AP v Burrell [2016] NSWSC 708

Supreme Court New South Wales

Medium Neutral Citation: AP v Burrell [2016] NSWSC 708 Hearing dates: 31 May 2016 Decision date: 03 June 2016 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the amended summons filed on 5 February 2016.

(2) Reserve costs.

(3) Direct that any party who wishes to apply for costs, provide to my Associate by email written submissions in support of any such application, together with an affidavit (if a lump sum costs order is sought) within seven days hereof. Catchwords: CRIMINAL LAW – procedure – appeal against forensic procedure order made in Local Court under Crimes (Forensic Procedures) Act (CFP Act) – historic sex offence matched to DNA of accused – accused has twin brother who he claims is identical and therefore has same DNA profile – whether plaintiff is a suspect within meaning of CFP Act – consideration of requirements of ss 24 and 26 of CFP Act – whether reasonable grounds to believe suspect has committed an offence – whether reasonable grounds to believe forensic procedure will produce evidence tending to confirm or disprove that the suspect committed an offence – potential for forensic procedure to either confirm suspect's DNA matches profile of alleged offender or exculpate suspect – no error established in decision of Magistrate – summons dismissed

CRIMINAL LAW – second application for forensic procedure following refusal of first application – requirements for additional information Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53 Crimes (Forensic Procedures) Act 2000 (NSW), ss 3, 24, 26, 30, 31, 103, 115A Evidence Act 1995 (NSW), s 135 Cases Cited: ACP v Munro [2012] NSWSC 1510; 227 A Crim R 317 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azar v DPP [2014] NSWSC 132 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bain v Police [2011] SASC 228 George v Rockett [1990] HCA 26; 170 CLR 104 KC v Sanger [2012] NSWSC 98 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Munro v ACP [2012] NSWSC 100 Orban v Bayliss [2004] NSWSC 428 Ruddock v Taylor [2005] HCA 48; 222 CLR 612 Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 Category: Principal judgment Parties: AP (Plaintiff) Detective Senior Constable James Burrell (Defendant) Representation: Counsel: G James QC/ D McMahon (Plaintiff) J Davidson (Defendant)