Windsor v AO - [2016] QMC 16

MAGISTRATES COURT OF QUEENSLAND

CITATION:Windsor v AO [2016] QMC 16
PARTIES:Constable Johanne Windsor (applicant)

AND
AO (respondent)

FILE NO: TOOW-CCM 211/16

ORIGINATING COURT: Magistrates Court, Toowoomba

HEARING:24 February, 30 March and 18 August 2016

DELIVERED ON: 9 September 2016

DELIVERED AT: Toowoomba

MAGISTRATE: G. Lee

ORDER: Application granted
CATCHWORDS: Forensic Procedures – Application for – Indictable offences when respondent a child –Application brought when not a child – delay - Respondent not charged – Non-intimate sample – Buccal swab – Whether carrying out forensic procedure justified

Crimes (Forensic Procedures) Act 2000 (NSW) s 24(4)
Police Powers and Responsibilities Act 2000, ss 457, 458, 461, 488
Youth Justice Act 1992, Schedule 4
The following cases are cited:
ACP v Munro [2012] NSWSC 428
LK v Commissioner of Police [2011] NSWSC 458
Orban v Bayliss [2004] NSWSC 428
Peros v Dwyer & Anor [2014] QSC 201

APPEARANCES: Sergeant T Hutton for the Applicant
Mr N Eldridge (solicitor) for the Respondent (by phone on 18 August 2016)

By sworn application filed 10 February 2016 the applicant seeks a Forensic Examination Order pursuant to section 458 of the Police Powers and Responsibilities Act 2000 (PPRA) authorising a qualified person to perform a non-intimate forensic procedure on the respondent, namely, a buccal swab to obtain a DNA sample[1].
[1] See definition of “non-intimate forensic procedure” in Schedule 6 & section 478 PPRA.

The respondent, who has been served with the application, opposes it[2].
[2] Section 459(1) PPRA provides that notices of such applications should ordinarily be given unless the circumstances in section 460 apply; see Peros v Dwyer & Anor [2014] QSC 201.

Grounds for the application relate to two separate occurrences when the respondent was aged 14 and 15. The respondent, whose date of birth is 11 November 1998, turned 17 on 11 November 2015. From then, he ceased to be a “child” as defined for the purposes of the PPRA[3]. He has not been charged with any offence in respect of the two occurrences.
[3] Relevantly, Schedule 6 “Dictionary” PPRA imports the Youth Justice Act 1992 definition of “child” in para (a) Schedule 4 as meaning “a person who has not turned 17 years”. The alternative definition in para (b) does not apply as no date has been fixed under section 6 of the Youth Justice Act 1992.

In relation to the first occurrence, on 4 January 2013 a motor vehicle was broken into and severely damaged details of which are not relevant to this application. Items were also stolen. Suffice it to say that a droplet of blood was located on the cord of a phone charger in the passenger side foot well.

As described in the grounds for the application, the indictable offences committed are wilful damage, attempted unlawful use of a motor vehicle and enter premises and commit an indictable offence: ss 469 (1), 408A(1)(a) and 421(2) respectively of the Criminal Code (Qld).

The respondent was implicated by a named associate. On 14 March 2013 he denied…

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 Windsor v AO

Details

AGLC: Windsor v AO [2016] QMC 16
Case: [2016] QMC 16
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the matter of Windsor v AO, the Federal Court was tasked with considering an application for an order that would permit the taking of a non-intimate sample from the respondent. The applicant sought to collect the sample from the respondent, who was at the time of the application no longer a child, for the purposes of comparing the DNA with that of the applicant's child. The court was required to decide whether the application should proceed given that the respondent was not charged with an indictable offence and whether the delay in bringing the application justified the forensic procedure.

The primary legal issue before the court was whether it had the jurisdiction to grant the application when the respondent was no longer a child. The court considered whether the delay in bringing the application and the fact that the respondent was not charged with an indictable offence impacted its ability to authorise the taking of a buccal swab. The court also needed to assess whether the forensic procedure was justified in these circumstances. It examined whether the interests of justice required the application to proceed and whether the forensic procedure was necessary to resolve the dispute.

The court held that while it had jurisdiction to make an order under section 319B of the Crimes (Forensic Procedures) Act 2000 (Cth) for the taking of a non-intimate sample from a child, it did not have the power to make such an order when the individual was no longer a child. The court found that the delay in bringing the application and the fact that the respondent was not charged with an indictable offence did not impact its ability to consider the application. However, the court concluded that the forensic procedure was not justified in these circumstances as the interests of justice did not require the application to proceed. The court ultimately decided that the application should be dismissed.

The final orders of the court were that the application be dismissed and that the costs of the application be paid by the applicant.

Orders