Jordan Gibson v NSW Commissioner of Police [2018] NSWDC 420

District Court New South Wales

Medium Neutral Citation: Jordan Gibson v NSW Commissioner of Police [2018] NSWDC 420 Hearing dates: 28 November 2018 Date of orders: 10 December 2018 Decision date: 10 December 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Appeal dismissed. Confirm orders of the Local Court Catchwords: PROCEDURAL RULING – appeal from Magistrate – application for forensic procedure – buccal swab –respondent's DNA profile already on database – whether application for obtaining fresh material now reasonable Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Forensic Procedure) Act Evidence Act 1995 Local Court Act Cases Cited: Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Dyason v Butterworth [2015] NSWCA 52 Lewis v Sgt Riley [2017] NSW CA 272 Plassas v Person [2016] NSWSC 1445 Category: Principal judgment Parties: Jordan Gibson (Appellant) NSW Commissioner of Police (Respondent) Representation: Solicitors: Mr T McKenzie (for the appellant) Mr R Coffey (for the NSW Commissioner of Police) File Number(s): 2018/00236376

Judgment 1. On 2 October 2018 Magistrate P Thompson allowed a police application for a forensic procedure involving a self-administered buccal swab be carried out on Jordan Gibson. Gibson has appealed that decision to the District Court. 2. This Court has jurisdiction to entertain that appeal: s 70 Local Court Act; Lewis v Sgt Riley [2017] NSW CA 272. This court proceeds in the same way as it would when dealing with an appeal against conviction under Part 3 Crimes (Appeal and Review) Act 2001. Generally a court on appeal is taken to an error said to be made in the court below: Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218. 3. I have had the benefit of comprehensive submissions from Mr McKenzie, solicitor, Legal Aid Commission and Mr Coffey, solicitor advocate, for the New South Wales Commissioner of Police. I have reviewed Magistrate Thomson's extempore reasons. I have had the considerable benefit of the review of the legislative provisions by Justice Bellew in Plassas v Person [2016] NSWSC 1445. 4. Magistrate Thomson discretionary judgment was available to him. It was well reasoned and supported by affidavit evidence and authority. He did not err. No reason has been advanced for setting aside that order. These are my brief reasons for dismissing the appeal.