AP v Burrell

By amended summons filed on 5 February 2016, AP, the plaintiff, appeals against an order made by Skinner LCM that he be required to submit to a buccal swab for the purpose of collecting a sample of his DNA. Detective Senior Constable James Burrell, the defendant, is the investigating police officer on whose application the Local Court made the order. The plaintiff’s twin brother, John, is awaiting trial by jury in the District Court for three sex offences which are alleged to have been committed in 1994 against a 13-year old girl who is now deceased.

On 20 May 2014 Magistrate Curran, after a hearing on 28 April 2014 and 19 May 2014, refused to make an order authorising the taking of a buccal swab from the plaintiff. Subsequently, Detective Burrell made a further application, which was heard by Skinner LCM on 17 December 2015. At the conclusion of the hearing, her Honour made an order authorising the taking of a buccal swab from the plaintiff and gave ex tempore reasons for decision.

The plaintiff sought the following orders in this Court:

The plaintiff appealed (in respect of grounds 1-3), and sought leave to appeal (in respect of grounds 4-7), against the order on the following grounds:

By reason of s 115A(1) of the Crimes (Forensic Procedures) Act 2000 (NSW) (the CFP Act), the appeal is to be determined as if it were an appeal against sentence under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW). To the extent to which any of the grounds involves a question of law alone, an appeal lies to this Court by right: s 52 of the Crimes (Appeal and Review) Act. To the extent to which any of the grounds involve a question of mixed fact and law, an appeal to this Court lies only by leave: s 53 of the Crimes (Appeal and Review) Act.

Except where otherwise indicated, all references to statutory provisions are references to the CFP Act.

I note that s 43 imposes restrictions on publication of the name of a suspect on whom a forensic procedure is proposed to be carried out in relation to an offence. These restrictions do not apply to the reasons given by this Court. However, I consider it to be appropriate, in light of the considerations that underpin s 43, that the plaintiff be referred to only as AP, since he has not been charged with any offence, and that his twin brother be referred to only as “John”.

On 20 November 1994 CF, a 13-year old girl, was alone in the city of Sydney. She was approached by a male, who identified himself as “John”, who offered to show her around the city. It is alleged that John attacked and sexually assaulted her. CF reported the matter to police, gave a statement and underwent an examination at the Royal Alexandria Hospital for Children with the use of a Sexual Assault Investigation Kit (SAIK). The examination detected semen inside her vagina. The semen was retained and subjected to DNA testing.

On 15 July 2004, CF took her own life.

On 30 November 2004, John (the plaintiff’s twin brother), who was in custody for an unrelated matter at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater, was subjected to inmate testing. The profile of his DNA was uploaded and compared with “cold cases”. John’s DNA was found to match the DNA of the semen sample recovered from CF.

On 19 December 2012 John was charged with aggravated sexual assault, aggravated indecent assault and assault occasioning actual bodily harm. On 12 April 2013 a second sample was obtained from John, which confirmed the results of the first test which had been performed in 2004.

On 29 October 2013 Detective Senior Constable Caitlin Hyde was informed by the Department of Public Prosecution that John had informed his Legal Aid solicitor that he had an identical twin brother. It was common ground that identical twins have, for relevant purposes, the same DNA profile.

As a consequence, on 5 December 2013 Detective Burrell conducted checks at Royal North Shore Hospital, where John was born in 1965, to ascertain whether he had a brother and, if so, whether his brother was a twin, and, if so, whether his twin brother was a fraternal or identical twin. Detective Burrell ascertained that the plaintiff and John were twin brothers. There was no reference in the documents he saw in December 2013 to whether the twins were identical apart from a single reference in the medical records that the doctor “thought” that John and the plaintiff were identical twins.

On 23 December 2013 Detective Burrell wrote to the plaintiff, in part in the following terms:

On 24 February 2014, Detective Burrell applied for an order pursuant to s 24 on the basis that the plaintiff was a suspect within the meaning of s 3. In the affidavit in support affirmed on 24 February 2014, Detective Burrell relevantly deposed:

Detective Burrell deposed as to the matters set out above. He identified the following as constituting “grounds to believe that the forensic procedure(s) might produce evidence tending to confirm or disprove that the suspect has committed the offence(s)” (as required by s 24(1)(a)):

Detective Burrell’s first application under the CFP Act was heard by Curran LCM on 28 April 2014. Mr Gorman, who appeared for the applicant (Detective Burrell), relied on the affidavit referred to above. Mr Hughes, who appeared for the plaintiff, relied on the letter dated 23 December 2013 set out above, in support of a submission that the plaintiff was not a suspect. At the conclusion of that day, Mr Gorman proposed that the applicant serve further evidence in support of the application. The Magistrate acceded to this proposal and stood the matter over for a second day of hearing to 19 May 2014. A further affidavit of Detective Burrell affirmed 8 May 2014 was relied upon on the adjourned day (19 May 2014). It relevantly added the following evidence to that which was contained in his earlier affidavit:

Mr Warren (who appeared for the applicant on 19 May 2014) also tendered a statement under s 177 of the Evidence Act of Dr Bruce, a Senior Forensic Biologist, who relevantly stated:

The submissions recorded in the transcript for 19 May 2014 reveal that the principal issues were: whether the plaintiff was a suspect within the meaning of s 3; and, if so, whether there were reasonable grounds to believe that he had committed an offence, as required by s 24(3)(a). Mr Warren told Curran LCM that the plaintiff had provided a letter to police accounting for his whereabouts on 20 November 1994, although, as set out below, no such letter is revealed by the evidence.

The Magistrate reserved his decision and gave oral reasons for decision on 20 May 2014, which were recorded on transcript.

The transcript recorded that, after reciting the evidence and outlining the applicable provisions, his Honour identified the principal issue in the proceedings as whether the plaintiff was a suspect. His Honour referred to the letter from Detective Burrell dated 23 December 2013 set out above and noted the sentence, “You are not a suspect for this incident, just a possible witness.” His Honour continued:

The decision of Curran LCM was not the subject of appeal.

John’s trial was listed for trial by jury before Blackmore AJ in the District Court to commence on 22 June 2015. The plaintiff was subpoenaed to give evidence at the trial as a Crown witness. John pleaded not guilty to all three charges. The question of DNA testing was raised as a pre-trial issue. Mr Todd, who appeared on behalf of the accused (John), confirmed that “identification will become a critical issue”. His Honour obtained confirmation from Mr Todd that John’s instructions were that he was not there at the time of the offences and that, although identification was an issue, consent was not.

In the course of the pre-trial hearing, the following exchanges ensued:

Following the luncheon adjournment the Crown applied for the trial date to be vacated in order to permit a further application to be made in the Local Court for an order under the CFP Act that the plaintiff have a buccal swab taken for the purposes of ascertaining his DNA profile.

On 9 July 2015 Detective Burrell filed a second application for an order under the CFP Act to require the plaintiff to undertake a buccal swab and relied on a further affidavit affirmed on 29 June 2015 in support of the application. In addition to the evidence contained in his earlier affidavits referred to above (which was replicated in the affidavit of 29 June 2015), Detective Burrell deposed as follows:

The applicant in the Local Court also relied on an affidavit of Detective Burrell affirmed 23 October 2015, which contained the following additional evidence:

Detective Burrell deposed as to his belief and the grounds for his belief that the plaintiff is a suspect as follows:

Detective Burrell also deposed to technology available in Germany which is said to be able to differentiate between the DNA profiles of identical twins (who, on less sophisticated testing, are regarded as having identical DNA). He deposed that if the forensic procedure was ordered and it revealed that the plaintiff has the same DNA profile as John, he would request that consideration be given to further testing in Germany (at significant financial cost).

Written submissions were relied on by both the applicant and the plaintiff (who was the respondent) at the hearing before Skinner LCM on 17 December 2015. Mr McGorey appeared on behalf of the applicant. Mr McMahon appeared on behalf of the plaintiff. The affidavit of Detective Burrell affirmed 23 October 2015 was relied on in support of the application, as well as other documentary evidence, including the expert certificate of Dr Bruce, referred to above, and the plaintiff’s address history with the RTA. Detective Burrell was cross-examined.

The Magistrate heard submissions (which will be addressed in more detail below by reference to particular grounds) and delivered ex tempore reasons at the conclusion of the hearing on 17 December 2015.

Her Honour addressed the requirements in s 26(3) that there be additional information that justifies the making of a further application. Her Honour referred to Munro v ACP [2012] NSWSC 100 and ACP v Munro [2012] NSWSC 1510; 227 A Crim R 317, to which reference had been made in the parties’ submissions. Her Honour identified the following “additional information” that was relied upon in support of the second application as follows: the hospital records; the transcript of the pre-trial hearing before Blackmore AJ on 23 June 2015 in which John’s counsel indicated that identification was a significant issue and that his client had instructed him that he was not there; the photographic evidence referred to above; and the information as to the plaintiff’s whereabouts (living in Collaroy Plateau) at the time of the commission of the alleged offences.

Her Honour said of the photographic evidence:

Her Honour then recorded her satisfaction that the threshold in s 26(3) had been met by the additional information referred to “because the additional information gets closer to grounding a reasonable belief or proof of the fact that there may be two identical DNA samples and that those DNA samples are consistent with the DNA that was found in swabs taken from the victim.”

Her Honour proceeded to address the requirements of s 24. Her Honour specifically addressed the argument put on behalf of the plaintiff that the application was, in effect, a means of preventing John from raising the possibility that his twin brother was guilty of the offence, by deciding that she had to look at the objective facts, to determine whether the plaintiff was a suspect. Her Honour noted the parties’ concession that identical twins have the same DNA.

Her Honour referred to the requirement of the definition of “suspect” in s 3 as follows:

Her Honour found that there were reasonable grounds to believe that the plaintiff had committed the relevant offences (as required by s 24(3)(a)) and that there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence (as required by s 24(3)(b)). Magistrate Skinner then addressed those matters in s 24(4) in respect of which submissions had been made in the context of what her Honour described as the “balancing act” required to be performed by that subsection.

The relevant provisions of the CFP Act that govern the application in the Local Court are set out below.

Part 5 of the CFP Act provides for the carrying out of forensic procedures on "suspects" by order of a Magistrate. A "suspect" is defined as including a person whom a police officer suspects on reasonable grounds has committed an offence: s 3. Forensic procedures are either "intimate" or "non-intimate". A self-administered buccal swab is defined as a non-intimate forensic procedure.

Division 2 of Part 5 of the CFP Act relevantly provides:

As set out above, s 26 relevantly provides that an application for an order must be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in s 24(1). Section 24 relevantly provides that, in the case of non-intimate forensic procedures, there must be reasonable grounds to believe that: (1) the suspect has committed a prescribed offence, and (2) the procedure might produce evidence tending to confirm or disprove that the suspect has committed the prescribed offence. Section 24(1) also requires the Magistrate to be satisfied on the balance of probabilities that the carrying out of the procedure is justified in all the circumstances, as to which s 24(4) provides for the matters which are to be taken into account by the Magistrate.

Section 30 relevantly provides for the procedure that applies at the hearing of such applications as follows:

Section 31 required the Magistrate to specify the forensic procedure to be carried out and give reasons for making the order.

The applicant for a forensic procedure has the onus of proving any necessary belief or suspicion on the balance of probabilities: s 103. The Evidence Act 1995 (NSW) applies in terms to applications for a forensic procedure. The proceedings in the Local Court, although related to the suspected commission of an offence, are civil, not criminal, since they do not amount to the prosecution of a person for an offence or for committal, sentence or bail (see the definition of "criminal proceedings" in the Dictionary to the Evidence Act). Not being criminal proceedings, they are necessarily "civil proceedings" since the Evidence Act defines "civil proceeding" as a proceeding other than a criminal proceeding.

The applicable provisions of the Evidence Act must be read together with the CFP Act, including s 30, which provides that persons other than the applicant may only be cross-examined with leave of the Magistrate.

Before making an order for a forensic procedure, the Magistrate is required to be satisfied of the following:

Before making such an order on a second application, the Magistrate is first required to be satisfied of the matters in s 26(3).

I propose to address the grounds which relate to the substantive application (grounds 1, 2, 2A, 3, 4, 5 and 7) separately from those that relate to the preliminary question whether there was additional information that justified the making of a second application (grounds 2B and 6).

The defendant does not oppose leave to appeal in relation to this ground, notwithstanding that it involves a mixed question of fact and law. There are two aspects to this ground: first, that the Magistrate erred in addressing the requirements of s 135(1)(a); and secondly, that the Magistrate erred in admitting opinion evidence.

The transcript of the hearing before Skinner LCM records that Mr McMahon objected to the admission of the histopathology report and the evidence that John’s lawyer had passed on his instructions that John and the plaintiff were identical twins. The objection was made on the basis of s 135(1)(a) of the Evidence Act, namely that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial to the plaintiff.

Following the objection there was an exchange between the Magistrate and Mr McMahon in the course of which Mr McMahon accepted that the evidence was relevant to whether there were grounds for suspicion (or belief) and the reasonableness of the grounds. Mr McMahon then indicated that, in light of the Magistrate’s observations, he would “resort” to his “fall-back position in terms of weight”. The transcript records the following ruling by her Honour:

The plaintiff submitted that the objection was based on the proposition that, because there was no statement setting out the facts and assumptions on which the opinion (that John and the plaintiff were identical twins), the weight to be attached to the opinion could not be assessed and its prejudicial effect would therefore outweigh its probative value.

In my view, her Honour correctly identified the relevance of the evidence objected to: as tending to prove the basis for a state of mind; and for the dual purpose of assessing the reasonableness of the grounds of Detective Burrell’s suspicion that the plaintiff had committed the offences (for the purposes of the definition of “suspect” in s 3, as well as assessing whether the Magistrate was herself satisfied that there were reasonable grounds to believe that the plaintiff had committed the offences (for the purposes of s 24(3)(a)).

The probative value of what John said about his brother is significant, in that it was capable of leading, and did in fact lead, to a chain of inquiry which provided grounds for a suspicion or belief. What John told his lawyer, which was then communicated to the prosecutor, was not of itself of any particular significance unless it was true. If it was true then it was of great significance since it had the potential to leave open a hypothesis consistent with innocence: namely that John’s identical twin brother (who would, on that scenario, have the same DNA as had been found on CF) had committed the offence. John’s assertion led to further investigation, and to the location of the histopathology report. The histopathology report was a business record of the hospital and therefore attracted the considerations that apply to such records in terms of accuracy and expertise: see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-549 per Hope JA. The report was capable of providing a basis for a suspicion or belief that John’s identical twin brother (the plaintiff) had committed the offences. That was its probative value.

The material that may provide reasonable grounds for suspicion or belief need not be (and frequently is not) in the form of evidence that would be admissible to prove the fact the subject of the suspicion or belief. For example, reasonable grounds for suspicion or belief may include information that the investigating officer concerned has been told by another police officer. It can include material of a hearsay nature: see, for example, Azar v DPP [2014] NSWSC 1323.

In these circumstances it is not to the point that the author of the histopathology report was not called as a witness. Even if the author was a witness, he or she could only have been cross-examined with leave of the Magistrate, because of the constraints imposed by s 30. Neither of these matters posed any impediment to the admissibility of the report, having regard to the purpose of its tender.

In these circumstances, it is difficult to see what the relevant prejudicial effect was, except in the relevant (and appropriate) sense of providing reasonable grounds to suspect the plaintiff. In my view, a fair reading of the transcript indicates that Mr McMahon accepted her Honour’s ruling to that effect. Moreover, the transcript ought be taken as indicating that her Honour ruled the evidence admissible over objection. It is not necessary to give reasons for every evidentiary ruling in a judgment, particularly where a debate between bar and bench has culminated (as, in my view, occurred in the present case) in an acceptance of the judge’s ruling and the basis for the ruling has already been exposed in the exchange.

No error has been shown. The first ground has not been made out.

As the parties made submissions with respect to grounds 2 and 2A together I propose to address them in the same global way, although some separate consideration can be given to ground 2 first.

The matter specifically raised in ground 2 was whether Detective Burrell’s motivation in applying for the forensic procedure was relevant, and if so, what that motivation was. The plaintiff’s contention (before Skinner LCM and in this Court) was that Detective Burrell brought the application under the CFP Act only so as to deprive John of a defence to the charges and that, accordingly, the plaintiff was not, in fact, a suspect.

The first point is that there may be more than one suspect for any criminal offence. This is particularly, if not inevitably, so where, as in the present case, the principal issue in the criminal trial is the identification of the offender. The threshold for someone to be a suspect is low: all that is required is that a police officer suspects on reasonable grounds that the person has committed an offence: s 3. The police officer need not believe that the person has committed the offence (belief requiring greater basis than suspicion: George v Rockett [1990] HCA 26; 170 CLR 104), much less be satisfied that the person ought be charged with the offence.

Since John had actually been charged with the three offences, he must be regarded as the prime suspect. However, the fact of his being charged does not disqualify the plaintiff from being a suspect. What makes the plaintiff a suspect is the material (including John’s assertion, the physical resemblance in the photographs and the hospital records) which tends to suggest that he and John are identical twins.

I reject the plaintiff’s argument that Detective Burrell’s reason for making the application (to exclude a hypothesis consistent with John’s innocence) was a matter which the Magistrate was required to take into account. The CFP Act does not expressly provide that it is a consideration; nor can such an implication be made from its subject-matter, scope or purpose. In these circumstances it cannot be an error of law to fail to take it into account, even if it could be said that her Honour did fail to have regard to it: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 per Mason J.

In any event, the plaintiff’s submission contains a false dichotomy. Where the identity of the offender is in issue, the process of criminal investigation necessarily involves the identification of suspects and the exclusion, by process of elimination, of all suspects other than the accused person. John is a suspect because he has the same DNA profile as that recovered from the victim. The plaintiff is a suspect because there is material to suggest that he is John’s identical twin brother and therefore has the same DNA profile as John and as the sample recovered from the victim. The forensic procedure has the potential to exonerate the plaintiff if it establishes that, notwithstanding John’s assertion and the hospital notes, he does not have the same DNA since he is not John’s identical twin. It has the potential to further implicate the plaintiff if it establishes that he is John’s identical twin and therefore has the same DNA profile as was recovered from the victim.

In my view, the Magistrate correctly recognised that the fact that the forensic procedure is of utility to the prosecution in John’s criminal trial neither affects the legality or propriety of the application nor undermines the plaintiff’s status as a suspect. So much is clear from her Honour’s statement in the reasons that she had to “put that to one side”.

The plaintiff submitted that the Magistrate’s decision did not comply with the CFP Act because her Honour engaged in circular reasoning. Mr James QC, who appeared with Mr McMahon on behalf of the plaintiff, submitted that it was erroneous to order a forensic procedure to determine whether a person was a suspect when the jurisdiction to make such an order depended on the person being a suspect at the time of the application. He submitted that he was not a suspect unless and until a DNA test was administered to make him a suspect and that, at the time of the application, all that was available was surmise and John’s assertion that he and John were identical twins.

Mr James submitted that:

In my view, this submission does not take adequate account of the cumulative effect of the investigations conducted by Detective Burrell.

I am not persuaded that her Honour misapprehended the statutory requirements, except in one respect, which was immaterial.

The provisions of the CFP Act required her Honour to determine, first, whether the respondent (plaintiff) was a “suspect”. This in turn required her Honour to be satisfied that, relevantly, the plaintiff was a person whom Detective Burrell suspected on reasonable grounds has committed an offence. Her Honour misstated the requirement, in that her Honour said that she was required to determine whether Detective Burrell “has reasonable grounds to believe” that the plaintiff has committed an offence. The reason this error is immaterial is that “believe” imposes a higher standard than “suspect”. Accordingly if the officer has reasonable grounds to believe that the plaintiff has committed an offence, the officer necessarily has reasonable grounds to suspect that matter.

This hierarchy of grounds to warrant particular states of mind was considered by the High Court in George v Rockett in the context of "reasonable grounds to suspect" for the purposes of a search warrant. As appears from the following passage, more is required for “belief” than “suspicion”. Their Honours said at 115-116:

What amounts to reasonable grounds for forming a suspicion or belief must be assessed by reference to "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ; see also Bain v Police [2011] SASC 228 per White J at [26].

Having heard and seen Detective Burrell give evidence, her Honour was entitled to accept his evidence that he suspected that the plaintiff had committed an offence. As to whether the grounds for Detective Burrell’s belief (or suspicion) were reasonable, her Honour accepted that there were reasonable grounds to believe that the plaintiff had the same DNA profile as the sample recovered from the victim. It was accepted that, if the plaintiff and John were identical twins, they would have the same DNA profile; and that John’s DNA profile matched that of the victim. Although her Honour did not expressly find that the plaintiff was a suspect, it was apparent from the reasons that she accepted that he was a person whom Detective Burrell suspected on reasonable grounds had committed an offence, which necessarily made him a suspect, because it brought him within the definition of suspect in s 3.

Her Honour specifically found that there were reasonable grounds to believe that the plaintiff had committed the offences. This finding was open to her Honour and involved either a question of fact or a mixed question of fact and law. Her Honour’s finding fulfilled the requirement of s 24(1)(a). It also, incidentally, fulfilled the requirement in s 3 that Detective Burrell’s suspicion that the plaintiff had committed an offence was based on reasonable grounds since the grounds for Detective Burrell’s suspicion were the same grounds as those which her Honour found to be reasonable grounds for belief: see KC v Sanger [2012] NSWSC 98 at [71]–[72] per Hulme RA.

I note for completeness the plaintiff’s submission that the question of whether or not a person is a suspect requires consideration of whether or not a police officer actually suspects that the person in question committed an offence. It therefore contains a subjective element in addition to the subsequent objective assessment as to whether that suspicion is based on reasonable grounds. The plaintiff referred to R v Hill [2012] ACTSC 17; 218 A Crim R 301, in which was said at [90] per Refshauge J:

Detective Burrell deposed that he actually suspected the plaintiff. Her Honour accepted that evidence. The finding was a pure question of fact. There is no basis in these proceedings to challenge her Honour’s finding that Detective Burrell actually suspected that the plaintiff had committed the offences.

Neither ground 2, nor ground 2A has been made out.

There are two aspects to this ground: the first concerns the requirements of s 24 and the second concerns the requirements of s 26(3). I propose to address the s 24 aspect first and the s 26(3) aspect later in these reasons when I address the grounds relevant to s 26(3).

The plaintiff submitted that the Magistrate erred in law by failing to provide adequate reasons for her decision regarding the requirements of s 24(3)(a) or for her decision regarding the evidence implicating John. As to the first matter, I am satisfied, for the reasons given above, that her Honour’s reasons were sufficient regarding the requirements of s 24(3)(a). Her Honour addressed Detective Burrell’s state of mind (which was relevant to the question whether the plaintiff was a suspect within the meaning of s 3) and found that the requisite state of mind was made out. Her Honour also addressed whether there were reasonable grounds to believe that the plaintiff had committed the offence and made a specific finding that there were (thereby fulfilling the requirements of reasonable grounds in ss 3 and 24(3)(a)).

There was no particular complexity about the chain of reasoning. The plaintiff was a suspect because there was information to indicate that he was John’s identical twin and would therefore have the same DNA profile of both John and the sample recovered from the victim. Her Honour’s reasons were ample to expose “the actual path of reasoning” which led her Honour to find that the requirements of s 24(a) had been met: Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 at [48].

The plaintiff’s complaint about the reasons associated with the evidence implicating John has not been made out. Her Honour referred to the evidence implicating John and specifically recognised that John was “certainly on the material the strongest or the primary suspect”. That John was the prime suspect (and, indeed, had been charged and was awaiting trial) did not make the plaintiff any less a suspect unless and until he was excluded as such. The most powerful piece of evidence against John was that his DNA profile matched that of the sample recovered from CF. The prospect that the plaintiff had the very same DNA profile because he was John’s identical twin (which was grounded in the medical evidence and the physical similarity, as well as John’s assertion) because he was John’s identical twin was what made him a suspect too.

I accept the submission of Ms Davidson, who appeared on behalf of the defendant, that it is artificial to consider each fact individually and argue that there are explanations that are inconsistent with the belief (or suspicion) that the plaintiff committed the offence. The “facts” must be considered as a whole. That other inferences might arguably arise from the facts or that the available inference might fall short of proof, or conviction, does not of itself prevent a finding being made that reasonable grounds exists to suspect or believe that the plaintiff committed the offence: Kapral v Bunting [2009] NSWSC 749 at [44]- [46] per Howie J.

Ground 3 has not been made out.

Ground 4 involves a question of fact (whether Detective Burrell suspected that the respondent had committed the subject offences) and a question of mixed fact and law (whether there were reasonable grounds for his suspicion). Leave was opposed.

Mr James sought to enlarge the ground at the hearing of the appeal by contending that it was not open as a matter of law to the Magistrate to make the finding that Detective Burrell suspected on reasonable grounds that the plaintiff had committed the subject offences. Mr James’ submission was based on the proposition, which I reject for the reasons given above, that the plaintiff was not a suspect unless and until the DNA test established that he was John’s identical twin. The submission disregarded the medical evidence, the photographic evidence and John’s assertion, which are to be taken in aggregate.

Mr James put the further submission that the evidence was insufficient to support the Magistrate’s finding that Detective Burrell suspected on reasonable grounds that the plaintiff had committed the subject offences. He submitted that sufficiency of evidence was as much a matter of law as a “no evidence” ground. I reject this submission. Whether evidence is sufficient to amount to reasonable grounds is not a question of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Parliament has vested the power to make such an assessment in the Local Court. It is not appropriate for leave to be granted to permit this ground to be agitated: Kapral v Bunting at [48] per Howie J.

Ground 5 also involves a mixed question of fact and law. Leave was opposed. For the same reasons as apply with respect to ground 4, I am not persuaded that leave ought be granted to permit this ground to be agitated.

In any event, in my view it was plainly open to the Magistrate to find both that there were reasonable grounds for Detective Burrell’s suspicion that the plaintiff had committed the subject offences and that there were reasonable grounds to believe that the plaintiff had committed the offences, since there was evidence before her Honour which was capable of amounting to reasonable grounds.

The plaintiff does not complain that her Honour failed to take into account a relevant consideration or took into account an irrelevant consideration in performing the balancing exercise required by s 24(4). The Magistrate’s reasons indicate that her Honour addressed every matter in s 24(4) about which the parties had made submissions. It was not suggested that her Honour had taken into account extraneous matters or failed to apply the wording of s 24(4). Although it was, in oral submissions, suggested by Mr James that it was not open to the Magistrate to find that the forensic procedure was justified (thereby implying that the evaluative judgment, or exercise of discretion, miscarried), it was difficult to follow the basis on which the submission was made (except on the bases already addressed and rejected above). To the extent to which Mr James ought be understood to have submitted that no proper performance of the balancing exercise required by s 24(4) could have resulted in the order for forensic procedure being made, this raises a question of law. If this submission was actually made, I reject it.

That leaves an allegation of error which requires leave. I am not persuaded that it is appropriate to grant leave. Her Honour correctly identified the relevant principles and applied s 24(4) in terms. It was pre-eminently a matter of evaluative judgment for her Honour, in respect of which no error has been shown.

This ground, together with grounds 3 (as to the reasons for the s 26(3) determination) and 6, concern the conditions required to be met under s 26 before a second application pursuant to s 24 can be entertained.

Ground 2B raises a question of law. In order to make out this ground, the plaintiff must establish that her Honour misapprehended the statutory wording or misdirected herself as to the applicable principles.

Her Honour’s reasons demonstrated an appreciation that the requirements of s 26(3) had to be met before the second application could be entertained. Her Honour referred to the parties’ written submissions and to the two decisions cited (Munro v ACP and ACP v Munro). Her Honour correctly paraphrased the effect of s 26(3) by saying that “the law enables a second application in certain circumstances, and then it is necessary for the magistrate to assess whether the additional information is of such a nature, degree and quality that it justifies the making of a further application”.

The plaintiff submitted that her Honour was in error in failing to take into account “the extent to which the plaintiff had been ‘vexed’ by the prior application” and had excluded from consideration “the surrounding circumstances of the previous application”. In support of this submission the plaintiff relied on the following passage in ACP v Munro at [73] where Button J said at [73]

His Honour’s remarks were made in circumstances where a number of orders for forensic procedures had been made in respect of ACP. ACP argued that the principle of double jeopardy applied and that another application could not be made for the same forensic procedure that had earlier been the subject of an unsuccessful application. His Honour rejected that argument on the basis that it was inconsistent with the wording of s 26(3). The words highlighted, when read without regard to their context or the facts of that case, could provide an indication that the extent to which the plaintiff had been ‘vexed’ by earlier applications was a mandatory relevant consideration. However, a fair reading of his Honour’s reasons provides no support for any such proposition.

The wording of s 26(3) makes it clear that the focus is on whether the “additional information” is such as would warrant the making of the further application. Whether or not the plaintiff has been “vexed” by an earlier application is irrelevant; all that is relevant for the purposes of s 26(3) is that there has been an earlier application, the making of which can be assumed to have interfered with the respondent’s rights, at least to some extent: Orban v Bayliss [2004] NSWSC 428 at [30] per Simpson J. A consideration of the information in support of the earlier application is obviously required, in order to determine, and assess, the information said to be “additional” on any subsequent application.

In any event, I note that the Magistrate specifically referred in her reasons to the following and therefore can be taken as having had regard to it (to the extent, if at all, relevant):

No error in the identification or application of the relevant legal principle has been established. Ground 2B has not been made out.

Her Honour identified and addressed the “additional information” that had been provided in support of the second application and which had not been available to Curran LCM when the first application was made. Her Honour found that the additional information comprised: medical evidence to support John’s assertion that the plaintiff was his identical twin brother; the representations made to Blackmore AJ by John’s trial counsel that identity would be a crucial issue in the criminal trial; photographic evidence of the physical appearance of John and the plaintiff at various times; and the RTA evidence which recorded that the plaintiff’s residential address was in the Collaroy area at the time of the alleged offending (whereas the evidence before Curran LCM was limited to the plaintiff’s presence in Australia, as established by Department of Immigration movement records).

Her Honour addressed each category of additional information referred to above and assessed its forensic effect. Her Honour noted the contemporaneous medical records which recorded a medical opinion that John and the plaintiff were uniovular (identical) twins. Her Honour examined the photographs and determined that the similarities between John and the plaintiff were consistent with their being identical twins and the dissimilarities as being “not so stark as to exclude the prospect” of their being identical twins. Her Honour referred to the RTA records which placed the plaintiff much closer to the scene of the alleged offending than the information before Curran LCM had done. Her Honour said in the reasons that the additional information that tended to establish that John and the plaintiff were identical twins was a “significant factor”.

I regard the Magistrate’s reasons for determining that the additional information was such as to justify a second application as sufficient. Her Honour addressed every category of additional information and compared it with that which was available when the first application was made. As is apparent from the narrative set out in the part of these reasons before the grounds of appeal are specifically addressed, there was significant material located and put before the Local Court in support of the second application which had not been put before Curran LCM, including evidence, such as the photographic evidence, the absence of which had been the subject of comment by Curran LCM in his Honour’s reasons for refusing the first application.

Leave is required to argue this ground. I am not persuaded that it is appropriate to grant leave. Her Honour’s determination of the s 26(3) issue was a matter of evaluative judgment. I regard her Honour’s decision as reasonably open on the evidence and, for the reasons given above in relation to ground 3, carefully and sufficiently reasoned.

The defendant sought an order that the plaintiff pay the costs of the proceedings. I am informed by Ms Davidson that, by reason of the jurisdiction exercised in the present proceeding, the usual processes of costs assessment are not available, since the proceedings in this Court are criminal (as they are treated in the same way as an appeal against sentence). Accordingly, Ms Davidson sought a lump sum costs order and foreshadowed that the defendant proposed to adduce affidavit evidence, if he were successful, as to the amount of any such costs so that a lump sum costs order could be made. Mr James indicated that he was not prepared to deal with such an application without notice and that the appropriate course was that costs be reserved. Ms Davidson accepted that it was appropriate to reserve costs.

For the reasons set out above, I make the following orders: