Alessi v SE and Anor
[2008] NSWSC 909
•5 September 2008
CITATION: Alessi v SE and Anor [2008] NSWSC 909 HEARING DATE(S): 21 August 2008
JUDGMENT DATE :
5 September 2008JUDGMENT OF: Barr J at 1 DECISION: 1. The order appealed from in the Children's Court is set aside.
2. Proceedings are remitted to the Children’s Court to be dealt with according to law.
3. The first defendant should pay the plaintiff’s costs but should have a certificate under the Suitors’ Fund Act 1951.CATCHWORDS: FORENSIC PROCEDURE - whether reasonable grounds exist to believe that proposed procedure might produce evidence tending to confirm or disprove that suspect committed offence - whether magistrate applied correct test - whether magistrate gave adequate reasons for decision LEGISLATION CITED: Crimes (Forensic Procedures) Act 2000, s23, s24, s33, s115A
Crimes (Appeal and Review) Act 2001, s56(1)(c) , s59(2)(a)
Criminal Procedure Act 1986, Part 2 Chapter 4
Suitors’ Fund Act 1951CASES CITED: W v Bugden & Anor (2005) 155 A Crim R 416
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Beale v Government Insurance Officer of New South Wales (1997) 48 NSWLR 430
R v McKeough [2003] NSWCCA 385PARTIES: David Alessi
SE
Magistrate Terrence MurphyFILE NUMBER(S): SC 2008/11774 COUNSEL: L Babb SC (Plaintiff)
A Haesler SC (1st Defendant)SOLICITORS: Crown Solicitor's Office (Plaintiff)
Legal Aid Commission (1st Defendant)
LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 184/08 LOWER COURT JUDICIAL OFFICER : CCM Murphy LOWER COURT DATE OF DECISION: 26 March 2008
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
FRIDAY 5 SEPTEMBER 2008
2008/11774
DAVID ALESSI v SE and ANORJUDGMENT
1 HIS HONOUR: The plaintiff, Detective Senior Sergeant David Alessi, is investigating charges that have been brought against the first defendant, whom I shall call SE. The fact giving rise to the charges are said to be these. At 7:02am on 25 March 2008 the first defendant’s mother telephoned the emergency service telephone number 000 and said that her son, the first defendant, had stabbed her and her husband. She told them where she lived. Police officers went to the house at 7:10am and knocked on the door. The fist defendant answered the knock. He asked the officers in an aggressive tone what they wanted. At first he refused to leave the house, though he was eventually persuaded to do so. As he did so he walked towards the officers in an aggressive manner. They restrained him. They entered the house and found the dead body of the first defendant’s father. He bore a number of stab wounds. They found the first defendant’s mother lying in the kitchen, stabbed, bleeding and semi-conscious. The officers asked the first defendant where the knife was and he indicated his school bag. In it the officers found a large kitchen knife. It looked as though it had been recently cleaned. The officers arrested the first defendant. His mother was taken to hospital and on the way told ambulance officers that the first defendant had stabbed her and her husband. Her wounds were attended to and she has survived. The first defendant stands charged with the murder of his father and with causing wounding to his mother with intent to murder her.
2 On the same day the plaintiff applied to the Children’s Court for an interim order under s33 Crimes (Forensic Procedures) Act 2000 (“the Act”) for authority to carry out a number of what were said to be forensic procedures, namely -
· Buccal swab
· Blood and urine sample
· Photographs of young person body
· Swabs of hand of young person
3 Taking a urine sample is not a forensic procedure and the Act makes no reference to it.
4 The magistrate granted an interim order authorising the plaintiff to carry out these procedures, namely -
· Blood and urine sample;
· Photographs of the young person’s body, i.e. hands, arms, feet, legs and face;
· Swabs of hands of young person.
5 Samples and photographs were taken accordingly. Investigating police were unable to make further use of the samples and photographs without a final order, so the plaintiff applied on the next day for such an order. The second defendant heard the application and refused to make a final order.
6 The plaintiff appeals under s59(2)(a) Crimes (Appeal and Review) Act 2001 against that refusal. Alternatively he seeks orders in the nature of certiorari and mandamus. The second defendant has filed an appearance submitting to the orders of the Court save as to costs.
7 By s115A of the Act, an appeal lies to this Court against a magistrate’s refusal to make orders under the Act as if it were an order dismissing a matter under Part 2 Chapter 4 Criminal Procedure Act. By s56(1)(c) Crimes (Appeal and Review) Act the prosecutor may appeal to this Court against an order made by a Local Court dismissing a matter the subject of any summary proceeding, but only on a ground that involves a question of law alone.
8 Section 24 of the Act is as follows -
- (1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities:
- (a) that the circumstances referred to in subsection (2) or (3) exist, and
(b) that the carrying out of such a procedure is justified in all the circumstances.
- (a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and
(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).
- (a) there must be reasonable grounds to believe that the suspect has committed an offence, and
(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).
(a) the gravity of the alleged offence,
- (b) the seriousness of the circumstances in which the offence is alleged to have been committed,
(c) the degree to which the suspect is alleged to have participated in the commission of the offence,
(d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known,
(e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person,
(f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive,
(g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned,
(h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section,
(i) such other matters as the Magistrate considers relevant to the balancing of those interests.
9 Section 23 is as follows -
- An order may be made by a Magistrate under section 24, or by an authorised officer under section 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
10 The first defendant is a child and cannot consent to the orders sought.
11 The terms “suspect”, “intimate forensic procedure” and “non-intimate forensic procedure” are defined in s3 of the Act. There is no need to repeat the definitions.
12 Before he could properly make the order under s24, the magistrate had to be satisfied of three things. The first was that there were reasonable grounds to believe that the suspect had committed a prescribed offence (where an intimate forensic procedure was sought) or any offence (where a non-intimate forensic procedure was sought). By the definitions in the Act, taking a blood sample was an intimate forensic procedure. The other proposed procedures were non-intimate forensic procedures, with the exception of the urine sample, which was not a forensic procedure at all.
13 By s3, “prescribed offence” includes an indictable offence. Both charges laid against the first defendant are indictable offences and therefore prescribed offences. There was no issue that there were reasonable grounds to believe that he had committed those offences.
14 The remaining two matters about which the magistrate had to be satisfied were the only ones contested below. They were that there were reasonable grounds to believe that the desired procedures might produce evidence tending to confirm or disprove that the first defendant had committed the offences (subs (2)(b); subs (3)(b)) and that the carrying out of the procedures sought was justified in all the circumstances (subs (1)(b)). I will call these the first and the second question respectively.
15 In the Court below the legal representatives of the plaintiff expressed the desire no longer to ask for a final order permitting the use of a buccal swab. His Honour dealt with that matter in these terms -
I propose to deal with that matter first before considering the details of the application for a final order. I note that by application dated 25 March, an application was lodged, an interim order and then a final order in relation to a number of procedures, and the interim order was made covering a number of those procedures on 25 March. The application for a buccal, or an order in relation to a buccal swab was not made on 25 March, that matter has been pressed upon me today and I have heard extensive submission and at a later stage in the process, I have before me an application by the prosecution to withdraw the application for a final order in relation to the buccal swab.
The philosophy of the Crimes (Forensic Procedures) Act tends to balance in the public interest in obtaining evidence as to whether a suspect committed an alleged offence as against the public interest as is expressed in section 24(4) of the Act in upholding a suspect’s physical integrity. Section 24(4) nominates a number of relevant factors in weighing up that balance.
The young person before me is charged with the most serious of crimes. He was detained by police, it is claimed within eight minutes of a call indicating the crime was being committed. It is alleged that he committed the offences. He is 16. I have no evidence before me in relation to his cultural background or physical or mental health. I am required to have regard to the best interests of the young person that this matter be dealt with efficiently and expeditiously and that the transparency of the process not be compromised.
I am required to have regard whether there is other practical ways of obtaining evidence that are less intrusive.
In all the circumstances, I am of the view that having regard to the seriousness of the alleged offence, the fact that the flagged procedure involves the alleged weapon I PROPOSE TO ACCEDE TO THE PROSECUTOR’S REQUEST AND ALLOW WITHDRAWAL OF THE APPLICATION FOR FINAL ORDER IN RELATION TO THE BUCCAL SWAB.The young person, of course, cannot consent to the procedure and I note that he is in custody. The period for which he will be in custody in unknown and I am told that there will be a bail application later today.
16 His Honour then gave judgment on the application thus -
I also have before me an application for final orders in relation to blood and urine sample, photographs of the young person’s arms, feet, legs and face, swabs of the hands of the young person.
An interim order was made to that effect on 25 March. Final orders sought today.
Evidence before me is by way of an affidavit of Detective Senior Sergeant Alessi, Castle Hill Police Station, he recites receipt of a telephone call from a female stating she and her husband had been stabbed by their son and were bleeding heavily. Attendance at the premises, apprehension of the young person and blood in the floor of the office of the house; volunteering and informing the police, the knife was located in his school bag which was in his possession; recovery of the knife; identification of the young person as being the only child of the relationship; forced entry; oral evidence today; further information about the contents of the school bag; hearsay evidence from a paramedic; recitation (as said) of sink, of blood being found on towel in a sink.
The oral evidence of the officer was that the young person was wearing shoes when he was arrested. The crime scene had substantial blood in a number of rooms, no clothing had been found of the young person’s with blood on it. There’s no doubt that swabs mentioned in the application were taken from a sink at the residence.
There is no evidence before me that the young person had any marks on him, had any blood on him which drew the attention of the police officers, no evidence of any substance at all on the young person’s body.
Considering whether I should make the order I have to consider matters in section 24 of the Crimes (Forensic Procedures) Act . I have to be satisfied that the act or omission in respect of which the suspect is a suspect must constitute a prescribed offence and I SO FIND. There must be reasonable grounds to believe the procedure might produce evidence tending to confirm or disprove the suspect has committed the prescribed offence or committed some other prescribed offence. Given the factual circumstances as I have outlined them I MAKE THAT FINDING.
I then have to consider whether there are reasonable grounds to believe that the forensic procedure proposed might produce evidence tending to confirm or disprove the suspect committed the relevant offence and I then have to determine whether the carrying out of the procedure is justified in all the circumstances by weighing up the interests that I have addressed in relation to the previous application.
As I have indicated I have no evidence before me that there was any mark or indication that the young person was scratched or had bled. I have no evidence on which I could have a suspicion in relation to the taking of drugs. I have no evidence of any marks or substances on any part of the young person’s body.
I have particular regard to the gravity of the offence and the age of the young person, in determining that the remaining matters that are the subject of the application for a final order I REFUSE THE APPLICATION.Caselaw indicated that the order that is sought or the procedure that is sought might produce evidence tending to confirm or disprove the commission of the relevant offence. Given the lack of any evidence before me, as I indicated, and even allowing for the fact that the offence of murder requires specific intent I am unable to form a view that there are grounds to believe that that procedure might meet the test. I note a number of particular aspects of subsection (4) in relation to the justification in all the circumstances.
17 There are two grounds of appeal, namely -
1. The second defendant erred in law by misinterpreting and misapplying the decision of Hall J in W v Bugden & Anor (2005) 155 A Crim R 416 when considering whether there were reasonable grounds to believe that each forensic procedure sought might produce evidence tending to confirm or disprove that the first defendant has committed the offences of murder and attempted murder (as required by s.24 of the Crimes (Forensic Procedures) Act 2000).
2. The second defendant erred in law in not giving separate and individual consideration, in relation to each forensic procedure sought, to the question of whether there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the first defendant has committed the offences of murder and attempted murder (as required by s.24 of the Crimes (Forensic Procedures) Act 2000).
18 His Honour’s reasons are not easy to follow, and counsel made competing submissions about the process of reasoning his Honour must have followed. It was submitted on behalf of the plaintiff that a clue to their meaning could be found in the debate which preceded them. The solicitor for the first defendant had referred his Honour to the judgment of Hall J in W v Bugden & Anor (2005) 155 A Crim R 416. The forensic procedure contended for in that case was buccal a swab, intended to yield a DNA profile and one question which arose was whether there were reasonable grounds to believe that evidence so produced might tend to confirm or disprove the involvement of the suspect. Hall J held that the evidence before the magistrate failed to identify the basis for a belief that DNA matching could even be undertaken so as to found the necessary belief that the resulting evidence might confirm or disprove the involvement of the plaintiff. The solicitor for the first defendant in the present matter told the magistrate that in W v Bugden Hall J had held that where there was no comparable DNA before the Court, no forensic procedure order could be made. It was submitted in this Court that since that was a proposition for which W v Bugden did not stand, his Honour must have been misled. It was submitted that his Honour’s reference to “caselaw” must have been to that case.
19 The other broad submission made by counsel for the plaintiff before me was that since the several procedures were different and apt to produce different results, it was necessary for his Honour to consider separately the potential of each proposed procedure so as to ascertain whether there were reasonable grounds to believe that that procedure might produce evidence tending to confirm or disprove the commission of the offences by the first defendant. It was submitted that in failing to consider each procedure separately his Honour fell into error.
20 It was also submitted that his Honour failed to separate the first question from the second and thereby misled himself.
21 It is an error of law if the court appealed from does no more than set out the evidence and announce the decision. The criteria for adequate reasons for judgment include that the judge should refer to relevant evidence, should set out material findings of fact and any conclusions or ultimate findings of fact reached, and that the judge should provide reasons for making the relevant findings of fact and the conclusion: Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Beale v Government Insurance Officer of New South Wales (1997) 48 NSWLR 430.
22 It was submitted on behalf of the first defendant that this Court in considering the matter ought to take into account the fact that the magistrate, faced with a busy list, gave an ex tempore judgment, as fitted the occasion. This Court, it was submitted, should not apply too fine an analysis to the reasons appealed from: R v McKeough [2003] NSWCCA 385.
23 It was submitted that, applying this principle, I should conclude that the magistrate had not erred in law by rolling together a consideration of the first and the second questions but had misread from the legislation the words of the second question as though it referred to the first.
24 The difficulty with that submission is that, although that is possibly what happened, one cannot be sure that it is. His Honour’s first reference to the first question was made in clear terms. Then, having stated his conclusion without giving reasons, his Honour repeated the need to consider that question, then posed the second question. Ultimately the parties can only speculate what the reasons were for the ultimate decision reached by his Honour.
25 I accept that it was appropriate for his Honour to give an ex tempore judgment in such an application and I accept what has been said about the business of the Children’s Court. I accept that one ought not to be critical of imperfections in expressions used in the delivery of reasons ex tempore. However, the reasons must be understandable, and I cannot without reading something into what his Honour said, come to any conclusion about the ultimate meaning of the passages I have extracted.
26 I accept the submissions made on behalf of the plaintiff that, the procedures contended for being different in nature and possibly apt to produce different results, different considerations might arise in answering the first question. I accept the submission that it was necessary for his Honour to consider each proposed procedure on its own merits and decide whether it had the necessary quality. I accept that in failing to do so his Honour erred in law.
27 In my opinion, after making proper allowance for the imperfections one might expect to find in any judgment delivered ex tempore, no reasonable reading of his Honour’s judgment can reveal why his Honour reached his conclusions.
28 Accordingly, I have come to the conclusion that the proceedings before the magistrate miscarried. I set aside the order appealed from. I remit the proceedings to the Children’s Court to be dealt with according to law.
29 The first defendant should pay the plaintiff’s costs but should have a certificate under the Suitors’ Fund Act 1951.
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