Kindermann v JQ [2020] NSWSC 1268

Supreme Court New South Wales

Medium Neutral Citation: Kindermann v JQ [2020] NSWSC 1268 Hearing dates: 16 July 2020 Date of orders: 16 July 2020 Decision date: 17 September 2020 Jurisdiction: Common Law Before: Rothman J Decision: (1) The Court grants leave to appeal the interlocutory decision pursuant to s 57(2) of the Crimes (Appeal and Review Act) 2001 (NSW); (2) The appeal made pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) be upheld; (3) The order made by Magistrate Clisdell on 27 April 2020 setting aside the Interim Forensic Procedure Order of the Registrar made on 25 April 2020 in respect of the first defendant be set aside; (4) The order of Magistrate Clisdell to destroy any forensic swab obtained as a result of performing the Interim Forensic Procedure Order be set aside; (5) The matter be remitted to the Children's Court for determination according to law before the court differently constituted; (6) No order as to costs. Catchwords: CRIMINAL PROCEDURE – Forensic Procedure – Interim order on minor – permitted without hearing LOCAL COURT – jurisdiction – mistake as to jurisdiction to order interim forensic procedure on child without hearing from the person. Legislation Cited: Crimes (Appeal and Review Act) 2001 (NSW), s 57(2) Crimes (Forensic Procedures) Act 2000 (NSW), ss 3(1), 17, 23, 24, 30, 31, 32, 33, 34, 37, 38, 115A, Pt 4, Pt 5 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Supreme Court Act 1970 (NSW), s 69 Cases Cited: JW v Detective Sergeant Karol Blackley (2007) 172 A Crim R 483; [2007] NSWSC 799 Plassas v Person [2016] NSWSC 1445 Sullivan v Department Of Transport (1978) 20 ALR 323; [1978] FCA 48 Category: Principal judgment Parties: Detective Sergeant Peter Kindermann (Plaintiff) JQ (First Defendant) Children's Court of New South Wales (Second Defendant) Representation: Counsel: D New (Plaintiff) K Stares (First Defendant) Submitting appearance (Second Defendant)