Boski v Biffin

This is an appeal brought under s 115A Crimes (Forensic Procedures) Act 2000 (NSW) from a final order made by his Honour Magistrate Bugden at the Sutherland Local Court on 31 July 2014. The order was made under s 24 of the Act ordering the appellant to submit to a forensic procedure, namely, fingerprinting. Section 115A incorporates certain provisions of the Crimes (Appeal and Review) Act 2001 (NSW) including s 52(1). Section 52(1) provides an appeal to this Court against sentence as of right but only on a ground that involves a question of law alone.

The respondent concedes that one of the grounds pleaded in the appellant's Amended Summons filed on 19 March 2015 involves a question of law alone. That ground is the new ground 6 which is in the following terms:

The respondent concedes, with respect I think properly, not only that an appeal on that ground lies as of right, but also that the appeal must succeed.

The appellant (and I will use neutral language) is said to be a suspect in relation to an offence of possession of a firearm contrary to s 7 of the Firearms Act 1996 (NSW). The case has a long history. It is sufficient if I record that the appellant's father was charged with that offence in respect of that firearm, was committed for trial, arraigned and acquitted by a jury in the District Court. The defence at trial was that a third person, a sometime resident of the premises, had planted the gun in the tallboy (an item of furniture) in which the gun was found by police executing a search warrant.

Section 24(1) of the legislation is in the following terms:

On a plain reading of the section there are obviously two conditions that must be satisfied in any case before an order can be made requiring a citizen to undergo a forensic procedure. This is a case to which the provisions of subsection (3) apply, that is to say a case of non-intimate forensic procedure, in this case as I have said, fingerprinting.

Subsection (4) (which I will not set out in full) sets out relevant considerations that the Magistrate must have regard to in deciding whether the procedure is “justified in all the circumstances”. It is quite clear on the face of it that the matters set out in paragraphs (a) to (h) are mandatory considerations for the consideration of the learned Magistrate; all will not be engaged on the facts of every case. It is clear from the express language of subsection (4), and in particular from what is sometimes referred to as the chapeau, that what is involved in the determination of the paragraph (b) question is a balancing exercise. That is to say, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the matters set out in the succeeding paragraphs (a) to (h).

In a reserved decision given on 31 July 2014 (with commendable promptitude after the hearing) the Magistrate set out the evidence that had been led before him, the arguments of the parties and then proceeded to make a decision (commencing at p 5 line 25 of the transcript of his reasons) by referring to the onus of proof on the prosecution under s 103 of the Act being on the balance of probabilities. He also directed himself that the requirements of the Act must be strictly complied with. With respect, this was a correct direction. His Honour then continued:

I think it is apparent, as the respondent concedes, that his Honour has addressed himself fulsomely to the requirements of s 24(1)(a), but he has not, with great respect, turned his mind at all to the second, and I would think, critical question whether the carrying out of the procedure is justified in all the circumstances by reference to the requirements of subsection (4).

Some of what his Honour said, for instance, about the seriousness of the offence might be taken as implicitly considering the s 24(4)(b) question. But when one considers again the chapeau to the subsection, it is quite clear that his Honour has failed to carry out the balancing exercise of the public interest in obtaining the evidence against the competing public interest of upholding a suspect's physical integrity and, of course, a suspect's important civil liberties.

I am not suggesting that a Magistrate must expressly refer to the actual language of the section in every case, but at the same time close attention to the terms of applicable legislation, is of first importance in the exercise of judicial power. It may be obvious from a Magistrate's reasons that his or her Honour has had regard to the terms of s 24 without the need for the Magistrate to set them out. But in this case I am satisfied, from the reasons actually given by his Honour, that his Honour has overlooked the need to address s 24(1)(b) by reference to s 24(4).

This is, with respect to his Honour, a clear misdirection constituting an error of law justifying this appeal. It is quite clear from the authorities carefully set out in the written submissions of the parties, as his Honour appreciated, that strict compliance with the requirements of s 24 is called for in the exercise of the power to make a final order; in this regard, this case is like LK v Commissioner of Police [2011] NSWSC 458 at [37] (Fullerton J).

For these reasons I make the following orders: