L v Lyons; B and S v Lyons - [2002] NSWSC 1199

Reported Decision:
(2002) 56 NSWLR 600
137 A Crim R 93

New South Wales

Supreme Court

CITATION: L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199

FILE NUMBER(S): SC 10625/02; 10640/02

HEARING DATE(S): 20 November 2002

JUDGMENT DATE: 13 December 2002

PARTIES :

L v Lyons & anor.
B and S v Lyons & anor.

JUDGMENT OF: Sully J at 1

LOWER COURT
JURISDICTION :

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : C. M. Haskett - Children's Court Magistrate

COUNSEL : H. Cox - Plaintiffs B and S
A. Cook - Plaintiff J
P. Singleton - 1st Defendant

SOLICITORS: Christine Bourke - Plaintiffs B and S
Robertson Saxton Primrose Dunn - Plaintiff J
Michael North Holmes - 1st Defendant
I. V. Knight, Crown Solicitor - 2nd Defendant submitting

LEGISLATION CITED: Justices Act 1902 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Evidence Act 1995 (NSW)

DECISION: In each of proceedings 10625/02 and 10640/02 the appeal is dismissed; the orders of the Local Court are confirmed; and the originating summons is dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

Friday 13 December 2002

10625/02 – L v LYONS & ANOR.
10640/02 – B and S v LYONS & ANOR.

JUDGMENT
INTRODUCTION

1 SULLY J: Before the Court are two sets of proceedings, each commenced by Summons. The two sets of proceedings are, in substance, appeals to this Court pursuant to Part 5 of the Justices Act 1902 (NSW), (“the Justices Act”). In the proceedings numbered 10625/02 there is one plaintiff. In the proceedings numbered 10640/02 there are two co-plaintiffs. Each of the three plaintiffs was at all material times a young man aged less than 18 years. It is, therefore, appropriate to refer to each plaintiff by a pseudonym. To that end, orders have been made that the plaintiff in the proceedings numbered 10625/02 is to be referred to by the pseudonym:J; and that the two co-plaintiffs in the proceedings numbered 10640/02 are to be known, respectively, by the pseudonyms: B and S. Each plaintiff proceeds by way of a tutor; but it is both inappropriate and unnecessary to say anything apt to identify the respective tutors.

2 Each summons cites two defendants. In each case the first defendant is one Julie Lyons. Miss/Mrs Lyons was at all material times a constable of police. As such, she made the original application which issued, eventually, in the making against each of the present plaintiffs of a Local Court order against which each plaintiff now seeks to appeal. Constable Lyons appeared by counsel at the hearing of the present summonses, and contested the plaintiffs’ various claims to relief. The second defendant in each case is the Local Court Magistrate who made, at first instance, the orders against which the present appeals have been brought. Her Worship entered, prior to the hearing before this Court, an appearance submitting to the orders…

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 L v Lyons; B and S v Lyons

Details

AGLC: L v Lyons; B and S v Lyons [2002] NSWSC 1199
Case: [2002] NSWSC 1199
Decision Date: 13 December 2002

CaseChat Overview and Summary

In the Supreme Court of New South Wales, two appeals were brought by young plaintiffs, pseudonymously referred to as J, B, and S, against orders made by a Local Court Magistrate under the Crimes (Forensic Procedures) Act 2000 (NSW). The appeals were dismissed, and the orders of the Local Court were confirmed. The plaintiffs, suspected of involvement in a series of robberies, challenged the legality of orders made for the taking of their non-intimate photographs for inclusion in a photographic lineup.

The key legal issues revolved around whether the Local Court proceedings were governed by the Children (Criminal Proceedings) Act 1987 (NSW) and whether the Magistrate erred in admitting certain types of evidence. The court found that the proceedings under the Forensic Procedures Act were not criminal proceedings as defined by the Criminal Proceedings Act. Consequently, the stringent evidentiary rules applicable to criminal proceedings did not apply. The court also held that the Magistrate correctly admitted a composite body of evidence to establish the matters required by section 25 of the Forensic Procedures Act, including the admissibility of hearsay evidence for purposes other than proving the truth of the matter asserted.

Furthermore, the court ruled that the Magistrate did not err in law by admitting evidence of statements made by the plaintiffs to police, transcripts of police database entries, and contents of an electronically recorded interview. The court concluded that the Magistrate's decision to grant the application was justified in the circumstances, and her reasons, though not perfectly articulated, were sufficient to demonstrate compliance with the statutory requirements.

The final orders of the Supreme Court were to dismiss the appeals, confirm the orders of the Local Court, and dismiss the originating summonses with costs.

Orders