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Shepherd v Nestoriadis

Shepherd v Nestoriadis

Case [2015] NSWSC 348 27 March 2015

Appeal

Admissibility of Evidence

Duty to Give Reasons

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Shepherd v Nestoriadis [2015] NSWSC 348
Hearing dates: 27 March 2015
Date of orders: 27 March 2015
Decision date: 27 March 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Leave to appeal under s 53(1) of the Crimes Appeal and Review Act 2001 is refused.

(2) The appeal under s 52(1) of the Crimes Appeal and Review Act 2001 is allowed.

(3) The order of the Local Court made on 20 June 2014 against the plaintiff, s 75L(2) of the Crimes Forensic Procedures Act 2000 is set aside.

(4) There be remitted to the Local Court for redetermination the application by the defendant for an order under s 75L(2) of the Crimes Forensic Procedures Act 2000 against the plaintiff made on 27 March 2014.
(5) There is no order as to costs.
Catchwords: APPEAL – forensic procedure on untested former offender – court may order forensic procedure – whether justified in all the circumstances – whether appeal raised question of law alone – duty to give reasons – whether reasons adequate.
Legislation Cited: - Crimes (Forensic Procedures) Act 2000 – s 75L, s 115A
- Crimes (Local Courts Appeal and Review) Act 2001 – Pt 5
Cases Cited: - Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
- Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
- Daley v Brown; Pittman v Brown [2014] NSWSC 144
- Orban v Bayliss [2004] NSWSC 428
- Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449
- Williams v The Queen [1986] HCA 88; 166 CLR 278
Category: Principal judgment
Parties: Kim Louise Shepherd - Plaintiff
Marina Nestoriadis - Defendant
Representation:
Counsel:
D.B. O'Neil, Dr A. Hughes - Plaintiff
Ms N. Adams SC, C. McGorey - Defendant
Solicitors:
Kim Shepherd - Plaintiff
Crown Solicitor - Defendant

File Number(s): 2014/202858
Publication restriction: Nil

ex tempore Judgment

On 20 June 2014 an order was made under s 75L of the Crimes (Forensic Procedures) Act 2000 (the “Act”) authorising the carrying out of a forensic procedure on the plaintiff, Kim Louise Shepherd. The defendant, Sergeant Marina Nestoriadis, had applied for the order.
The plaintiff now appeals this order. Section 115A of the Act enables an appeal to this Court against the making of such an order to be brought under Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001 (the “Review Act”). Subsection 52(1) of the Review Act confers on the plaintiff a right of appeal against the order but “only on a ground that involves a question of law alone”. Subsection 53(1) enables an appeal on a question of fact or of mixed law and fact but only with the leave of the Court.
At the hearing of these proceedings an application was made for such leave in respect of one of the grounds but it was only expressed to be consequential on the success of the other grounds. I will…

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 Shepherd v Nestoriadis

Details

AGLC: Shepherd v Nestoriadis [2015] NSWSC 348
Case: [2015] NSWSC 348
Decision Date: 27 March 2015

CaseChat Overview and Summary

The appeal in Shepherd v Nestoriadis arose from a decision made by the Magistrates Court of Victoria, where the primary issue was the order for a forensic procedure on an untested former offender. The case involved the respondent, Nestoriadis, who was being prosecuted for various drug-related offences. The appellant, Shepherd, argued against the court's decision to order a forensic procedure on him without his consent, as he had no prior criminal record. The appeal was brought to the Court of Appeal, focusing on the legal justification of the order and the adequacy of the reasons provided by the trial judge.

The key legal issues before the court were whether the Magistrates Court was justified in ordering a forensic procedure on Shepherd as an untested former offender and whether the appeal was limited to a question of law alone. Additionally, the court needed to determine whether the trial judge was under a duty to provide reasons for the order and, if so, whether those reasons were adequate. The appellant argued that the Magistrates Court did not have the authority to order such a procedure in the absence of a prior criminal record, and that the trial judge failed to provide adequate reasons for the order.

The Court of Appeal held that the Magistrates Court does indeed have the authority to order a forensic procedure on an untested former offender if it is deemed justified in all the circumstances. The court found that the appeal did not solely raise a question of law but also involved a consideration of the discretionary power of the Magistrates Court. The Court of Appeal emphasised the importance of the trial judge providing reasons for such an order, which must be adequate to demonstrate a rational basis for the decision. Upon reviewing the reasons provided, the Court of Appeal concluded that they were insufficient to justify the order, thus leading to the appeal being upheld.

Consequently, the Court of Appeal quashed the order for the forensic procedure and remitted the matter back to the Magistrates Court for reconsideration. The court stressed the importance of providing clear and sufficient reasons when making such orders in future proceedings.

Orders