NSW Police v JG [2013] NSWLC 31

Local Court New South Wales

Medium Neutral Citation: NSW Police v JG [2013] NSWLC 31 Hearing dates: 20/11/2013 Decision date: 22 November 2013 Jurisdiction: Civil Before: Magistrate Buscombe Decision: Application marked "no jurisdiction" Catchwords: FORENSIC PROCEDURES - application for forensic procedure - non-compliance with notice requirements - failure to specify type of procedure sought - whether application invalid and a nulltiy Legislation Cited: Crimes (Forensic Procedures) Act 2000 Local Court Act 2007 Cases Cited: Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655; 1 All ER 338 John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 KC v Sanger [2012] NSWSC 98 Orban v Bayliss [2004] NSWSC 428 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Janceski (2005) 64 NSWLR 10 Walker v Bugden [2005] NSWSC 898 Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia (2011), 7th ed, Lexis Nexis Category: Interlocutory applications Parties: NSW Police (applicant) JG (respondent) Representation: Mr Dhanji SC (for the respondent) Sgt Zervas (for the applicant) File Number(s): 2013/163037

Judgment

Introduction 1Proceedings concerning an application titled "Application for Interim/Final Order for Carrying Out Forensic Procedure Section 33/Section 24 Crimes (Forensic Procedures) Act", (the Act), were referred to me from the defended list court on 20 November 2013. The application is dated 14 May 2013 and signed by a police officer, a Paul Baglin. 2Upon the matter coming on before me, Mr Dhanji SC who appeared for the respondent indicated that he wanted to raise a preliminary issue prior to any hearing of the application. In summary Mr Dhanji SC submitted that the application was invalid and a nullity, and as such the Court's jurisdiction had not been enlivened and that I should simply mark the papers "no jurisdiction". 3The Police Prosecutor who appeared for the applicant on the application, upon an outline of the nature of the jurisdictional issue raised on behalf of the respondent, sought to tender and call certain evidence to meet what had been raised. I permitted, on a provisional basis, the tender of the affidavit of the applicant affirmed on either 8 or 14 May 2013, and a warrant apparently issued by another magistrate on 27 May 2013 under s 29 of the Act. I did so as the applicant wished to argue that in considering the jurisdictional issue, I was not restricted to the terms of the application. 4I did not permit the applicant to call any oral evidence from the deponent to the affidavit on the jurisdictional argument as I could not see how on any basis it could be relevant to the determination of the preliminary issue taken by the respondent. 5The application appears to be something in the nature of a pro forma document in that it suggests that if certain paragraphs are considered by the applicant not to be applicable, there is a prompt to delete them. After setting out the date and name of the applicant, and a statement that the applicant was an authorised applicant it continues: "apply under section 24 of the Crimes (Forensic Procedure) Act 2000 for the issue of a final order authorising the carrying out of a forensic procedure on [the respondent] (name of suspect) of [an address in] Freshwater (address) who is aged 27 yrs. *I make application under s.33 of the Crimes (Forensic Procedures) Act 2000 for an interim order authorising the carrying out of the forensic procedure pending determination of the final hearing of the application. *I make application under section 28 of the Crimes (Forensic Procedures) Act 2000 for the issue of a warrant directing the person holding the suspect under original arrest to deliver the suspect into the custody of the other police for the hearing of an application for an order under Section 24. *Orders are sought pursuant to section 28/29 of the Crimes (Forensic Procedures) Act 2000. *Delete if not applicable" 6The application concludes with the signature, name and date of the applicant. The application then has a heading: "Listing of Application for Hearing". There appears to have been something written on that part of the document by another magistrate and the date 23.5.13. There is then a heading "Order for Process to Issue to Secure Attendance of Suspect at Hearing" and there is an indication that a warrant under s 29 of the Act was issued by the other magistrate to secure the respondent's attendance at any hearing of the application. 7It was not suggested to me that the other magistrate at any time had commenced a hearing of the application.