WALKER v. BUDGEN [2005] NSWSC 898

WALKER v. BUDGEN [2005] NSWSC 898

The affidavit evidence supplied sufficient factual material to satisfy s.25(c), because it established reasonable grounds to believe the plaintiff was a suspect in relation to the alleged offences. However, it did not supply factual material establishing reasonable grounds under s.25(f) to believe that a buccal swab might produce evidence tending to confirm or disprove the plaintiff's commission of the offence, because it did not identify any crime scene DNA material or other basis for DNA comparison. The magistrate also failed to address the balancing required by s.25(g), which constituted an error of law.

Jurisdiction
Australia
Judgment Date
07 September 2005
Procedural Posture
Appeal Under S.115 A(1) of the Crimes (local Courts Appeal and Review) Act 2001 From an Order Made Under S.24 of the Crimes (forensic Procedures) Act 2000 (nsw) / Application for Leave to Appeal in the Supreme Court of New South Wales
Outcome
Leave to appeal granted; the magistrate's order was vacated and the matter remitted for re-determination according to law.
Legal Topics
['non Intimate Buccal Swab on a Suspect' 'reasonable Grounds to Believe' 'dna Evidence' 'orders by Magistrate Under the Crimes (forensic Procedures) Act 2000 (nsw)' 'aggravated Robbery and Robbery in Company']
['criminal Procedure' 'forensic Procedures' 'judicial Review and Appeals'] ['non Intimate Buccal Swab on a Suspect' 'reasonable Grounds to Believe' 'dna Evidence' 'orders by Magistrate Under the Crimes (forensic Procedures) Act 2000 (nsw)' 'aggravated Robbery and Robbery in Company']

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Procedural Posture

Appeal Under S.115 A(1) of the Crimes (local Courts Appeal and Review) Act 2001 From an Order Made Under S.24 of the Crimes (forensic Procedures) Act 2000 (nsw) / Application for Leave to Appeal in the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether the magistrate erred by making the order without making a finding under s.25(c) of the Crimes (Forensic Procedures) Act 2000 (NSW) that there were reasonable grounds to believe the plaintiff committed the offence.' 'Whether there were reasonable grounds under s.25(f) to believe that the proposed buccal swab might produce evidence tending to confirm or disprove that the plaintiff committed the relevant offence when there was no evidence that DNA material had been found at the crime scene.' 'Whether the carrying out of the forensic procedure was justified in all the circumstances under s.25(g).']

Ratio Decidendi

The affidavit evidence supplied sufficient factual material to satisfy s.25(c), because it established reasonable grounds to believe the plaintiff was a suspect in relation to the alleged offences. However, it did not supply factual material establishing reasonable grounds under s.25(f) to believe that a buccal swab might produce evidence tending to confirm or disprove the plaintiff's commission of the offence, because it did not identify any crime scene DNA material or other basis for DNA comparison. The magistrate also failed to address the balancing required by s.25(g), which constituted an error of law.

Court Disposition

Leave to appeal granted; the magistrate's order was vacated and the matter remitted for re-determination according to law.

Orders

  • ['Grant leave to appeal.' 'That the order of the second defendant made on 16 March 2005 be vacated.' 'That the matters be remitted to the learned magistrate for re-determination according to law.' 'That the learned magistrate consider the matter set out in s.25(f) and (g) of the Crimes (Forensic Procedures) Act 2002.']