Jawansher v Johnson LCM - [2004] NSWSC 872

CITATION: Jawansher v Johnson LCM [2004] NSWSC 872

HEARING DATE(S): 13 September 2004

JUDGMENT DATE:
23 September 2004

JUDGMENT OF: Barr J at 1

DECISION: Summons dismissed. Plaintiff to pay the defendants costs.

PARTIES :
Ahmad JAWANSHER v Johnson LCM & Anor

FILE NUMBER(S): SC 12413/04

COUNSEL: Plaintiff: G Brady
Defendant 2: P Singleton

SOLICITORS: Plaintiff: Nyman Gibson Stewart
Defendant 2: M.N. Holmes

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

23 September 2004

12413/04 Ahmad JAWANSHER v JOHNSON LCM & Anor

JUDGMENT

1 HIS HONOUR: In his summons filed on 30 July 2004 the plaintiff seeks the following orders -

1. A Declaration that the First Defendant erred in law in making an order providing for the taking of non-intimate photographs of the Plaintiff pursuant to Section 24 of the Crimes (Forensic Procedures) Act.

2. An order setting aside the order of the First Defendant providing for the taking of non-intimate photographs of the Plaintiff pursuant to section 24 of the Crimes (Forensic Procedures) Act.

3. A declaration that insufficient evidence exists to allow for the making of an order pursuant to Section 24 of the Crimes (Forensic Procedures) Act against the Plaintiff.

4. I the alternative to paragraph 3, an order remitting the matter First Defendant for redetermination according to law.

5. An order that the Second Defendant pay the Plaintiffs costs.

2 The second defendant, a police officer, applied to the first defendant, a Local Court magistrate (“the magistrate”), under s 24 Crimes (Forensic Procedures) Act 2000 (“the Act”) for an order for the taking of non-intimate photographs of the plaintiff. The magistrate made the order and the plaintiff says that in doing so he erred in law.

3 As they apply to this case ss 22-25 of the Act are as follows -

A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised justice under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.

An order may be made by a Magistrate under section 24, or by an authorised justice under section 32, for the carrying out of a forensic procedure on a suspect if:

(a) the suspect is not under arrest and has not consented to the forensic procedure, or

(b) the suspect is under arrest and has not consented to the forensic procedure, or

(c) under section 8, the suspect cannot consent to the forensic procedure.

A Magistrate may order the carrying out of a forensic procedure on a suspect if:

(a) section 23 applies, and

(b) the Magistrate is satisfied as required by section 25.

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 Jawansher v Johnson LCM

Details

AGLC: Jawansher v Johnson LCM [2004] NSWSC 872
Case: [2004] NSWSC 872
Decision Date: 23 September 2004

CaseChat Overview and Summary

In the case of Jawansher v Johnson LCM, the plaintiff, Ahmad Jawansher, sought to challenge an order made by a Local Court magistrate for the taking of non-intimate photographs under Section 24 of the Crimes (Forensic Procedures) Act. The plaintiff argued that the magistrate erred in law by making the order and that there was insufficient evidence to support the order. The defendants were Johnson LCM, the magistrate, and another police officer who had applied for the order. The court had to decide whether the magistrate's decision to order the photographs was legally sound and if there was adequate evidence to support the order.

The legal issues centred on whether the magistrate correctly applied the law in making the order and if the evidence presented was sufficient to justify the order. The plaintiff contended that the magistrate failed to properly weigh the identification evidence, did not consider differences between the plaintiff and the description of the offender, and did not adequately consider whether the composite image depicted the plaintiff. The court had to examine if the magistrate's reasoning demonstrated a misdirection in law or if he failed to consider relevant evidence.

Barr J found that the magistrate had considered the evidence and made findings that were supported by it. The court held that the magistrate correctly distinguished between determining the admissibility of evidence and deciding if there were reasonable grounds to believe the plaintiff committed an offence. The court further held that it was not for the Supreme Court to reassess the quality of the evidence or the magistrate's evaluation of it, as long as there was some evidence to support the magistrate's conclusions. Since the magistrate had evidence before him to justify his order, the plaintiff's appeal failed on all grounds.

The court dismissed the summons and ordered the plaintiff to pay the defendants' costs.

Orders