was not...

Court Disposition

Application to exclude evidence refused; evidence admitted.

Orders

  • ['The ERISP on 26 June 2001 and the evidence obtained in consequence of the forensic procedure should be admitted.']