Police v AH

[2008] NSWLC 6

Local Court of New South Wales

CITATION:	Police v AH [2008] NSWLC 6
JURISDICTION:	Children's Court
PARTIES:	Police AH
FILE NUMBER:
PLACE OF HEARING:	Albury
DATE OF DECISION:	05/02/2008
MAGISTRATE:	Magistrate G Lerve
CATCHWORDS:	Forensic Procedure – suspect – suspicion on reasonable grounds
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 Crimes Act 1900
CASES CITED:	Fawcett –v- Nimmo & Anor [2005] NSWSC 1047 Jawansher –v- Johnson [2004] NSWSC 872 Maguire –v- Beaton (20050 162 A Crim R 21 Mullins –v- Lillyman [2007] NSWSC 407 Orban –v- Bayliss [2004] NSWSC 428 R –v- Fleming [2007] NSWSC 328 R –v- Jung [2006] NSWSC 660 R –v- Rondo (2001) 126 A Crim R 562
TEXTS CITED:
REPRESENTATION:	Sgt. A. Seccull, Police Prosecutor for the applicant Mr. C. Halburd, Solicitor for and with the respondent
ORDERS:

Reasons for Decision

1. By way of application pursuant to the provisions of the Crimes (Forensic Procedures) Act 2000 Detective Senior Constable Jon Irving of the Albury Detectives seeks an order authorising the carrying out of a forensic procedure on AH whose date of birth is [date]. The respondent is a juvenile and therefore cannot consent to the application. In any event, the application is opposed. The principal (and seemingly only significant) basis for the objection is the submission that the prosecution are unable to satisfy the Court that the respondent is a suspect within the meaning of that word within the legislation.

2. The application does not specify the type of forensic procedure that is sought, however, in the course of the hearing of the application the Police Prosecutor amplified that a buccal swab and no other procedure was sought. This did not appear to surprise the solicitor for the applicant. The application was heard with the only evidence for the applicant being the affidavit sworn by Detective Irving on 24 April 2008. Although the affidavit was sworn on the date of the hearing it is my understanding the solicitor for the respondent had previously been served an “unsworn” copy of the affidavit. No objection was taken to the affidavit by the solicitor for the respondent, nor was the deponent required for cross-examination.

Factual background

3. Before proceeding to the relevant legislation I will recite in these reasons the relevant part of the affidavit sworn by Detective Irving that is said to ground this application:

“On the 1st January 2008 around 1.30am DR was walking to a friends place along a cycle path that runs between Stanley Street and Wyse Streets, Albury. He had approached this path from Stanley Street. Whilst walking along that path he was approached by around five young people, not further described and one of these persons has struck him with an unopened beer bottle. This beer bottle has smashed on the right side of the victim’s face above his right ear and caused severe lacerations along the jaw line. The victim has walked back in the direction of Stanley Street and sought assistance at the Commercial Club Albury. He was taken from…