Coffen v Goodhart - [2013] NSWSC 1018

Supreme Court

New South Wales

Medium Neutral Citation: Coffen v Goodhart [2013] NSWSC 1018
Hearing dates: 30/04/2012
Decision date: 31 July 2013
Before: Fullerton J
Decision:
1. The appeal is allowed.
2. The final order made on 1 December 2011 in the Central Local Court under s 24 of the Crimes (Forensic Procedures) Act 2000 be set aside.
3. The defendant to pay the plaintiff's costs.

Catchwords: APPEAL FROM LOCAL COURT - whether measurement of height qualifies as "non-intimate forensic procedure" as defined under s 3(1) of the Crimes (Forensic Procedures) Act 2000
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Criminal Procedure Act 1986
Cases Cited: ACP v Munro [2012] NSWSC 1510
Cunningham v Cunningham (No 2) [2012] NSWSC 954
Category: Principal judgment
Parties: Marco Francis Coffen (Plaintiff)
Detective Bradley Goodhart (Defendant)
Representation: Counsel:
A Francis (Plaintiff)
R Ranken (Defendant)
Solicitors:
Bannisters Lawyers (Plaintiff)
Crown Solicitor (Defendant)

File Number(s): 2011/394217
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2011-12-01 00:00:00

Before:

Barkell LCM

Judgment

HER HONOUR: The plaintiff appeals under Part 5 of the Crimes (Appeal and Review) Act 2001 against a final order that issued from the Central Local Court on 1 December 2011 under s 24(1) of the Crimes (Forensic Procedures) Act 2000 ("the Act") authorising the taking of a measurement of the plaintiff's height. The terms of the order expressly provide that the Magistrate was satisfied that measuring the plaintiff's height was a non-intimate forensic procedure under s 24(3) of the Act and that the grounds upon which she was satisfied that the order should be made were as set out in the application brought by the defendant police officer.

Both parties approached the appeal on the understanding that it was brought pursuant to s 115A of the Crimes (Forensic Procedure) Act. That section has the effect of conferring jurisdiction on this Court under s 52(1) of the Crimes (Appeal and Review) Act as if the order were a sentence imposed in the Local Court arising from an offence prosecuted under a Court Attendance Notice and dealt with under Part 2 of the Criminal Procedure Act 1986. Section 52(1) is limited to appeals as of right involving a question of law.

The plaintiff submitted that the Magistrate erred in law in holding that as a matter of statutory interpretation the measurement of the height of a suspect qualifies as a "non-intimate forensic procedure" as defined in s 3(1) of the Act. Counsel also submitted that the application failed to meet the mandatory requirements provided for in s 26(2) of the Act in that there was no evidence of one aspect of the definition of a non-intimate forensic procedure, a matter about which it was necessary that the Magistrate was satisfied before an order for the carrying out of a forensic procedure could lawfully issue.

Section 24 sets out the criteria that must be met before a Magistrate may order the carrying out of a forensic procedure:

(1) A Magistrate…

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 Coffen v Goodhart

Details

AGLC: Coffen v Goodhart [2013] NSWSC 1018
Case: [2013] NSWSC 1018
Decision Date: 31 July 2013

CaseChat Overview and Summary

The appeal by Coffen against Goodhart involved a dispute concerning the measurement of the appellant's height as part of a forensic procedure, which was performed without his consent. The case was heard in the Local Court of New South Wales, and Coffen sought to appeal the decision that upheld the legality of the procedure. The primary issue before the court was whether the measurement of height could be classified as a "non-intimate forensic procedure" under section 3(1) of the Crimes (Forensic Procedures) Act 2000, and consequently, whether it could be performed without explicit consent.

The court was required to interpret the term "non-intimate forensic procedure" as it appeared in the statute. The appellant argued that the measurement of height was not a procedure that could be categorised as non-intimate and, therefore, should have required his consent. The respondent, Goodhart, contended that the measurement of height was indeed a non-intimate procedure, thus falling under the exceptions in the Act that allowed such procedures to be performed without consent. The court needed to consider the legislative intent behind the Act and whether the measurement of height fit within the scope of a non-intimate procedure as envisioned by the legislature.

In delivering the judgment, the court examined the statutory language and the context in which it was used. The court held that the term "non-intimate forensic procedure" was intended to encompass procedures that were minimally invasive and not inherently personal in nature. The court found that the measurement of height did not involve any form of intrusion or breach of personal dignity, and therefore, it qualified as a non-intimate procedure. Consequently, the court dismissed the appeal, confirming the validity of the Local Court's decision. As a result, the appeal was unsuccessful, and the original decision was upheld.

Orders