Police v JW - [2007] NSWLC 30

Local Court of New South Wales

CITATION: Police v JW [2007] NSWLC 30

JURISDICTION: Criminal

PARTIES: Police
JW

FILE NUMBER:

PLACE OF HEARING: Parramatta Local Court

DATE OF DECISION:
08/23/2007

MAGISTRATE:

CATCHWORDS: Application for final forensic procedures order-Crimes (Forensic Procedures) Act 2000 ss. 38 (1) (d) & 24-meaning of “upholding the suspect’s physical integrity” s24 (4)-what matters may be considered-whether police conduct in making the interim order and carrying out the procedure can be considered particularly the right of an incapable suspect to an interview friend or lawyer under s54 –relationship between ss. 24 & 82 (inadmissibility of evidence following improper forensic procedure)

LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000
Interpretation Act 1987
Criminal Code Act 1983 (NT)
Mental Health Act 1990

CASES CITED: Rodway v The Queen (1990) 169 CLR 515
JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799
Secretary, Department of Health and Community Services v JWB and SMB

REPRESENTATION: A. Assaad, Police Prosecutor
P. Krisenthal, Legal Aid Commission

ORDERS: I make an order for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW at Cumberland Hospital on 23 December 2006.

Reasons for Decision

Background

1. Detective Sergeant Karol Blackley has applied for a forensic procedures order under s24, Crimes (Forensic Procedures) Act 2000 (the Act) for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW following the granting of an interim forensic procedures order. The application relates to a charge of Aggravated Sexual Assault against JW. The respondent JW opposes the making of the order under s24.

2. The interim forensic procedure order was made by Robert Lawton, an authorised officer at Parramatta Local Court on 23 December 2006.The forensic procedure was carried out on 23 December 2006 under the terms of the interim order but s38 (1) (d) of the Act prohibits the analysis of the samples until a final order is made under s24. That is the application before this court.

3. The hearing of the application has been delayed following a challenge by JW in the Supreme Court of New South Wales seeking to have the interim order set aside as being contrary to law and void, an order restraining this court from hearing the application, and order restraining the applicant from testing the samples taken and an order that the samples be destroyed: JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799. On 24 July 2007 Justice Simpson held that JW’s challenge was premature, as this court had not yet made a final order.

Issues

4. JW objects to the making of the order on the basis that the forensic procedure is not justified in the circumstances of this matter when balancing the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding JW’s physical integrity, regard being had to the matters…

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 Police v JW

Details

AGLC: Police v JW [2007] NSWLC 30
Case: [2007] NSWLC 30
Decision Date: 08/23/2007

CaseChat Overview and Summary

In this case, the respondent, JW, was a patient at Cumberland Hospital and had been charged with serious criminal offences. The police applied to the court for a final forensic procedures order under the Crimes (Forensic Procedures) Act 2000 to take certain samples from the respondent. The dispute centred on the interpretation of the Act and the rights of an incapable suspect. The application came before the Supreme Court of New South Wales.

The court needed to determine the meaning of the phrase "upholding the suspect’s physical integrity" under section 24 of the Act and what matters could be considered in this context. The court also had to consider whether the police conduct in making the interim order and carrying out the forensic procedures could be reviewed, particularly in relation to the respondent's right to an interview with a friend or lawyer under section 54 of the Act. Additionally, the court had to examine the relationship between sections 24 and 82 of the Act, which pertains to the admissibility of evidence following an improper forensic procedure.

The court concluded that the phrase "upholding the suspect’s physical integrity" should be interpreted narrowly and that the right to an interview with a friend or lawyer could be considered in the context of the forensic procedure. The court found that the police conduct was generally appropriate and did not warrant a review. The court also determined that there was no direct relationship between sections 24 and 82, as the latter deals with the admissibility of evidence following an improper procedure. The court ultimately granted the police application for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW at Cumberland Hospital on 23 December 2006.

Orders

Orders of the court

I make an order for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW at Cumberland Hospital on 23 December 2006.

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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CITATION:	Police v JW [2007] NSWLC 30
JURISDICTION:	Criminal
PARTIES:	Police JW
FILE NUMBER:
PLACE OF HEARING:	Parramatta Local Court
DATE OF DECISION:	08/23/2007
MAGISTRATE:
CATCHWORDS:	Application for final forensic procedures order-Crimes (Forensic Procedures) Act 2000 ss. 38 (1) (d) & 24-meaning of “upholding the suspect’s physical integrity” s24 (4)-what matters may be considered-whether police conduct in making the interim order and carrying out the procedure can be considered particularly the right of an incapable suspect to an interview friend or lawyer under s54 –relationship between ss. 24 & 82 (inadmissibility of evidence following improper forensic procedure)
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 Interpretation Act 1987 Criminal Code Act 1983 (NT) Mental Health Act 1990
CASES CITED:	Rodway v The Queen (1990) 169 CLR 515 JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799 Secretary, Department of Health and Community Services v JWB and SMB
REPRESENTATION:	A. Assaad, Police Prosecutor P. Krisenthal, Legal Aid Commission
ORDERS:	I make an order for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW at Cumberland Hospital on 23 December 2006.