Kindermann v JQ - [2020] NSWSC 1268

Supreme Court

New South Wales

Medium Neutral Citation: Kindermann v JQ [2020] NSWSC 1268
Hearing dates: 16 July 2020
Date of orders: 16 July 2020
Decision date: 17 September 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The Court grants leave to appeal the interlocutory decision pursuant to s 57(2) of the Crimes (Appeal and Review Act) 2001 (NSW);
(2) The appeal made pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) be upheld;
(3)   The order made by Magistrate Clisdell on 27 April 2020 setting aside the Interim Forensic Procedure Order of the Registrar made on 25 April 2020 in respect of the first defendant be set aside;
(4)   The order of Magistrate Clisdell to destroy any forensic swab obtained as a result of performing the Interim Forensic Procedure Order be set aside;
(5)   The matter be remitted to the Children’s Court for determination according to law before the court differently constituted;
(6)   No order as to costs.

Catchwords:
CRIMINAL PROCEDURE – Forensic Procedure – Interim order on minor – permitted without hearing
LOCAL COURT – jurisdiction – mistake as to jurisdiction to order interim forensic procedure on child without hearing from the person.

Legislation Cited:
Crimes (Appeal and Review Act) 2001 (NSW), s 57(2)
Crimes (Forensic Procedures) Act 2000 (NSW), ss 3(1), 17, 23, 24, 30, 31, 32, 33, 34, 37, 38, 115A, Pt 4, Pt 5
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Supreme Court Act 1970 (NSW), s 69

Cases Cited:
JW v Detective Sergeant Karol Blackley (2007) 172 A Crim R 483; [2007] NSWSC 799
Plassas v Person [2016] NSWSC 1445
Sullivan v Department Of Transport (1978) 20 ALR 323; [1978] FCA 48

Category: Principal judgment
Parties: Detective Sergeant Peter Kindermann (Plaintiff)
JQ (First Defendant)
Children’s Court of New South Wales (Second Defendant)
Representation:
Counsel:
D New (Plaintiff)
K Stares (First Defendant)
Submitting appearance (Second Defendant)
Solicitors:
Office of the General Counsel, NSW Police Force (Plaintiff)
Legal Aid NSW (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s): 2020/142284
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), there is to be no publication of the name of the victim or first defendant, including a reference to any information, picture or other material that identifies the victim or first defendant or is likely to lead to the identification of the victim or first defendant.
Decision under appeal

Court or tribunal:

Queanbeyan Children’s Court

Jurisdiction:

Crime

Date of Decision:

27 April 2020

Before:

Clisdell LCM

File Number(s):

2020/123616

Judgment

HIS HONOUR: On 16 July 2020, the Court, as presently constituted, granted orders allowing the appeal against the interlocutory decision issued by the Local Court on 27 April 2020. The issue related to the order by a Magistrate, whose intention and purpose was commendable, but, in the context of the legislative scheme under which his Honour was operating, without jurisdiction.
The Amended Summons seeks an appeal…

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 Kindermann v JQ

Details

AGLC: Kindermann v JQ [2020] NSWSC 1268
Case: [2020] NSWSC 1268
Decision Date: 17 September 2020

CaseChat Overview and Summary

In the Local Court of New South Wales, the case of Kindermann v JQ revolved around the interim forensic procedure concerning a minor. The dispute involved a request for an interim order to allow a forensic examination of the child without a hearing. The court was required to determine if it had jurisdiction to issue such an order and whether the absence of a hearing from the person was permissible. The central legal issue was whether the court could lawfully order an interim forensic procedure on a child without conducting a hearing from the person, and if there was a jurisdictional error due to a mistaken belief about the court's authority.

The court examined whether the absence of a hearing was justified and whether there was an error in exercising jurisdiction. It considered the statutory provisions and the principles governing interim orders and forensic examinations of children. The court concluded that while there was a jurisdictional error due to a misunderstanding of the court's authority, the order itself was valid given the urgency and necessity of the situation. The court found that the interim forensic procedure could be permitted without a hearing in cases where the urgency justified it, and the child's welfare was at stake.

The decision highlighted the importance of jurisdictional awareness and the circumstances under which interim forensic procedures can be ordered without a hearing. The court affirmed that while there was an error in jurisdiction, the procedural fairness and the child's welfare were paramount. The outcome confirmed that such interim orders could be valid, provided the conditions of urgency and necessity were met. The court's final orders acknowledged the jurisdictional error but upheld the interim forensic procedure, emphasising the need for clear jurisdictional understanding in future proceedings.

Orders