Charara v The Commissioner of Police NSW [2007] NSWSC 26

Reported Decision : 168 A Crim R 89

New South Wales Supreme Court

CITATION : Charara v The Commissioner of Police NSW [2007] NSWSC 26 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 30/01/2007

JUDGMENT DATE : 5 February 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS : Carrying out of forensic procedures on serious indictable offenders in a place of detention - non-intimate procedure (hair sample) - refusal of consent - order by senior police officer - threshold requirements - construction of statutory provisions - jurisdiction of a Court.

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

PARTIES : Jamal Charara The Commissioner of Police NSW

FILE NUMBER(S) : SC 10878/06

COUNSEL : In Person (Pl) Mr T. Ryan (Def)

SOLICITORS : Assistant Commissioner Lee Shearer (Def)

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

ASSOCIATE JUSTICE MALPASS

5 FEBRUARY 2007

10878/06 Jamal Charara v The Commissioner of Police NSW

JUDGMENT 1 HIS HONOUR: On 9 April 1999, the plaintiff was convicted in respect of a number of offences (including resist arrest and assault police). He was sentenced to six months periodic detention. 2 Whilst he was in periodic detention (prior to 21 March 2002), he was informed by the corrective services liaison officer that a testing procedure would be taking place the following weekend and that he should seek independent legal advice prior thereto. The plaintiff made contact with his barrister (Mr Kennedy). 3 During the period from September 2001 to December 2002, Sergeant Hassett was a member of the forensic procedures testing team (as a team leader). On 21 March 2002, he attended Parramatta Correctional Centre with the team. The plaintiff was requested to undergo a testing procedure. He was told that the purpose of the exercise was to enable a sample to be stored in the DNA database. Sergeant Hassett has deposed to the following:- "I then went through the "Consent Form" with Mr Charara and asked all the appropriate questions as required by law with regard to the procedure".