Jawansher v Johnson LCM [2004] NSWSC 872

New South Wales Supreme Court

CITATION : Jawansher v Johnson LCM [2004] NSWSC 872 HEARING DATE(S) : 13 September 2004 JUDGMENT DATE : 23 September 2004

JUDGMENT OF : Barr J at 1 DECISION : Summons dismissed. Plaintiff to pay the defendants costs.

PARTIES : Ahmad JAWANSHER v Johnson LCM & Anor FILE NUMBER(S) : SC 12413/04 COUNSEL : Plaintiff: G Brady Defendant 2: P Singleton SOLICITORS : Plaintiff: Nyman Gibson Stewart Defendant 2: M.N. Holmes

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

23 September 2004

12413/04 Ahmad JAWANSHER v JOHNSON LCM & Anor

JUDGMENT 1 HIS HONOUR: In his summons filed on 30 July 2004 the plaintiff seeks the following orders - 1. A Declaration that the First Defendant erred in law in making an order providing for the taking of non-intimate photographs of the Plaintiff pursuant to Section 24 of the Crimes (Forensic Procedures) Act. 2. An order setting aside the order of the First Defendant providing for the taking of non-intimate photographs of the Plaintiff pursuant to section 24 of the Crimes (Forensic Procedures) Act. 3. A declaration that insufficient evidence exists to allow for the making of an order pursuant to Section 24 of the Crimes (Forensic Procedures) Act against the Plaintiff. 4. I the alternative to paragraph 3, an order remitting the matter First Defendant for redetermination according to law. 5. An order that the Second Defendant pay the Plaintiffs costs. 2 The second defendant, a police officer, applied to the first defendant, a Local Court magistrate ("the magistrate"), under s 24 Crimes (Forensic Procedures) Act 2000 ("the Act") for an order for the taking of non-intimate photographs of the plaintiff. The magistrate made the order and the plaintiff says that in doing so he erred in law. 3 As they apply to this case ss 22-25 of the Act are as follows - 22 Forensic procedure may be carried out by order of Magistrate or other authorised justice A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised justice under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise. 23 Circumstances in which Magistrate or other authorised justice may order forensic procedure An order may be made by a Magistrate under section 24, or by an authorised justice under section 32, for the carrying out of a forensic procedure on a suspect if: (a) the suspect is not under arrest and has not consented to the forensic procedure, or (b) the suspect is under arrest and has not consented to the forensic procedure, or (c) under section 8, the suspect cannot consent to the forensic procedure. 24 Final order for carrying out of forensic procedure A Magistrate may order the carrying out of a forensic procedure on a suspect if: (a) section 23 applies, and (b) the Magistrate is satisfied as required by section 25.