JW v Detective Sergeant Karol Blackley & Anor - [2007] NSWSC 799

Reported Decision:
172 A Crim R 483

New South Wales

Supreme Court

CITATION: JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 July 2007

JUDGMENT DATE :
24 July 2007

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: Summons dismissed with costs.

CATCHWORDS: CRIMINAL LAW – interim order for forensic procedures – plaintiff patient in psychiatric unit – patient in psychiatric unit reports assault and rape by plaintiff – plaintiff incapable person by reason of psychiatric condition – plaintiff unable to consent to forensic procedures – purposes of forensic procedures – purposes of interim orders – statutory limit on use to be made of material obtained from forensic procedures carried out after interim order – no requirement that order specify time, place, or impose time limit on carrying out of forensic procedures – absence of interview friend or legal representative – premature application to Supreme Court

LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000
Supreme Court Act 1970

CASES CITED: Kerr v Commissioner of Police (NSW) [2001] NSWSC 637
Orban v Bayliss [2004] NSWSC 428

PARTIES: JW (Plaintiff)
Detective Sergeant Karol Blackley (First Defendant)
His Honour Magistrate John Favretto (Second Defendant)

FILE NUMBER(S): SC 11708 of 2007

COUNSEL: C Loukas (Plaintiff)
P Saidi (First Defendant)
Submitting appearance (Second Defendant)

SOLICITORS: Legal Aid Commission (Plaintiff)
I V Knight Crown Solicitor (First Defendant)
I V Knight Crown Solicitor (Second Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Favretto

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

Simpson J

24 July 2007

11708/07 JW v Detective Sergeant Karol Blackley & Anor
JUDGMENT

1 HER HONOUR: By summons filed on 3 April 2007 the plaintiff, to whom I will refer as JW, seeks the following orders:

“1. An order restraining the first defendant [Detective Sergeant Karol Blackley] from testing or subjecting to any form of scientific examination all forensic samples obtained from the plaintiff on 23 December 2006.

2. An order restraining the second defendant from further entertaining the application by the first defendant for an order under s 32(4) Crimes (Forensic Procedures) Act 2000 to confirm the interim order.

3. A declaration that the interim order under s 32 Crimes (Forensic Procedures) Act 2000 made by Ross Lawton on 23 December 2006 in relation to the plaintiff is contrary to Law and void.

4. An order that the forensic samples obtained by or on behalf of the first defendant from the plaintiff on 23 December 2006 be destroyed.

5. Costs.

“1. The purported interim order of 23 December 2006 is void and a nullity in that it failed to specify a time or place for the carrying out of the forensic procedure.

2. The purported interim order of 23 December…

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: [2007] NSWSC 799
Decision Date: 24 July 2007

CaseChat Overview and Summary

The case of JW v Detective Sergeant Karol Blackley & Anor involved the plaintiff, JW, who was a patient in a psychiatric unit, and the defendants, Detective Sergeant Karol Blackley and another party. JW reported an assault and rape, leading to an interim order for forensic procedures. The plaintiff was deemed incapable of consenting due to their psychiatric condition. The court had to decide on the legal issues surrounding the interim order for forensic procedures, considering the purposes of such procedures, the statutory limits on the use of material obtained, and whether the absence of an interview with a friend or legal representative was an issue.

The court addressed the legal issues by examining the statutory framework governing forensic procedures and the capacity of the plaintiff to consent. The court considered the purposes for which the forensic procedures were ordered, which included obtaining material for use in proceedings related to the reported offence. It was determined that the statutory limit on the use of material obtained from the procedures did not require the order to specify a time or place, nor did it impose a time limit on carrying out the procedures. The court also found that the absence of an interview with a friend or legal representative did not render the application premature.

The court concluded that the interim order for forensic procedures was valid under the circumstances presented. The order did not need to specify a time, place, or impose a time limit for the procedures to be carried out. The absence of an interview with a friend or legal representative did not affect the legitimacy of the application. The court ruled in favor of the defendants, upholding the interim order for forensic procedures.

Orders