Brogden v Commissioner of the Police Service
[2001] QCA 185
•17 May 2001
SUPREME COURT OF QUEENSLAND
CITATION: Brogden & Ors v Commissioner of the Police Service [2001] QCA 185 PARTIES: GEOFF JOHN BROGDEN
(first applicant/first appellant)
PAUL ANTHONY BARTON
(second applicant/second appellant)
BRETT JOHN EASTWELL
(third applicant/third appellant)
DANIEL DAVID BARNES
(fourth applicant)
KEVIN JOHN CONNELL
(fifth applicant/fifth appellant)
v
COMMISSIONER OF THE POLICE SERVICE
(respondent/respondent)FILE NO/S: Appeal No 3948 of 2001
SC No 3142 of 2001DIVISION: Court of Appeal PROCEEDING: General civil appeal ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 17 May 2001 DELIVERED AT: Brisbane HEARING DATE: 11 May 2001 JUDGE: de Jersey CJ, Williams JA, Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER: Appeal dismissed.
Order that all parties bear their own costs of the appealCATCHWORDS: POLICE – RIGHTS, POWERS AND DUTIES – OTHER POWERS AND DUTIES – appeal against dismissal of application directed at halting Police Service’s planned DNA testing pursuant to s 311 Police Powers and Responsibilities Act 2000 of the appellants as persons serving a term of imprisonment for an indictable offence – appellants contend their summary convictions of those offences render s 311 inapplicable to them, referring to s 659 Criminal Code – construction of s 311 – purpose of Act provisions and legislative intent underlying statutory scheme – wording of s 311 – relevance of s 659
ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – POWERS AND DISCRETION OF COURT – OTHER MATTERS – leave sought to appeal against primary judge’s refusal to order that the respondent indemnify the appellants in relation to their costs, under s 49(1) Judicial Review Act – whether correct consideration addressed
Acts Interpretation Act 1954 (Qld), s 14(2), s 14A
Criminal Code s 3, s 659
Drugs Misuse Act 1986 (Qld), s 50
Judicial Review Act 1991 (Qld), s 49(1), s 49(2)(c), s 49(5)
Legislative Assembly Act 1867 (Qld), s 7(1)
Medical Act 1939 (Qld), s 9(f)
Police Powers and Responsibilities Act 2000 (Qld), s 305, s 307, s 308, s 309, s 310, s 311, s 311(1), s 312, s 316, s 316(1), s 316(1)(b), s 316(2), s 316(4)Ross v R (1979) 141 CLR 432, considered
COUNSEL: JC Davidson for the appellants
SW Zillman for the respondentSOLICITORS: Prisoners’ Legal Service for the appellants
Queensland Police Service Solicitor for the respondent
de JERSEY CJ: The Police Powers and Responsibilities Act 2000 established mechanisms for the comprehensive DNA sampling of persons arrested or charged in relation to the alleged commission of indictable offences, or upon their being found guilty. In late March this year the Queensland Police Service confirmed to the Prisoners’ Legal Service that from early April it would commence the collection of DNA samples from those prisoners at Wolston Correctional Centre serving terms of imprisonment for indictable offences. The appellants are prisoners serving terms of imprisonment for indictable offences, but significantly as they contend, indictable offences of which they were summarily convicted. Their current earliest release dates are proximate: respectively, 27 July, 22 May, 29 May and 3 June this year. They applied under the Judicial Review Act for declaratory and other relief directed towards halting the Police Service’s planned DNA sampling in relation to themselves. On 27 April 2001 the learned primary judge dismissed their application for substantive relief, and additionally for costs. They have appealed against that judgment. The respondent Police Commissioner has undertaken not to carry out DNA sampling of the appellants pending the determination of the appeal. The hearing of the appeal was accorded priority.
The respondent seeks to justify DNA sampling of the appellants by reliance on s 311 of the Police Powers and Responsibilities Act:
“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 Act1988 may be present when the DNA sample is taken.
(4) This section expires 3 years after it commences.”
The appellants’ opposition to the sampling is based on s 659 of the Criminal Code:
“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.”
In determining to dismiss the appellants’ claims, the learned primary judge was substantially influenced by the decision of the High Court in Ross v R (1979) 141 CLR 432. The High Court considered whether a person summarily convicted in the Children’s Court of the indictable offence of aggravated assault was, by force of s 659 of the Criminal Code, denied a right of appeal otherwise accorded, severally, by s 673 of the Code and s 29(7) of the then Children’s Services Act. The Court held s 659 did not have that effect.
Barwick CJ said (page 434):
“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 purposes of punishment, the conviction is deemed to be a conviction for a simple offence."
Gibbs J, as he then was, said – with the agreement of the other members of the Court (p 440):
“We were referred to the provisions of s. 659 of the Criminal Code which are as follows:
“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.”
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 – eg., in cases in which a statute attaches some disqualification or other adverse consequence to a conviction for an indictable offence.”
The learned primary judge applied the reasoning of Ross in the following manner:
“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.”
The appellants contend for a broad application of s 659 of the Criminal Code in relation to s 311 of the Police Powers and Responsibilities Act: they are, by s 659, deemed to have been convicted of simple offences only, and consequently should not be regarded as serving “a term of imprisonment for an indictable offence” (s 311). The appellants urge that what the court said in Ross should be read in light of what the court was being asked to do, which was to construe s 659 so as to deny a right of appeal; whereas, as they would contend, the appellants here ask that the section be construed beneficially, so as to exclude interference with what would otherwise be considered important rights in relation to their person.
The appeal involves, in the immediate sense, the construction of s 311 of the Police Powers and Responsibilities Act: is a prisoner incarcerated following summary conviction of an indictable offence “serving a term of imprisonment for an indictable offence”?
In relation to the approach to the construction of the provision, in the context of the issue whether it should be construed “beneficially” in one direction or another, one acknowledges the legislature’s endorsement of a purposive approach, as seen in s 14A of the Acts Interpretation Act 1954:
“Interpretation best achieving Act’s purpose
14A.(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.
(3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.
Example -
There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour.”
While s 305 of the Police Powers and Responsibilities Act states rather blandly, as the purpose of the following provisions, laying down “the circumstances in which a person may be required to provide a DNA sample for DNA analysis”, those following provisions demonstrate a legislative intent that in the case of the more serious offending, and alleged offending, a comprehensive DNA database be established: no doubt directed both to facilitating conviction in the case of the crime immediately in question, and as to hitherto unsolved crime, to assist in the identification of offenders and the exclusion of innocent persons wrongly suspected.
Accordingly, one sees provisions authorising the taking of DNA samples at all relevant stages: upon arrest (s 307), upon charging before a court (s 309), and upon a finding of guilt (s 310). Each provision refers, as appropriate to the context, to “indictable offence”: in the former two cases, “a proceeding for an indictable offence”, and in the last, a finding of guilt “of an indictable offence”. None (nor s 316 to which I will come) expresses the qualification that the capacity to take, or retain, the sample, be extinguished, or not arise, should the matter proceed summarily. That could easily have been spelt out had it been intended.
Mr Davidson, who appeared for the appellants, pointed to the inclusion of requirements to ensure fairness in the process of sampling prior to conviction, requirements which find no comparators in relation to sampling following upon a finding of guilt. He submitted in effect that this justified a narrow or strict interpretation of s 311, one which embraced the deeming effect of s 659. No doubt it was however perceived that upon an adjudication of guilt, it would ipso facto not be unreasonable in the public interest to require the provision of a sample.
The statutory scheme includes provision (s 316) for the destruction of DNA samples in the event that an arrest or charge is discontinued, or the person found not guilty of the indictable offence. As mentioned above, s 316 does not refer additionally to a situation in which the matter proceeds summarily.
Notwithstanding the comprehensiveness of this scheme, and the important public purpose it was obviously designed to promote, the appellants nevertheless urge that they are effectually exempted from its operation by s 659 of the Criminal Code. While a person superficially reading the legislation may find the appellants’ contention attractive, close analysis shows any such attractiveness to be beguiling.
I have mentioned some textual considerations in the course of discussing the comprehensiveness of the scheme. There are others I mention now.
In terms, s 659 deems persons in the position of the appellants to have been “convicted of simple offence(s) only”. It may at first blush be felt unduly subtle to point out that s 311(1) does not refer to conviction: it speaks of a prisoner “serving a term of imprisonment for an indictable offence”, an aspect to which I return below. The appellants’ position may however, allowing for that subtlety, have been stronger had the words “following conviction” been inserted before the concluding words “for an indictable offence”.
On the other hand, as Mr Davidson emphasised, the arguable application of s 659 of the Criminal Code could with ease have been expressly excluded, as was unambiguously secured in relation to drug crime, by means of s 50 of the Drugs Misuse Act 1986.
These provisions should have been drafted with more precision. A reader of legislation of the significance of the Police Powers and Responsibilities Act should not have to ponder and weigh competing considerations in this way. The meaning should be irrefragably clear.
It is to my mind residually particularly significant that s 311(1) does not expressly mention “conviction”. Reference to conviction as such would have attracted attention to s 659 of the Criminal Code. One acknowledges of course that imprisonment follows upon conviction. The nevertheless presently significant point, even if subtle, is that s 311(1) takes one back to the commission of the offence: “for an indictable offence”. That persons who commit indictable offences, even though prosecuted summarily, should be rendered subject to a DNA sampling regime, a regime which is otherwise so demonstrably comprehensive, may naturally be accepted as consistent with the clear, applicable legislative intent. This approach sits comfortably with the purposive approach which the court is by s 14A of the Acts Interpretation Act admonished to adopt.
As mentioned at the outset, the matter does not fall to be determined primarily by reference to s 659 of the Criminal Code, or its exegesis in Ross. The resolution of the case depends more directly on the proper construction of s 311 of the Police Powers and Responsibilities Act.
But in excluding what I would characterise as the unduly broad and liberal application of s 659 to s 311 for which the appellants contend, I note that there remains ample scope for the practical application of the Criminal Code provision, being an application consistent with the purpose of the provision as explained in Ross by Barwick CJ and Gibbs J: that is, in relation to “the consequence of the summary conviction of an indictable offence” (Barwick CJ), the “adverse consequence to a conviction for an indictable offence” (Gibbs J). There are, for example, provisions which exclude, from membership of statutory tribunals, a person who has been convicted of an indictable offence. Section 9(f) of the Medical Act 1939 concerning the composition of the Medical Board of Queensland is an instance. As to the Parliament itself, the seat of a member of the Legislative Assembly becomes vacant if the member is “convicted of crime or any infamous crime” (s 7(1) Legislative Assembly Act 1867), crimes and misdemeanours amounting to “indictable offences” (s 3 Criminal Code).
In my opinion, in the case of each of the appellants, notwithstanding his having been convicted of an indictable offence summarily, he is nevertheless, in terms of s 311 of the Police Powers and Responsibilities Act, “a prisoner who is serving a term of imprisonment for an indictable offence”, and therefore subject to the compulsory DNA sampling for which s 311 provides.
The learned primary judge refused to order that the respondent indemnify the appellants in relation to their costs, under s 49(1) of the Judicial Review Act. The appellants sought such an order notwithstanding Her Honour’s rejection of their claim for substantive relief. While acknowledging that the matter was one of public interest, and that the appellants were impecunious, the learned judge held, because of Ross, that the appellants’ prospects of success “were never great” (s 49(2)(c)), and proceeded to order that all parties bear their own costs. Because the learned judge refused the appellants’ application for costs, her order may be appealed only with this court’s leave (s 49(5)). Mr Davidson submitted that when dealing with prospects of success, Her Honour addressed the wrong consideration. Section 49(2)(c) refers to “whether the proceeding discloses a reasonable basis for the review application”. Her Honour’s description of the appellant’s prospects as “never great” in view of the longstanding authority of Ross was her shorthand way of addressing the statutory criterion, and her assessment was in my view sufficiently open to exclude review by way of appeal. I would refuse the appellants’ leave to appeal against her costs order.
I would order: (1) that the appeal be dismissed, and (2) that all parties bear their own costs of the appeal.
WILLIAMS JA: I have had the advantage of reading the reasons for judgment prepared by the Chief Justice and Mackenzie J and can state my reasons briefly for agreeing that the appeal be dismissed.
Chapter 8 Part 4 of the Police Powers and Responsibilities Act 2000 ("the Act") empowers police officers in certain circumstances to take DNA samples without consent. The circumstance which triggers that power is the commission of an "indictable offence". Sections 307, 308, 309, 310, 311 and 312 of the Act (summarised by Mackenzie J) all deal with a situation in which a police officer may take such a sample; each of those provisions is predicated upon the existence of an "indictable offence".
Section 311 empowers a police officer to take such a sample from a person "who is serving a term of imprisonment for an indictable offence". That section effectively gives retrospective operation to the scheme, and that is why it is provided that the section will expire three years after it commences. Not only will persons who committed an indictable offence after the Act came into force be subjected to the requirement of providing a DNA sample, but those who were in prison at the time the Act came into force consequent upon committing such an offence will also be subject to the requirement of providing such a sample.
It is obvious that the safeguards which apply where the specimen is taken at the time of arrest and before the offence is proved have no relevance to a person who is at the relevant time serving a term of imprisonment consequent upon the commission of an indictable offence being proved.
Because the Act concentrates upon the commission of an indictable offence it is irrelevant how that offence is dealt with by the courts and what are the consequences of a conviction for such an offence. Looked at in that light, s 659 of the Criminal Code has no relevance. Where the person who has committed an indictable offence is dealt with summarily the conviction is deemed to be a conviction for a simple offence, but nevertheless the offence actually committed was an indictable offence. The conviction at the summary hearing proves the commission of the indictable offence. As Barwick CJ said in Ross v R (1979) 141 CLR 432 at 434, the section does not "alter the statutory nature of the offence which has been charged and tried summarily". It is not the conviction but rather the commission of the indictable offence which enlivens the power to take the sample. Section 659 of the Code has significant consequences in particular situations, some of which have been referred to by the Chief Justice and Mackenzie J.
Ultimately the question to be determined on the hearing of this appeal is the proper construction of the provisions of the Act, particularly s 311. Each of the appellants is serving a term of imprisonment consequent upon committing an indictable offence as defined by s 3 of the Code. It follows that police officers are empowered by s 311 to take a DNA sample from each of the applicants.
Wilson J was clearly correct in dismissing the application brought by the appellants. The reasoning of the Chief Justice and Mackenzie J demonstrates there is no substance in any of the grounds of appeal.
I agree with the orders proposed by the Chief Justice.
MACKENZIE J: I agree generally with the reasons for judgment of the Chief Justice. I wish only to add the following, without duplicating unnecessarily what he has written in other respects.
When legislation conferring a power which encroaches on common law rights is drafted the objective should be to draft it in terms which, as far as possible, express the scope of the power in the clearest possible terms. While there are reasons, to which reference will be made below, to think that the drafter was aware of the consequences of s 659 in a case to which that section applies, there is no specific exclusion of its operation as, for example, in s 50 of the Drugs Misuse Act 1986. Had that been done rather than expressing the extent of the power more obliquely, the present applicants would have been left in no doubt whether they were subject to collection of a DNA sample.
Section 311 falls within a Division of the Police Powers and Responsibilities Act 2000 which consists of a series of provisions concerning what may be done at various points in the sequence of dealing with indictable offences. Where proceedings for an indictable offence are commenced against an adult, s 307 and s 308 permit a sample of DNA to be taken. Section 307 is concerned with taking a sample while the person against whom proceedings have been commenced is detained briefly for the purpose of doing so. Section 308 is concerned with a case where it has been decided it is not necessary to take the sample immediately. The person is required to attend at a later date pursuant to notice.
Section 309 provides for taking a sample pursuant to an order of the court in proceedings against an adult charged with an indictable offence. Before making the order the court must be satisfied of certain specified criteria.
Section 310 applies in the case where the court "finds an adult guilty" of an indictable offence and allows the court to order a sample to be taken (without reference to any criteria).
Section 311 applies to a prisoner serving a term of imprisonment for an indictable offence.
In none of these provisions is a distinction drawn between an indictable offence dealt with on indictment and an indictable offence dealt with summarily. The terms "indictable offence" and "found guilty" (rather than "convicted") are used, except in the heading to s 310.
In a later Division, s 316 provides rules for the destruction of a DNA sample taken under these provisions in certain specific circumstances. Those are:
(a) where an arrest is discontinued under Police Powers and Responsibilities Act 2000
(b)the charge of the indictable offence to which the sample relates is discontinued before a court
(c) a person is found not guilty of an indictable offence (including on appeal)
(d)the person is not charged with an indictable offence within one year of taking of the sample. (s 316(1))
However, those provisions do not apply if:
(a)the person has been proceeded against on a charge of another indictable offence that has not been decided
(b)the person has been found guilty of another indictable offence, whether before or after commencement of s 316
(c) the DNA sample and results of its analysis are required for the investigation of another indictable offence the person is reasonably suspected of having committed
(d)the person is not proceeded against because he or she has been found unfit for trial because of mental illness. (s 316(2))
Section 316(4) says that s 316 does not apply to a DNA sample taken from a prisoner under s 311, other than to the extent s 316(1)(b) applies to the offence for which the person was imprisoned. It may be that the reference to (1)(b) is a mistranscription, but nothing turns on it for present purposes.
While a heading to a section is part of the Act (s 14(2) Acts Interpretation Act 1954) it is necessary to construe the scheme which the legislation sets up to determine to what circumstances the power under s 311 extends. Inclusion of "conviction" in the heading of s 310 is not determinative. Avoidance of reference to conviction elsewhere, the use of the term "found guilty" rather than "convicted" and the absence of any reference in s 316 to a case where the person is found guilty only of an indictable offence dealt with summarily leads to the conclusion that the references in the relevant Division to an "indictable offence" are to an indictable offence as defined in s 3 of the Criminal Code, an offence categorised as a crime or misdemeanour. Avoidance in the text of references to "conviction" in my view indicates that the circumstance upon which s 659 operates, conviction of an indictable offence summarily, was intended not to have any relevance in determining whether the power to take samples under s 311 is enlivened.
The Chief Justice has referred to particular examples of circumstances in which s 659 can have practical application, in the sense discussed in Ross v The Queen (1979) 141 CLR 432, in relation to the consequences of a conviction. It may be added to those examples that the distinction was also critical for many years in connection with employment in Government instrumentalities, where the pattern of immediate suspension on being charged with an indictable offence and summary dismissal upon conviction of an indictable offence was a common pattern. Once conviction of an indictable offence became the determining criterion for dismissal the question whether the conviction was for an indictable offence or deemed to be of a simple offence became crucial.
I agree with the Chief Justice's reasons relating to costs. I agree with the orders proposed by him.
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