LK v Commissioner of Police & Anor [2011] NSWSC 458

LK v Commissioner of Police & Anor [2011] NSWSC 458

The Magistrate erred by assuming, without evidence, that DNA was or might be present on the firearm and by failing to identify facts sufficient to support a reasonable belief under s 24(3)(b) that taking the plaintiff's forensic sample might produce evidence tending to confirm or disprove his involvement in the firearm offences. The Magistrate also committed legal error by failing to undertake the mandatory s 24(4) balancing exercise, including consideration of the plaintiff's status as a child, before confirming the final order.

Jurisdiction
Australia
Judgment Date
20 May 2011
Procedural Posture
Appeal From Children's Court Final Order Under S 24 of the Crimes (forensic Procedures) Act 2000 / Appeal Under Part 5 of the Crimes (appeal and Review) Act 2001
Outcome
Appeal allowed.
Legal Topics
['non Intimate Forensic Procedure' 'buccal Swab and Hair Sample' 'reasonable Grounds Under S 24(3)(b)' 'dna Evidence' 'balancing Exercise Under S 24(4)' 'child Suspect']
['criminal Procedure' 'forensic Procedures' 'evidence'] ['non Intimate Forensic Procedure' 'buccal Swab and Hair Sample' 'reasonable Grounds Under S 24(3)(b)' 'dna Evidence' 'balancing Exercise Under S 24(4)' 'child Suspect']

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Procedural Posture

Appeal From Children's Court Final Order Under S 24 of the Crimes (forensic Procedures) Act 2000 / Appeal Under Part 5 of the Crimes (appeal and Review) Act 2001

Legal Issues

  1. 1 ['Whether the Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff committed the relevant offence under s 24(3)(b) of the Crimes (Forensic Procedures) Act 2000 in the absence of crime scene DNA.' 'Whether the Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act 2000.' 'Whether the Magistrate erred by failing to decide whether the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act 2000.']

Ratio Decidendi

The Magistrate erred by assuming, without evidence, that DNA was or might be present on the firearm and by failing to identify facts sufficient to support a reasonable belief under s 24(3)(b) that taking the plaintiff's forensic sample might produce evidence tending to confirm or disprove his involvement in the firearm offences. The Magistrate also committed legal error by failing to undertake the mandatory s 24(4) balancing exercise, including consideration of the plaintiff's status as a child, before confirming the final order.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal is allowed.' "The final order made on 26 May 2010 in the Children's Court at Queanbeyan under s 24 of the Crimes (Forensic Procedures) Act 2000 be set aside." 'Any evidence resulting from the said application or the undertaking of the subject forensic procedure be destroyed.']