Saad v Jeffcoat - [2013] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation: Saad v Jeffcoat [2013] NSWSC 1585
Hearing dates: 26 April 2013
Decision date: 31 October 2013
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Leave to appeal with regard to grounds two and three granted.
(2) Appeal dismissed.
(3) The plaintiff, Mr Saad, is to pay the costs of the defendant, Detective Senior Constable Jeffcoat, of the appeal.

Catchwords:
CRIMINAL PROCEDURE - appeal from orders pursuant to Crimes (Forensic Procedures) Act 2000 - no error in not reciting standard of proof repeatedly - no error in finding plaintiff a suspect - no error in suspecting plaintiff had committed an offence - leave to appeal granted - appeal dismissed
CRIMINAL PROCEDURE - whether power to order costs - no explicit power in statute - consideration of case law - power to order costs - costs order made
Legislation Cited: Criminal Procedure Act 1986
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Drug Misuse and Trafficking Act 1985
Firearms Act 1996
Cases Cited: ACP v Munro [2012] NSWSC 1510
ASIC v Sigalla (No 6) [2012] NSWSC 83
L v Lyons; B and S v Lyons [2002] NSWSC 1199; (2002) 56 NSWLR 600
LK v Commissioner of Police [2011] NSWSC 458
Ronowska v Kus (No 2) [2012] NSWSC 817
Category: Principal judgment
Parties: Moufid Saad (plaintiff)
Detective Senior Constable Ryan Jeffcoat (defendant)
Representation: Counsel:
D Miralis (plaintiff)
C McGorey (defendant)
Solicitors:
Nyman Gibson Stewart (plaintiff)
Crown Solicitor's Office (defendant)

File Number(s): 12/297922
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2012-09-18 00:00:00

Before:

Truscott LCM

File Number(s):

2012/193344

Judgment

This is an appeal against the decision of Truscott LCM to make a final order permitting the carrying out of a non-intimate forensic procedure upon the plaintiff in the form of a buccal swab.

The plaintiff was the respondent to the application in the Local Court. The defendant before me was the Prosecutor in the Local Court. For ease of comprehension, except when I come to make orders, I shall refer to the parties as the Prosecutor and the respondent.

Overview

The following statutory structure was not in dispute between the parties at the hearing.

The appeal is brought pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 ("the Act"). That provision permits appeals to this Court against the order under consideration. The appeal is to be dealt with as if it were an appeal against a sentence imposed in summary proceedings in the Local Court (by way of Part 2 of Chapter 4 of the Criminal Procedure Act 1986). Sections 52(1) and 53(1) of the Crimes (Appeal and Review) Act 2001 provide that an appeal in such a case to this Court is as of right when founded on a question of law alone, or with leave when founded upon a question of fact or a question of mixed fact and law.

The order was made pursuant to Part 4 of the Act. Section 23 of the Act is…

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 Saad v Jeffcoat

Details

AGLC: Saad v Jeffcoat [2013] NSWSC 1585
Case: [2013] NSWSC 1585
Decision Date: 31 October 2013

CaseChat Overview and Summary

The case of Saad v Jeffcoat involved a defendant appealing against certain orders made pursuant to the Crimes (Forensic Procedures) Act 2000. The defendant, Saad, contested the decisions made by Jeffcoat, who was either a magistrate or judge in the lower court, regarding the application of the Act. Saad argued that there was an error in the lower court's handling of the case, particularly concerning the standard of proof, the designation of Saad as a suspect, and the suspicion that Saad had committed an offence. The appeal sought to overturn these findings and orders.

The legal issues before the court centred on the interpretation and application of the Crimes (Forensic Procedures) Act 2000, specifically regarding the lower court's authority to recite the standard of proof repeatedly, the correctness of identifying Saad as a suspect, and the validity of the suspicion that Saad had committed an offence. Additionally, the court considered whether it had the power to order costs in the absence of explicit statutory authority. The court examined relevant case law to address these questions, ensuring that the appeal was evaluated within the framework of established legal principles.

The court found no error in the lower court's decision not to reiterate the standard of proof repeatedly, affirming that such repetition was not necessary to maintain the integrity of the proceedings. The court also upheld the identification of Saad as a suspect, concluding that the evidence and procedures followed were sufficient to justify this designation. Furthermore, the suspicion that Saad had committed an offence was deemed appropriate given the circumstances and evidence presented. Regarding the costs, although there was no explicit statutory power to order costs, the court found authority in relevant case law to make a costs order in this instance. Consequently, the appeal was dismissed, and the costs order was confirmed.

The final orders of the court included the dismissal of the appeal and the affirmation of the lower court's decisions, including the identification of Saad as a suspect and the suspicion of an offence committed. Additionally, the court made a costs order against Saad, reflecting the outcome of the appeal and the legal considerations involved.

Orders