F V v Zeitler [2007] NSWSC 333

New South Wales Supreme Court

CITATION : F V v Zeitler [2007] NSWSC 333 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 2 April 2007, 3 April 2007

JUDGMENT DATE : 3 April 2007

JUDGMENT OF : Simpson J

DECISION : Appeal dismissed

CATCHWORDS : CRIMINAL LAW - order for forensic procedures - appeal - plaintiff a suspect - indictable offence - murder - reasonable grounds to suspect plaintiff - grounds for believing forensic procedures might produce evidence to confirm or disprove commission of offence - forensic procedures justified in circumstances - circumstantial case - DNA evidence - appeal dismissed

Crimes (Appeal and Review) Act 2001, Part 5, s3, s8, s23, s24, s25, s25A LEGISLATION CITED : Crimes (Forensic Procedures) Act 2000, s115A Mental Health Act 1990

CASES CITED : Orban v Bayliss [2004] NSWSC 428

PARTIES : F V - Plaintiff Nicole Zeitler - Defendant

FILE NUMBER(S) : SC 11343/07

COUNSEL : CA Davenport SC - Plaintiff L Babb SC / LS Leis - Defendant

SOLICITORS : Mandy Hull & Associates - Plaintiff IV Knight - Defendant

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Michael Holmes

LOWER COURT DATE OF DECISION : 9 March 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST

SIMPSON J

Tuesday 3 April 2007

11343/07 F V v Nicole Zeitler

JUDGMENT 1 HER HONOUR: By Amended Summons filed in court on 3 April 2007, the plaintiff appeals, pursuant to s115A of the Crimes (Forensic Procedures) Act 2000 ("the Act") and Part 5 of the Crimes (Appeal and Review) Act 2001, against an order made under the Act in the Local Court at Armidale on 9 March 2007 by magistrate Michael Holmes. The formal order was expressed in the following terms: "I, Michael North Holmes … at the Local Court at Armidale on 9 March 2007 having been satisfied of the matters referred to under [the Act] make orders authorising the carrying out of a Non Intimate forensic procedure being, 1) buccal swab 2) hair sample 3)photograph and if the suspect refuses the procedures listed 1) 2) 3), a blood test, on F V of Banksia Mental Health Unit Tamworth. I order that F V … attend at the time and place directed for the carrying out of the forensic procedure. … This Order is made under section 24 of [the Act]." 2 In the formal record of the order, there follows a statement of "Reasons for Order", in the following terms: "I note that under s8 of the Act, the suspect cannot consent to the forensic procedure. 1) I am satisfied (s25 of the Act) that; a) the person is a suspect (as defined in s3 of the Act) and; b) on the evidence before me there are reasonable grounds to believe that the suspect committed an indictable offence namely Murder. c) Based on the affidavit and oral evidence of the case officer Detective Senior Constable Borghouts there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence based upon the material place (sic) before the court. d) The carrying out of the forensic procedure is justified in all the circumstances. e) The probative value of the evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is a delay in carrying out the procedure; 1. The police may use reasonable force to ensure that you comply with the order for the carrying out of the forensic procedure. 2. The police are required to comply with the provisions of Part 6 of [the Act] in carrying out the forensic procedure." This accurately reflects reasons given orally by the magistrate at the time he made the orders.