Police v Prilja - [2006] NSWLC 19

Local Court of New South Wales

CITATION: Police v Prilja [2006] NSWLC 19

JURISDICTION: Criminal

PARTIES: New South Wales Police
Vlada Prilja

FILE NUMBER: 17726/06/190

PLACE OF HEARING: Wagga Wagga Local Court

DATE OF DECISION:
05/11/2006

MAGISTRATE: Magistrate P Dare

CATCHWORDS: Defendant a suspect - "reasonable grounds to believe" that defendant committed a prescribed offence - "might ptoduce relevant evidence" - nature of evidence required in application - questions involved in determination - whether "issue estoppel" on second application for same procedure

LEGISLATION CITED: Crimes Act (Cth) 1914. S.85ZE
Crimes Act (NSW) 1900. S.562AB(1)
Crimes (Forensic Procedures) Act 2000. Ss.3, 22, 23,24, 25 26(3), 31
Crimes (Local Courts Appeal and Review) Act 2001. S.56

CASES CITED: Blair v Curran (1939) 62 CLR 464
Cockatoo Dockyard v Commonwealth of Australia (2004) NSWSC 841
George v Rockett (1990) 170 CLR 104
Kingston City Council v Monash City Counci & Ors. (2001) VSC 41
L v Lyons and Another; B and S v Lyons adn Another (2002)NSWLR 600
Mraz v The Queen No. 2 (1956) 96 CLR 62
Orban v Bayliss (2004) NSWSC 428
Regina v Rondo (2001) 126A Crim R 522
Reichel (1889) 14 App Cases 668
Rogers v The Queen (1994) 181 CLR 251
The Queen v Storey (1978) 140 CLR 364
Walker v Budgen (2005) NSWSC 898
Walter v Gardiner (1993) CLR 378

REPRESENTATION: Sgt V Morgan - Police
Mr S Groch

ORDERS: In accordance with Section 31 of the Act I make the following order:- I authorise a buccal swab to be taken from the suspect; The suspect is to attend at Wagga Wagga Police Station or at a place directed by the authorised applicant for the carrying out of the forensic procedure by 4.00pm to-day, 11th May 2006.

Before the Court is an application by an authorised applicant, Detective Sergeant Michael Handley, for an order pursuant to Section 24 of the Crimes (Forensic Procedures) Act, 2000.

1. Vlada Prilja is presently charged with two offences contrary to Section 85ZE (1)(a) of the Crimes Act, 1914, in the following terms:-

“(For that he) between 10.05am and 10.10am on 18th November, 2003, at Wagga Wagga, did intentionally use a carriage service supplied by a carrier, to wit, Telstra Corporation Limited, with the result that L.A.H was harassed.”

“(For that he) between 8.30am and 8.35am on 5th December, 2003, at Wagga Wagga, did intentionally use a carriage service supplied by a carrier, to wit, Telstra Corporation Limited, with the result that L.A.H was harassed.”

2. He is also charged with two offences contrary to Section 562AB (1) Crimes Act, 1900, in the following terms:-

“(For that he) between 10.05am and 10.10am on 18th November, 2003, at Wagga Wagga, did intimidate L.A.H with the intention of causing her to fear physical or mental harm.”
“(For that he) between 8.30am and 8.35am on 5th December, 2003, at Wagga Wagga, did intimidate L.A.H with the intention of causing her to fear physical or mental harm.”

3. All charges stood adjourned to Wagga Wagga Local…

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 Prilja

Details

AGLC: Police v Prilja [2006] NSWLC 19
Case: [2006] NSWLC 19
Decision Date: 11/05/2006

CaseChat Overview and Summary

In Police v Prilja, the respondent was a suspect in a criminal investigation, and the police sought authorisation to take a buccal swab from him under Section 31 of the relevant legislation. The police argued they had reasonable grounds to believe the suspect committed a prescribed offence and that a buccal swab might produce relevant evidence. The magistrate had to determine the nature of the evidence required for the application and whether the suspect was estopped from challenging the police's belief that he committed the offence on a second application for the same procedure.

The court examined the statutory provisions and previous case law to understand the requirements for a "reasonable belief" and "relevant evidence." The court noted that the police's belief must be based on objective facts and circumstances, not mere suspicion or intuition. The court also considered whether the suspect was estopped from challenging the police's belief on a second application for the same procedure. The court concluded that the police had reasonable grounds to believe the suspect committed the offence and that a buccal swab might produce relevant evidence.

The court authorised the police to take a buccal swab from the suspect, and the suspect was required to attend at Wagga Wagga Police Station or another place directed by the authorised applicant for the carrying out of the forensic procedure by 4:00 pm on 11 May 2006. The court found that the police's belief was based on objective facts and circumstances, and the suspect was not estopped from challenging the police's belief on a second application for the same procedure. The court's decision was based on a careful analysis of the statutory provisions and relevant case law and provided guidance for future applications for forensic procedures under the relevant legislation.

Orders

Orders of the court

In accordance with Section 31 of the Act I make the following order:- I authorise a buccal swab to be taken from the suspect; The suspect is to attend at Wagga Wagga Police Station or at a place directed by the authorised applicant for the carrying out of the forensic procedure by 4.00pm to-day, 11th May 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 Prilja [2006] NSWLC 19
JURISDICTION:	Criminal
PARTIES:	New South Wales Police Vlada Prilja
FILE NUMBER:	17726/06/190
PLACE OF HEARING:	Wagga Wagga Local Court
DATE OF DECISION:	05/11/2006
MAGISTRATE:	Magistrate P Dare
CATCHWORDS:	Defendant a suspect - "reasonable grounds to believe" that defendant committed a prescribed offence - "might ptoduce relevant evidence" - nature of evidence required in application - questions involved in determination - whether "issue estoppel" on second application for same procedure
LEGISLATION CITED:	Crimes Act (Cth) 1914. S.85ZE Crimes Act (NSW) 1900. S.562AB(1) Crimes (Forensic Procedures) Act 2000. Ss.3, 22, 23,24, 25 26(3), 31 Crimes (Local Courts Appeal and Review) Act 2001. S.56
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Cockatoo Dockyard v Commonwealth of Australia (2004) NSWSC 841 George v Rockett (1990) 170 CLR 104 Kingston City Council v Monash City Counci & Ors. (2001) VSC 41 L v Lyons and Another; B and S v Lyons adn Another (2002)NSWLR 600 Mraz v The Queen No. 2 (1956) 96 CLR 62 Orban v Bayliss (2004) NSWSC 428 Regina v Rondo (2001) 126A Crim R 522 Reichel (1889) 14 App Cases 668 Rogers v The Queen (1994) 181 CLR 251 The Queen v Storey (1978) 140 CLR 364 Walker v Budgen (2005) NSWSC 898 Walter v Gardiner (1993) CLR 378
REPRESENTATION:	Sgt V Morgan - Police Mr S Groch
ORDERS:	In accordance with Section 31 of the Act I make the following order:- I authorise a buccal swab to be taken from the suspect; The suspect is to attend at Wagga Wagga Police Station or at a place directed by the authorised applicant for the carrying out of the forensic procedure by 4.00pm to-day, 11th May 2006.