Dogan v Quayle - [2011] NSWSC 143

Supreme Court

New South Wales

Medium Neutral Citation: Dogan v Quayle [2011] NSWSC 143
Hearing dates: 25 February 2011
Decision date: 11 March 2011
Before: Harrison J
Decision:
No order

Catchwords: CRIMINAL LAW - criminal procedure - appeal - application by defendant under s 55(2)(b) of the Crimes (Appeal and Review) Act 2001 seeking variation of magistrate's order requiring suspect to attend police station to be photographed - no notice of application to vary order given to suspect - application refused
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Crimes (Local Courts Appeal and Review) Act 2001
Cases Cited: Mullins v Lillyman [2007] NSWSC 407
Category: Procedural and other rulings
Parties: Edward Dogan (Plaintiff)
Deanne Quayle (Defendant)
Representation: Solicitors:
I V Knight, Crown Solicitor

File Number(s): 2010/386124

Judgment

HIS HONOUR : On 18 November 2010 Magistrate McIntyre made an order pursuant to s 24 of the Crimes (Forensic Procedures) Act 2000 . That section is as follows:

" 24 Final order for carrying out forensic procedure

(1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities:

(a) that the circumstances referred to in subsection (2) or (3) exist, and

(b) that the carrying out of such a procedure is justified in all the circumstances.

(2) In the case of an intimate forensic procedure:

(a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and

(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).

(3) In the case of a non-intimate forensic procedure:

(a) there must be reasonable grounds to believe that the suspect has committed an offence, and

(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).

(4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following:

(a) the gravity of the alleged offence,

(b) the seriousness of the circumstances in which the offence is alleged to have been committed,

(c) the degree to which the suspect is alleged to have participated in the commission of the offence,

(d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known,

(e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person,

(f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive,

(g) such reasons as the suspect…

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 Dogan v Quayle

Details

AGLC: Dogan v Quayle [2011] NSWSC 143
Case: [2011] NSWSC 143
Decision Date: 11 March 2011

CaseChat Overview and Summary

The case of Dogan v Quayle involved the defendant, Dogan, appealing against a magistrate's order that required him to attend a police station to be photographed. The nature of the dispute was a challenge to the procedural fairness of the order and its compliance with the legislative requirements under the Crimes (Appeal and Review) Act 2001. The matter was heard in the relevant appellate court, which examined the procedural steps taken by the magistrate and the subsequent application by Dogan to vary the order.

The legal issues before the court centred on the application of section 55(2)(b) of the Act, which governs the circumstances under which a defendant may apply for a variation of a magistrate's order. A critical issue was whether the defendant's application was made in accordance with the statutory requirements, particularly whether the suspect had been given notice of the application to vary the order. The court was tasked with determining whether the magistrate's order was valid and if the application process was properly followed.

The court examined the statutory provisions and found that the application by Dogan did not comply with the requirement to give notice to the suspect, as mandated by the Act. The court held that without proper notice, the application was invalid, and thus, the magistrate's order stood. The court emphasised the importance of adhering to statutory procedures to ensure that the rights of the suspect are protected. Consequently, the application to vary the order was refused.

In summary, the court upheld the magistrate's order, finding that the defendant's application to vary it was invalid due to the lack of notice to the suspect. The court's decision underscores the necessity of strict compliance with statutory requirements in criminal procedure to maintain procedural fairness.

Orders