Shepherd v Nestoriadis

1. [1]

   On 20 June 2014 an order was made under s 75L of the Crimes (Forensic Procedures) Act 2000 (the “Act”) authorising the carrying out of a forensic procedure on the plaintiff, Kim Louise Shepherd. The defendant, Sergeant Marina Nestoriadis, had applied for the order.

2. [2]

   The plaintiff now appeals this order. Section 115A of the Act enables an appeal to this Court against the making of such an order to be brought under Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001 (the “Review Act”). Subsection 52(1) of the Review Act confers on the plaintiff a right of appeal against the order but “only on a ground that involves a question of law alone”. Subsection 53(1) enables an appeal on a question of fact or of mixed law and fact but only with the leave of the Court.

3. [3]

   At the hearing of these proceedings an application was made for such leave in respect of one of the grounds but it was only expressed to be consequential on the success of the other grounds. I will return to address it.

The Act

1. [4]

   The scheme for the undertaking of forensic testing on suspects and offenders created by the Act was reviewed by Bellew J in Daley v Brown; Pittman v Brown [2014] NSWSC 144 (“Daley”). This appeal is concerned with Pt 7A of the Act which authorises the carrying out of forensic procedures on so called “untested former offenders”.

2. [5]

   In 2004 the Act provided a scheme for compelling persons suspected of offences to provide bodily material for forensic testing. In Orban v Bayliss [2004] NSWSC 428 at [30] Simpson J described the Act as then in force as: “… a specific response to scientific and technological developments, but in the context of valued traditional civil liberties”. Her Honour’s description is not necessarily applicable to Pt 7A.

3. [6]

   Part 7A was introduced by the Crimes (Forensic Procedures) Amendment Act 2006. It was inserted to implement a scheme for the “back-capture” of DNA from persons already convicted and the inclusion of that DNA in a “national DNA data base system” governed by Part 11 of the Act. As I will explain, the back-capture of DNA from a person is not dependent upon the existence of a belief or suspicion that the collection of their DNA is necessary for the investigation of any particular offence or offences.

4. [7]

   The starting point to the scheme is the definition of “untested former offenders” found in s 75A(3) which provides:

5. [8]

   The phrase “serious indictable offence” is defined by s 3 of the Act as effectively meaning an offence punishable by a law of this State or a participating jurisdiction by a maximum penalty of five years imprisonment or more. In relation to s 75A(3)(b), in Daley at [79] Bellew J held that a person who is served with a court attendance notice but is then later acquitted, nevertheless satisfies s 75A(3)(b). As I will explain, that is the case with the plaintiff.

6. [9]

   Section 75B of the Act enables a person to carry out a “non-intimate forensic procedure” on an untested former offender if that offender provides an informed consent, is the subject of an order by a senior police officer under s 75I or is the subject of a court order under s 75L. Section 75C enables a person to carry out an “intimate forensic procedure” on an untested former offender who either provides an informed consent or is the subject of a court order under s 75L.

7. [10]

   An “intimate forensic procedure” for the purposes of Pt 7A is either the taking of a sample of blood or the carrying out of an “other administered” buccal swab (s 75A(1)). A “non-intimate forensic procedure” is a procedure that involves the taking of a sample of hair, other than pubic hair, or the carrying out of a self-administered buccal swab (s 75A(2)). This matter concerns a “non-intimate forensic procedure”.

8. [11]

   Section 75H specifies the matters that an untested former offender must be informed of before they give consent. It is unnecessary to consider these matters in detail given that no consent was forthcoming in this case, other than to note that s 75H(1)(b) specifies that, if a police officer wants a forensic procedure carried out in relation to a particular offence, the untested former offender must be advised of the offence concerned. It necessarily follows that the testing under Pt 7A is not restricted to the circumstance that the testing is sought in relation to the investigation of any particular offence or offences.

9. [12]

   Of relevance to this appeal are ss 75L and 75M which provide:

10. [13]

    Beyond s 75L(2) there is no elaboration of what a court must or may consider in determining whether to make an order for the carrying out of the forensic procedure (cf s 24(4)). In that regard, in Daley at [81], Bellew J noted:

The application under Part 7A

1. [14]

   The plaintiff is 42 years old. In 1997 she was convicted of stealing and fined $300. In 2003 she was convicted of larceny and goods in personal custody. She received non-custodial sentences. Between January 2005 and May 2008 the plaintiff was convicted of a number of offences of goods in custody and shoplifting, as well as some driving offences. For the last of these offences she received a suspended sentence.

2. [15]

   On 14 August 2008 the plaintiff was convicted of shoplifting and received a sentence of imprisonment by way of periodic detention for two months. It was the conviction and penalty for this offence that meant that she satisfied s 75A(3)(a).

3. [16]

   In September 2009 the plaintiff received two further convictions, both of which yielded non-custodial sentences. In June 2011 the plaintiff was charged with an offence of assault occasioning actual bodily harm as well as common assault. The charging of the plaintiff with those offences satisfied s 75A(3)(b). Thus by that time she then fell within the definition of “untested former offender”. On 1 November 2011 those charges were dismissed.

4. [17]

   On 14 March 2014 the plaintiff was served with a form requesting that she consent to a “non-intimate forensic procedure by way of a self-administered buccal swab”.

5. [18]

   The plaintiff’s consent to the request was not forthcoming. In May 2014 the defendant applied for an order under s 75L(1) to the Local Court. The hearing of the application commenced on 16 April 2014 and was adjourned to 30 May 2014. Further submissions were made on that day and the presiding magistrate reserved her decision. Reasons were delivered on 20 June 2014. Her Honour ordered that there be a carrying out of a self-administered buccal swab within a specified period.

6. [19]

   Even allowing for the fact that her Honour reserved her decision, her Honour’s judgment is to be considered bearing in mind the heavy workload borne by the Local Court and the lack of opportunity that is generally afforded to magistrates to address infelicities of language and similar errors in the transcripts of oral judgments.

7. [20]

   At the hearing of the application on 30 May 2014, the police prosecutor appearing for the defendant tendered to her Honour a copy of the plaintiff’s criminal antecedents in the form of a bail report, referred her Honour to the decision in Daley and provided to her Honour a copy of the second reading speech concerning the introduction into the Act of Pt 7A. The police prosecutor also explained to her Honour the state of the backlog in the implementation of back-capture of DNA from untested former offenders.

8. [21]

   In his submissions, counsel for the plaintiff made reference to the delay in bringing the application. Counsel also made reference to the plaintiff’s acquittal on the charge that was laid in 2011, the absence of convictions during recent years, and also referred to what was contended to be the comparatively minor nature of the offence that satisfied s 75A(3)(a). Counsel also tendered a certificate from an educational institution concerning a course undertaken by the plaintiff.

9. [22]

   In one part of his submissions, counsel for the plaintiff referred to an extract from the second reading speech in which the relevant minister had stated that the scheme for the back-capture of DNA worked in a “reasonable and proper way so that those who had finished their sentences, have been fully rehabilitated, and pose no further risk to society will not be affected”.

10. [23]

    Counsel then submitted to her Honour as follows:

Her Honour’s Judgment

1. [24]

   At the commencement of her Honour’s judgment there was set out the relevant legislative provisions and the background to the application. Her Honour then summarised the submissions of the police prosecutor and counsel for the plaintiff. In relation to the latter, her Honour specifically noted the contention that the delay in bringing the application was excessive. Her Honour also noted the submission that the plaintiff had not committed any offences since September 2009, that the nature of the offending that satisfied s 75A(3) was relatively minor, as well the reference made by counsel for the plaintiff to the educational qualifications obtained by her and the efforts the plaintiff had made to rehabilitate herself.

2. [25]

   In one part of her judgment, her Honour recounted the following as a submission made by counsel for the plaintiff:

3. [26]

   Her Honour then referred to various authorities that had been cited in argument including the above passage from Daley at [81]. Her Honour concluded the judgment as follows:

The Appeal

1. [27]

   As noted, in so far as the plaintiff seeks to invoke the right of appeal by s 52(1) of the Review Act, her appeal is restricted to a ground that involves a question of law alone. In Williams v The Queen [1986] HCA 88; 166 CLR 278 at 287 Gibbs CJ stated:

2. [28]

   Further in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] I stated, that if the task stated by Gibbs CJ in Williams is undertaken, then:

3. [29]

   Grounds one and two of the appeal were expressed as follows:

4. [30]

   The submissions in support of those grounds made it clear that the gravamen of the plaintiff’s complaint was the alleged failure of her Honour to address the plaintiff’s individual circumstances as they were put to her Honour.

5. [31]

   Senior counsel for the defendant, Ms Adams SC, took issue with those submissions at a number of levels, one of which was a contention that the proper construction of her Honour’s reasons reveals her Honour did take those matters into account. I will return to address that contention.

6. [32]

   It suffices to state at this point that insofar as complaint was made that her Honour failed to take into account the delay in making the application then it has no substance. Her Honour expressly addressed that matter and found that the delay was not excessive. Any complaint about that conclusion is an argument about the merits of her Honour’s assessment. It does not involve or raise any question of law.

7. [33]

   Otherwise, one difficulty with grounds one and two is identifying, as required by Gibbs CJ in Williams, an underlying question of law in abstract terms that the learned magistrate either answered or proceeded upon an assumption concerning any such answer. The case put on behalf of the plaintiff to her Honour was that the plaintiff had reformed to such an extent that she posed no real danger to society and that meant that her inclusion in the national database was not warranted. For my part, the underlying question of construction which arises from that contention is whether s 75L(2) of the Act permits, or even requires, the Court to consider whether the circumstances of a person’s offending and subsequent rehabilitation is such as not to warrant their inclusion in the national DNA database.

8. [34]

   In argument, Ms Adams SC accepted that the answer to a question of law phrased in those or similar terms was that the Court may consider that matter in its assessment of “all the circumstances” for the purposes of s 75L(2) but the Court was not required to consider it. Of course, Ms Adams SC further contended that in this case her Honour did consider those matters. To the extent that Ms Adams SC’s answer contains a concession, it is, undoubtedly, well founded. Any submission to the contrary would, in my view, be inconsistent with Daley at [81].

9. [35]

   The more difficult question is whether, in a case where the Court finds the relevant offences committed by the untested former offender that bring them within s 75A(3) are at the low end of the scheme of offences that might meet that test and that there is otherwise a strong case that they pose no appreciable risk to the community, the Court must take that into account under s 75L(2). For the reasons that follow, it is ultimately not necessary to resolve that issue.

10. [36]

    Ground three of the appeal contends that her Honour failed to give proper reasons for finding that the forensic procedure was justified in all the circumstances. The parties did not dispute the proposition that her Honour had a duty to provide reasons for allowing the defendant’s application much less the content of that duty. The relevant principles can be briefly stated, although at the outset it needs to be noted that they accommodate the circumstances applicable to magistrates noted earlier and, the fact that in some cases a determination of whether a judicial officer made a particular finding or accepted or rejected a particular submission may be implicit from either the structure of the judgment or its terms when viewed in light of what was truly in contest between the parties.

11. [37]

    In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41] Santow JA observed:

12. [38]

    Similarly in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 Meagher JA said:

13. [39]

    In Daley at [96] Bellew J distilled from the judgment of Meagher JA in Beale the proposition that while statements of reasons need not be lengthy or elaborate, an adequate statement must at least refer to all relevant evidence and set out any material findings of fact, any conclusions reached and provide reasons for making the relevant findings of fact and reaching the relevant conclusions as well as providing reasons for applying the law to the facts as found.

14. [40]

    The observation of Meagher JA in Beale that the judicial officer must expose their reasoning in sufficient detail to enable a losing party to understand why they lost is significant. It must be distinguished from the circumstances in which a party vehemently disagrees with the reason(s) why they lost. Nevertheless, at its core, that requirement is one that obliges the judicial officer to engage with a case presented on behalf of a party so the reason(s) why that case was not successful can be ascertained.

15. [41]

    I have already referred to the case put on behalf of the plaintiff to her Honour concerning the low risk of offending the plaintiff was said to pose and why that was said not to warrant her inclusion in the national DNA database. The first step in that argument was at a factual level in that it involved her demonstrating that the offending on her part that satisfied s 75A(3)(a) was at a relatively low level, that she was acquitted of the charge that gave rise to the court attendance notice that satisfied s 75A(3)(b), that she had not committed any offences in recent years and that she had achieved an educational qualification.

16. [42]

    Assertions to this effect were recorded by her Honour but her Honour did not expressly state in the judgment whether they were accepted. Ms Adams SC contended that none of these matters were in any way disputed and that it can be readily inferred that her Honour accepted them. I accept that that is the case although this exposes the difficulty that arises when considering the next steps in the plaintiff’s case.

17. [43]

    The second step in the plaintiff’s case was an evaluative one, namely, a consideration of the contention made by the plaintiff, as recorded by her Honour, that the plaintiff “fell into the category of posing no further risk to society and so she should not be so affected” by the making of an order (see [25]).

18. [44]

    The third step in the plaintiff’s argument was a legal contention, namely, that s 75L(2) required or at least permitted the Court to take that matter into account in determining whether to make an order.

19. [45]

    The fourth and final step was effectively a conclusionary one, namely, that the plaintiff submitted that her Honour should determine whether that factor was such that it outweighed any factors that weighed in favour of granting the order sought by the defendant.

20. [46]

    With respect to her Honour and even allowing for all of the constraints that I noted earlier, I cannot discern whether or not her Honour addressed the second, third, and fourth steps and much less determine why her Honour may or may not have determined each or all of them adversely to the plaintiff.

21. [47]

    Ms Adams SC noted that her Honour set out at length the submissions of the plaintiff and then, at the critical point in her reasons extracted above, referred again to the “submissions that have been made by the prosecution and the defence” (see [26]). Based on that, Ms Adams SC submitted that the plaintiff’s case was addressed and considered, and that her Honour reasoned that the matters raised on behalf of the plaintiff were not of sufficient weight to outweigh the interests identified by her Honour in favour of making the order.

22. [48]

    However, the difficulty with that analysis is that it does not explain what her Honour made of the second step in the argument I have referred to above. Did her Honour make any assessment of the extent of the risk posed by the plaintiff? Did her Honour consider that the matter was as high as was submitted on her behalf, namely, that she posed “no further risk to society”? Did her Honour consider that some lesser assessment was warranted? It seems unlikely that her Honour accepted the full force of that submission but, nevertheless, it is simply not known to what extent her Honour may have accepted that submission at least in part or, indeed, whether her Honour rejected it in its entirety.

23. [49]

    In relation to the third step in the argument, it is unclear whether her Honour did or did not regard the risk posed by the plaintiff or the absence of any such risk as a matter to be considered as one of the “circumstances” referred to in s 75L(2). As noted, her Honour made reference to that part of the second reading speech which stated “that persons who have finished their sentences and have been fully rehabilitated and pose no further risk to society will not be affected”. Immediately after recounting that, her Honour doubted the accuracy of the second reading speech in light of the interpretation of the legislation by “various courts”. It seems that this passage of the second reading speech was directed to the definition of untested former offender and was referring to a person who had served a term of imprisonment which satisfied s 75A(3)(a), but who had not received a court attendance notice as referred to in s 75A(3)(b). In that sense they were to be considered as having demonstrated that they were fully rehabilitated.

24. [50]

    Be that as it may, one will search in vain in her Honour’s judgment for any indication one way or another whether ultimately her Honour had regard to the point being made by the offender that the question of whether she posed or did not pose any risk to society was a matter that was to be considered under s 75L(2).

25. [51]

    As I have stated, at a basic level, if reasons are to do nothing else, they must at least engage with the losing party’s case. There were a number of bases on which the plaintiff could have lost but ultimately I am unable to discern which one or more were adopted. Did her Honour reject the proposition put on behalf of the plaintiff that she posed no further risk to society? Alternatively, did her Honour reject the implicit submission of law that was made on behalf of the plaintiff, namely that the fact that she did pose no further risk to society was a matter, perhaps a weighty matter, that warranted the rejection of the application? Further, even if her Honour did accept that, was it ultimately the case that her Honour considered the other factors in favour of the granting of the order outweighed that matter? In the end, I cannot distinguish or determine from her Honour’s reasons which of those three possibilities or, indeed whether all of them, were the basis for the refusal of the application.

26. [52]

    It follows that I will uphold ground three of the appeal. It also follows from that conclusion that grounds one and two of the appeal do not arise for consideration. Those grounds are predicated on a particular construction of her Honour’s judgment which is not made out. In my view, and with the greatest respect to her Honour, her Honour’s judgment suffers from an anterior defect which simply does not allow a determination of those grounds of appeal because the approach her Honour adopted to s 75L(2) is not apparent.

27. [53]

    There remains to be considered ground four of the appeal. As noted, in oral argument the plaintiff sought leave to appeal under s 53(1) in respect of ground four if it achieved success on one of the other grounds. In my view, the plaintiff succeeds on ground three and that would ordinarily result in an order setting aside the magistrate’s decision and remitting the matter to the Local Court to re-determine according to law (Review Act s 55(2)(c)).

28. [54]

    In those circumstances, the only utility of granting leave under s 53 would be if for some reason it was thought appropriate that this Court should determine the substantive application. No such reason is apparent. On that basis leave will be refused.

Relief

1. [55]

   At the hearing of the appeal, the Court was advised that it had been agreed between the parties that no costs orders would be sought by either party, irrespective of the result.

2. [56]

   Accordingly, the Court orders that;

   1. (1)

      Leave to appeal under s 53(1) of the Crimes (Appeal and Review) Act 2001 is refused.

   2. (2)

      The appeal under s 52(1) of the Crimes (Appeal and Review) Act 2001 is allowed.

   3. (3)

      The order of the Local Court made on 20 June 2014 against the plaintiff, s 75L(2) of the Crimes (Forensic Procedures) Act 2000 is set aside.

   4. (4)

      There be remitted to the Local Court for redetermination the application by the defendant for an order under s 75L(2) of the Crimes (Forensic Procedures) Act 2000 against the plaintiff made on 27 March 2014.

   5. (5)

      There is no order as to costs.