Kerr v Commissioner of Police & Ors [2001] NSWSC 637

Kerr v Commissioner of Police & Ors [2001] NSWSC 637

An irregularity in the application for the interim forensic order (by an unauthorised applicant) did not render the order invalid, as statutory requirements for making the order were considered by the justice. Relief by declaration and orders restraining testing and destruction of samples was refused, due to the lack of exceptional circumstances and the importance of allowing the criminal process to proceed with relevant evidence available for consideration by the trial judge.

Parties
Plaintiff: Nathan Anthony Kerr; First Defendant: Commisioner of Police for the State of New South Wales; Second Defendant: State of New South Wales; Third Defendant: Director of Public Prosecutions (NSW)
Jurisdiction
Australia
Judgment Date
27 July 2001
Procedural Posture
Summons for Declaration and Orders / Judgment on Application
Outcome
Relief refused except order remitting confirmation of interim order to magistrate; costs awarded against plaintiff.
Legal Topics
Forensic Evidence, Procedural Validity, Consent to Forensic Procedure, Judicial Reluctance to Interfere With Criminal Process
Criminal Law Evidence Judicial Review Forensic Evidence Procedural Validity Consent to Forensic Procedure Judicial Reluctance to Interfere With Criminal Process

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Parties

Nathan Anthony Kerr

Plaintiff

Commisioner of Police for the State of New South Wales

First Defendant

State of New South Wales

Second Defendant

Director of Public Prosecutions (NSW)

Third Defendant

Procedural Posture

Summons for Declaration and Orders / Judgment on Application

Legal Issues

  1. 1 Whether forensic procedure was undertaken illegally under the Crimes (Forensic Procedures) Act 2000
  2. 2 Whether the forensic samples should be destroyed or testing restrained
  3. 3 Whether the interim forensic order was invalid due to irregularity in application

Ratio Decidendi

An irregularity in the application for the interim forensic order (by an unauthorised applicant) did not render the order invalid, as statutory requirements for making the order were considered by the justice. Relief by declaration and orders restraining testing and destruction of samples was refused, due to the lack of exceptional circumstances and the importance of allowing the criminal process to proceed with relevant evidence available for consideration by the trial judge.

Court Disposition

Relief refused except order remitting confirmation of interim order to magistrate; costs awarded against plaintiff.

Orders

  • Proceedings seeking confirmation of the interim order are remitted to Magistrate Russell to be dealt with according to law.
  • Orders sought in paras 1 and 3, and declaration sought in para 2 of the summons are refused.