Alessi v SE and Anor [2008] NSWSC 909

Alessi v SE and Anor [2008] NSWSC 909

Because the proposed procedures were different in nature and possibly apt to produce different results, the magistrate was required to consider each proposed procedure on its own merits when deciding whether there were reasonable grounds to believe it might produce evidence tending to confirm or disprove commission of the offences. The magistrate failed to do so and gave reasons from which no reasonable reading revealed why the conclusions were reached, so the proceedings miscarried by error of law.

Jurisdiction
Australia
Judgment Date
05 September 2008
Procedural Posture
Appeal Under S59(2)(a) Crimes (appeal and Review) Act 2001 Against Refusal to Make a Final Forensic Procedure Order; Alternatively Application for Orders in the Nature of Certiorari and Mandamus / Judgment on Appeal From the Children's Court
Outcome
Appeal allowed; order refusing the final forensic procedure order set aside and proceedings remitted to the Children's Court.
Legal Topics
['forensic Procedure Orders' 'reasonable Grounds to Believe Procedure Might Produce Evidence' 'adequacy of Reasons' 'error of Law' 'child Suspect']
['criminal Procedure' 'forensic Procedure' "children's Court Procedure"] ['forensic Procedure Orders' 'reasonable Grounds to Believe Procedure Might Produce Evidence' 'adequacy of Reasons' 'error of Law' 'child Suspect']

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Procedural Posture

Appeal Under S59(2)(a) Crimes (appeal and Review) Act 2001 Against Refusal to Make a Final Forensic Procedure Order; Alternatively Application for Orders in the Nature of Certiorari and Mandamus / Judgment on Appeal From the Children's Court

Legal Issues

  1. 1 ['Whether the magistrate erred in law by misinterpreting or misapplying W v Bugden & Anor when considering whether the proposed forensic procedures might produce evidence tending to confirm or disprove that SE committed the alleged offences.' 'Whether the magistrate erred in law by not giving separate and individual consideration to each proposed forensic procedure under s24 of the Crimes (Forensic Procedures) Act 2000.' 'Whether the magistrate gave understandable and adequate reasons for refusing the final forensic procedure order.']

Ratio Decidendi

Because the proposed procedures were different in nature and possibly apt to produce different results, the magistrate was required to consider each proposed procedure on its own merits when deciding whether there were reasonable grounds to believe it might produce evidence tending to confirm or disprove commission of the offences. The magistrate failed to do so and gave reasons from which no reasonable reading revealed why the conclusions were reached, so the proceedings miscarried by error of law.

Court Disposition

Appeal allowed; order refusing the final forensic procedure order set aside and proceedings remitted to the Children's Court.

Orders

  • ["The order appealed from in the Children's Court is set aside." "Proceedings are remitted to the Children's Court to be dealt with according to law." "The first defendant should pay the plaintiff's costs but should have a certificate under the Suitors' Fund Act 1951."]