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KC v Sanger

KC v Sanger

Case [2012] NSWSC 98 21 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: KC v Sanger [2012] NSWSC 98
Hearing dates: 7 February 2012
Decision date: 21 February 2012
Before: R A Hulme J
Decision:
Appeal dismissed. Plaintiff to pay defendant's costs. Orders of the magistrate varied.

Catchwords: CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - Crimes (Forensic Procedure) Act 2000 s 24 - reasonable grounds to believe that the suspect has committed an offence - evidence tending to confirm or disprove that the suspect has committed the offence - evidence with potential to prove an element of the offence - APPEAL AND NEW TRIAL - Local Courts - appeal to Supreme Court - duty of magistrate to give reasons
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402
Fawcett v Nimmo [2005] NSWSC 1047; (2005) 156 A Crim R 431
FV v Zeitler [2007] NSWSC 333
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Jawansher v Johnson LCM [2004] NSWSC 872
L v Lyons; B and S Lyons [2002] NSWSC 1199; (2002) NSWLR 600
Orban v Bayliss [2004] NSWSC 428
R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449
Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416
Category: Principal judgment
Parties: KC (Plaintiff)
Snr Const Daniel Sanger (Defendant)
Representation: Counsel:
Mr P D Rosser QC (Plaintiff)
Ms N Adams (Crown Advocate for Defendant)
Solicitors:
Morelaw Solicitors and Barristers
Crown Solicitors

File Number(s): 2011/164497
Publication restriction: S 43 Crimes (Forensic Procedure) Act 2000
Decision under appeal

Date of Decision:

2011-05-12 00:00:00

Before:

McCosker LCM

File Number(s):

2011/100226

Judgment

This is an appeal against orders made by his Honour Magistrate McCosker in the Local Court at Forster on 12 May 2011 under s 24 of the Crimes (Forensic Procedures) Act 2000 (the Act). On the application of a police officer, the defendant in this Court, it was ordered that a forensic procedure (obtaining a buccal swab and a sample of hair) be carried out in respect of the two plaintiffs.

Section 43 of the Act prohibits the publication of the name of a suspect in respect of whom a forensic procedure is sought, or any information likely to enable the identification of that person. Accordingly the plaintiffs and others mentioned in references to the evidence will be identified by way of initials.

The appeal is brought pursuant to s 115A(1) of the Act which permits an appeal to this Court under Part 5 of the Crimes (Appeal and Review) Act 2001. Under that Part, an appeal is as of right on a ground…

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 KC v Sanger

Details

AGLC: KC v Sanger [2012] NSWSC 98
Case: [2012] NSWSC 98
Decision Date: 21 February 2012

CaseChat Overview and Summary

In this case, the appellant, KC, challenged the conviction and sentence imposed by the Local Court of New South Wales for assaulting a police officer. The appellant's argument was that the arresting officer did not have reasonable grounds to arrest him, and that the evidence obtained during the arrest was inadmissible as it was obtained without reasonable grounds. The Supreme Court of New South Wales heard the appeal and determined the matter. The primary issue for the court was whether the arresting officer had reasonable grounds to arrest the appellant for the offence of assaulting a police officer. The court examined the evidence presented at the trial and considered whether the officer had a reasonable suspicion that the appellant had committed the offence based on the evidence available to him at the time of the arrest. The court also considered whether the evidence obtained during the arrest was admissible as it was obtained without reasonable grounds.

The court found that the arresting officer did have reasonable grounds to arrest the appellant for assaulting a police officer. The court noted that the officer had observed the appellant running from a group of people who were attempting to detain him, and that the appellant had a bloodstain on his shirt. The court also found that the evidence obtained during the arrest, including the appellant's DNA, was admissible as it had the potential to prove an element of the offence. The court held that the arresting officer had acted reasonably in arresting the appellant based on the evidence available to him at the time. The court further found that the arresting officer had acted within his powers under the Crimes (Forensic Procedure) Act 2000 when he took the appellant's DNA sample. The court held that the arresting officer had reasonable grounds to believe that the appellant had committed an offence, and that the evidence obtained during the arrest was admissible as it had the potential to prove an element of the offence.

The appeal was dismissed, and the conviction and sentence imposed by the Local Court were upheld. The court found that the arresting officer had acted reasonably in arresting the appellant based on the evidence available to him at the time, and that the evidence obtained during the arrest was admissible. The court held that the magistrate had not erred in admitting the evidence, and that the conviction and sentence were therefore valid. The appellant's appeal was dismissed, and the conviction and sentence imposed by the Local Court were upheld. The court noted that the magistrate had a duty to give reasons for his decision, and that the reasons provided were sufficient to support the conviction and sentence. The court held that the magistrate had not erred in his decision, and that the appeal was therefore without merit.

Orders