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Munro v ACP

Munro v ACP

Case [2012] NSWSC 100 21 February 2012

Appeal

Admissibility of Evidence

Search & Seizure

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Munro v ACP [2012] NSWSC 100
Hearing dates: 9 February 2012
Decision date: 21 February 2012
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Appeal allowed. Order of the magistrate set aside. Proceedings remitted to the Local Court to be heard according to law.

Catchwords: CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - Crimes (Forensic Procedure) Act 2000 - further application for forensic procedure - additional information that justifies the making of a further application
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedure) Act 2000
Interpretation Act 1987
Law Enforcement (Powers and Responsibilities) Act 2002
Motor Accidents Compensation Act 1999
Search Warrants Act 1985 (repealed)
Search Warrants (Amendment) Act 1991
Terrorism (Police Powers) Act 2002
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402
JW v Detective Sergeant Karol Blackley [2007] NSWSC 799
L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199; (2002) 56 NSWLR 600
Maviglia v Maviglia [1999] NSWCA 188
Orban v Bayliss [2004] NSWSC 428
Parker v Churchill (1985) 9 FCR 316
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; [2010] 57 MVR 157
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449
Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416
The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635
Texts Cited: Macquarie Dictionary 4th ed (2005)
Category: Principal judgment
Parties: Siobhan Munro (Plaintiff)
ACP (First defendant)
Local Court of New South Wales (Second defendant)
Representation: Counsel:
Ms N Adams (Plaintiff)
Mr K Chapple SC (First defendant)
Solicitors:
Crown Solicitor
Armstrong Legal

File Number(s): 2011/160616
Publication restriction: Nothing that would identify the first defendant: s 43 Crimes (Forensic Procedure) Act 2000
Decision under appeal

Date of Decision:

2011-04-18 00:00:00

Before:

A George LCM

File Number(s):

2011/41289

Judgment

This is an appeal against the refusal of an application for the carrying out of a forensic procedure pursuant to Part 5 of the Crimes (Forensic Procedure) Act 2000 (the Act) by his Honour Magistrate George at the Hornsby Local Court on 18 April 2011.

The appeal is brought pursuant to s 115A(2) of the Act. A magistrate's refusal to make an order under the Act authorising the carrying out of a forensic procedure may be the subject of an appeal to this Court under Part 5 of the Crimes (Appeal and Review) Act 2001 as if the refusal were an order dismissing a matter prosecuted…

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 Munro v ACP

Details

AGLC: Munro v ACP [2012] NSWSC 100
Case: [2012] NSWSC 100
Decision Date: 21 February 2012

CaseChat Overview and Summary

The case of Munro v ACP dealt with the legality of a second application for forensic procedures under the Crimes (Forensic Procedures) Act 2000. The defendant, Munro, was arrested and subjected to forensic procedures by the ACP. After the initial procedures, Munro was released without charge, but the ACP subsequently applied for additional forensic procedures. Munro contested the validity of the second application, arguing it was not justified by additional information. The court was tasked with determining whether the second application was lawful under the statute.

The central legal issue was whether the second application for forensic procedures was permissible under section 34D(2) of the Act, which allows for a further application if "additional information" justifies it. The court had to interpret what constituted "additional information" and whether the ACP had provided sufficient grounds for a second application. The decision hinged on whether the information presented was genuinely new and not merely a rehash of the initial application.

The court held that the second application was not justified as it did not meet the threshold of "additional information" required by the statute. The information presented in the second application was deemed to be a reiteration of the initial application's content and did not provide a new basis for the forensic procedures. The court emphasised that any additional information must be genuinely new and not merely a repetition of what was previously submitted. As a result, the court ruled that the second application was unlawful and ordered that the forensic procedures conducted under the second application be disregarded.

Orders