R v WAKE Tyler [2021] NSWDC 276

R v WAKE Tyler [2021] NSWDC 276

The appellant was under arrest within the meaning of LEPRA at the relevant time. The police failed to provide the requisite caution and information to the appellant, who was a vulnerable person. The password to the phone and the photo were obtained as a consequence of this contravention of law. Having regard to the seriousness and comprehensive nature of the breach, and the failure of the Crown to establish that the evidence could have been obtained otherwise or that the desirability of admission outweighed the undesirability, the photo must be excluded under s138. Although the application for excluding the ERISP under s90 was rejected because the interview was found fair, any part of the...

Parties
Respondent: Crown (Regina); Appellant: Tyler Wake
Jurisdiction
Australia
Judgment Date
25 June 2021
Procedural Posture
Criminal Appeal / Interlocutory Appeal in the District Court of NSW From Local Court Conviction
Outcome
Photo evidence excluded; limited ERISP evidence admitted; matter adjourned for further submissions/orders.
Legal Topics
Exclusion of Evidence, Improperly or Illegally Obtained Evidence, Section 138 Evidence Act, Section 90 Evidence Act, Protected Suspects, LEPRA Cautions, Vulnerable Persons in Criminal Proceedings
Criminal Law Evidence Exclusion of Evidence Improperly or Illegally Obtained Evidence Section 138 Evidence Act Section 90 Evidence Act Protected Suspects LEPRA Cautions +1 more

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Parties

Crown (Regina)

Respondent

Tyler Wake

Appellant

Procedural Posture

Criminal Appeal / Interlocutory Appeal in the District Court of NSW From Local Court Conviction

Legal Issues

  1. 1 Whether the appellant was under arrest at time of search and provision of phone password
  2. 2 Whether non-compliance with Part 9 of LEPRA warranted exclusion of evidence under s138 Evidence Act
  3. 3 Whether ERISP and password evidence should be excluded for unfairness under s90 Evidence Act

Ratio Decidendi

The appellant was under arrest within the meaning of LEPRA at the relevant time. The police failed to provide the requisite caution and information to the appellant, who was a vulnerable person. The password to the phone and the photo were obtained as a consequence of this contravention of law. Having regard to the seriousness and comprehensive nature of the breach, and the failure of the Crown to establish that the evidence could have been obtained otherwise or that the desirability of admission outweighed the undesirability, the photo must be excluded under s138. Although the application for excluding the ERISP under s90 was rejected because the interview was found fair, any part of the...

Court Disposition

Photo evidence excluded; limited ERISP evidence admitted; matter adjourned for further submissions/orders.

Orders

  • Tender of the photo is rejected.
  • ERISP is admitted only to the extent content is not connected to the photo.