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Plassas v Person

Plassas v Person

Case [2016] NSWSC 1445 17 October 2016

Appeal

Admissibility of Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Plassas v Person [2016] NSWSC 1445
Hearing dates: 30 August 2016
Date of orders: 17 October 2016
Decision date: 17 October 2016
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. The proceedings are dismissed.
2. The parties should provide any submissions as to costs within (7) days, such submissions not to exceed one page in length.

Catchwords:
CRIMINAL LAW – Appeal from Magistrate – Where Magistrate made an order for the carrying out of a non-intimate forensic procedure – Where a previous DNA sample of the accused had been taken 14 years ago – Whether there was a public interest in making the order – Whether Magistrate erred in making the order – Proceedings dismissed
WORDS AND PHRASES – “evidence as to whether or not the suspect committed the alleged offence”
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Bimson, Roads Maritime Services v Damorange Pty Limited [2014] NSWSC 734
Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55
Brough v Director of Public Prosecutions [2014] NSWSC 1396
KC v Sanger [2012] NSWSC 98
Orban v Bayliss [2004] NSWSC 428
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
Saad v Jeffcoat [2013] NSWSC 1585
Category: Principal judgment
Parties: Con Plassas – Plaintiff
Detective Senior Constable Christophe Person – Defendant
Representation:
Counsel:
P Lange – Plaintiff
C McGorey – Defendant
Solicitors:
Aquila Lawyers – Plaintiff
Crown Solicitor for New South Wales – Defendant

File Number(s): 2015/363196
Publication restriction: Nil

Judgment

By an amended summons filed on 8 March 2016, Con Plassas (“the plaintiff”) seeks orders in the following terms:

to the extent that leave is required, an order that leave be granted to appeal against the decision of Magistrate Andrews of 4 December 2015, permitting the defendant to carry out a forensic procedure, namely a buccal swab, on the plaintiff;

an order that the decision of Magistrate Andrews of 4 December 2015 be quashed;

an order dismissing the defendant’s application for a forensic procedure; and

an order that any forensic material obtained in consequence of the order of Magistrate Andrews on 4 December 2015 be destroyed.

In the event that the relief sought is granted, the plaintiff also seeks an order for costs of the proceedings.
The orders sought by the plaintiff are opposed by the defendant.
The summons was supported an affidavit of Omar Juweinat, solicitor of 29 July 2016, which was read without objection.

THE factual background

On 22 October 2015 the defendant, who is a police officer, made an application to the Local Court for an order under s. 24 of the Crimes (Forensic Procedures) Act2000 (NSW) (“the Act”) in the following terms:

A final order authorising the…

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 Plassas v Person

Details

AGLC: Plassas v Person [2016] NSWSC 1445
Case: [2016] NSWSC 1445
Decision Date: 17 October 2016

CaseChat Overview and Summary

In the matter of Plassas v Person, the appellant, Mr. Plassas, contested a decision made by a Magistrate requiring him to undergo a non-intimate forensic procedure. This procedure was aimed at collecting DNA samples from him, given that a previous DNA sample had been collected 14 years prior. The Magistrate's decision was based on the potential relevance of this older DNA sample as evidence concerning whether Mr. Plassas committed the alleged offence. The case was heard in the court of appeal, where Mr. Plassas sought to overturn the Magistrate's order.

The central legal issue before the court was whether the Magistrate was justified in ordering the non-intimate forensic procedure. Specifically, the court had to determine if there was sufficient public interest to warrant such an order, given that a DNA sample from Mr. Plassas had already been taken 14 years ago. The appeal hinged on the interpretation of the phrase "evidence as to whether or not the suspect committed the alleged offence" and whether the Magistrate had erred in mandating the procedure based on this interpretation.

The court considered the public interest in ensuring that all available evidence is collected and examined in criminal cases, even if a DNA sample already exists from a previous period. The court acknowledged that while the existence of a prior DNA sample might reduce the urgency of a new sample, it did not entirely eliminate the possibility of the public interest being served by obtaining additional DNA evidence. The court found that the Magistrate had not erred in making the order, as the potential relevance of the older DNA sample to the current offence warranted the procedure. Consequently, the appeal was dismissed.

There were no further orders made by the court, and the original order requiring Mr. Plassas to undergo the non-intimate forensic procedure remained in effect. The court's decision reinforced the principle that the public interest in collecting all relevant evidence in criminal cases can justify the repetition of forensic procedures, even when a previous sample exists.

Orders