Child A v Hasler & Ors [2019] NSWSC 672

Child A v Hasler & Ors [2019] NSWSC 672

The Magistrate was entitled, on the evidence, to find as a fact that the plaintiff voluntarily discarded the cigarette butt, unrelated to the search. In these circumstances, no error of law in the refusal to permit cross-examination, the finding that the search was lawful, the application of s 138 of the Evidence Act 1995, or the order for a forensic procedure was established. All grounds of appeal failed.

Parties
Plaintiff: Child A; First Defendant: Detective Senior Constable Joel Hasler; Second Defendant: Commissioner of Police NSW; Third Defendant: Magistrate G Blewitt AM
Jurisdiction
Australia
Judgment Date
07 June 2019
Procedural Posture
Appeal / Judgment on Appeal From a Decision of the Children's Court Regarding a Forensic Procedure Order
Outcome
Appeal dismissed. Leave to file Further Amended Summons refused.
Legal Topics
Forensic Procedures, Police Powers, Procedure in Children's Court, Cross Examination of Witnesses, Appeals on Questions of Law
Criminal Law Evidence Child Law Forensic Procedures Police Powers Procedure in Children's Court Cross Examination of Witnesses Appeals on Questions of Law

Case Brief

Summary, issues, holding and outcome

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Parties

Child A

Plaintiff

Detective Senior Constable Joel Hasler

First Defendant

Commissioner of Police NSW

Second Defendant

Magistrate G Blewitt AM

Third Defendant

Procedural Posture

Appeal / Judgment on Appeal From a Decision of the Children's Court Regarding a Forensic Procedure Order

Legal Issues

  1. 1 Whether the Magistrate erred in refusing leave for the plaintiff to cross-examine a police witness under s 30(6),(7) Crimes (Forensic Procedures) Act 2000
  2. 2 Whether the search of the plaintiff under s 21 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was lawful
  3. 3 Whether evidence obtained from the cigarette butt should be excluded under s 138 Evidence Act 1995

Ratio Decidendi

The Magistrate was entitled, on the evidence, to find as a fact that the plaintiff voluntarily discarded the cigarette butt, unrelated to the search. In these circumstances, no error of law in the refusal to permit cross-examination, the finding that the search was lawful, the application of s 138 of the Evidence Act 1995, or the order for a forensic procedure was established. All grounds of appeal failed.

Court Disposition

Appeal dismissed. Leave to file Further Amended Summons refused.

Orders

  • Leave to file a Further Amended Summons refused
  • Dismiss the Amended Summons filed on 25 October 2018 and 1 November 2018