Munro v ACP [2012] NSWSC 100

Munro v ACP [2012] NSWSC 100

The appeal succeeded because the magistrate committed an error of law by failing to consider and determine whether the plaintiff had provided additional information that justified making the further application under s 26(3), or at least by failing to give reasons on that necessary issue. The magistrate also erred by treating the second and third procedures in the second application as the same procedure as the earlier application, when the taking of additional body photographs and physical measurements had not been sought before and should have been determined on their merits.

Jurisdiction
Australia
Judgment Date
21 February 2012
Procedural Posture
Appeal Under S 115 A(2) of the Crimes (forensic Procedure) Act 2000 From Refusal of an Application for a Forensic Procedure / Appeal From Local Court Decision of 18 April 2011
Outcome
Appeal allowed. Order of the magistrate set aside. Proceedings remitted to the Local Court to be heard according to law.
Legal Topics
['forensic Procedures' 'non Intimate Forensic Procedure' 'further Application for Forensic Procedure' 'statutory Construction of S 26(3) Crimes (forensic Procedure) Act 2000' 'adequacy of Reasons' 'local Court Appeal']
['criminal Law' 'criminal Procedure'] ['forensic Procedures' 'non Intimate Forensic Procedure' 'further Application for Forensic Procedure' 'statutory Construction of S 26(3) Crimes (forensic Procedure) Act 2000' 'adequacy of Reasons' 'local Court Appeal']

Case Brief

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Procedural Posture

Appeal Under S 115 A(2) of the Crimes (forensic Procedure) Act 2000 From Refusal of an Application for a Forensic Procedure / Appeal From Local Court Decision of 18 April 2011

Legal Issues

  1. 1 ['Whether the magistrate erred by failing to consider or determine whether the plaintiff had provided additional information that justified making a further application under s 26(3) of the Crimes (Forensic Procedure) Act 2000.' 'Whether "additional information" in s 26(3) means more information than was provided on the earlier application, or only information not available at the time of the earlier application.' 'Whether the second and third forensic procedures sought in the second application were the same forensic procedure as that sought in the first application and therefore caught by s 26(3).']

Ratio Decidendi

The appeal succeeded because the magistrate committed an error of law by failing to consider and determine whether the plaintiff had provided additional information that justified making the further application under s 26(3), or at least by failing to give reasons on that necessary issue. The magistrate also erred by treating the second and third procedures in the second application as the same procedure as the earlier application, when the taking of additional body photographs and physical measurements had not been sought before and should have been determined on their merits.

Court Disposition

Appeal allowed. Order of the magistrate set aside. Proceedings remitted to the Local Court to be heard according to law.

Orders

  • ['Appeal allowed.' 'The order made on 18 April 2011 refusing the application is set aside.' 'The proceedings are remitted to the Local Court to be heard according to law.' "The first defendant is to pay the plaintiff's costs." 'Liberty to apply within 7 days if any alternative order as to costs is sought.']