W4 v Detective Senior Constable Ayscough

1. [1]

   HER HONOUR: This is a judgment concerning an appeal against the decision of Local Court Magistrate Maiden (“the Magistrate”) to grant an application for a forensic procedure requiring the plaintiff to provide a sample of his DNA to the Police pursuant to s 75ZC of the Crimes (Forensic Procedures) Act 2000 (NSW).

2. [2]

   By summons filed 3 November 2015, the plaintiff seeks, firstly, that the time for instituting this appeal is extended to the date of filing; and secondly, that the order of the Local Court on 11 June 2015 authorising the carrying out of a non-intimate forensic procedure on the plaintiff be set aside. The plaintiff abandoned the relief claimed in paragraphs [3], [4], [5] and [6] of the summons. Paragraph [6] related to costs. Both parties have agreed to bear their own costs of the appeal.

3. [3]

   At the outset of the hearing, counsel for the plaintiff sought and this Court granted an order that, as the plaintiff was a child when the offence to which these proceedings relate was committed, he be identified by a pseudonym.

4. [4]

   The plaintiff is W4. The defendant is Detective Senior Constable Rob Ayscough. The plaintiff relies on the affidavits of Paul Alexander Johnson, dated 3 November 2015 and 26 February 2016.

5. [5]

   The Local Court has stayed the proceedings pending the outcome of this appeal.

6. [6]

   The plaintiff seeks an order extending the time for instituting this appeal to the date of filing. The reasons for the plaintiff’s delay have been satisfactorily explained. This application was not opposed. I make an order extending the time for instituting the appeal to 3 November 2015.

The appeal

1. [7]

   An appeal against the making of an order that authorises the carrying out of a forensic procedure under the Crimes (Forensic Procedures) Act may be made to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) as if the order were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (NSW): s 115A(1) of the Crimes (Forensic Procedures) Act.

2. [8]

   An appeal against a sentence on the basis of a question of law alone may be made as of right: s 52 Crimes (Appeal and Review) Act.

3. [9]

   Section 55(2) of the Crimes (Appeal and Review) Act relevantly states:

4. [10]

   Hence an appeal against the making of an order authorising the carrying out of a forensic procedure under the Act may be made as of right and the court is empowered to determine the appeal in accordance with s 55(2) of the Crimes (Appeal and Review) Act.

Grounds of appeal

1. [11]

   At this hearing, the plaintiff abandoned grounds 3 and 6 and agreed that ground 5 flowed on from ground 4. The remaining grounds of appeal are firstly, that the Magistrate erred in law by failing to determine whether the forensic procedure was justified in all the circumstances (“interpretation of s 75ZC”); secondly, the Magistrate erred by determining that the only relevant circumstances on an application under Part 7B of the Crimes (Forensic Procedures) Act were the statutory pre-conditions to the exercise of the discretion, namely, that the plaintiff was on the Child Protection Register and that he had not been tested previously for his DNA profile (“the statutory pre-conditions”); and finally, the Magistrate erred in law by failing to have regard to relevant circumstances (“relevant circumstances”).

2. [12]

   The defendant conceded that the Magistrate had erred in law and that the order should be set aside. However, the defendant did not agree with the plaintiff’s submissions in relation to the relevant circumstances and whether the application should be remitted to the Local Court, so I shall deal with them. Nevertheless, to set the order aside, I have to be satisfied that the Magistrate erred in law and this Court should exercise its discretion to set aside the decision.

3. [13]

   Apparently, there is no reported authority as to the interpretation of s 75ZC of the Crimes (Forensic Procedure) Act.

Background

1. [14]

   The plaintiff was born on XXXX 1995.

2. [15]

   On 27 January 2010, when the plaintiff was 14 years old, he committed an offence in Western Australia, namely sexual assault of a child under 13 contrary to s 320(2) of the Criminal Code Compilation Act 1913 (WA) (“the offence”). The victim was then a 12 year old girl. The conduct involved consensual sexual activity between the plaintiff and the victim.

3. [16]

   On 9 March 2011, the Perth Children’s Court sentenced the plaintiff to a Youth Community Based Order for six months from 11 May 2011 to 10 November 2011.

4. [17]

   As a result of the offence, the plaintiff was entered onto the Child Protection Register (“CPR”) in NSW pursuant to the provisions of the Child Protection (Offenders Registration) Act 2000 (NSW) and remains on the CPR. The plaintiff’s DNA profile is not on the offenders’ index of the DNA database system.

5. [18]

   On 29 July 2013, Detective Andrew Nichols made an application for a final order from the Children’s Court at Singleton to carry out a forensic procedure on the plaintiff to obtain his DNA profile under s 75ZC (“the first application”). The plaintiff was, at the time, under 18 years of age. This was opposed by the defendant. On 16 August 2013, the Magistrate gave ex tempore reasons for refusing the first application.

6. [19]

   On 8 May 2015, the defendant made a second application for a final order from the Local Court at Singleton to carry out a forensic procedure on the plaintiff under s 75ZC of the Act (“the second application”). This application was also opposed by the plaintiff. At the time of the making of this application, the plaintiff was 19 years and 9 months old.

7. [20]

   On 11 June 2015, the Magistrate granted the second application, authorising the carrying out of a non-intimate forensic procedure, being the carrying out of a self-administered buccal swab or the taking of a sample of hair (other than pubic hair).

8. [21]

   It is now convenient that I set out the relevant sections of the Crimes (Forensic Procedures) Act and some case law.

The Crimes (Forensic Procedures) Act

1. [22]

   Although the issue raised in this appeal is the interpretation of s 75ZC of the Act, the parties referred to the provisions of Parts 5 and 7A of the Act. I shall do the same. Part 5 relates to carrying out forensic procedures on suspects, whereas Part 7A applies to the carrying out of forensic procedures on untested former offenders and Part 7B relates to carrying out certain forensic procedures on “registrable persons”. Section 75ZC of the Crimes (Forensic Procedures) Act (“the Act”) is contained in Part 7B of the Act.

Part 5 of the Act

1. [23]

   Part 5 refers to the carrying out of forensic procedures on a suspect by order of a Magistrate or other authorised officer. It has six Divisions and spans from ss 22 to 43A of the Act. Section 23 of the Act provides that a Magistrate may make an order in accordance with s 24. A Magistrate or an authorised officer may make an order, respectively, under ss 24 and 32 for the carrying out of a forensic procedure on a suspect if (a) the suspect is not under arrest and has not consented to the forensic procedure; or (b) the suspect is under arrest and has not consented to the forensic procedure; or (c) the suspect is a child or an incapable person. One precondition the Magistrate must be satisfied of on the balance of probabilities before ordering a forensic procedure under Part 5 is that the carrying out of the forensic procedure is justified in all the circumstances: s 24(1). Subsection 24(4) sets out factors that the Magistrate should take into account in determining whether the carrying out of the forensic procedure is justified in all the circumstances.

2. [24]

   Section 24(4) of the Act reads:

3. [25]

   Both parties referred to Orban v Bayliss [2004] NSWSC 428 (“Orban”), where Simpson J considered the interpretation of s 25 (now repealed) of the Act contained in Part 5. Section 25 then provided the matters that had to be considered before a Magistrate ordered the carrying out of a forensic procedure under s 24, including, under s 25(g), that it be “justified in all the circumstances.” In Orban, in relation to s 25(g), Simpson J stated (at [31] and [51]):

Part 7 of the Act

1. [26]

   Part 7 of the Act is entitled “Carrying out of certain forensic procedures after conviction of serious indictable offences” and is not relevant here.

2. [27]

   Parts 7A and 7B were inserted into the Act subsequent to the decision of Simpson J in Orban (Part 7A was inserted in 2006 and Part 7B was inserted in 2007).

Part 7A

1. [28]

   Part 7A is entitled “Carrying out of certain forensic procedures on untested former offenders”. It contains ss 75A to 75O.

2. [29]

   Section 75A(3), which is contained in Part 7A, reads:

3. [30]

   Section 75L(2) states when a court may order the carrying out of a forensic procedure under Part 7A:

4. [31]

   The parties referred to the decision Daley v Brown; Pittman v Brown [2014] NSWSC 144 (“Daley”) where Bellew J considered the phrase “justified in all the circumstances” in the context of s 75L(2) in Part 7A of the Act. At [81], [90] to [92] and [99] his Honour stated:

Part 7B of the Act

1. [32]

   Part 7B is entitled “Carrying out of certain forensic procedures on registrable persons”. It contains ss 75P to 75ZD.

2. [33]

   The provisions of Part 7B are substantially similar to those in Part 7A. Section 7P sets out when Part 7B applies. It reads:

3. [34]

   It is not in dispute that Part 7B applies since the preconditions in s 75P(3) are satisfied. The plaintiff’s name is on the CPR and his DNA profile is not on the offenders’ index of the DNA database system and as a result, the plaintiff qualifies as an “untested registrable person” for the purpose of s 75ZC of the Act. The plaintiff accepts that the defendant is entitled to make an application under s 75P.

4. [35]

   Under s 75Q, a non-intimate procedure can be carried out in three ways (a) with the informed consent of the registrable person; or (b) by order of a senior police officer under s 75Y; or (c) by order of a court under s 75ZC.

5. [36]

   Sections 75Y and 75ZC relevantly read:

6. [37]

   A senior police officer is only capable of ordering non-intimate forensic procedures. Under s 75R, an intimate forensic procedure may only be carried out on an untested registrable person with the informed consent of the registrable person or by order of a court under s 75ZC.

7. [38]

   I now turn to consider the Magistrate’s decision.

The Magistrate’s decision

1. [39]

   On 11 June 2015, the Magistrate at Local Court, Singleton gave ex tempore reasons for his decision. At the hearing the parties did not refer the Magistrate to the legal authorities on the issue as to when the forensic procedures were justified in all the circumstances. After his Honour referred to the provisions of Part 7B of the Act, he stated:

2. [40]

   I will now consider the first and second grounds of appeal, followed by the fourth ground. If I am satisfied that the Magistrate made an error of law in making his decision, I will then consider the appropriate determination of the appeal in accordance with s 55(2) of the Crimes (Appeal and Review) Act.

Interpretation of s 75ZC and the statutory preconditions (Appeal Grounds 1 and 2)

1. [41]

   Both the plaintiff and the defendant agreed that the Magistrate erred in making his decision. The Magistrate was exercising a discretionary power. In doing so, the Magistrate had to be satisfied that the forensic procedure was justified in all the circumstances.

2. [42]

   In accordance with s 75P(3), for the Magistrate to order the carrying out of a forensic procedure on the plaintiff, he has to be satisfied that the plaintiff was a registrable person and that he was untested, meaning his DNA profile was not contained in the offenders index of the DNA database system. These requirements had been met.

3. [43]

   Once the statutory preconditions had been met, in order for the Magistrate to properly exercise his discretion, he was required to be satisfied that “the carrying out of the forensic procedure is justified in all the circumstances.”

4. [44]

   The Magistrate was required to address the balance between the rights of the citizen and the interests of the community, as referred to in Daley and Orban. In Daley, Bellew J commented that the delay between acquittal, or in this case conviction, would be a relevant factor in determining whether the making of an order was justified. In the Magistrate’s view, it was “unnecessary for the applicant to prove anything other than those two things”, that is, that the plaintiff was a registrable person and his DNA profile was not on the DNA database system. Although he alluded to the further requirement that “it appears to be appropriate to do so or something to that effect”, he considered the wording vague. His Honour did not address the statutory requirement, namely whether the forensic procedure is justified in all the circumstances. As s 75ZC(1) required the Magistrate to be satisfied that the carrying out of the forensic procedure was justified in all the circumstances and he failed to address this requirement, he erred in law. I agree that the decision of the Magistrate should be set aside.

Relevant circumstances (Appeal Ground 2)

1. [45]

   The plaintiff submitted that there were circumstances that must be considered by a Magistrate when determining whether a forensic procedure is justified “in all the circumstances” pursuant to s 75ZC(1) of the Act. The plaintiff submitted that these considerations are:

2. [46]

   According to the plaintiff, “justified in all the circumstances” is of very broad scope and the matters that must be considered are defined by the objects and context of the Act. Counsel for the plaintiff also submitted that, to the extent that there is any doubt or ambiguity about the interpretation of the Act, it should be resolved in favour of the plaintiff and that the phrase “justified in all the circumstances” should be interpreted as imposing a high bar, in recognition of the provision’s interference with the privilege against self incrimination.

3. [47]

   Finally, the plaintiff submitted that the factors set out in s 24(4) to which a Magistrate must have regard when determining whether the ordering of a forensic procedure on a suspect is justified in all the circumstances provide some guidance as to the types of matters that are appropriate or required to be considered for the purpose of other applications under the statutory regime for forensic procedures generally.

4. [48]

   Counsel for the defendant submitted that the Magistrate had no mandatory obligation to consider the circumstances set out by the plaintiff and that the Magistrate’s failure to consider the circumstances set out in the particulars of the grounds would only constitute an error of law if the Magistrate was bound to consider them: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, per Mason J at 39, per Mason J. Counsel the defendant further submitted that Part 7B does not expressly enumerate matters that a court must take into account in determining whether the carrying out of the forensic procedure is “justified in all the circumstances” for the purposes of s 75ZC(1).

5. [49]

   Counsel for the defendant referred this Court to the numerous references to the phrase “justified in all the circumstances” used throughout the Act. For example, under s 75L(2), a court may order the carrying out of a forensic procedure on an untested former offender if satisfied that the carrying out of the forensic procedure is justified in all the circumstances, and under s 74(5), a court may order the carrying out of a forensic procedure on a serious indictable offender who is serving a sentence of imprisonment in a correction centre or other place of detention if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.

6. [50]

   Finally, the defendant’s counsel submitted that the legislature has not expressly enumerated the matters that a court is required to take into account in such a way in other sections of the Act and that the subject matter, scope and purpose of both the Act and Part 7B do not support the plaintiff’s construction that s 75ZC mandates a court to take into account relevant circumstances as contended by the plaintiff.

7. [51]

   Part 7B contains two regimes through which an untested registrable person may be ordered to give a DNA sample. The first regime allows a senior Police officer to order the carrying out of a non-intimate forensic procedure where consent has been sought and the person has refused: s 75Y(1). The second regime allows a court to order the carrying out of any forensic procedure (both intimate and non-intimate) where it is justified in all the circumstances: s 75ZC(1). Under the first regime a senior Police officer need not be satisfied that the ordering of the procedure is justified in all the circumstances. Counsel for the defendant submitted that the legislature would not have intended the regimes to be manifestly different.

8. [52]

   The phrase “justified in all the circumstances” appears in a number of provisions throughout the Act, including s 75ZC(1). In most cases, it does not specify any further circumstances that must be taken into account. By way of contrast to s 75ZC(1), s 24(4) specifies the matter that must be taken into account by a court before an order is made. In my view, the legislature has intentionally left open the circumstances that may be taken into account by a court in determining whether the ordering of a forensic procedure on an untested registrable person is justified under s 75ZC(1). If the legislature had intended that relevant considerations be taken into account, it would have included them in the Part 7B. It did not do so. The Magistrate was not required to take into account the particular circumstances set out in paragraph [45] of this judgment. The Magistrate was obliged to be satisfied that the circumstances for the carrying out of a forensic procedure is justified in all the circumstances. His Honour had to articulate those relevant factors put forward by both sides. This ground of appeal fails.

Remittal

1. [53]

   The plaintiff submitted that the defendant’s application should not be remitted back to the Local Court at Singleton to be redetermined. The defendant submitted that it should be remitted and determined according to law.

2. [54]

   When the first application was made by the Police for an order under s 75ZC of the Act, the plaintiff was a minor. On 16 August 2016, when the Magistrate refused the first application, the plaintiff was 26 days shy of turning 18 years of age. The parties accepted that all that had passed between the making of the first application and the second application was the aging of the defendant. At the time of the making of the second application on 11 June 2015, the plaintiff had reached the age of majority.

3. [55]

   There is statutory prohibition in relation to a child consenting to the carrying out a forensic procedure.

4. [56]

   Part 6 of the Act applies to the carrying out of a forensic procedure on an untested registrable person under Part 7B as if the reference to the suspect in Part 6 were references to an untested registrable person: s 75T(1). Part 6 must be read in light of Part 3, which relates to forensic procedures on suspects by consent. Part 3 does not authorise the carrying out of a forensic procedure on a suspect who is a child: s 7(2). “Child” is defined in s 3 as “a person who is at least 10 years of age but under 18 years of age.” Accordingly a person under the age of 18 is unable to consent to a forensic procedure under the Act, therefore at the time of the first application the plaintiff was deemed to not consent.

5. [57]

   After the plaintiff turned 18 in 2013, he was capable of consenting to the carrying out of a forensic procedure. This is significant because the ability to provide or refuse consent has a number of consequences under the Act, for example a senior Police officer may only order the carrying out of a non-intimate forensic procedure on an untested registrable person if that person has been requested under s 75W to consent to the procedure and has not consented: s 75Y. No such requirement exists in relation to an application for a court order under s 75ZC: s 75ZB(2). Once an adult, the plaintiff chose not toconsent to the carrying out of the procedure in the second application.

6. [58]

   At the hearing of the second application, the Police prosecutor informed the Magistrate that the hearing of the first application in 2013 was “all but on the same grounds excepting at that stage the application had to be before your Honour because the accused was a young person, under the age of eighteen.” (T2.32-35, 11/6/2015).

7. [59]

   The plaintiff submitted both in this Court and the Local Court that because the information in the second application was no different to the information that grounded the first application, the second application should not have been entertained by the Magistrate.

8. [60]

   The Magistrate noted that the aging of the plaintiff was a change in circumstances, which was accepted by Mr Diggins, who appeared on behalf of the plaintiff in the Local Court (T3.27-29, 11/6/2015). Mr Diggins submitted, however, that the second application should be denied for the same reasons that it was originally, irrespective of the plaintiff’s age (T3.41-2, 11/6/2015). The Police prosecutor submitted in response that the aging of the plaintiff was a significant change and that the Magistrate’s task was to weigh up the rights of the accused against the rights of the community and, in this case, the Act weighs in favour of identifying people swiftly in relation to future and other offences (T4.18-29, 11/6/2015).

9. [61]

   The Magistrate was referred to the decision of Munro v ACP [2012] NSWSC 100 (“Munro”). The relevant issue in Munro was whether an applicant could apply to a Court under Part 5 of the Act for the making of an order for a forensic procedure to be carried out on a suspect in circumstances where a previous application had been made and refused. Relevantly, s 26(3) of the Act states:

10. [62]

    In Munro, R A Hulme J considered the construction of the words “additional information”. His Honour stated (at [50]):

11. [63]

    However, Part 7B does not contain an equivalent provision to s 26(3) requiring “additional information”. The Magistrate correctly stated:

12. [64]

    Counsel for the plaintiff submitted that in the Magistrate’s reasons for rejecting the first application, he did not consider the age of the plaintiff to be a relevant consideration. Therefore, she submitted, the bringing of a second application was an abuse of process and that “this Court should not participate… in the plaintiff being thrice vexed by the same proceedings… that have already been determined back in 2013.” (T11.3-5).

13. [65]

    Counsel for the plaintiff also referred to cases where this Court has not remitted appeals of decisions made under the Act to the Local Court for redetermination, including Helen Maguire v Jason Beaton [2005] NSWSC 1241; (2005) 162 A Crim R 21 (“Maguire”); LK v Commissioner of Police & Anor [2011] NSWSC 458 (“LK”); Campbell and 4 Ors v Director of Public Prosecutions (NSW) [2008] NSWSC 1284 (“Campbell”); and RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 (“RH”).

14. [66]

    In LK, Fullerton J allowed an appeal of an order by a Magistrate made under the Act for the carrying out of a forensic procedure under Part 5 and set it aside. However, although her Honour did not expressly state why, she did not remit the matter to the Local Court for redetermination. Presumably it was because, as the parties in that case agreed, there was no DNA material recovered from the crime scene capable of being compared with the plaintiff’s DNA and therefore the results of the forensic procedure would not be tendered by the prosecution in the criminal proceedings, meaning the appeal did not need to be prosecuted (at [3]).

15. [67]

    In Maguire, the plaintiff sought a declaration that insufficient evidence existed to allow a Magistrate to order a non-intimate forensic procedure pursuant to s 24 of the Act. In the alternative, the plaintiff sought an order remitting the matter to the Local Court Magistrate for redetermination in accordance with a direction from this Court. In allowing the appeal, Latham J made a declaration that insufficient evidence existed to allow for the making of such an order, hence it was unnecessary to remit the matter to the Local Court for redetermination.

16. [68]

    The other two cases, Campbell and RH, did not deal with appeals of decisions under this Act and are therefore of limited assistance.

17. [69]

    In my view, these cases do not assist the plaintiff’s argument because there was no utility in remitting the proceedings to the Local Court.

18. [70]

    Here the Magistrate was asked to consider whether the Police could make a second application under the Act on the basis that there was no “additional information”. A reading of the transcript reveals that the Magistrate was satisfied that not only was there no provision in Part 7B of the Act preventing the Police from bringing a second application in such circumstances, but also that there were additional circumstances justifying the bringing of a second application, that is, the plaintiff had turned 18, meaning he was no longer deemed not to consent to a forensic procedure under the Act, and the plaintiff refused to consent to the carrying out of a forensic procedure.

19. [71]

    Counsel for the plaintiff is seeking a forensic advantage by not having the proceedings remitted. The plaintiff may wish to make submissions as to his current life and circumstances including whether he has been a law abiding citizen. In any event, when a person reaches the age of majority, the prohibition in s 7(2) does not apply. Adults have the opportunity to decide whether or not to consent to the carrying out of a forensic procedure. The plaintiff chose not to consent. It is my view that the Magistrate has not determined this application in accordance with law.

20. [72]

    In these circumstances the defendant should not be deprived of the right to have his application properly determined according to law.

21. [73]

    The result is firstly, the time for instituting this appeal is extended to 3 November 2015; secondly, the appeal is allowed; thirdly, the decision of Magistrate Maiden dated 11 June 2015 is set aside; fourthly, the matter is remitted to the Local Court at Singleton for redetermination in accordance with law; and finally, each party is to pay their own costs.