Police v AH [2008] NSWLC 6

Local Court of New South Wales

CITATION: Police v AH [2008] NSWLC 6

JURISDICTION: Children's Court

PARTIES: Police AH

FILE NUMBER:

PLACE OF HEARING: Albury

DATE OF DECISION: 05/02/2008

MAGISTRATE: Magistrate G Lerve

CATCHWORDS: Forensic Procedure – suspect – suspicion on reasonable grounds

LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000 Crimes Act 1900

Fawcett –v- Nimmo & Anor [2005] NSWSC 1047 Jawansher –v- Johnson [2004] NSWSC 872 Maguire –v- Beaton (20050 162 A Crim R 21 CASES CITED: Mullins –v- Lillyman [2007] NSWSC 407 Orban –v- Bayliss [2004] NSWSC 428 R –v- Fleming [2007] NSWSC 328 R –v- Jung [2006] NSWSC 660 R –v- Rondo (2001) 126 A Crim R 562

TEXTS CITED:

REPRESENTATION: Sgt. A. Seccull, Police Prosecutor for the applicant Mr. C. Halburd, Solicitor for and with the respondent

ORDERS:

Reasons for Decision

1. By way of application pursuant to the provisions of the Crimes (Forensic Procedures) Act 2000 Detective Senior Constable Jon Irving of the Albury Detectives seeks an order authorising the carrying out of a forensic procedure on AH whose date of birth is [date]. The respondent is a juvenile and therefore cannot consent to the application. In any event, the application is opposed. The principal (and seemingly only significant) basis for the objection is the submission that the prosecution are unable to satisfy the Court that the respondent is a suspect within the meaning of that word within the legislation.

2. The application does not specify the type of forensic procedure that is sought, however, in the course of the hearing of the application the Police Prosecutor amplified that a buccal swab and no other procedure was sought. This did not appear to surprise the solicitor for the applicant. The application was heard with the only evidence for the applicant being the affidavit sworn by Detective Irving on 24 April 2008. Although the affidavit was sworn on the date of the hearing it is my understanding the solicitor for the respondent had previously been served an "unsworn" copy of the affidavit. No objection was taken to the affidavit by the solicitor for the respondent, nor was the deponent required for cross-examination.