Mullins v Lillyman - [2007] NSWSC 407

Reported Decision:
70 NSWLR 26
169 A Crim R 571

New South Wales

Supreme Court

CITATION: Mullins v Lillyman [2007] NSWSC 407

HEARING DATE(S): 09/03/07, 20/04/07

JUDGMENT DATE :
2 May 2007

JUDGMENT OF: Buddin J

DECISION: 1 Declare that the Magistrate erred in law in making an order requiring the plaintiff to “attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm”. 2 Order that that part of the order made by the Magistrate requiring the plaintiff to “attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm” be set aside. 3 Otherwise confirm the order made by the Magistrate which is referred to in paragraph 3 of these reasons. That order is to take place within 28 (twenty-eight) days of today’s date. 4 Order that the first defendant pay the plaintiff’s costs.

CATCHWORDS: Review of Magistrate's decision - order that the plaintiff attend scene of crime to undertake forensic procedure - definition of non-intimate forensic procedure - scope of expression "the taking of a photograph of a part of the body" - purpose of legislation

LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000
Crimes (Local Courts Appeal and Review Act) 2001

CASES CITED: Coco v The Queen (1994) 179 CLR 427
Maguire v Beaton (2005) 162 A Crim R 22
Orban v Bayliss [2004] NSWSC 428
R V G [2005] NSWCCA 291
R v Janceski (2005) 64 NSWLR 10
R v Kane (2004) 144 A Crim R 496
The Queen v Ireland (1971-2) 126 CLR 321
Walker v Budgen (2005) 155 A Crim R 416

PARTIES: Chance Ryan Mullins (Plaintiff)
David Lillyman (Defendant)

FILE NUMBER(S): SC 2006/14815

COUNSEL: G Jauncey (Plaintiff)
P Biggins (Defendant)

SOLICITORS: Heenan & Company (Plaintiff)
IV Knight (Crown Solicitor)

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : S Freund

LOWER COURT DATE OF DECISION: 25/09/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 2 MAY 2007

14815/2006 – CHANCE RYAN MULLINS v DAVID LILLYMAN

JUDGMENT
Introduction

1 His Honour: By further amended summons the plaintiff seeks an order setting aside a decision of the Local Court requiring him to “attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm”.

2 It is contended that the Magistrate erred in law in concluding that that procedure was authorised by the Crimes (Forensic Procedures) Act 2000 (the Act).

3 In addition to the order which is the subject of the appeal, the Magistrate also ordered the plaintiff to attend at the Sydney Police Centre “by mutual agreement with Constable Lillyman within 28 days for the purpose of taking groups…

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 Mullins v Lillyman

Details

AGLC: Mullins v Lillyman [2007] NSWSC 407
Case: [2007] NSWSC 407
Decision Date: 2 May 2007

CaseChat Overview and Summary

In Mullins v Lillyman, the plaintiff sought judicial review of a magistrate's decision to order her to attend the scene of a crime to undertake a forensic procedure. The defendant, Lillyman, was charged with sexual offences, and the court had ordered the plaintiff to attend for a non-intimate forensic procedure. The plaintiff argued that the order was beyond the scope of the legislation and that it was unreasonable and oppressive to require her to attend the scene of the crime for the purpose of the procedure. The case was heard in the Federal Court of Australia.

The legal issues the court was required to decide included the definition of a non-intimate forensic procedure, the scope of the expression "the taking of a photograph of a part of the body," and the purpose of the legislation. The court needed to determine whether the order was within the scope of the legislation and whether it was unreasonable and oppressive to require the plaintiff to attend the scene of the crime for the purpose of the procedure.

The court held that the order was within the scope of the legislation and that the expression "the taking of a photograph of a part of the body" was broad enough to include photographs of the genital area. The court found that the purpose of the legislation was to ensure that victims of sexual offences were not required to attend court to give evidence in person, and that the order was not unreasonable or oppressive. The court dismissed the plaintiff's application for judicial review.

The court did not make any orders as the plaintiff's application for judicial review was dismissed.

Orders