Yousha Sleiman v Jason Murray

Case [2010] ACTCA 2


HUMAN RIGHTS ACT

YOUSHA SLEIMAN v JASON MURRAY
[2010] ACTCA 2 (23 February 2010)

APPEAL – appeal from an order of a judge dismissing an application for judicial review of a decision of a magistrate – appeal dismissed
CRIMINAL LAW AND PROCEDURE – forensic procedure – taking of buccal swab for DNA analysis
ADMINISTRATIVE LAW – persona dignata – magistrate’s decision of an administrative character – amenable to judicial review
APPEAL – error of law – balance required under Crimes (Forensic Procedures) Act 2000 (ACT) – procedure justified in all the circumstances – no error of law – decision based on an irrelevant consideration – admissibility of other evidence – can be relevant – discretionary decision – decision failed to take into account a relevant consideration – the public interest in upholding the physical integrity of the suspect – unable to conclude that consideration overlooked – magnitude of intrusion relatively low

Crimes Act 1900 (ACT), s 92
Crimes (Forensic Procedures) Act 2000 (ACT), ss 32, 33, 34,39
Administrative Decisions (Judicial Review) Act 1989 (ACT), s5
Human Rights Act 2004 (ACT), ss 12, 28
Crimes Act 1958 (Vic), s 464M
Police and Criminal Evidence Act 1984 (UK)
European Convention on Human Rights, s 28

Sleiman v Murray [2009] ACTSC 82
Kelly v Apps (2000) 98 FCR 101
Hilton v Wells (1985) 157 CLR 57
Love v Attorney-General (NSW) (1990) 169 CLR 307
House v The King (1936) 55 CLR 499
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Hilton v Wells (1985) 157 CLR 57
Grollo & Anor v Bates & Ors (1994) 53 FCR 218
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Case of S. and Marper v The United Kingdom (2008) 158 NLJ 1755; [2009] Crim LR 3

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 19 of 2009
No. SC 592 of 2009

Judges:         Higgins CJ, Gray P and Ryan J
Court of Appeal of the Australian Capital Territory
Date:            23 February 2010

IN THE SUPREME COURT OF THE       )          No. ACTCA 19 of 2009
  )          No. SC 592 of 2009
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:YOUSHA SLEIMAN

Appellant

AND:JASON MURRAY

Respondent

ORDER

Judges:  HIGGINS CJ, GRAY P and RYAN J
Date:  23 February 2010
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 19 of 2009
  )          No. SC 592 of 2009
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:YOUSHA SLEIMAN

Appellant

AND:JASON MURRAY

Respondent

Judges:  HIGGINS CJ, GRAY P and RYAN J
Date:  23 February 2010
Place:…

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AGLC
Yousha Sleiman v Jason Murray [2010] ACTCA 2
Case
[2010] ACTCA 2
Decision Date

CaseChat Overview and Summary

Yousha Sleiman (the applicant) appealed to the Supreme Court of the Australian Capital Territory against an order of a judge who had dismissed an application for judicial review of a decision made by a magistrate. The magistrate's decision concerned the taking of a buccal swab from the applicant for DNA analysis under the *Crimes (Forensic Procedures) Act 2000* (ACT).

The primary legal issues before the Supreme Court were whether the magistrate's decision to authorise the taking of the buccal swab was amenable to judicial review, and if so, whether the magistrate had erred in law in making that decision. Specifically, the court considered whether the magistrate had correctly applied the balancing exercise required by the Act, which mandates that a forensic procedure is only justified if it is reasonable in all the circumstances. The applicant argued that the magistrate's decision was based on an irrelevant consideration or failed to take into account a relevant consideration.

The Court held that the magistrate's decision, being of an administrative character, was amenable to judicial review. However, it found no error of law in the magistrate's determination. The Court reasoned that while the admissibility of other evidence and the public interest in upholding the physical integrity of the suspect were relevant considerations, the magnitude of the intrusion involved in taking a buccal swab was relatively low. The Court was unable to conclude that the magistrate had overlooked the public interest in physical integrity, and therefore, the balancing exercise had been properly undertaken.

Consequently, the appeal was dismissed.

Orders

Orders of the court

1.

The appeal be dismissed.

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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