TS v Constable Courtney James - [2014] NSWSC 984

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 belief
Legislation 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 74
Cases 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 612
Category: 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…

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 TS v Constable Courtney James

Details

AGLC: Ts v Constable Courtney James [2014] NSWSC 984
Case: [2014] NSWSC 984
Decision Date: 17 July 2014

CaseChat Overview and Summary

In the case of TS v Constable Courtney James, the appellant, TS, appealed against a decision made by a magistrate who had admitted evidence of intercepted telephone calls in a criminal proceeding. The dispute centred on whether the magistrate had erred in admitting the evidence and whether the magistrate's finding that the Evidence Act 1995 (NSW) did not apply was correct. The case was heard in the New South Wales Court of Criminal Appeal.

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