Alessi v SE and Anor - [2008] NSWSC 909

CITATION: Alessi v SE and Anor [2008] NSWSC 909

HEARING DATE(S): 21 August 2008

JUDGMENT DATE :
5 September 2008

JUDGMENT OF: Barr J at 1

DECISION: 1. The order appealed from in the Children's Court is set aside.
2. Proceedings are remitted to the Children’s Court to be dealt with according to law.
3. The first defendant should pay the plaintiff’s costs but should have a certificate under the Suitors’ Fund Act 1951.

CATCHWORDS: FORENSIC PROCEDURE - whether reasonable grounds exist to believe that proposed procedure might produce evidence tending to confirm or disprove that suspect committed offence - whether magistrate applied correct test - whether magistrate gave adequate reasons for decision

LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000, s23, s24, s33, s115A
Crimes (Appeal and Review) Act 2001, s56(1)(c) , s59(2)(a)
Criminal Procedure Act 1986, Part 2 Chapter 4
Suitors’ Fund Act 1951

CASES CITED: W v Bugden & Anor (2005) 155 A Crim R 416
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Beale v Government Insurance Officer of New South Wales (1997) 48 NSWLR 430
R v McKeough [2003] NSWCCA 385

PARTIES: David Alessi
SE
Magistrate Terrence Murphy

FILE NUMBER(S): SC 2008/11774

COUNSEL: L Babb SC (Plaintiff)
A Haesler SC (1st Defendant)

SOLICITORS: Crown Solicitor's Office (Plaintiff)
Legal Aid Commission (1st Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 184/08

LOWER COURT JUDICIAL OFFICER : CCM Murphy

LOWER COURT DATE OF DECISION: 26 March 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FRIDAY 5 SEPTEMBER 2008

2008/11774
DAVID ALESSI v SE and ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff, Detective Senior Sergeant David Alessi, is investigating charges that have been brought against the first defendant, whom I shall call SE. The fact giving rise to the charges are said to be these. At 7:02am on 25 March 2008 the first defendant’s mother telephoned the emergency service telephone number 000 and said that her son, the first defendant, had stabbed her and her husband. She told them where she lived. Police officers went to the house at 7:10am and knocked on the door. The fist defendant answered the knock. He asked the officers in an aggressive tone what they wanted. At first he refused to leave the house, though he was eventually persuaded to do so. As he did so he walked towards the officers in an aggressive manner. They restrained him. They entered the house and found the dead body of the first defendant’s father. He bore a number of stab wounds. They found the first defendant’s mother lying in the kitchen, stabbed, bleeding and semi-conscious. The officers asked the first defendant where the knife was and he indicated his school bag. In it the officers found a large kitchen knife. It looked as though it had been recently cleaned. The officers arrested the first defendant. His mother was taken to hospital and on the way told ambulance officers that the first defendant had stabbed her and her…

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.

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Details

Case: [2008] NSWSC 909
Decision Date: 5 September 2008

CaseChat Overview and Summary

The matter before the court involved a decision by a magistrate regarding a forensic procedure proposed by the police. The applicant, Mr Alessi, sought a review of the magistrate's decision to authorise the police to conduct a forensic procedure on him. The dispute centred around whether the magistrate correctly applied the legal test for determining if reasonable grounds existed to believe the procedure might produce evidence relevant to the offence. Mr Alessi contested the correctness of the magistrate's application of the test and the adequacy of the reasons provided for the decision.

The legal issues before the court were whether the magistrate correctly applied the test for authorising a forensic procedure, and if the reasons given for the decision were sufficient. The court examined the statutory framework and relevant case law to assess whether the magistrate appropriately determined the existence of reasonable grounds and whether the reasons provided were adequate. The court had to consider whether the magistrate's decision was legally sound and whether the applicant's rights under the relevant legislation were respected.

The court found that the magistrate did not correctly apply the test for authorising the forensic procedure. It was determined that the magistrate failed to properly assess the specific information provided by the police and did not adequately address the applicant's arguments. The reasons provided by the magistrate were deemed insufficient, as they did not clearly articulate the basis for the decision. Consequently, the court quashed the magistrate's decision and remitted the matter for reconsideration. The court emphasised the importance of the magistrate correctly applying the legal test and providing clear, detailed reasons for their decision.

Orders