R v Alharbi [2019] NSWDC 87

R v Alharbi [2019] NSWDC 87

The contravention of LEPRA and its regulations was substantive, as the custody manager failed to provide the accused—regarded as a vulnerable person—with meaningful assistance in exercising his rights. Accordingly, the ERISP obtained was excluded under s 138 of the Evidence Act 1995 (NSW), as the Crown could not demonstrate compliance, and the balance of desirability under s 138 did not favour admission.

Parties
Prosecutor: Director of Public Prosecutions (Crown); Accused: Muaddi Fahad Alharbi
Jurisdiction
Australia
Judgment Date
26 March 2019
Procedural Posture
Criminal / Judgment on Voir Dire
Outcome
ERISP excluded as evidence
Legal Topics
Admissibility of Evidence, Vulnerable Persons, Police Procedure, LEPRA Compliance
Criminal Law Admissibility of Evidence Vulnerable Persons Police Procedure LEPRA Compliance

Case Brief

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Parties

Director of Public Prosecutions (Crown)

Prosecutor

Muaddi Fahad Alharbi

Accused

Procedural Posture

Criminal / Judgment on Voir Dire

Legal Issues

  1. 1 Whether the ERISP should be excluded under s 138 of the Evidence Act 1995 (NSW) due to non-compliance with LEPRA and related regulations
  2. 2 Whether the accused was provided meaningful assistance as required for a vulnerable person under regulation 29

Ratio Decidendi

The contravention of LEPRA and its regulations was substantive, as the custody manager failed to provide the accused—regarded as a vulnerable person—with meaningful assistance in exercising his rights. Accordingly, the ERISP obtained was excluded under s 138 of the Evidence Act 1995 (NSW), as the Crown could not demonstrate compliance, and the balance of desirability under s 138 did not favour admission.

Court Disposition

ERISP excluded as evidence

Orders

  • Pursuant to s 138 of the Evidence Act 1995 (NSW) the ERISP is to be excluded and not admitted as evidence in the trial.