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Orban v Bayliss

Orban v Bayliss

Case [2004] NSWSC 428 31 May 2004

Appeal

Reasonable Grounds

Forensic Evidence

Statutory Interpretation

Criminal Law

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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:

Crimes (Forensic Procedures) Act 2000

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;

Crimes (Forensic Procedures) Act, 2002.”

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

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 Orban v Bayliss

Details

AGLC: Orban v Bayliss [2004] NSWSC 428
Case: [2004] NSWSC 428
Decision Date: 31 May 2004

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