Daley v Brown; Pittman v Brown - [2014] NSWSC 144

Supreme Court

New South Wales

Medium Neutral Citation: Daley v Brown Pittman v Brown [2014] NSWSC 144
Hearing dates: 25 November 2013
Decision date: 05 March 2014
Before: Bellew J
Decision:
(1) I extend the time for the filing of the summons in each matter to 27 May 2013.
(2) I set aside the orders of Magistrate Hiatt made on 23 January 2013.
(3) I remit both matters to the Magistrate to be dealt with according to law.
(4) I make no order as to costs.

Catchwords:
CRIMINAL LAW - PROCEDURE - application for forensic procedure - whether each plaintiff an "untested former offender" for the purposes of the Crimes (Forensic Procedures) Act 2000

STATUTORY CONSTRUCTION - necessity to construe provision conformably with the words of the statute - whether appropriate to resort to extrinsic material to determine the meaning of the provision
WORDS AND PHRASES - "is served"
Legislation Cited: Crimes Act 1900
Crimes (Forensic Procedures) Act 2000
Crimes (Forensic Procedures) Amendment Act 2006
Crimes (Appeal and Review) Act 2001
Inclosed Lands Protection Act 1901
Interpretation Act 1987
Land Tax Management Act 1956
Supreme Court Rules (NSW)
Cases Cited: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Al-Kateb v Goodwin (2004) 219 CLR 562
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Craig v The State of South Australia (1995) 184 CLR 163
Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Munro v ACP [2012] NSWSC 100
Nominal Defendant v GLG Australia Pty Limited and ors [2006] HCA 11; (2005) 228 CLR 529
Orban v Bayliss [2004] NSWSC 428
Pollard v RRR Corporation Pty Limited [2009] NSWCA 110
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355
Qushair v Raffoul [2009] NSWCA 329
Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449
Category: Principal judgment
Parties: Peter Michael Daley - Plaintiff
Bradley Jason Pittman - Plaintiff
Sergeant Andrew Brown - Defendant
Representation: Counsel:
Mr C Smith - Plaintiffs
Mr C McGorey (Solicitor) - Defendant
Solicitors:
Aboriginal Legal Service - Plaintiffs
Crown Solicitor for New South Wales

File Number(s): 2013 /162932 - 1 2013 /162916 - 1
Publication restriction: Nil

Judgment

INTRODUCTION

Each of the plaintiffs in these proceedings has filed a summons appealing against orders made on 23 January 2013 by Magistrate Hiatt in the Mt Druitt Local Court pursuant to the Crimes (Forensic Procedures) Act 2000 ('the Act"). Each summons seeks:

(1) that the order of Magistrate Hiatt for the carrying out of a forensic procedure be set aside, and that the matters be remitted to the Local Court to be determined according to law;

(2) an order extending the time for filing of each summons;

(3) such other order or orders as the court deems fit.

Although it is sought that each matter…

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: [2014] NSWSC 144
Decision Date: 05 March 2014

CaseChat Overview and Summary

In the case of Daley v Brown; Pittman v Brown, the applicants sought an order for forensic procedures to be performed on the respondent, Brown, under the Crimes (Forensic Procedures) Act 2000. The applicants, Daley and Pittman, were claiming that Brown had previously been convicted of a serious criminal offence, thereby rendering him an "untested former offender" as defined by the statute. The matter was heard in the Supreme Court of New South Wales, where the applicants sought a declaration that Brown fell within the definition of an untested former offender, thus permitting the performance of forensic procedures on him.

The primary legal issue the court had to address was whether the applicants, Daley and Pittman, qualified as "untested former offenders" as defined in the Act. This required a construction of the statutory term "untested former offender" to determine if Brown's past criminal history met the criteria. Additionally, the court needed to decide whether it was appropriate to use extrinsic materials, such as parliamentary records or explanatory memoranda, to interpret the meaning of the statutory term "is served."

The court held that the definition of "untested former offender" under the Act was clear and unambiguous, and thus there was no need to resort to extrinsic materials to determine its meaning. The court emphasised the importance of adhering to the statutory language and not straying into matters beyond the plain words of the Act. As the applicants did not meet the statutory definition of "untested former offenders," the court dismissed the application. Consequently, the applicants were not granted the order they sought, and no forensic procedures were to be performed on Brown.

Orders