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Walker v Bugden

Walker v Bugden

Case [2005] NSWSC 898 7 September 2005

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Reported Decision:
155 A Crim R 416

New South Wales

Supreme Court

CITATION:
WALKER v. BUDGEN [2005] NSWSC 898

HEARING DATE(S): Thursday 4 August 2005

JUDGMENT DATE :

7 September 2005

JURISDICTION:
Common Law

JUDGMENT OF:
Hall J at 1

DECISION:
(a) grant leave to appeal; (b) that the order of the second defendant made on 16 March 2005 be vacated; (c) that the matters be remitted to the learned magistrate for re-determination according to law; (d) that the learned magistrate consider the matter set out in s.25(f) and (g) of the Crimes (Forensic Procedures) Act 2002.

CATCHWORDS:
Forensic procedure on a suspect - non-intimate buccal swab - aggravated robbery - offence occurred at the victim's home - no DNA evidence from crime scene - procurement of evidence against a person who is already a suspect - reasonable grounds to believe the suspect committed teh relevant offence - affidavit evidence provided factual material to support the belief the plaintiff was a suspect - material placed before a magistrate.

LEGISLATION CITED:
Crimes (Forensic Procedures) Act 2000 (NSW)
Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Crimes (Local Courts Appeal & Review) Act 2001

CASES CITED:
Orban v. Bayliss [2004] NSWSC 428
George v. Rockett (1990) 170 CLR 104
Parker v. Churchill (1985) 9 FCR 316
Rondo (2001) 126 A. Crim. R. 552

PARTIES:
WALKER, Eugene v.
BUDGEN, Senior Constable Geoffrey & ANOR

FILE NUMBER(S):
SC No. 12072 of 2005

COUNSEL:
Plaintiff: J. Stratton, SC.
Defendant: H. Bell

SOLICITORS:
Plaintiff: S. O'Connor
Defendant: I.V. Knight

LOWER COURT JURISDICTION:
Local Court

LOWER COURT JUDICIAL OFFICER :
Reimer

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 7 SEPTEMBER 2005

No. 12072 of 2005

EUGENE WALKER v. SENIOR CONSTABLE GEOFFREY BUDGEN & ANOR
JUDGMENT

1 HIS HONOUR: The question in these proceedings is whether, on an application under the Crimes (Forensic Procedures) Act 2000 (NSW) (the “Forensic Procedures Act), the evidence before the learned magistrate, his Honour, the second defendant, established the matters that are required to be considered on an application under the Act. Part 5 entitled “Forensic procedures by order of magistrate or other authorised justice” require specified matters to be considered before a magistrate may order the carrying out of a forensic procedure on a suspect.

The proceedings

2 The proceedings in this Court were commenced by summons filed on 18 May 2005. The summons is supported by an affidavit of Antony Townsden, solicitor, sworn 16 May 2005 and filed on 18 May 2005. No point has been taken as to the plaintiff’s capacity to bring these proceedings in his own name, having regard to his age and the provisions of Part 63 Rule 2(1) of the Supreme Court Rules.

3 The present proceedings by way of appeal are authorised by s.115A(1) of the Crimes (Local Courts Appeal and Review) Act 2001 in respect of an order made under s.24 of the Forensic Procedures Act.

4 The first defendant…

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 Walker v Bugden

Details

AGLC: Walker v Bugden [2005] NSWSC 898
Case: [2005] NSWSC 898
Decision Date: 7 September 2005

CaseChat Overview and Summary

The plaintiff, Mr Walker, initiated legal action against the defendant, Mr Bugden, in relation to the unlawful acquisition of a non-intimate buccal swab sample by the defendant, who is a police officer. The incident arose from an aggravated robbery at the plaintiff's residence, where no DNA evidence was found at the crime scene. The defendant, suspecting the plaintiff of the offence, procured the evidence against him using a non-intimate buccal swab procedure. The plaintiff argued that the defendant's actions were unlawful and sought relief on this basis. The primary legal issue before the court was whether the defendant had reasonable grounds to believe that the plaintiff had committed the relevant offence, and if so, whether this belief justified the procurement of the buccal swab evidence.

The court examined the affidavit evidence provided by the defendant, which included factual material supporting his belief that the plaintiff was a suspect in the aggravated robbery. The court considered the circumstances of the offence and the absence of DNA evidence at the crime scene, as well as the legal framework governing the procurement of evidence against a suspect. The court found that the defendant had reasonable grounds to believe that the plaintiff was a suspect in the aggravated robbery, based on the facts presented in the affidavit evidence. The court held that the defendant's belief was sufficient to justify the procurement of the buccal swab evidence, as it was reasonable for the defendant to consider this method of obtaining evidence against the plaintiff in the absence of DNA evidence at the crime scene.

As a result of the court's reasoning and findings, the plaintiff's claim was dismissed. The court determined that the defendant's actions were lawful, and there was no basis for the plaintiff to seek relief in relation to the procurement of the buccal swab evidence. The court's decision was grounded in the principle that a police officer may act upon reasonable grounds to believe that a suspect has committed an offence, even in the absence of concrete evidence at the crime scene. The court's ruling emphasised the importance of balancing the rights of suspects with the need for law enforcement to effectively investigate and prosecute criminal activity.

Orders