Kable v Director of Public Prosecutions for NSW

The case of *Kable v Director of Public Prosecutions for NSW* concerned an application by Kable for a stay of proceedings and an order that certain provisions of the *Crimes (Forensic Procedures) Act 1998* (NSW) were invalid. The Director of Public Prosecutions for NSW was the respondent. The application was heard by McHugh J in chambers.

The central legal issue before the Court was whether the *Crimes (Forensic Procedures) Act 1998* (NSW), specifically sections 13 and 14, were invalid by reason of their inconsistency with Chapter III of the Australian Constitution. These sections empowered the Director of Public Prosecutions to apply to a judge for an order for a forensic procedure to be conducted on a person convicted of a serious indictable offence, even if that person had not been convicted of the offence for which the forensic procedure was sought. The applicant argued that these provisions purported to confer judicial power on the DPP, or alternatively, that they required courts to exercise non-judicial power, thereby infringing the separation of judicial power inherent in the Constitution.

McHugh J reasoned that the power to order a forensic procedure under the impugned sections was not a power that could be exercised by the executive or legislative branches of government, but rather was a power that belonged to the judicial branch. He found that the legislation did not confer judicial power on the DPP, but rather required a judge to exercise a power that was not a function of the courts as established under Chapter III of the Constitution. His Honour concluded that the provisions were invalid because they required courts to exercise a power that was not judicial in nature, thereby contravening the constitutional separation of powers.

The application for a stay of proceedings was granted, and the Court declared sections 13 and 14 of the *Crimes (Forensic Procedures) Act 1998* (NSW) to be invalid.