Citation: Dogan v Quayle [2011] NSWSC 143
Court: Supreme Court of New South Wales
Date: 11 March 2011
Judge: Harrison J
Background
A magistrate ordered the plaintiff, a hotel security guard, to attend a police station to be photographed as part of a non-intimate forensic procedure under s 24 of the Crimes (Forensic Procedures) Act 2000. The order arose from allegations that the plaintiff had been involved in an assault at a Sydney hotel in October 2009. He was required to comply by 6:00pm the following day.
Rather than attend to be photographed, the plaintiff commenced proceedings in the Supreme Court by summons seeking to set aside the magistrate's order. Under the applicable legislation, that appeal automatically operated as a stay of the magistrate's order, meaning the plaintiff was not in breach while the appeal remained on foot.
The defendant (the police officer who had obtained the forensic procedure order) applied informally to the Supreme Court to vary the stay and compel the plaintiff to be photographed while the appeal proceeded. The plaintiff was overseas at the time and had not been given notice of the variation application.
Legal Issues
- Whether the Supreme Court could, on the defendant's application, vary the stay of the magistrate's forensic procedure order under s 55(2)(b) of the Crimes (Appeal and Review) Act 2001
- Whether such an application could properly be determined without notice to the plaintiff
- What procedural steps were available to the defendant to progress the matter
Decision
Harrison J identified that s 55(2)(b) empowers the Supreme Court to vary a sentence or order on appeal, which in this context would include varying the stay of the magistrate's forensic procedure order. However, His Honour declined to exercise that power on the application as presented.
The central reason for refusal was procedural fairness: the plaintiff had received no notice that the defendant was seeking to vary the order, nor that dismissal of the appeal was a possible outcome. His Honour considered it inappropriate to make any order affecting the plaintiff's position without him first having the opportunity to respond.
His Honour also noted a secondary concern raised by the defendant. Even if the current proceedings were disposed of, the original magistrate's order required attendance by a date that had already passed. There was a real question whether dismissing the appeal could revive that order, potentially requiring the defendant to seek an entirely fresh order under s 24.
Rather than resolving those issues on the papers without notice to the plaintiff, His Honour directed that the proceedings be listed in the Registrar's list for directions, leaving the defendant to take whatever formal steps she chose to progress the matter with proper notice to the plaintiff.
Orders Made
No formal orders were made. The proceedings were to be placed in the Registrar's list for directions at a convenient date, with the defendant at liberty to make any application she chose in advance of that occasion.
Key Takeaways
- The Supreme Court confirmed that s 55(2)(b) of the Crimes (Appeal and Review) Act 2001 is capable of providing power to vary a stay of a magistrate's forensic procedure order while an appeal is pending.
- Despite that power existing, the Supreme Court declined to exercise it where the subject of the order had been given no notice of the variation application.
- An appeal against a magistrate's forensic procedure order under s 115A of the Crimes (Forensic Procedures) Act 2000 automatically stays that order for the duration of the appeal, which can effectively frustrate time-limited compliance requirements.
- A practical consequence identified in the decision is that if an appeal operates as a stay until proceedings are finalised, and the original order required attendance by a date that has since passed, it may be necessary to obtain an entirely fresh order rather than rely on the original one.
- The court expressly declined to dismiss the appeal of its own motion, reinforcing that procedural fairness requires notice to a party before any adverse order is made against them, including dismissal.
Legislation and Cases Referenced
Legislation:
- Crimes (Forensic Procedures) Act 2000 (NSW), ss 24, 115A
- Crimes (Appeal and Review) Act 2001 (NSW) (also referred to as the Crimes (Local Courts Appeal and Review) Act 2001), ss 52, 53, 54, 55, 63
Cases:
- Mullins v Lillyman [2007] NSWSC 407