Kindermann v JQ [2020] NSWSC 1268

Kindermann v JQ [2020] NSWSC 1268

The Magistrate erred in law by setting aside the interim forensic procedure order and ordering destruction of evidence without jurisdiction; under the Crimes (Forensic Procedures) Act 2000 (NSW), an interim order can be made on a child without a hearing or representation, and procedural fairness requirements apply at the final order stage. The orders setting aside the interim order and destruction of evidence were set aside and the matter remitted to the Children's Court differently constituted.

Jurisdiction
Australia
Judgment Date
17 September 2020
Procedural Posture
Appeal / Interlocutory Appeal From Children's Court Decision
Outcome
Appeal upheld
Legal Topics
['forensic Procedure Orders' 'jurisdiction' 'interim Orders' 'procedural Fairness' 'children as Suspects']
['criminal Law' 'criminal Procedure' "children's Law"] ['forensic Procedure Orders' 'jurisdiction' 'interim Orders' 'procedural Fairness' 'children as Suspects']

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Procedural Posture

Appeal / Interlocutory Appeal From Children's Court Decision

Legal Issues

  1. 1 ['Whether the Magistrate had jurisdiction to set aside an interim forensic procedure order on a child without a hearing;' 'Whether there is a requirement for a hearing or representation for the making of an interim order under the Crimes (Forensic Procedures) Act 2000 (NSW);' 'Correct procedures for forensic evidence preservation relating to child suspects;']

Ratio Decidendi

The Magistrate erred in law by setting aside the interim forensic procedure order and ordering destruction of evidence without jurisdiction; under the Crimes (Forensic Procedures) Act 2000 (NSW), an interim order can be made on a child without a hearing or representation, and procedural fairness requirements apply at the final order stage. The orders setting aside the interim order and destruction of evidence were set aside and the matter remitted to the Children's Court differently constituted.

Court Disposition

Appeal upheld

Orders

  • ['Leave to appeal granted pursuant to s 57(2) of the Crimes (Appeal and Review Act) 2001 (NSW)' 'Appeal made pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) upheld' 'Order made by Magistrate Clisdell on 27 April 2020 setting aside the Interim Forensic Procedure Order of the Registrar made on 25...