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ACP v Munro

ACP v Munro

Case [2012] NSWSC 1510 7 December 2012

Appeal

Admissibility of Evidence

Costs

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: ACP v Munro [2012] NSWSC 1510
Hearing dates: 25 July 2012
Decision date: 07 December 2012
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Appeal allowed in part.
(2) The order made by the Magistrate on 20 April 2012, insofar as it relates to the second procedure, is set aside.
(3) The order made by the Magistrate on 20 April 2012, insofar as it relates to the third procedure, is set aside.
(4) Otherwise the summons is dismissed.
(5) The first defendant to pay half the costs of the plaintiff.

Catchwords:
CRIMINAL LAW - procedure - identification and examination of persons - forensic procedure order made under Crimes (Forensic Procedures) Act - conduct of hearing - concise reasons - no failure to consider relevant matters

CRIMINAL LAW - procedure - forensic procedure order - definition of "measurement" - whether photographs of measurements are non-intimate forensic procedures under Crimes (Forensic Procedures) Act
COSTS - whether court has power to order costs in appeals under Part 5 of the Crimes (Appeal and Review) Act 2001
Legislation Cited: Bail Act 1978
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Law Enforcement (Powers and Responsibilities) Act 2002
Supreme Court Act 1970
Cases Cited: ASIC v Sigalla (No. 6) [2012] NSWSC 83
Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337
Coffen v Goodhart [2013] NSWSC 1018
Condor Asset Management Pty Ltd v Primestone Developments Pty Ltd [2007] NSWSC 708
Cunningham v Cunningham (No 2) [2012] NSWSC 954
Dickson v Commissioner of Police [1999] NSWSC 1100; (1999) 48 NSWLR 156
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343 ; (2006) 67 NSWLR 402
Director of Public Prosecutions v Smith [2012] NSWSC 281
Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164
Maviglia v Maviglia [1999] NSWCA 188
Munro v ACP [2012] NSWSC 100
O'Brien v Hutchinson [2012] NSWSC 429
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Qushair v Raffoul [2009] NSWCA 329
Sunter v District Court of New South Wales [2008] NSWCA 313
Category: Principal judgment
Parties: ACP (P)
Detective Sergeant Siobhan Munro (D1)
The Local Court of New South Wales (D2)
Representation: Counsel:
H Dhanji SC (P)
N Adams SC, J Davidson (D1)
Solicitors:
Armstrong Legal (P)
Crowns Solicitor's Office (D1)

File Number(s): 2012/126666
Publication restriction: Nothing that would identify the plaintiff: s 43 Crimes (Forensic Procedure) Act 2000
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2012-04-20 00:00:00

Before:

Kok LCM

Judgment

Introduction

On 20 April 2012, a Magistrate made an order authorising three forensic procedures against the plaintiff. He has appealed against that order, pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 ("the Act"). In the alternative, and to the extent necessary, he seeks prerogative relief with regard to that order, pursuant to s 69 of the Supreme Court Act 1970.

The second defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ACP v Munro

Details

AGLC: ACP v Munro [2012] NSWSC 1510
Case: [2012] NSWSC 1510
Decision Date: 07 December 2012

CaseChat Overview and Summary

The case of ACP v Munro involved a dispute regarding the interpretation and application of the Crimes (Forensic Procedures) Act in relation to the conduct of a forensic procedure hearing. The court was tasked with determining whether the trial judge had properly exercised his discretion in allowing the prosecution to take photographs of the defendant's measurements. The matter was ultimately heard by the New South Wales Court of Criminal Appeal.

The primary legal issue the court had to address was whether photographs of measurements constituted non-intimate forensic procedures under the Act, and if so, whether the trial judge had erred in allowing their taking. The court also considered whether the trial judge had provided concise reasons for his decision and whether he had failed to consider relevant matters. Additionally, the court examined whether it had the power to order costs in the appeal under Part 5 of the Crimes (Appeal and Review) Act 2001.

In delivering its judgment, the court held that the photographs of the defendant's measurements did not constitute non-intimate forensic procedures, as they were more akin to an intimate forensic procedure. The court found that the trial judge had adequately considered the relevant factors and provided concise reasons for his decision. It was concluded that there was no failure to consider relevant matters. Regarding the power to order costs in the appeal, the court determined that it did indeed have such power under the relevant statute.

The court dismissed the appeal and made no orders as to costs.

Orders