State of NSW v Kable - [2012] HCATrans 356

[2012] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S233 of 2012

B e t w e e n -
STATE OF NSW
Applicant
and
GREGORY WAYNE KABLE
Respondent
Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 9.32 AM

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M. J. LEEMING, SC, for the applicant. (instructed by Crown Solicitor (NSW))

MR P.W. BATES: If it please the Court, I appear with my friend, MS P. G. WHITE, for the respondent. (instructed by Armstrong Legal)

FRENCH CJ: Mr Solicitor, I will not hear you on the substance of the application initially. I just want to know what your response would be to a condition being imposed on any grant of special leave that would require the respondent’s costs to be paid in any event.

MR SEXTON: That is acceptable to us, your Honour.

FRENCH CJ: All right. I will hear from you now, Mr Bates. Mr Bates, I must say that it would be helpful if you could come to the heart of things. The written submissions which were filed really do not give us the degree of assistance we would expect in a matter of this difficulty, but if you can indicate to us why you think special leave should not be granted.

MR BATES: Your Honour, there are two lines of the argument which I will deal with in turn. The first line of argument is that the detention order that was made by Justice Levine on 23 February 1995 is not an order that meets the criteria of being a judicial order of a superior court that was valid until it was set aside. That is the first line of argument. The second line of argument is that the findings of fact that were made by this Court in the 1996 constitutional decision in Kable v Director of Public Prosecutions 189 CLR 51 preclude a number of the submissions that are advanced on behalf of the applicant and prevent this case from being a suitable vehicle to raise some of the issues about what I might call Kable challenges more generally that the applicant seeks to make. Could I deal with those two lines of argument in turn?

FRENCH CJ: Yes.

MR BATES: First of all, the applicant relies primarily on the principle that the order of a superior court is valid until set aside. Implicit in that proposition are two premises. The first premise is that the Supreme Court of New South Wales was vested with judicial power, or at least was vested with a function that was properly ancillary or incidental to the exercise of judicial power when it made the disputed detention order. The second proposition is that…

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.

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Details

Case: [2012] HCATrans 356
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the validity of a New South Wales law, the *Crimes (Forensic Procedures) Act 1998* (NSW), which permitted the taking of forensic samples from a convicted offender, Mr Kable, for the purpose of establishing a DNA database. The State of New South Wales sought to uphold the validity of this Act against Mr Kable's challenge.

The central legal issue before the Court was whether the Act, in its application to Mr Kable, contravened Chapter III of the Australian Constitution. Specifically, the Court had to determine if the Act impermissibly conferred judicial power on a non-judicial body or otherwise trespassed upon the exclusive domain of the courts.

The Court reasoned that the power to compel the taking of forensic samples, even from convicted offenders, was not inherently a judicial function. It distinguished this power from the core functions of courts, such as determining guilt or imposing punishment. The Court found that the Act did not vest judicial power in the executive or legislative branches, nor did it undermine the institutional integrity of the judiciary. The legislative scheme was seen as a regulatory measure for law enforcement purposes, not an encroachment on judicial power.

The High Court dismissed the appeal, upholding the validity of the *Crimes (Forensic Procedures) Act 1998* (NSW) in its application to Mr Kable.

Orders