AD and Ors v New South Wales Police [2021] NSWSC 1502

AD and Ors v New South Wales Police [2021] NSWSC 1502

The stay should be lifted and the Summons dismissed because the Act permits interim forensic procedure orders to enable samples to be taken and preserved, the complaints about notice and opportunity to be heard were answered by Kindermann v JQ, challenges to the evidentiary foundation were matters for the Magistrate at the final hearing rather than for the Supreme Court in limited supervisory jurisdiction, and further delay could erode the evidentiary value of the hair samples. Any samples taken must be dealt with in accordance with s.38 of the Act.

Jurisdiction
Australia
Judgment Date
10 November 2021
Procedural Posture
Judicial Review Application Seeking Declaratory and Restraining Relief Concerning Interim Forensic Procedure Orders / Urgent Application and Final Disposition of Summons After Interim Stay Orders
Outcome
The Summons was dismissed, there was no order as to costs, and the interim orders made the previous evening were revoked.
Legal Topics
['interim Forensic Procedure Orders' 'hair Samples From Young Persons' 'stay of Order' 'procedural Fairness' 'supervisory Jurisdiction']
['criminal Procedure' 'administrative Law' 'judicial Review'] ['interim Forensic Procedure Orders' 'hair Samples From Young Persons' 'stay of Order' 'procedural Fairness' 'supervisory Jurisdiction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review Application Seeking Declaratory and Restraining Relief Concerning Interim Forensic Procedure Orders / Urgent Application and Final Disposition of Summons After Interim Stay Orders

Legal Issues

  1. 1 ['Whether the interim forensic procedure orders made under s.32 Crimes (Forensic Procedures) Act 2000 should be stayed or treated as contrary to law and void.' 'Whether short notice and lack of an opportunity to be heard invalidated the interim orders.' 'Whether the Supreme Court could review the sufficiency of evidence supporting the interim forensic procedure orders in its supervisory jurisdiction.' 'Whether the stay should continue until the final hearing before a Magistrate under s.30 Crimes (Forensic Procedures) Act 2000.']

Ratio Decidendi

The stay should be lifted and the Summons dismissed because the Act permits interim forensic procedure orders to enable samples to be taken and preserved, the complaints about notice and opportunity to be heard were answered by Kindermann v JQ, challenges to the evidentiary foundation were matters for the Magistrate at the final hearing rather than for the Supreme Court in limited supervisory jurisdiction, and further delay could erode the evidentiary value of the hair samples. Any samples taken must be dealt with in accordance with s.38 of the Act.

Court Disposition

The Summons was dismissed, there was no order as to costs, and the interim orders made the previous evening were revoked.

Orders

  • ['The Summons is dismissed.' 'There is no order as to costs.' 'As a consequence of the order dismissing the Summons, the orders made last evening are revoked, including orders 4 and 5 which were set out earlier in this judgment.']