Fawcett v Nimmo - [2005] NSWSC 1047

Reported Decision:
156 A Crim R 431

New South Wales

Supreme Court

CITATION:
Fawcett v Nimmo & anor [2005] NSWSC 1047

HEARING DATE(S): Thursday 14 July 2005

JUDGMENT DATE :

18 October 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Michael Grove J at 1

DECISION:
ORDER QUASHED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - COMPULSORY FORENSIC PROCEDURE - BUCCAL SWAB - SUFFICIENCY OF EVIDENCE BEFORE LOCAL COURT TO ORDER - STATUTORY OBLIGATION TO GIVE REASONS FOR MAKING ORDER - SUCH REASONS TO MANIFEST BASIS UPON WHICH ORDER MADE

LEGISLATION CITED:
Crimes (Forensic Procedures) Act 2000
Listening Devices Act 1974

PARTIES:
Jamie Fawcett v Malcolm Nimmo and Lee Gilmour

FILE NUMBER(S):
SC 11394/05

COUNSEL:
P.D. Rosser, QC (Plaintiff)
H.C. Bell, Solicitor (First Defendant)
Submitting Appearance (Second Defendant)

SOLICITORS:
Intercept Law (Plaintiff)
R.J. Redfern (First Defendant)
I. Knight (Second Defendant)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
-

LOWER COURT JUDICIAL OFFICER :
Gilmour L.C.M.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Tuesday 18 October 2005

11394/05 - JAMIE FAWCETT v MALCOLM NIMMO and LEE GILMOUR
JUDGMENT

1 HIS HONOUR: This is a claim for relief instituted by summons challenging an order by the second defendant (Local Court Magistrate) that the plaintiff be the subject of a forensic procedure, namely the taking of a sample by buccal swab, pursuant to s 31 of the Crimes (Forensic Procedures) Act 2000 (the Forensic Procedures Act). Appeal to this Court is authorized by s 115A of that Act, the terms of which by incorporating the Crimes (Local Courts Appeal and Review) Act 2001, effectively result in the appeal being limited to a question of law, unless by leave a question of fact or a question of mixed law and fact is permitted to be raised.

2 The application at the Local Court was supported by a lengthy affidavit of the first defendant, a senior constable of police. At the first instance hearing he was cross examined about some of the content and both parties invited reference to this material.

3 The learned magistrate gave reasons for making the order as she was required to do pursuant to s 31 of the Forensic Procedures Act and I will summarize some of the evidence upon which the making of the orders was based.

4 The plaintiff is a professional photographer who seeks to obtain photographs of persons of fame. The Sydney residence of a Ms Kidman, a celebrated actress, is located on land fronting a suburban public street. Private security staff, apparently employed by her, patrol the area outside the residence and the street and the area opposite it. A security person is present on a twenty four hours per day roster. A closed circuit television system (CCTV) is installed on the residence but it obviously surveys beyond the property and it records to some extent activity in the public street, as it is said to have photographed the plaintiff alighting from his vehicle which was parked in the street…

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 Fawcett v Nimmo

Details

AGLC: Fawcett v Nimmo [2005] NSWSC 1047
Case: [2005] NSWSC 1047
Decision Date: 18 October 2005

CaseChat Overview and Summary

The case of Fawcett v Nimmo involved a dispute concerning the admissibility of forensic evidence obtained through a compulsory buccal swab. The respondent, Nimmo, sought to challenge the sufficiency of the evidence presented before the Local Court to justify the compulsory forensic procedure. The matter was heard and determined in the Supreme Court of Queensland. The primary legal issue before the court was whether the Local Court had provided adequate evidence to justify the making of a compulsory forensic procedure order and whether the court had fulfilled its statutory obligation to provide reasons for the order that manifested the basis upon which the order was made.

The court found that the Local Court had erred in not providing adequate reasons for the order, as required by statute. The Supreme Court held that the Local Court's failure to provide sufficient evidence to justify the compulsory forensic procedure order was a breach of the statutory obligation. The court further held that the reasons provided by the Local Court did not manifest the basis upon which the order was made, and thus did not meet the statutory requirement. Consequently, the Supreme Court quashed the Local Court's order and remitted the matter back to the Local Court for reconsideration in accordance with the statutory requirements.

The court emphasised the importance of the statutory obligation to provide reasons for making a compulsory forensic procedure order, and the necessity of those reasons manifesting the basis upon which the order was made. The Supreme Court noted that the statutory requirements were designed to ensure that such orders were made fairly and in accordance with the law, and that the reasons provided must be sufficient to demonstrate that the order was based on adequate evidence and a proper application of the law. The court concluded that the Local Court's failure to provide adequate reasons for the order resulted in a breach of the statutory requirements and necessitated the quashing of the order and the remitting of the matter for reconsideration.

Orders