Brogden v Commissioner of the Police Service

[2001] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:              Brogden v Commissioner of the Police Service  [2001] QSC

123

PARTIES:                 BROGDEN

(applicant)

v

COMMISSIONER OF THE POLICE SERVICE

(respondent)

FILE NO:                  S 3142/01

DIVISION:               Trial Division PROCEEDING:  Application for review DELIVERED ON:  27 April 2001

DELIVERED AT:     Brisbane

HEARING DATE:     23 April 2001

JUDGE:  Wilson J

ORDERS:                 1.   That the application be dismissed.

2.   That there be no order as to costs of the respondent of and incidental to the application.

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – application for review of decision of Commissioner of Police Service to collect DNA samples from persons serving terms of imprisonment for indictable offences – whether applicants summarily convicted of indictable offence were convicted of simple offence or indictable offence for the purpose of compulsory DNA sampling – effect of s 659 Criminal Code (Qld)

CRIMINAL LAW – GENERAL MATTERS – OTHER GENERAL MATTERS – whether applicants summarily convicted of indictable offence were convicted of simple offence or indictable offence for the purpose of compulsory DNA sampling where all persons convicted of indictable offence required to give samples – effect of s 659 Criminal Code (Qld)

STATUTES      –      ACTS      OF      PARLIAMENT      – INTERPRETATION    -    whether    applicants    summarily

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convicted of indictable offence were convicted of simple offence or indictable offence for the purpose of compulsory DNA sampling where all persons convicted of indictable offence required to give samples – effect of s 659 Criminal Code (Qld)

Children’s Services Act 1965 (Qld), s 29(7)(c)

Criminal Code (Qld), s 3, s 335, s 344,s 659, s 673

Judicial Review Act 1991 (Qld), s 49

Police Powers and Responsibilities Act 2000 (Qld), s 296, s

305, s 311

Ross v R (1979) 141 CLR 432, followed.

COUNSEL:                JC Davidson for the applicants

AJ Kimmins for the respondent

SOLICITORS:          Prisoners’Legal Service Inc for the applicants

QPS Solicitor for the respondent

[1]     WILSON J:  The applicants (the first, second, third and fifth named applicants) are all  serving  terms  of  imprisonment  for  indictable  offences  of  which  they  were convicted summarily.  They seek declaratory and other relief against the decision of the   respondent   to   collect   DNA   samples   from   persons   serving   terms   of imprisonment  for  indictable  offences,  whether  dealt  with  summarily  or  on indictment.

[2] Part 4 of the Police Powers and Responsibilities Act  2000 is concerned with DNA

procedures. Section 296 provides: -

“PART 4 – DNA PROCEDURES

Division 1 – Application and purpose of pt 4

Primary purpose of pt 4

296.  The primary purposes of this part are –

(a)to authorise particular police officers, doctors and nurses to take a hair sample or a mouth swab (“DNA sample”) from another person for use for DNA analysis; and

(b)     to establish procedures for taking DNA samples; and

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(c)      to authorise –

(i)        the establishment of a DNA database; and

(ii)       the recording in the database of information obtained by  performing  a  DNA  analysis  of  a  DNA  sample taken under this part; and

(iii)      the    use    of    information    in    the    database    for investigations     by     declared     law     enforcement agencies.”

Division 3 of Part 4 deals with “Taking DNA samples with consent” and Division

4 deals with “Taking DNA samples without consent”.  Section 305 (which is part of Division 4) provides –

“Purpose of div 4

305.  This division states the circumstances in which a person may be required to provide a DNA sample for DNA analysis.”

[3] Section 311 (which is part of Division 4) provides –

“Taking DNA sample from prisoner

311. (1)  This section applies to a prisoner who is serving a term of imprisonment for an indictable offence.

(2)  A  DNA  sampler  may,  in  accordance  with  an  arrangement between the commissioner and the general manager of the prison –

(a)        enter the prison where the person is held; and

(b)detain the prisoner and take the prisoner to an appropriate place in the prison for the purpose of taking a DNA sample for DNA analysis from the prisoner; and

(c)       take the DNA sample from the prisoner.

(3)  A correctional officer under the  Corrective Services Act 1988

may be present when the DNA sample is taken.

(4) This section expires 3 years after it commences.”

[4] Counsel for the applicants submitted that the applicants are removed from the scope of s 311 by s 659 of the Criminal Code, which provides –

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“Effect of summary conviction for indictable offences

659. When a person has been summarily convicted of an indictable offence,  the  conviction  is  to  be  deemed  a  conviction  of  a simple offence only, and not of an indictable offence.”

[5] Section 659 of the Criminal Code was considered by the High Court in  Ross v R

(1979) 141 CLR 432. Ross was convicted summarily before a Children’s Court constituted by a stipendiary magistrate of aggravated assault under s 344 of the Criminal Code.  The question before the High Court was whether the Queensland Court  of  Criminal  Appeal  had  jurisdiction  to  entertain  an  appeal  against  his conviction.  Had he been convicted on indictment, he would have had a right of appeal to the Court of Criminal Appeal under s 668D of the Code. There were two provisions giving a person summarily convicted of an indictable offence the same right of appeal as if he had been convicted on indictment – s 29(7)(c) of the Children’s Services Act 1965 and s 673 of the Criminal Code. The question before the Court turned on whether he had been convicted of an indictable offence. Gibbs J, with whom the other members of the Court agreed, began by referring to s 3 of the Code, saying (at 435) –

“It appears from the words of this section that if an offence is a crime or misdemeanour it is an indictable offence, and that the fact that an offender may be prosecuted or convicted otherwise than upon an indictment, pursuant to an express provision permitting that to be done, does not necessarily mean that the offence is not an indictable offence.”

At page 439 he held that a person who had committed an assault in the circumstances of aggravation mentioned in s 344 had committed an indictable offence - a misdemeanour for which he might be tried either summarily under that section or on indictment under s 335. At page 440 he found that result to be unaffected by s 659, of which he said –

“If these words were given the fullest operation of which they are capable, they would render the provisions of s 673 entirely nugatory

– since every person summarily convicted of an indictable offence would be deemed to have been convicted of a simple offence, there would never be a case in which an appeal could be brought under s

673. There can be no doubt that the ordinary rules governing the construction of statutes require the provisions of s 659 to be given a construction that will render them harmonious with those of s 673, if that is possible. If the two sections could not both be given effect, s
673, being the later enactment, would prevail. On any view, s 659 cannot be construed as having the effect that a person summarily convicted of an indictable offence is deemed not to have been summarily convicted of such an offence and thereby deprived of the right of appeal which s 673 expressly confers. This does not mean that s 659 itself is deprived of effect; that section has ample room for operation – e.g., in cases in which a statute attaches some

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disqualification or other adverse consequence to a conviction for an indictable offence.”

He concluded that a person convicted summarily of aggravated assault under s 344

of the Code had a right of appeal.

[6]     Barwick CJ, who agreed with Gibbs J, added some observations on the legislative scheme. At p 433 he said –

“The manner of trial does not alter the relevant statutory nature of the  offence.    If  the  offence  be  a  common  assault,  it  remains indictable because a misdemeanour though by the statute allowed to be  tried  summarily.    The  penal  consequence  of  conviction  will depend on the manner of trial.”

At p 434 he said –

“Section 659 is addressed, in my opinion, to the consequence of the summary conviction of an indictable offence. It is not a section designed to alter the statutory nature of the offence which has been charged and tried summarily. So far from dealing with the statutory nature of the offence, s 659, in my opinion, by deeming the nature of the conviction to be other than in fact it is, is making provision for the penal consequences which flow from the conviction, and therefore with the penal consequences of the conviction. For the purposes of a right of appeal, the conviction is of an indictable offence: for the purpose of punishment, the conviction is deemed to be a conviction for a simple offence.”

[7] A person to whom s 311 of the Police Powers and Responsibilities Act applies is identified by the character of the offence for which he or she is serving a term of imprisonment. It is true that a person cannot be serving a term of imprisonment for an indictable offence in the absence of a conviction. However, s 659 does not have the effect that a person serving a term of imprisonment for an indictable offence of which he or she was convicted summarily is deemed to be serving that term for a simple offence. Such a conclusion would be contrary to the High Court’s ruling in Ross v R that the character of an offence does not alter according to the manner of conviction. Accordingly s 659 of the Code does not assist the applicants.

[8]     The application should be dismissed.

[9] The applicants, who are impecunious, sought an order pursuant to s 49 of the Judicial Review Act  1991 that the respondent indemnify them against costs on a party and party basis or that they bear only their own costs of the proceeding, regardless of the outcome. The respondent’s counsel did not make any submissions on this aspect.

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[10]     The application raised a point of statutory interpretation having implications beyond the interests of the four applicants.  In that sense it may be said to have involved an issue affecting the public interest (s 49 (2) (b)). However, given the longstanding authority of Ross v R, the prospects of success were never great (cf s 49(2)(c)). In the circumstances, I am not prepared to make an order that the respondent pay the applicants’ costs. I will, however, make no order as to the costs of the successful respondent.

Orders:

-            that the application be dismissed;

-that there be no order as to the costs of the respondent of and incidental to the application.