Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: TS v Constable Courtney James [2014] NSWSC 984 Hearing dates: 17 July 2014 Decision date: 17 July 2014 Jurisdiction: Common Law Before: Adamson J Decision: 1. A pseudonym order such that the plaintiff be referred to as TS.
2. Order that the order of the Magistrate on 15 November 2013 that a buccal swab be taken from the plaintiff be set aside and that the matter be remitted to the Children's Court to be determined according to law.
3. Note that there is an agreement that there be no order as to costs.
Catchwords: APPEAL - whether magistrate erred in admitting evidence of intercepted telephone calls - whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply
EVIDENCE - Evidence Act 1995 (NSW) applies to applications for a forensic procedure - Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act - laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of - meaning of reasonable grounds for suspicion or beliefLegislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 51
Crimes (Forensic Procedure) Act 2000 (NSW), s 3, s 24, s 26, s 30, s 103, s 115A
Evidence Act 1995 (NSW), s 4, s 8, s 9
Telecommunications (Interception and Access) Act 1979 (Cth), s 63, s 74Cases Cited: Azar v DPP [2014] NSWSC 132
Bain v Police [2011] SASC 228
Council of the City of Lake Macquarie v Morris [2005] NSWSC 387; 63 NSWLR 263
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
George v Rockett [1990] HCA 26; 170 CLR 104
L v Lyons (2002) 56 NSWLR 600
LK v Commissioner of Police [2011] NSWSC 458
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612Category: Principal judgment Parties: "TS" (Plaintiff)
Constable Courtney James (Defendant)Representation: Counsel:
C Smith (Plaintiff)
N Adams SC/C McGorey (Defendant)
Solicitors:
Aboriginal Legal Service (Plaintiff)
Crown Solicitors (Defendant)
File Number(s): 2013/374312 Publication restriction: Nil
Judgment
Introduction
The plaintiff is a young person suspect of having committed offence of aggravated break and enter and take and drive conveyance between 16 and 17 June 2013. The defendant is the police officer who applied to the Children's Court for an order that the plaintiff undergo a self-administered buccal swab.
On 15 November 2013 Magistrate Ellis at Bidura Children's Court made an order which authorised the taking of a buccal swab from the plaintiff.
TS appealed against the order on two bases:
(1) The Magistrate found, incorrectly, that the Evidence Act 1995 (NSW) did not apply; and
(2) The Magistrate admitted evidence of intercepted telephone calls which were inadmissible under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA).
By reason of s 115A(1) of the Crimes (Forensic Procedure) Act 2000 (NSW) (the CFP…
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- AGLC
- Ts v Constable Courtney James [2014] NSWSC 984
- Case
- [2014] NSWSC 984
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the magistrate had erred in admitting evidence of intercepted telephone calls and whether the magistrate had correctly found that the Evidence Act 1995 (NSW) did not apply. The court needed to determine the applicability of the Evidence Act 1995 (NSW) to the application for a forensic procedure and whether the magistrate had correctly interpreted the meaning of reasonable grounds for suspicion or belief. The court also needed to consider the interplay between the Evidence Act 1995 (NSW), the Crimes (Forensic Procedure) Act 2000 (NSW), and any other applicable laws.
The court found that the magistrate had erred in concluding that the Evidence Act 1995 (NSW) did not apply to the application for a forensic procedure. The court held that the Evidence Act 1995 (NSW) must be read in conjunction with the Crimes (Forensic Procedure) Act 2000 (NSW) and any other relevant legislation. The court emphasised that the laws of evidence as they apply to applications for forensic procedures are influenced by factors that the magistrate must be satisfied of, including the meaning of reasonable grounds for suspicion or belief. The court held that the magistrate had not correctly applied these considerations in reaching the decision to admit the evidence. Consequently, the appeal was allowed, and the decision of the magistrate was quashed. The matter was remitted to a different magistrate for rehearing.
Orders
Orders of the court
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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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