LK v Commissioner of Police & Anor [2011] NSWSC 458

Supreme Court New South Wales

Medium Neutral Citation: LK v Commissioner of Police & Anor [2011] NSWSC 458 Hearing dates: 25 March 2011 Decision date: 20 May 2011 Jurisdiction: Common Law Before: Fullerton J Decision: 1. The appeal is allowed. 2. The final order made on 26 May 2010 in the Children's Court at Queanbeyan under s 24 of the Crimes (Forensic Procedures) Act 2000 be set aside. 3. Any evidence resulting from the said application or the undertaking of the subject forensic procedure be destroyed. Catchwords: APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed - whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA - whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act - whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act Legislation Cited: Bail Act 1978 Crimes (Appeal and Review) Act 2001 Crimes (Forensic Procedures) Act 2000 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Evidence Act 1995 Firearms Act 1996 Cases Cited: Alessi v SE and Anor [2008] NSWSC 909 Walker v Bugden [2005] NSWSC 898 Category: Principal judgment Parties: LK (Plaintiff) Commissioner of Police (1st Defendant) Senior Constable Adrian Seal (2nd Defendant) Representation: Counsel: P Winch (Plaintiff) P Butterfield (Defendant) Solicitors: Fitzgerald Naylor Lawyers (Plaintiff) Office of the General Counsel (Defendants) File Number(s): 2010/374084 Publication restriction: Name of plaintiff not to be published