Fawcett v Nimmo & anor [2005] NSWSC 1047

Fawcett v Nimmo & anor [2005] NSWSC 1047

The Local Court order could not stand because there was no evidence that the device was ever used or caused to be used to record or listen to a conversation for the purposes of s 5 of the Listening Devices Act 1974, and the magistrate's reasons did not identify an evidentiary basis for reasonable grounds to suspect possession with intended unlawful use under s 9. The reasons therefore did not support the forensic procedure order required under the Crimes (Forensic Procedures) Act 2000.

Jurisdiction
Australia
Judgment Date
18 October 2005
Procedural Posture
Claim for Relief by Summons Challenging a Local Court Order for a Forensic Procedure Under the Crimes (forensic Procedures) Act 2000 / Supreme Court Judgment on Appeal/review From Local Court Order
Outcome
Order quashed; proceedings remitted; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['compulsory Forensic Procedure' 'buccal Swab' 'reasonable Grounds for Suspicion' 'listening Devices' 'duty to Give Reasons']
['criminal Law and Procedure'] ['compulsory Forensic Procedure' 'buccal Swab' 'reasonable Grounds for Suspicion' 'listening Devices' 'duty to Give Reasons']

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Procedural Posture

Claim for Relief by Summons Challenging a Local Court Order for a Forensic Procedure Under the Crimes (forensic Procedures) Act 2000 / Supreme Court Judgment on Appeal/review From Local Court Order

Legal Issues

  1. 1 ['Whether the evidence before the Local Court permitted satisfaction that there were reasonable grounds for suspecting the plaintiff had committed a prescribed offence.' 'Whether the Local Court order for a buccal swab was supported by sufficient reasons as required by the Crimes (Forensic Procedures) Act 2000.' 'Whether the evidence supported suspicion of an offence against s 5 or s 9 of the Listening Devices Act 1974.']

Ratio Decidendi

The Local Court order could not stand because there was no evidence that the device was ever used or caused to be used to record or listen to a conversation for the purposes of s 5 of the Listening Devices Act 1974, and the magistrate's reasons did not identify an evidentiary basis for reasonable grounds to suspect possession with intended unlawful use under s 9. The reasons therefore did not support the forensic procedure order required under the Crimes (Forensic Procedures) Act 2000.

Court Disposition

Order quashed; proceedings remitted; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['The order under s 24 of the Crimes (Forensic Procedures) Act 2000 made by the second defendant on 6 April 2005, on the application of the first defendant is quashed.' 'The proceedings are remitted to the second defendant to be dealt with according to law.' "The first defendant is ordered to pay the plaintiff's...