Sleiman v Murray

(2009) 231 FLR 224; [2009] ACTSC 82

Supreme Court of the ACT

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Decision of an administrative character
4. › Magistrate's order for forensic procedure on suspect
5. › Whether order made as persona designata
6. › Whether amenable to review under Administrative Decisions (Judicial Review) Act 1989 (ACT)
7. › Crimes (Forensic Procedures) Act 2000 (ACT), ss 32, 34, 35
1. Criminal Law and Procedure
2. › Forensic procedures
3. › Order for buccal swab for DNA analysis
4. › Balancing public interest in obtaining evidence against physical integrity of suspect
5. › Whether magistrate erred in balancing exercise
6. › Whether risk of exclusion of NCIDD evidence was relevant consideration
7. › Crimes (Forensic Procedures) Act 2000 (ACT), s 34
1. Administrative Law
2. › Judicial review
3. › Grounds of review
4. › Error of law
5. › No evidence
6. › Irrelevant considerations
7. › Standard of review of balancing exercise analogous to discretion
8. › House v The King principles
9. › Administrative Decisions (Judicial Review) Act 1989 (ACT), s 5

Quick Take

A magistrate's order for a forensic procedure under the Crimes (Forensic Procedures) Act 2000 (ACT) is an administrative decision amenable to judicial review under the ADJR Act, the power being conferred on the magistrate as persona designata. The balancing exercise under s 34(2) is reviewed on House v The King principles. The word 'evidence' in s 34(2) means 'admissible evidence', so the risk that existing evidence may be excluded at trial (e.g. under s 137 of the Evidence Act) is a relevant consideration justifying an order for a fresh forensic procedure.