Orban v Bayliss

Case [2004] NSWSC 428


CITATION: Orban v Bayliss [2004] NSWSC 428
HEARING DATE(S): 5 April 2004
JUDGMENT DATE:
31 May 2004
JUDGMENT OF: Simpson J
DECISION: (i) appeal allowed, order of magistrate set aside; (ii) matter remitted to the Local Court for re-determination in accordance with these reasons.
CATCHWORDS: appeal against decision of a Local Court magistrate - order to supply a buccal swab and hair sample to police - circumstances authorising forensic procedure - Crimes (Forensic Procedures) Act, s23, 24, 25 and others - plaintiff a suspect - reasonable grounds to believe that the plaintiff had committed a prescribed offence - reasonable grounds to believe that the forensic procedure might produce relevant evidence - is procedure justified in all the circumstances - nature of evidence required in application - questions involved in determination
LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000, s3, ss22 - 26, s115A
Crimes (Local Courts Appeal and Review) Act 2001, s52(1), s53(1), s55(2)(c)

PARTIES :

Steven Orban - Plaintiff
Brendan Bayliss - Defendant
FILE NUMBER(S): SC 10469/04
COUNSEL: Ms L McSpeddin - Plaintiff
Mr HC Bell (Sol) - Defendant
SOLICITORS: Jenny Bull - Plaintiff
Michael North Holmes - Defendant
LOWER COURTJURISDICTION: Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT
JUDICIAL OFFICER :
Betts LCM


      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      SIMPSON J

      Monday 31 May 2004

      10469/04 Steven ORBAN v Brendan BAYLISS

      JUDGMENT

1 HER HONOUR:


      the nature of the present proceedings

2 By summons filed on 20 February 2004 the plaintiff, Steven Orban, claimed an order in the following terms:

          “That the Defendant’s application dated 28 January, 2004 seeking an order for the carrying out of a forensic procedure upon the Plaintiff pursuant to s24 of the Crimes (Forensic Procedures) Act 2000 be dismissed.”

      Appended to the summons was a “statement of grounds”, which, in brief, alleged that a magistrate had, in a variety of ways, erred in law.

3 At the commencement of the hearing of the summons I was told that the proceedings were an appeal against the decision of a magistrate, on 9 February 2004, to make an order pursuant to s24 of the Crimes (Forensic Procedures) Act (hereinafter referred to as the “Forensic Procedures Act”) that the then defendant (the present plaintiff) supply a buccal swab and hair sample to police.

4 It was apparent that the relief sought in the summons as originally framed was inappropriate to an appeal against a decision of a judicial officer. Leave was granted to the plaintiff to amend the summons; the relief claimed by the amendment was then formulated as follows:

          “1 That the order of the learned magistrate herein made on 8 (sic) February 2004 be vacated;
          2 That the matter be remitted to the learned magistrate for redetermination according to law;
          3 That the learned magistrate consider the matters set out in s25(d), (e), (f) and (g) of the Crimes (Forensic Procedures) Act, 2002.”

5 S3 of the Forensic Procedures Act defines “forensic procedure” so as to include,

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Orban v Bayliss [2004] NSWSC 428
Case
[2004] NSWSC 428
Decision Date

CaseChat Overview and Summary

The plaintiff, Orban, appealed against a decision of a Local Court magistrate that authorised the collection of a buccal swab and hair sample. Orban was a suspect in an investigation and the police sought to collect these samples as part of the forensic procedure. Orban contested the order on the basis that there were no reasonable grounds to believe that he had committed a prescribed offence and that the forensic procedure would not produce relevant evidence. The court considered the statutory provisions under the Crimes (Forensic Procedures) Act that governed the authorisation of forensic procedures and assessed whether the police had met the threshold of having reasonable grounds to believe that Orban had committed a prescribed offence and that the procedure would yield relevant evidence.

The court had to determine the legal standards that applied to the magistrate's decision to authorise the forensic procedure. This involved interpreting the relevant sections of the Crimes (Forensic Procedures) Act and considering the nature and sufficiency of the evidence presented by the police. The court needed to weigh the balance between the individual's right to privacy and the public interest in obtaining evidence to solve crimes. The court examined the criteria for establishing reasonable grounds to believe that a prescribed offence had been committed and that relevant evidence would be obtained.

The court found that the magistrate had correctly applied the law and had been satisfied that the police had reasonable grounds to believe that Orban had committed a prescribed offence and that the forensic procedure might produce relevant evidence. The court held that the decision to authorise the collection of the buccal swab and hair sample was justified in all the circumstances. The court confirmed that the magistrate had considered the relevant factors and had not erred in law. The appeal was dismissed and the decision of the Local Court magistrate was upheld. The court did not make any orders for costs.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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