Charara v Commissioner of Police [2008] NSWCA 22

Reported Decision: 182 A Crim R 64 Appeal Outcome: Application dismissed 31 July 2008 [2008] HCASL 411

New South Wales Court of Appeal

CITATION: Charara v Commissioner of Police [2008] NSWCA 22 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 February 2008

JUDGMENT DATE: 10 March 2008

JUDGMENT OF: Giles JA at 1; McColl JA at 2; Campbell JA at 3

(1) Set aside the order of Latham J made 22 February 2007 that the Appellant pay the costs of the Respondent of the Notice of Motion then before her Honour on an indemnity basis. DECISION: (2) In lieu, order the Appellant to pay the costs of the Respondent of that Notice of Motion. (3) Otherwise, appeal dismissed. (4) Appellant to pay 95% of the costs of the Respondent of the appeal proceedings, including the application for leave to appeal.

CATCHWORDS: CRIMINAL LAW – Forensic procedure – hair sample taken from serious indictable offender in periodic detention – police officer performing procedure purporting to act under authority of order made under s 70 Crimes (Forensic Procedures) Act – whether taking of hair unlawful – proper construction of s 70 of Act – whether s 70(1)(c) or s 70(2)(c) of Act applicable in the circumstances – proper construction of s 62(1) and s 74(3) of Act – whether failure to comply with s 71 of Act because hair sample could have been taken pursuant to court order under s 74(3) – relevance of privilege against self-incrimination – whether right to natural justice arises – whether compliance with s 73 of Act – whether compliance with s 73 is a precondition for the validity of an order made under s 70 – whether if in circumstances taking of hair sample was unlawful Act would require destruction of sample and information derived from sample - STATUTES – Interpretation – whether definition of "order" in s 3 Crimes (Forensic Procedures) Act applies to s 70 of Act – s 6 Interpretation Act 1987 - APPEAL – whether appeal from a final decision of an Associate Justice lies to a single judge or to the Court of Appeal - PROCEDURE – costs – appeal from decision of Associate Justice brought in incorrect tribunal – respondent awarded costs of motion on indemnity basis – appeal – whether conduct of appellant has degree of delinquency concerning conduct of proceedings to warrant order for indemnity costs