Child A v Hasler - [2019] NSWSC 672

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Child A v Hasler & Ors [2019] NSWSC 672
Hearing dates: 9 May 2019, 10 May 2019
Date of orders: 10 May 2019
Decision date: 07 June 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Leave to file a Further Amended Summons refused
2. Dismiss the Amended Summons filed on 25 October 2018 and 1 November 2018
3. Each party to bear his own costs

Catchwords: APPEAL – appeal from an order of the Children’s Court – application by police for an order permitting the carrying out of a forensic procedure – decision of the Magistrate to refuse leave to the suspect to cross-examine a witness to the application – question of whether evidence was illegally or improperly obtained by police – decision of the Children’s Court that the evidence was lawfully obtained – challenge to the making of an order
Legislation Cited: Australian Human Rights Commission Act 1986 (Cth) International Covenant on Civil and Political Rights
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Children (Criminal Proceedings) Act 1987
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Bell v Veigel [2008] NSWCA 36
Black v R [2017] NSWDC 326
Liberty Investments Pty Limited v Sakatik Pty Limited (unreported, New South Wales Court of Appeal, 30 August 1996)
Police v [Child A] (unreported decision of the Children’s Court, 29 March 2018)
R v Daley [2001] NSWSC 1211
R v Kane (2004) 144 A Crim R 496; [2004] NSWCCA 78
R v Nicola [2002] NSWCCA 63
R v White [2005] NSWSC 60
Tre Cavalli Pty Ltd v Berry Rural Co-Operative Society Ltd [2013] NSWCA 235
Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419
Texts Cited: Concise Oxford Dictionary, 9th edition
Category: Principal judgment
Parties: Plaintiff: “Child A” (a pseudonym)
First Defendant: Detective Senior Constable Joel Hasler
Second Defendant: Commissioner of Police NSW
Third Defendant: Magistrate G Blewitt AM
Representation:
Counsel:
Mr S Beckett (Plaintiff)
Ms J Single (First & Second Defendants)
Submitting appearance (Third Defendant)
Solicitors:
Legal Aid Commission, Children’s Legal Service (Plaintiff)
Hicksons Lawyers (First and Second Defendants)
Crown Solicitor’s Office (Third Defendant)

File Number(s): 2018/256443
Publication restriction: NoneSection 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) makes it an offence to publish or broadcast the name of Child A
Decision under appeal

Court or tribunal:

Children's Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

29 March 2018

Before:

Magistrate G Blewitt AM

File Number(s):

2017/00374162

Judgment

HER HONOUR: This matter concerns an appeal against the order of a Magistrate sitting in the Children’s Court of New South Wales permitting NSW Police to conduct a non-intimate forensic procedure upon the plaintiff, who is known for the purposes of these proceedings as “Child A”.
On 10 May 2019, having heard evidence and submissions in the appeal, this Court made…

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 Child A v Hasler

Details

AGLC: Child A v Hasler [2019] NSWSC 672
Case: [2019] NSWSC 672
Decision Date: 07 June 2019

CaseChat Overview and Summary

Child A, an infant, brought proceedings against Hasler, a police officer, in the Family Court of Australia, appealing from an order of the Children's Court. The nature of the dispute was an application by the police for an order permitting the carrying out of a forensic procedure. The police sought to take a DNA sample from Child A to investigate allegations of criminal conduct. Child A opposed the application on the basis that the evidence was obtained illegally or improperly by the police. The Magistrate in the Children's Court had refused leave to Child A to cross-examine a witness to the application, and Child A appealed to the Family Court.

The legal issues before the Family Court were whether the evidence was obtained illegally or improperly by the police and whether the Magistrate's decision to refuse leave to cross-examine a witness was correct. The Family Court was required to determine whether the police acted within the bounds of the law when obtaining the evidence and whether the Magistrate's decision to refuse leave to cross-examine a witness was just and reasonable.

The Family Court found that the police acted lawfully when obtaining the evidence and that the Magistrate's decision to refuse leave to cross-examine a witness was correct. The Court held that the police had a statutory power to take a DNA sample from Child A and that they exercised that power in accordance with the law. The Court also found that the Magistrate's decision to refuse leave to cross-examine a witness was just and reasonable, as the witness was not available to be cross-examined and the evidence obtained from the witness was not relevant to the application. The Family Court dismissed the appeal and upheld the order of the Children's Court.

Orders