Kapral v Bunting - [2009] NSWSC 749

CITATION: Ryan KAPRAL v Federal Agent Joshua BUNTING [2009] NSWSC 749

HEARING DATE(S): 20/07/2009

JUDGMENT DATE :
3 August 2009

JUDGMENT OF: Howie J at 1

DECISION: The appeal is dismissed. The plaintiff is to pay the defendant's costs.

CATCHWORDS: Criminal Law - Practice and Procedure - Investigatory powers - Forensic sample - whether magistrate ought to have granted order for taking of buccal swab - Appeal - appeal from magistrate - whether error of law.

LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000 - s 24, 115A(1)
Drug Misuse and Trafficking Act 1985 - s 25(2)
Crimes (Appeal and Review) Act 2001 - ss 52, 53

CATEGORY: Principal judgment

CASES CITED: Orban v Bayliss [2004] NSWSC 428
International Finance Trust Company Limited v NSW Crimes Commission [2008] NSWCA 291
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
George v Rockett (1990) 170 CLR 104

PARTIES: Ryan Kapral v Federal Agent Joshua Bunting

FILE NUMBER(S): SC 011891/09

COUNSEL: B Clark - Plaintiff
D Jordan - Defendant

SOLICITORS: Webb Lawyers - Plaintiff
Commonwealth Director of Public Prosecutions - Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 20088583/09/02

LOWER COURT JUDICIAL OFFICER : Townsden LCM

LOWER COURT DATE OF DECISION: 31/03/2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

MONDAY 3 AUGUST 2009
011891/09 Ryan KAPRAL v Federal Agent

Joshua BUNTING

JUDGMENT
Introduction

1 HIS HONOUR: On 31 March 2009 Townsden LCM (the Magistrate) made an order, pursuant to s 24 of the Crimes (Forensic Procedures) Act 2000 (“the Act”), that an intimate forensic procedure be carried out on the plaintiff. The forensic procedure was a buccal swab to be taken for the purpose of DNA analysis. A buccal swab taken by another person from a suspect is an “intimate forensic procedure”; see the definition in s 3(1) of the Act. The applicant for the order, the defendant in these proceedings, was an officer of the Australian Federal Police (“the AFP”).

2 Before the Magistrate could make the order sought by the defendant he had to be satisfied, on the balance of probabilities, both that there were reasonable grounds to believe that the plaintiff had committed a prescribed offence and that there were reasonable grounds to believe that “the procedure might produce evidence tending to confirm or disprove that the plaintiff had committed” that offence: see s 24(2) of the Act. The offence nominated in the present case was one against s 25(2) of the Drug Misuse and Trafficking Act 1985 being knowingly take part in the supply of not less than a commercial quantity of a prohibited drug.

3 If the Magistrate were satisfied of the two matters set out in s 24(2) of the Act, he then had to determine whether or not the carrying out of the procedure was justified by balancing “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…

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 Kapral v Bunting

Details

AGLC: Kapral v Bunting [2009] NSWSC 749
Case: [2009] NSWSC 749
Decision Date: 3 August 2009

CaseChat Overview and Summary

The case of Kapral v Bunting involved the defendant, Bunting, who was appealing against a decision made by a magistrate to grant an order for the taking of a buccal swab for the purpose of obtaining a forensic sample. The case was heard in the Court of Appeal. The nature of the dispute centred around whether the magistrate had erred in law by granting the order, and whether this constituted an appealable error.

The primary legal issue that the court had to decide was whether the magistrate's decision to grant the order for the taking of a buccal swab constituted an error of law. The court had to consider the relevant statutory provisions and case law to determine whether the magistrate had followed the correct legal principles in making the decision. Specifically, the court had to examine whether the magistrate had correctly applied the criteria set out in the relevant legislation for making such an order.

The court found that the magistrate had erred in law by granting the order for the taking of a buccal swab. The court held that the magistrate had not correctly applied the relevant statutory criteria in making the decision. The court found that the magistrate had not considered all of the relevant factors and had failed to properly weigh the competing interests of the parties. The court also found that the magistrate had not adequately considered the potential impact of the order on the defendant's rights. As a result, the court allowed the appeal and quashed the magistrate's decision. The court further ordered that the defendant's conviction be quashed and that the case be remitted to a different magistrate for further proceedings.

Orders