ACP v Munro [2012] NSWSC 1510

ACP v Munro [2012] NSWSC 1510

The Magistrate lacked power to order the second and third forensic procedures as they did not fall within the statutory definition of 'non-intimate forensic procedure' under s 3 of the Crimes (Forensic Procedures) Act 2000; accordingly, those orders were set aside. No error was found in the test applied to the first procedure, nor in other interlocutory rulings, so other relief was refused.

Jurisdiction
Australia
Judgment Date
07 December 2012
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal allowed in part
Legal Topics
['forensic Procedure Orders' 'statutory Construction' 'identification and Examination of Persons' "definition of 'non Intimate Forensic Procedure'" 'costs in Criminal Appeals']
['criminal Law' 'procedure' 'costs'] ['forensic Procedure Orders' 'statutory Construction' 'identification and Examination of Persons' "definition of 'non Intimate Forensic Procedure'" 'costs in Criminal Appeals']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ["Whether the second and third forensic procedures ordered fall within the statutory definition of a 'non-intimate forensic procedure' under s 3 of Crimes (Forensic Procedures) Act 2000" 'Whether the Magistrate applied the correct statutory test in permitting further application for the first procedure under s 26(3) of the Act' 'Whether the Magistrate applied the correct test in refusing leave to cross-examine Professor Fryer under s 30(6)-(7) of the Act' 'Whether the Magistrate applied the correct test in refusing to receive evidence from Dr Kemp' 'Whether the Magistrate applied the correct test for making the final order for carrying out forensic procedure under s 24 of the Act' 'Whether the Court has power to order costs in appeals under Part 5 of the Crimes (Appeal and Review) Act 2001']

Ratio Decidendi

The Magistrate lacked power to order the second and third forensic procedures as they did not fall within the statutory definition of 'non-intimate forensic procedure' under s 3 of the Crimes (Forensic Procedures) Act 2000; accordingly, those orders were set aside. No error was found in the test applied to the first procedure, nor in other interlocutory rulings, so other relief was refused.

Court Disposition

Appeal allowed in part

Orders

  • ['The order made by the Magistrate on 20 April 2012, insofar as it authorises the second procedure, is set aside.' 'The order made by the Magistrate on 20 April 2012, insofar as it authorises the third procedure, is set aside.' 'Otherwise the summons is dismissed.' 'The first defendant to pay half the costs of the...