Mullins v Lillyman [2007] NSWSC 407

Reported Decision : 70 NSWLR 26 169 A Crim R 571

New South Wales Supreme Court

CITATION : Mullins v Lillyman [2007] NSWSC 407

HEARING DATE(S) : 09/03/07, 20/04/07

JUDGMENT DATE : 2 May 2007

JUDGMENT OF : Buddin J

DECISION : 1 Declare that the Magistrate erred in law in making an order requiring the plaintiff to "attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm". 2 Order that that part of the order made by the Magistrate requiring the plaintiff to "attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm" be set aside. 3 Otherwise confirm the order made by the Magistrate which is referred to in paragraph 3 of these reasons. That order is to take place within 28 (twenty-eight) days of today's date. 4 Order that the first defendant pay the plaintiff's costs.

CATCHWORDS : Review of Magistrate's decision - order that the plaintiff attend scene of crime to undertake forensic procedure - definition of non-intimate forensic procedure - scope of expression "the taking of a photograph of a part of the body" - purpose of legislation

LEGISLATION CITED : Crimes (Forensic Procedures) Act 2000 Crimes (Local Courts Appeal and Review Act) 2001

Coco v The Queen (1994) 179 CLR 427 Maguire v Beaton (2005) 162 A Crim R 22 Orban v Bayliss [2004] NSWSC 428 CASES CITED : R V G [2005] NSWCCA 291 R v Janceski (2005) 64 NSWLR 10 R v Kane (2004) 144 A Crim R 496 The Queen v Ireland (1971-2) 126 CLR 321 Walker v Budgen (2005) 155 A Crim R 416