Mullins v Lillyman [2007] NSWSC 407

Mullins v Lillyman [2007] NSWSC 407

The expression "the taking of a photograph of a part of the body" in the definition of a non-intimate forensic procedure contemplates the suspect as a passive participant in a procedure carried out on the body. It did not clearly authorise compelling the plaintiff to attend the scene of the alleged crime, take up positions corresponding to CCTV footage, and participate in a partial recreation of the crime for investigative comparison. The Magistrate therefore erred in law in making that part of the order.

Jurisdiction
Australia
Judgment Date
02 May 2007
Procedural Posture
Appeal/review of Magistrate's Order Authorising a Forensic Procedure / Supreme Court Appeal on a Question of Law Under S 115 a of the Crimes (forensic Procedures) Act 2000
Outcome
Appeal allowed in part; the order requiring attendance at the 7-11 Store was set aside, and the remaining Local Court order was confirmed.
Legal Topics
['forensic Procedures' 'non Intimate Forensic Procedure' 'taking Photographs of a Part of the Body' 'powers of Magistrates' 'common Law Rights of Suspects']
['criminal Law' 'criminal Procedure'] ['forensic Procedures' 'non Intimate Forensic Procedure' 'taking Photographs of a Part of the Body' 'powers of Magistrates' 'common Law Rights of Suspects']

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Procedural Posture

Appeal/review of Magistrate's Order Authorising a Forensic Procedure / Supreme Court Appeal on a Question of Law Under S 115 a of the Crimes (forensic Procedures) Act 2000

Legal Issues

  1. 1 ['Whether the Magistrate erred in law by ordering the plaintiff to attend the scene of the alleged crime for forensic photographs of his left arm.' 'Whether requiring the plaintiff to attend the 7-11 Store and take up positions corresponding to CCTV footage was authorised as "the taking of a photograph of a part of the body" in the definition of non-intimate forensic procedure.' 'Whether the Crimes (Forensic Procedures) Act 2000 clearly authorised compelling a suspect to be an active participant in a partial recreation of the alleged crime.']

Ratio Decidendi

The expression "the taking of a photograph of a part of the body" in the definition of a non-intimate forensic procedure contemplates the suspect as a passive participant in a procedure carried out on the body. It did not clearly authorise compelling the plaintiff to attend the scene of the alleged crime, take up positions corresponding to CCTV footage, and participate in a partial recreation of the crime for investigative comparison. The Magistrate therefore erred in law in making that part of the order.

Court Disposition

Appeal allowed in part; the order requiring attendance at the 7-11 Store was set aside, and the remaining Local Court order was confirmed.

Orders

  • ['Declare that the Magistrate erred in law in making an order requiring the plaintiff to "attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm".' 'Order that that part...