W4 v Detective Senior Constable Ayscough - [2016] NSWSC 1106

Supreme Court

New South Wales

Medium Neutral Citation: W4 v Detective Senior Constable Ayscough [2016] NSWSC 1106
Hearing dates: 13 July 2016
Date of orders: 17 August 2016
Decision date: 17 August 2016
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Time for instituting this appeal is extended to 3 November 2015.

(2) The appeal is allowed.

(3) The decision of Magistrate Maiden dated 11 June 2015 is set aside.

(4) The matter is remitted to the Local Court at Singleton for redetermination according to law.
(5) Each party is to pay their own costs.
Catchwords: APPEAL – Local Court – plaintiff ordered to provide DNA sample pursuant to s 75ZC of the Crimes (Forensic Procedures) Act 2000 (NSW) – plaintiff an untested registrable person under Part 7B – whether Magistrate determined that the ordering of the forensic procedure was justified in all the circumstances – whether particular matters must be considered in determining that the ordering of the procedure is justified in all the circumstance – whether the matter should be remitted to the Local Court for redetermination
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW)
Criminal Code Compilation Act 1913 (WA)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Campbell and 4 Ors v Director of Public Prosecutions (NSW) [2008] NSWSC 1284
Daley v Brown; Pittman v Brown [2014] NSWSC 144
Helen Maguire v Jason Beaton [2005] NSWSC 1241
LK v Commissioner of Police & Anor [2011] NSWSC 458
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Munro v ACP [2012] NSWSC 100
Orban v Bayliss [2004] NSWSC 428
RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305
Category: Principal judgment
Parties: W4 (Plaintiff)
Detective Senior Constable Ayscough
Representation:
Counsel:
F Graham (Plaintiff)
C McGorey (Defendant)
Solicitors:
Legal Aid New South Wales (Plaintiff)
Crown Solicitors (Defendant)

File Number(s): 2015/323076
Publication restriction: Restriction on identification of plaintiff
Decision under appeal

Court or tribunal:

Local Court Singleton

Date of Decision:

11 June 2015

Before:

Maiden LCM

File Number(s):

2015/323076

Judgment

HER HONOUR: This is a judgment concerning an appeal against the decision of Local Court Magistrate Maiden (“the Magistrate”) to grant an application for a forensic procedure requiring the plaintiff to provide a sample of his DNA to the Police pursuant to s 75ZC of the Crimes (Forensic Procedures) Act2000 (NSW).
By summons filed 3 November 2015, the plaintiff seeks, firstly, that the time for instituting this appeal is extended to the date of filing; and secondly, that the order of the Local Court on 11 June 2015 authorising the carrying out of a non-intimate forensic procedure on the plaintiff be set aside. The plaintiff abandoned the relief claimed in paragraphs [3], [4], [5] and [6] of the summons. Paragraph [6] related to costs. Both parties have agreed to bear their own costs of the appeal.
At the outset of the hearing, counsel for the plaintiff sought and…

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: [2016] NSWSC 1106
Decision Date: 17 August 2016

CaseChat Overview and Summary

In this matter, W4, the appellant, sought to appeal a decision of the Local Court which ordered the appellant to provide a DNA sample. The decision was made pursuant to section 75ZC of the Crimes (Forensic Procedures) Act 2000 (NSW) after the appellant was identified as an untested registrable person under Part 7B of the Act. The appellant contended that the Magistrate did not properly determine that the ordering of the forensic procedure was justified in all the circumstances. The appellant also argued that particular matters must be considered in determining that the ordering of the procedure is justified in all the circumstances. The respondent, Detective Senior Constable Ayscough, opposed the appeal.

The central issue for the court was whether the Magistrate had correctly determined that the ordering of the forensic procedure was justified in all the circumstances, and whether the Magistrate had considered all relevant matters in making that determination. The court considered the relevant statutory provisions and case law, and examined the reasons provided by the Magistrate for ordering the forensic procedure. The court also considered whether there was any error in the Magistrate's determination that the ordering of the forensic procedure was justified in all the circumstances.

The court found that the Magistrate had not considered all relevant matters in making the determination, and that the reasons provided for the ordering of the forensic procedure were insufficient. The court held that the appeal should be allowed and that the matter should be remitted to the Local Court for redetermination. The court noted that the Magistrate should consider all relevant matters, including the nature and seriousness of the offence, the appellant's criminal history, and the likelihood of the forensic procedure providing useful information. The court also noted that the Magistrate should provide clear and detailed reasons for any decision to order a forensic procedure.

The court ordered that the appeal be allowed and that the matter be remitted to the Local Court for redetermination in accordance with the court's reasons. The court did not make any orders as to costs.

Orders