AD v New South Wales Police

[2021] NSWSC 1502

Supreme Court

New South Wales

Medium Neutral Citation:

AD and Ors v New South Wales Police [2021] NSWSC 1502

Hearing dates:

10 November 2021

Date of orders:

10 November 2021

Decision date:

10 November 2021

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

1. The Summons is dismissed.

2. There is no order as to costs.

3. As a consequence of the order dismissing the Summons, the orders made last evening are revoked.

Catchwords:

CRIMINAL PROCEDURE – urgent application to stay interim forensic procedure order made under s.32 Crimes (Forensic Procedures) Act 2000 – hair samples sought from plaintiffs under the age of 18 years – urgent stay granted – whether stay should be continued – relevance of final hearing to take place before a Magistrate under s.30 Crimes (Forensic Procedures) Act 2000 – stay lifted – Summons dismissed

Legislation Cited:

Crimes (Forensic Procedures) Act 2000

Supreme Court Act 1970

Cases Cited:

Kindermann v JQ [2020] NSWSC 1268

Texts Cited:

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Category:

Principal judgment

Parties:

AD (First Plaintiff)
MM (Second Plaintiff)
BE (Third Plaintiff)
BL (Fourth Plaintiff)
TB (Fifth Plaintiff)
New South Wales Police (Defendant)

Representation:

Counsel:
Mr A Aguirre, solicitor (AD)
Ms VM Love, solicitor (MM)
Ms MO Karim, solicitor (BE)
Mr P Guirguis, solicitor (BL)
Mr J Clifford, solicitor (TB)
Mr N Regener, solicitor (Defendant)

Solicitors:
AA Criminal Lawyer (AD)
Veronica Love (MM)
Karim and Nichol Lawyers Pty Limited (BE)
Guirguis Legal Criminal Lawyers (BL)
Aboriginal Legal Service NSW/ACT (TB)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2021/318992

Publication restriction:

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Choose an item.

Judgment

1. JOHNSON J: Last evening, 9 November 2021, urgent application was made to me, as Common Law Division Duty Judge, concerning orders which had been made by a Registrar of the Parramatta Children’s Court under s.32 Crimes (Forensic Procedures) Act 2000 ("the Act”).

The Proceedings

2. The urgent application progressed with the provision of a Summons and a draft affidavit in support of the Summons. Upon receipt of this material, and having considered it, I made a number of orders at 10.48 pm yesterday. The proceedings have come before the Court this morning in accordance with those orders.

3. The Summons involves five Plaintiffs, each of whom is a young person under the age of 18 years. Having regard to the age of the Plaintiffs and s.43 of the Act, it is appropriate to refer to them only by initials, being AD, MM, BE, BL and TB.

4. The Defendant to the Summons is described as New South Wales Police. The appropriate Defendant would be, in my view, the Commissioner of Police and perhaps, as well, the officer-in-charge of the investigation. It is not necessary to delay these reasons for technical purposes relating to the identification of the parties.

5. The hearing today has proceeded with legal representatives appearing for the Plaintiffs, and with legal representation as well for the Defendant.

6. Read for the Plaintiffs at the hearing is an affidavit of Arthur Aguirre dated 10 November 2021, which was accompanied by a number of documents in Annexures A and B to the affidavit. In addition, the Court received an earlier application made under the Act dated 1 October 2021 (Exhibit A) and a helpful outline of submissions prepared by Mr Aguirre, the solicitor for AD (MFI2).

7. The relief sought in the Summons is as follows:

“1. A declaration that the interim order under s 32 Crimes (Forensic Procedures) Act 2000 made by James Hogan on 9 November 2021 in relation to the Plaintiff is contrary to law and void.

2.   To make an order restraining the Defendant [Detective Senior Constable Benjamin Walker] from testing or subjecting to any form of scientific examination all forensic samples obtained from the Plaintiffs on 9 November 2021.”

8. The interlocutory orders made last evening by the Court included the following:

“4. The ... Defendant, being all officers of the New South Wales Police Force, are restrained from acting on the interim order under s 32 Crimes (Forensic Procedures) Act 2000 by Registrar James Hogan on 9 November 2021 until 5pm on 10 November 2021 or further order of the Court;

5.   If forensic samples have been taken from any of the Plaintiffs pursuant to the order of Registrar James Hogan, those samples are to be preserved and not subjected to any form of scientific examination until 5pm on 10 November 2021 or further order of the Court."

The Statutory Scheme

9. Before turning to some factual matters arising on the application, it is appropriate to say something about the statutory scheme under consideration. That scheme is summarised, most conveniently for present purposes, in the judgment of Rothman J in Kindermann v JQ [2020] NSWSC 1268.

10. The statutory scheme (as relevant to this application) involves the capacity to make an application for an interim order to an authorised officer (which includes a Registrar of the Local Court), under s.32 of the Act. An application of that sort is brought in circumstances of some urgency, where it is sought that a sample be taken and effectively preserved until the next step arises.

11. The next step involves a hearing before a Magistrate, where the Magistrate will determine, for the purpose of s.32(3), whether the interim order made should be confirmed or disallowed. In exercising that function, the Magistrate has regard to factors enumerated in s.24 of the Act.

12. Importantly, s.38 of the Act provides that:

“38    Results of forensic procedure carried out under interim order

(1)    A sample taken under an interim order must not be analysed unless—

(a)     the sample is likely to perish before a final order is made, or

(b)    a final order is made.

(2)    A person who conducts an analysis in the circumstances set out in subsection (1) (a) must not intentionally or recklessly disclose the results of the analysis to any person other than the suspect—

(a)    during the period before a final order is made, or

(b)    if the interim order is disallowed.

Maximum penalty (subsection (2)): imprisonment for 12 months."

13. It may be seen then that the statutory scheme allows an urgent application to be made to a person other than a Magistrate (including, in this case, the Registrar) who is empowered to make an order which allows a sample to be taken, but then effectively preserved pending the hearing before the Magistrate. If the Magistrate confirms the interim order, then analysis can take place. If the Magistrate disallows the interim order, then that would be the end of the matter. The one exception to that is what I have noted in s.38(1)(a), where analysis may be undertaken if the sample is likely to perish before a final order is made. As I understand it, that aspect does not arise for consideration in these proceedings.

14. In Kindermann v JQ, Rothman J observed (at [34]) that the object of the Act is the public interest in facilitating the investigation of crime, and the administration of justice in securing the conviction of those who are guilty and the non-prosecution or acquittal of those who are not guilty.

15. His Honour summarised, helpfully, features of the Act at [36]-[43]:

“36. An authorised officer may order the carrying out of a forensic procedure on a child under s 32 of the Act, as indicated above. An authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereinafter ‘LEPRA’). An authorised officer includes a Registrar of the Local Court.

37. By operation of s 33 of the Act, an authorised applicant for those purposes, which, relevantly includes the applicant/plaintiff in these proceedings, is authorised to seek an Interim Forensic Procedure Order in respect of a child and the provision expressly provides that it may be the subject of an application ‘without bringing a suspect before an authorised officer and without obtaining an order under section 24’.

38. Section 33(1) of the Act permits an authorised applicant to make an application for an Interim Forensic Procedure Order on a child, in circumstances where it is necessary so to do without delay. That order (and the results of its execution), once issued, subsist until such time as a Magistrate hears the matter, in accordance with s 30 of the Act.

39. At the hearing under s 30 of the Act, the mandatory considerations in s 24 of the Act inform the decision and the Magistrate is entitled to confirm or disallow the Interim Forensic Procedure Order. The Court has already set out or summarised the provisions of s 32(1) of the Act.

40.   In short, there is no requirement for a hearing at which a young person is entitled to be represented and entitled to test the evidence against them for the making of an interim order. The interim order subsists, as earlier stated, until the final order issues. If the final order rejected the application, then the results or any samples obtained pursuant to the interim order would be required to be destroyed.

41.   It is at a final hearing that the defendant, or any suspect, can be heard; can test the evidence adduced against them; and is entitled to the rules of procedural fairness. Those rules would entitle a suspect to a reasonable opportunity to prepare and to present whatever case could relevantly be put forward.

42.   The Act makes clear that the purpose of an Interim Forensic Procedure Order is to maintain evidence and ensure that the evidence is not, as a result of unnecessary delay, lost.

43.   The stringent provisions relating to the making of a final order and the other protections that are provided to ensure that the rights of a young person are sufficiently protected before the evidence that is gleaned, if any, can be used against the young person in any proceedings or at all, do not apply to the making of an interim order and the learned Magistrate misunderstood that aspect."

16. It will be observed that his Honour held (at [40]) that there is no requirement for a hearing on an application for an interim order for a young person to be represented and entitled to test the evidence for the making of an interim order. The interim order subsists until a final order issues. If the final hearing rejected the application, then the results of any samples obtained pursuant to the interim order would be required to be destroyed. At the final hearing, the person can be heard with legal representation and entitlement to the rules of procedural fairness, and with the capacity to contest whether the foundation for the interim order was made out.

The Present Case

17. Against that statutory background, I turn to aspects of the present case. Each of the Plaintiffs has been charged with offences said to arise out of events on 4 August 2021. It is not necessary, for the purpose of this judgment, to set out in detail the allegations. They appear in the affidavit of Detective Senior Constable Benjamin Walker, dated 9 November 2021, which formed part of the application made to the Registrar for the interim order.

18. It is sufficient to note that events on 4 August 2021 gave rise to the death of a person, and the Plaintiffs are charged with murder or serious offences of violence in that context.

19. The Court has been informed that, on 5 August 2021, an interim order was made under the Act which permitted certain types of testing, including the taking of photographs with respect to the Plaintiffs. I assume for the purpose of this judgment that no order was made at that time which permitted the taking of hair samples from the Plaintiffs. If such an order had been made, then what happened thereafter would not have taken place. The Defendant would not have seen the need to make application under the Act, let alone the proceedings ending up in this Court in the way that they have. I will assume that the order on 5 August 2021 did not include any order for the taking of hair.

20. What is clear, however, is that, on 1 October 2021, application was made to the Local Court for an order under the Act allowing the taking of hair samples from the Plaintiffs. That application is contained in Exhibit A. At paragraph 53 of Exhibit A, the following was said:

“Police request authority to take a sample of hair for analysis to determine if the respondent has taken any form of prohibited drug. Forensic Science, South Australia state that 'hair on the head grows at a rate of approximately 1cm per month so the length of hair will determine the approximate time period covered by the test. If you need to know the drug use over the past 3 months, you need one segment 3cm in length analysed'. The analysis of the respondent's hair follicle might produce evidence tending to disprove that the respondent was involuntarily provided a prohibited drug at the time of the offending.”

21. It may be seen then that, in the application of 1 October 2021, the taking of a hair sample was sought by way of forensic sampling under the Act. The Court was informed that the application made on 1 October 2021 has been listed for hearing on 31 January 2022 in the Children's Court.

Urgent Application for an Interim Order

22. Yesterday, the Registrar of the Parramatta Children's Court was informed that an urgent application was to be made for an interim order under the Act, to permit samples of hair to be taken from each of the Plaintiffs. That application proceeded. It would seem, from emails in Annexure B to the affidavit of Mr Aguirre, that the legal representatives for at least some of the Plaintiffs learned that an application for an interim order was to be made to the Registrar, and they sought that the matter be deferred and that there be an opportunity to be heard with respect to it.

23. That did not occur, in the sense that the Registrar proceeded to deal with the application and, at 6.51 pm yesterday, the legal representatives for the Plaintiffs were informed that interim orders had been made. That development then triggered the application made after hours to this Court to grant interlocutory relief with respect to the matter.

24. Reference should be made to two aspects of the material before the Registrar. Firstly, in the affidavit of Detective Senior Constable Benjamin Walker dated 9 November 2021, in support of the application concerning AD, the deponent said in paragraph 6:

“Police seek to seize a complete length of the respondents head hair follicles to be able to perform tests for the possible presence of any prohibited drug previously in their body. The respondent hair on their head continues to grow in length and this increases the like hood (sic) of it being cut shorter and or completely shaved off. Research shows that human head hair grows at an approximate rate of 1cm in length per month. Therefore the longer between the time of the offence and the seizing of the hair sample could seriously alter any result. Police believe that the hair follicle drug testing could refute evidence that the respondent was involuntarily provided a prohibited drug at the time of the offending. The probative value of this evidence is likely to be lost or destroyed if there is a delay in carrying out the forensic procedure."

25. Registrar Hogan granted the interim order, and recorded reasons which included the following:

“I am satisfied that the carrying out of the forensic procedure on the suspect must be carried out without delay because:

I am satisfied that Section 23(c) applies and I am satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure.

Police seek to seize a minimum 3cm length of hair from the suspect's head hair follicles to be able to perform tests for the possible presence of any prohibited drug previously in their body. The hair on the suspect's head has grown whilst the suspect has been in custody and the suspect can cut his hair whilst in custody at which time the probative value of the evidence would be lost as lengthy hair is required for the test to be performed.

I am satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied, as referred to in section 24(1), when the application is finally determined.

I am satisfied that a Magistrate may order the carrying out of a forensic procedure being satisfied on the balance of probabilities:

There are reasonable grounds to believe that the suspect has committed a prescribed offence, and there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence.

Evidence of the suspect being under the influence of a prohibited drug or not at the time of the offence will provide evidence tending to confirm or disprove that the suspect has committed the offence, in particular the offence of murder which the suspect has been charged with.”

26. It may be seen then that the application made yesterday, and the reasons of the Registrar, addressed the question of urgency. It is the case that the affidavit in support of the application of 1 October 2021 also referred to the passage of time with respect to hair. It may be that the significance of this aspect had not sunk in until consideration was given in recent days to this specific question. In any event, the fact is that there was some explanation given as to why there was urgency.

27. In granting the interim order, the Registrar was exercising an administrative function. It may be taken that the Registrar was obliged to act judicially. The Magistrate, at any final hearing, would be exercising a type of administrative function with an obligation to act judicially as well.

28. If the samples are now taken they will be preserved, with a Magistrate to consider the next step, which is whether the order should be confirmed or disallowed. The Court has been informed that the Parramatta Children's Court would be in a position to conduct such a hearing on 16 November 2021, although it would be a matter for the Magistrate presiding at that hearing to consider the arguments and determine the outcome, all of which may not see a resolution at that time.

29. In effect, the application made yesterday was that samples should be obtained as soon as possible because of the reduced potential evidentiary value of the samples with the passage of time.

The Application to this Court

30. When this Court made orders last evening, it was intended to maintain the status quo to allow arguments to be advanced as they have been today in Court.

31. It is clear from the judgment of Rothman J in Kindermann v JQ that there is no requirement, on an application for an interim order, for a hearing at which the young persons were entitled to be represented and to test the evidence. To the extent that complaints which gave rise to the grant of interlocutory relief last evening, involved complaints concerning the short notice and the lack of any opportunity to be heard, these arguments do not assist the Plaintiffs in light of Kindermann v JQ.

32. To the extent that arguments relate to the sufficiency of evidence or material to found the interim order, they are matters which can be taken up with the Magistrate at the final hearing.

33. It was submitted that the Court may consider any suggested link between the hair samples, the use of a prohibited drug and the investigation of the crime or crimes in this case as being tenuous, so that there is a doubt as to the evidentiary foundation for the interim order made.

34. A number of arguments were advanced along those lines.

35. This Court is exercising a supervisory jurisdiction. The relief sought in the Summons involves a claim for relief under s.69 Supreme Court Act 1970 and declaratory relief under s.75 Supreme Court Act 1970. The Court is not conducting an appeal or merits review. The powers of the Court are restricted to a discretionary capacity to grant relief if error of law on the face of the record or jurisdictional error is demonstrated, including denial of procedural fairness.

30. It seems to me that there is virtually no scope for this Court, in judicial review proceedings, to assess the arguments that have been put concerning the sufficiency of evidence to found the interim order made. The questions of notice and an opportunity to be heard are largely met by the construction of the Act explained in Kindermann v JQ.

31. The statutory scheme permits for the making of interim and final orders and it is intended to allow a sample to be taken and preserved. As noted, the sample must not be analysed until the requirements of s.38 are satisfied.

32. I have given consideration to the question whether the stay should continue on the basis that there will be a final hearing before a Magistrate on 16 November 2021. It was submitted for the Plaintiffs that that hearing is not far off, and that the orders made last night should remain in place, with the outcome of that hearing to determine the question as to whether any testing should occur. If the Magistrate confirms the interim order, then the gateway would be open for testing. If the Magistrate disallowed the interim order, then that would be the end of the matter.

33. Submissions were also made by reference to what was said to be the somewhat flexible concept of delay, and the possible problems arising from further delay given that the offences under investigation took place on 4 August 2021 and we are already approaching the middle of November 2021. It was submitted that a few more days will not realistically make any difference.

34. It was submitted for the Defendant that there is an issue with delay and the material that led to the making of the interim order emphasised the strong desirability of the samples being taken without further delay. It was submitted that any further delay at this stage may lead to deterioration or reduced capacity of any sample to be of evidentiary value.

35. I have had regard to the competing submissions which have just been summarised in a broad way. I have kept in mind, as well, the fact that the lifting of the stay would allow the sampling to take place. This would involve bodily samples (in the sense of head hair) being taken from each of the five young persons. It is no light matter to allow a process where there is some interference with the bodily integrity of persons, and in particular young persons. However, the statutory scheme itself permits this step to be taken. If samples are taken, the Plaintiffs will have an opportunity at the final hearing before the Magistrate to seek the disallowance of the interim order.

36. Although the final hearing is likely to occur next Tuesday 16 November 2021, I will not assume that there will be an immediate decision. A delay of that sort means at least another week added to the period which has already passed. In circumstances where delay may operate to erode the value of the samples, in my view, the balance comes down on the side of allowing the samples to be taken without further delay.

37. In reaching this view, I have also had regard to the prospects of success on the Summons itself. Once complaints about notice and an opportunity to be heard are put to one side, the rest of the argument turns on a challenge to the value of the samples at this stage, the explanation that has been given for wishing to take them and matters of that sort. As I have noted, it is difficult to see how this Court exercising its limited supervisory jurisdiction could embark upon a hearing which would assess, let alone resolve those questions. On the other hand, the Magistrate at the final hearing will have an opportunity to consider matters of that sort which would arise under s.24(2) of the Act.

38. Accordingly, for these reasons, I propose to lift the orders made last evening. Orders 4 and 5 (see [8] above) will be revoked. The effect of that will be that it will be open to New South Wales Police officers to take samples in accordance with the interim orders made last evening. Of course, once those samples are taken they must be dealt with strictly in accordance with s.38 of the Act in the manner which I have identified.

39. There is a remaining question as to whether there is any utility in the Summons remaining on foot given the Court's view that the interlocutory orders should be lifted. I will pause at this stage to invite those acting for the Plaintiffs to indicate a view on that issue. If they wish time to consider their position, it would be reasonable for the Court to effectively stand over the Summons for a period so consideration could be given to the question whether the Summons is to be dismissed at this stage. What will be clear, however, is that the interim orders will be revoked. I will pause for a moment.

[Submissions were made concerning the future course of the proceedings and as to costs]

46. The Court has heard submissions concerning the finalisation of the proceedings in light of the decision to lift the interim orders. The legal representatives for each of the Plaintiffs has submitted that the appropriate order is that the Summons be dismissed. The Defendant likewise seeks that order.

47. The Defendant does not seek an order for costs. In the circumstances outlined in this judgment, I would not in any event have made an order that the Plaintiffs pay the costs of the Defendant, given the chronology of events which gave rise to last evening's urgent application.

48. Accordingly, I make the following orders:

1. The Summons is dismissed.

2. There is no order as to costs.

3. As a consequence of the order dismissing the Summons, the orders made last evening are revoked, including orders 4 and 5 which were set out earlier in this judgment.

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Decision last updated: 08 December 2021