Rex v Dates and Dates [2025] NSWSC 415 | Case summary | Zoe

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Rex v Dates and Dates [2025] NSWSC 415 | Case summary | Zoe

Wesley Dates (the accused) stands charged with the murder of George Woods, an offence which allegedly occurred on 1 October 2023 at Miller in western Sydney. Mr Woods died of “complications of a stab wound to the left side of [his] neck”. The accused’s brother, Peter Dates, stands charged on the same indictment with wounding Joshua Ratu with intent to cause him grievous bodily harm. The accused was also charged with the wounding of Mr Ratu with intent to cause grievous bodily harm, but pleaded guilty to that offence on arraignment on 13 December 2024. That allegation against the accused has been removed from the current indictment. The parties indicated that there will be an agreed fact that the accused pleaded guilty to that offence.
The events giving rise to those charges occurred during a confrontation at around the time of, or shortly after, the 2023 rugby league grand final between the Penrith Panthers and the Brisbane Broncos. The accused and his brother were visiting friends at an apartment block in Miller and were watching the game on television when, for reasons which are difficult to discern, an argument developed with Mr Woods and Mr Ratu. A group gathered outside and a fight broke out. The stabbings occurred during the melee. The prosecution case statement contains far greater details of these events but it is unnecessary to go into further detail for present purposes.
Before the trial commenced, the accused raised objection to two related pieces of evidence. In each instance, the evidence involved the accused telling police officers that he was at home watching the grand final at the time of the stabbings. While I understand that the evidence will be that he watched the game, the assertion that he was “at home” was untrue. There were other statements which, as I understand it, were also untrue. The prosecution seeks to rely on the evidence that this was a lie that impacts on the credibility of the accused if he puts forward an exculpatory version of events. It is important to emphasise that the Prosecutor does not seek to rely on the lie(s) as evidence that the accused was betraying a consciousness of guilt in the sense discussed in cases such as Edwards v The Quee**n (1993) 178 CLR 193; [1993] HCA 63: cf Zoneff v The Queen (2000) 200 CLR 234*;* [2000] HCA 28.
The first of the statements was made by the accused a little after he was arrested at about 10:25am on 10 October 2023. The second statement was made during an electronically recorded interview (ERISP) which commenced at around 2:00pm at the Merrylands Police Station. The accused submits that the evidence was obtained improperly or in contravention of Australian law and that the discretion to admit such evidence in s 138 of the Evidence Act 1995 (NSW) ought not to be exercised in favour of the prosecution.

Mr Savic gave evidence that he received that email. He asserted that he understood the email to set out only the advice with which the accused was provided. He claimed that, at the time, he did not appreciate that the email informed him that the accused intended to exercise his right to silence and his express desire not to be taken to the interview room. The detective said this several times in evidence. He accepted, when asked to read the email in the witness box, that the email – in fact – stated that the accused did not want to be taken to the interview room and sought to exercise his right to silence. I found aspects of this evidence to be quite unconvincing although, like Ms Yung, Mr Savic did not present as dishonest. I did not form the impression, based on his demeanour, that Mr Savic was being deliberately obtuse or evasive. However, a judge must be cautious in basing their findings of fact and credibility on the demeanour of a witness: Fox v Percy (2003) 214 CLR 118 at 128-9; [2003] HCA 22 at [30]-[31].
Neither Mr Savic nor Ms Yung could provide evidence as to any interaction they had with the Custody Manager. I note in passing that the Custody Manager is on extended sick leave and did not give evidence on the voir dire. Ms Yung said she relied on Mr Savic, with whom she had worked a lot and in whom she placed considerable trust. She seemed to be oblivious to the fact that the ALS had sent an email stating that the accused sought to exercise his right to silence and did not want to be interviewed or taken to the interview room. She said, had she known this, she would not have proceeded with the interview.
At around 2:00pm, the accused was taken to an interview room and the police asked him about 100 questions over a period of approximately 15 minutes.
It is unnecessary to go into the details of the interview other than to note:
At question 9, Mr Savic asked the accused to agree that he had spoken to the ALS. No follow up question was asked as to whether the accused sought to act on the advice he received.
After a series of introductory questions, the police started to ask about what the accused did on 1 October 2023. Between questions 36 to 44, the accused responded “no comment” on seven occasions. On an eighth occasion he said “no comment, I can’t remember.”
At question 46, Ms Yung sought to have the accused confirm what he had said while under arrest at the roadside. At question 50, the accused confirmed that he told the detective “I was at home, just watching the NRL”.
Between questions 65 and 94, the accused answered “no comment” on about 17 occasions.
Under cross-examination on the voir dire, Ms Yung gave the following evidence:

Section 138(1) of the Evidence Act provides that evidence that was obtained improperly “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.” Section 138(3) provides a non-exhaustive list of matters to be taken into account.
The operation of these provisions, particularly in the context of vulnerable persons, received authoritative consideration in the case of Mann v R [2023] NSWCCA 256. The judgment of Kirk JA, with whom both N Adams J and R A Hulme AJ agreed, is of considerable assistance to trial judges in navigating the legislative provisions, understanding the responsibilities of investigating police officers and evaluating the relevant considerations. Mr Quilter also reminded me of some earlier judgments of mine, [2] and took me to the decision of the Victorian Court of Appeal in Johnston v The King [2023] VSCA 49; (2023) 306 A Crim R 247. While reference to these authorities was very helpful, none of those judgments are on all fours with the present case. Each case must be decided based on its own particular facts and circumstances.
The most significant factor militating in favour of admission of the evidence is the seriousness of the offence with which the accused stands charged: s 138(3)(c). Mr Quilter acknowledged properly and correctly that the offence of murder is of such seriousness that it supports the admission of the evidence. However, he submits that otherwise the s 138(3) criteria point strongly against the admission of the evidence.
Different considerations arise in relation to the evidence obtained at the roadside to those which will determine the admissibility of the ERISP. However, I accept Mr Quilter’s submission that the two events are connected. In particular, I am satisfied that the attitude of the police officers established by their persistent questioning in the ERISP may also impact on my evaluation of their attitude when questioning the accused at the roadside. I propose to deal with the evidence in reverse chronological order because, on my assessment, the ERISP is very clearly inadmissible.

The probative value of the evidence obtained in the ERISP is slight: s 138(3)(a). It really does little more than confirm conversations that were already recorded by the roadside. Not many of the responses to other questions – each of which was put improperly to the accused – are capable of advancing the prosecution case at all. Further, the evidence is not relied on as evidence demonstrating a consciousness of guilt and will only be put to the jury as evidence that may impact on the credibility of any account the accused provides by testifying or advances through cross-examination or in counsel’s address.
Similarly, and for the same reasons, this is not important evidence: s 138(3)(b). The fact that the substance of the evidence is available in the body worn video is a more potent consideration under this sub-paragraph than it is in assessing the probative value of the evidence.
The impropriety involved in taking a vulnerable person into the interview room and interrogating him, in the face of the email from his ALS solicitor, is extremely grave: s 138(3)(d). It constituted improper conduct calculated to undermine the very purpose of the protective provisions provided in the LEPRA and the Regulation. No satisfactory explanation was provided for failing to respect the clearly expressed wishes of the accused. As I have said, I found the explanations for persisting once the accused said “no comment” seven (or eight) times when the interrogation turned to the subject matter of the investigation to be implausible and unpersuasive.
It is difficult to resist the conclusion that this impropriety was deliberate: s 138(3)(e). However, given that I was generally impressed with the way the officers conducted themselves in the witness box, including the concession made by each of them that with the benefit of hindsight they may have behaved differently, I will proceed on the basis that the impropriety involved a very high degree of recklessness as to the rights of the accused: s 138(3)(e).
The accused had rights under the International Covenant on Civil and Political Rights that were not respected: s 138(3)(f).
It is unlikely that any other action will be taken in relation to the impropriety, but I consider this to be a neutral factor in the circumstances: s 138(3)(g). See Mann v R at [99]-[100] applying Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1. I do not consider this to be a case in the same category as Johnston v The King, where the Victorian Court of Appeal dealt with what the Court described at [162] as a “wilful contumelious disregard of the applicant’s rights”.
The subject evidence had already been obtained by other means albeit that the evidence was also obtained improperly: s 138(3)(h).
As I have said, the factors enumerated in s 138(3) are not exhaustive. I have also taken into account the fact that police should be on notice that if they choose to ignore, deliberately or recklessly, such a clear indication from the ALS that a vulnerable person does not wish to be interviewed or placed in front of a video camera, that assertions such as those made in evidence on Monday that they are acting out of “fairness” to the suspect will ring hollow. Police should also be aware that the courts will be reluctant to rule that evidence obtained in such a way is admissible.
Taking all those matters into account, the desirability of admitting the evidence is not outweighed by the undesirability of admitting evidence obtained in the way that it was.
The entirety of the ERISP is inadmissible.

The earlier questioning of the accused raises different considerations and the evaluative judgment called for under s 138 is more difficult.
I accept that the evidence has slightly more probative value and is somewhat more important than the adoption of the same statements in the subsequent ERISP: s 138(3)(a) and (b).
However, as the Prosecutor put it in his written submissions (MFI 4 at [4]), “the probative value of the evidence is low”. I do not accept that “the evidence assumes importance” because it is anticipated that self-defence may be in issue in the trial. The parties agree that the jury will be aware that the accused was present at the scene and has pleaded guilty to the wounding (with intent) of Mr Ratu. The false statement that he was “at home” and was alone (or with his cat) will have little importance in evaluating the reasonableness of the accused’s conduct, whether he stabbed both of the victims, or whether the prosecution eliminates the possibility that he acted in self-defence in the sense that he believed what he did was necessary to defend himself or his brother.
Again, as I said earlier, the nature and seriousness of the charge (murder) is a strong factor in favour of admitting the evidence: s 138(3)(c).
The Prosecutor accepts that the gravity of the impropriety was “substantial”. I accept that concession and have independently reached the view, having heard the explanations provided by the officers, that the impropriety was very grave: s 138(3)(d). This was an Aboriginal man who had only recently obtained his adulthood. He was being entirely compliant. While the police were entitled to call for the aid of a caged truck, there was no obvious need for them to do so and certainly no warrant to commence the interrogation before the “vulnerable person” was afforded the protections to which he was entitled under the LEPRA. The accused was in a supplicant position, seated cross-legged (as directed) on the ground in handcuffs, while (at least) three police officers stood over him or near to him. The officers knew he was an Aboriginal man and entitled to certain protections under the legislation and regulations. The police station was just up the road.
The evidence of Ms Yung was to the effect that the conversation drifted from matters of the accused’s identification into the substance of the allegations and that she then stopped asking questions. That is not how the conversation unfolded although I accept that Ms Yung may have been under the impression that it did. In other words, I did not conclude that she was being deliberately dishonest. Ms Yung’s evidence in chief on the voir dire included: