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AP v Burrell

AP v Burrell

Case [2016] NSWSC 708 3 June 2016

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AP v Burrell [2016] NSWSC 708
Hearing dates: 31 May 2016
Decision date: 03 June 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the amended summons filed on 5 February 2016.

(2) Reserve costs.
(3) Direct that any party who wishes to apply for costs, provide to my Associate by email written submissions in support of any such application, together with an affidavit (if a lump sum costs order is sought) within seven days hereof.
Catchwords:
CRIMINAL LAW – procedure – appeal against forensic procedure order made in Local Court under Crimes (Forensic Procedures) Act (CFP Act) – historic sex offence matched to DNA of accused – accused has twin brother who he claims is identical and therefore has same DNA profile – whether plaintiff is a suspect within meaning of CFP Act – consideration of requirements of ss 24 and 26 of CFP Act – whether reasonable grounds to believe suspect has committed an offence – whether reasonable grounds to believe forensic procedure will produce evidence tending to confirm or disprove that the suspect committed an offence – potential for forensic procedure to either confirm suspect’s DNA matches profile of alleged offender or exculpate suspect – no error established in decision of Magistrate – summons dismissed
CRIMINAL LAW – second application for forensic procedure following refusal of first application – requirements for additional information
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53
Crimes (Forensic Procedures) Act 2000 (NSW), ss 3, 24, 26, 30, 31, 103, 115A
Evidence Act 1995 (NSW), s 135
Cases Cited: ACP v Munro [2012] NSWSC 1510; 227 A Crim R 317
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azar v DPP [2014] NSWSC 132
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bain v Police [2011] SASC 228
George v Rockett [1990] HCA 26; 170 CLR 104
KC v Sanger [2012] NSWSC 98
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Munro v ACP [2012] NSWSC 100
Orban v Bayliss [2004] NSWSC 428
Ruddock v Taylor [2005] HCA 48; 222 CLR 612
Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480
Category: Principal judgment
Parties: AP (Plaintiff)
Detective Senior Constable James Burrell (Defendant)
Representation:
Counsel:
G James QC/ D McMahon (Plaintiff)
J Davidson (Defendant)
Solicitors:
CDM Lawyers (Plaintiff)
Crown Solicitor for New South Wales (Defendant)

File Number(s): 2015/374517
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

17 December 2015

Before:

Skinner LCM

File Number(s):

2015/183657

Judgment

Introduction

By amended summons filed on 5 February 2016, AP, the plaintiff, appeals against an order made by Skinner LCM that he be required to submit to a buccal swab for the purpose of collecting a sample of his DNA. Detective Senior Constable James Burrell, the defendant, is the investigating…

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 AP v Burrell

Details

AGLC: AP v Burrell [2016] NSWSC 708
Case: [2016] NSWSC 708
Decision Date: 03 June 2016

CaseChat Overview and Summary

The appellant, AP, appealed against the Local Court's decision to refuse his application for a forensic procedure order under the Crimes (Forensic Procedures) Act. The applicant sought to have his DNA profile compared with that of an alleged offender in connection with a historic sexual offence. The appellant claimed that his identical twin brother could be the actual offender, and the forensic procedure would either confirm the match or exculpate him. The respondent, Burrell, opposed the application on the basis that the appellant had not provided sufficient evidence to support his claim. The Local Court dismissed the application, finding that the appellant had not demonstrated a reasonable prospect of the forensic procedure producing evidence tending to confirm or disprove that the suspect committed the offence.
The legal issues before the court were whether the appellant was a suspect within the meaning of the CFP Act and whether there were reasonable grounds to believe that the forensic procedure would produce evidence tending to confirm or disprove that the appellant had committed the offence. The court considered the requirements of sections 24 and 26 of the CFP Act and whether the appellant had satisfied the criteria for an additional information order. The court found that the appellant had not established any error in the decision of the Magistrate and dismissed the summons.

The court found that the appellant had not demonstrated that he was a suspect within the meaning of the CFP Act. The court noted that the appellant's claim that his twin brother could be the actual offender did not necessarily mean that the appellant was not a suspect. The court also found that the appellant had not provided sufficient evidence to establish that there were reasonable grounds to believe that the forensic procedure would produce evidence tending to confirm or disprove that the appellant had committed the offence. The court noted that the appellant's claim was speculative and that the potential for the forensic procedure to either confirm the match or exculpate the appellant did not necessarily mean that there were reasonable grounds to believe that the procedure would produce evidence tending to confirm or disprove that the appellant had committed the offence. The court found that the appellant had not satisfied the criteria for an additional information order, and the summons was dismissed.
The court dismissed the summons, finding that the appellant had not demonstrated that he was a suspect within the meaning of the CFP Act or that there were reasonable grounds to believe that the forensic procedure would produce evidence tending to confirm or disprove that the appellant had committed the offence. The court also found that the appellant had not satisfied the criteria for an additional information order. The court noted that the appellant's claim was speculative and that the potential for the forensic procedure to either confirm the match or exculpate the appellant did not necessarily mean that there were reasonable grounds to believe that the procedure would produce evidence tending to confirm or disprove that the appellant had committed the offence. The court found no error in the decision of the Magistrate and dismissed the summons.

Orders