Child a (a pseudonym) v Childrens Court of the Australian
[2023] ACTSC 208
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Child A (a pseudonym) v Childrens Court of the Australian Capital Territory |
Citation: | [2023] ACTSC 208 |
Hearing Date: | 2 August 2023 |
Decision Date: | 2 August 2023 |
Before: | Curtin AJ |
Decision: | (1) Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) I order that the name of the plaintiff not be published. (2) I order that the plaintiff be referred to as “Child A”. (3) I dismiss the application. (4) I vacate order 1 made by McWilliam AsJ on 2 March 2023. (5) By consent there will be no order as to costs. |
Catchwords: | CRIMINAL LAW AND PROCEDURE – forensic procedure orders – interim order – final order – balancing interests to be considered – public interest in obtaining evidence – public interest in upholding the physical integrity of the suspect ADMINISTRATIVE LAW – judicial review of magistrate’s order that a forensic procedure be carried out – whether error of law is established – whether improper exercise of power – whether magistrate erred by not considering whether to confirm or disallow the interim order pursuant to s 41(2) of the Crimes (Forensic Procedures) Act 2000 (ACT) – principles of statutory construction – application dismissed |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 5, 17 |
Cases Cited: | Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30 |
Texts Cited: | Halsbury's Laws of Australia (online edition) |
Parties: | Child A (a pseudonym) ( Plaintiff) Childrens Court of the Australian Capital Territory ( First Defendant) ACT Director of Public Prosecutions (Second Defendant) |
Representation: | Counsel B Harders ( Plaintiff) K McCann ( Second Defendant) |
| Solicitors Legal Aid ACT ( Plaintiff) ACT Director of Public Prosecutions ( Second Defendant) | |
File Number: | SC 93 of 2023 |
Decision Under Appeal: | Court/Tribunal: Childrens Court of the ACT Before: Special Magistrate Christensen Date of Decision: 23 February 2023 Case Title: The Police v Child A (a pseudonym) Court File Number: APCR 6 of 2023 |
CURTIN AJ:
EX TEMPORE (REVISED)
Introduction
1․This is an application for judicial review of a magistrate's decision made on 23 February 2023 confirming an earlier interim order made by a different magistrate under the provisions of the Crimes (Forensic Procedures) Act 2000 ACT (the Act).
2․At the core of this application is a question as to the proper construction of s 41(2) of the Act.
3․The constructional choice presented is whether the statute requires a magistrate undertaking a final hearing under the Act to first review the 'validity' (the word used by the plaintiff) of the interim order made earlier, before moving to determine whether a final order should be made, or whether no such review is required.
4․In my view, and for the following reasons, the latter constructional choice is to be preferred and the application should be dismissed.
5․Before setting out my reasons it is appropriate to note in this case that it is a judge's joy to have competent legal representatives who provide the Court with concise, focused oral and written submissions, who get to the heart of the problem quickly, who make appropriate concessions and have a broad knowledge of the law. I have had that pleasure in this case.
Background
6․The background facts to the application for the interim order were set out in an affidavit sworn by a constable of police and which was provided to the magistrate who heard the interim application on 31 January 2023.
7․In short, the alleged facts set out in that affidavit were as follows.
8․On or about 4.00pm on 22 January 2023, a witness observed a group of young persons, including the plaintiff, exiting a stolen motor vehicle. The police allege that this stolen motor vehicle had been engaged in multiple aggravated burglaries and traffic offences the night before. The witness told police that the witness was familiar with the plaintiff.
9․On the following Friday, 27 January 2023, the plaintiff was captured on CCTV footage exiting another known stolen motor vehicle. The police alleged that that stolen motor vehicle had been involved with a burglary overnight. The CCTV footage showed a person with various physical characteristics exiting the passenger's seat of the vehicle.
10․At about 4.15pm that day, police were in the area, had seized that stolen motor vehicle for forensic examination and were reviewing the CCTV footage when they observed a person matching the description given to them walking past. The police said they approached the person and observed them to be wearing the same outfit and inclusive of various physical characteristics seen on the CCTV footage.
11․The police believed that the taking of fingerprints and a buccal swab of the plaintiff would help to prove or disprove that she committed an offence because the police, at that stage, suspected that DNA material and/or fingerprints would be located inside the stolen motor vehicle. The police also believed the taking of contemporaneous photographs of the plaintiff would be of assistance in terms of matching her then appearance with what appeared on the CCTV footage.
12․Two matters should be immediately observed. The first is that in the affidavit provided to the magistrate on the interim hearing the police officer said:
Further, the probative value of evidence obtained, because of the forensic procedure concerned, is likely to be lost or destroyed if there is a delay in carrying out the procedure, for the following reasons: [the plaintiff] has a tendency of failing to appear for court matters and it is highly unlikely to appear for a forensic procedural hearing.
13․At the final hearing that police officer was cross-examined and conceded that the statement that the plaintiff had a tendency of failing to appear for court matters was incorrect and misleading.
14․The other matter to note is that the Act provides that when seeking an interim order for the carrying out of forensic procedures the suspect, when a child, must be in the presence of the authorised applicant when the application is made (except for some exceptions which are immaterial to this case), and that the suspect's interview friend or lawyer must also be in the presence of the authorised applicant: see s 41(4) and (5) of the Act.
15․Suffice to say, at this point, that the magistrate at the final hearing was not satisfied that an interview friend or lawyer was also in the presence of the authorised applicant (and the plaintiff) when the application was made.
16․The interim application was made by telephone at about 7.00pm on a Saturday night. At the conclusion of the application the learned magistrate made the following orders:
1.I hereby make an interim order authorising the carrying out of the forensic procedure named above on the suspect named above.
2.I further make the following directions about the date, time, place and/or how the interim order is to be carried out:
(i)Procedure to be carried out ASAP on [Child A] at City Police Station in the presence of [Child A’s] legal representative.
3.I further order that a hearing, in accordance with section 44(2), shall be held at the following time, date and place, whereby the application will be finally decided by making of an order confirming or disallowing the interim order:
(i)A final hearing is to be held at 31 January 2023 at 12:45pm at Canberra Childrens Court, Knowles Place, Canberra, ACT.
17․Ultimately, the final hearing was conducted on 20 and 21 February 2023 and was decided on 23 February 2023.
18․On the final hearing the same police officer who provided the affidavit for the interim hearing provided an affidavit in substantially similar, but nonetheless, different terms to the affidavit relied upon for the interim hearing.
19․That police officer was cross-examined and admitted that her evidence given on the interim order was misleading, in the manner I have identified above, and also gave evidence that by the time of the final hearing the police had in their possession DNA material and fingerprints from the stolen motor vehicle.
20․I also note, at this stage, that the learned magistrate who conducted the final hearing was not satisfied that the plaintiff was accompanied by an interview friend or lawyer at the time of the interim application.
The legislation
21․I shall now set out the terms of the relevant provisions of the Act.
22․Section 5(1) of the Act says:
5 Forensic material and forensic procedures
(1)Forensic material is any of the following taken of or from a person’s body:
(a)a sample;
(b)a handprint, fingerprint, footprint or toeprint;
(c)a photograph or video recording;
(d)a cast or impression
NoteSample is defined in the dictionary to include a sample that consists of matter from someone else’s body.
…
23․Section 7 of the Act says:
7 What is a non-intimate forensic procedure?
non-intimate forensic procedureA is any of the following forensic procedures:
(a)an examination of a part of the body (other than the genital or anal area, buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts) that requires touching of the body or removal of clothing;
(b)the taking of a sample of hair (other than pubic hair);
(c)the taking of a sample from a nail or under a nail;
(d)the taking of a sample of saliva or a sample by buccal swab;
(e)the taking of a sample by swab or washing from any external part of the body (other than the genital or anal area, the buttocks, or, for of a female or a transgender or intersex person who identifies as a female, the breasts);
(f)the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body (other than the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts);
(g)the taking of a handprint, fingerprint, footprint or toeprint;
(h)the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body (other than the genital or anal area, the buttocks, or, for a female or a transgender or intersex person who identifies as a female, the breasts).
24․Section 8 says:
8 Meaning of suspect
suspectA is any of the following:
(a)a person suspected by a police officer, on reasonable grounds, to have committed an offence;
(b)a person charged with an offence;
(c)a person who has been summonsed to appear before a court for an offence;
(d)a person who has entered into a voluntary agreement to attend court (VATAC) for an offence.
NoteSection 107 states that the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds.
25․Section 9 says:
9 Meaning of serious offence and serious offender
(1)A serious offence is—
(a)an offence against a territory law punishable by imprisonment for longer than 12 months; or
(b)an offence against the law of another participating jurisdiction punishable by imprisonment for life or by a maximum penalty of 2 or more years of imprisonment.
NoteAnother participating jurisdiction is defined in s 100.
(2) A serious offender is a person who is convicted of a serious offence.
26․Section 14(1) says:
14 Meaning of child and parent of a child
(1)Child means a person under 18 years old.
…
27․Section 16 says:
16 Interview friend
(1)This section applies to a suspect, serious offender or volunteer who is—
(a)a child; or
(b)an incapable person; or
(c)an Aboriginal or Torres Strait Islander person.
(2)An interview friend of the person is—
(a)a parent or guardian or other person chosen by, or acceptable to, the person; or
(b)a lawyer of the person; or
(c)if the person is an incapable person—a close associate of the person; or
(d)if no-one mentioned in paragraphs (a) to (c) is available—a person chosen by an authorised applicant for a forensic order in relation to the person who is not—
(i) a police officer; or
(ii) in any way involved in the investigation of the offence concerned.
(3)If the person has a lawyer, the person may also have an interview friend who is not the lawyer.
28․Section 18 of the Act concerns how forensic procedures may be authorised in different circumstances. It says:
18 How forensic procedures may be authorised in different circumstances
Table 18 shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure.
29․Table 18 shows the circumstances in which a forensic procedure may be carried out on a suspect and shows the provisions that authorise the carrying out of the procedure. The table is set out below:
30․In relation to children, Table 18 refers the reader to s 31 of the Act.
31․Section 31 says:
31 Forensic procedure may be carried out by order of magistrate
(1)A person is authorised to carry out a forensic procedure on a suspect by order of a magistrate under this part.
(2)The person is authorised to carry out the procedure in accordance with part 2.6 (Carrying out forensic procedures) and not otherwise.
32․Sections 31 and 32 appear in Division 2.5.1 of Part 2.5 of the Act. Within Part 2.5 is Division 2.5.2 headed “Final orders”, and Division 2.5.3, headed “Interim orders”.
33․The relevant provisions of Division 2.5.3, Interim Orders, are as follows:
41 Interim order for immediate carrying out of forensic procedure
(1)A magistrate may make an interim order authorising the immediate carrying out of a forensic procedure on a suspect if—
(a)section 32 (Circumstances in which magistrate may order forensic procedure) applies; and
(b)the magistrate is satisfied that the probative value of evidence obtained because of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and
(c)the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters mentioned in section 34 (1) (Matters to be considered by magistrate before ordering forensic procedure) when the application is finally decided.
…
34․Section 42 says:
42 Applications for interim orders
(1)An authorised applicant may, without bringing a suspect before a magistrate and without obtaining an order under section 33 (Final order for carrying out of forensic procedure), make an application seeking an order (an interim order) authorising the immediate carrying out of a forensic procedure on the suspect.
(2)An application for an interim order must—
(a)be supported by evidence on oath or by affidavit dealing with the matters mentioned in section 41 (1); and
(b)state the type of forensic procedure sought to be carried out.
(3)An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, fax or other means of communication.
(4)The suspect must be in the presence of the authorised applicant when the application is made unless the suspect is remanded or otherwise detained in lawful custody in a State and it is not practicable for the suspect to be present by audio link or audiovisual link.
Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1).
Note 2 The Evidence (Miscellaneous Provisions) Act 1991, s 20 (Territory courts may take evidence and submissions from participating States) applies in relation to the taking of evidence and making of submissions by audiovisual link or audio link from a participating State. See also the Magistrates Court Act 1930, s 311 (Appearance by audiovisual or audio links etc).
35․Section 43(1) says:
43 Procedure at hearing of application for interim order
(1)If the application is made in person, or by telephone, radio or other form of oral communication, the magistrate must ensure that the following are given an opportunity to speak to the magistrate:
(a)the suspect (if present);
(b)the suspect’s lawyer (if any);
(c)the suspect’s interview friend (if any).
…
36․Section 44(2) says:
44 Action to be taken on making of interim orders
…
(2)An interim order must state the date and time when, and place where, a further hearing on the application will take place and the application will be finally decided by the making of an order confirming or disallowing the interim order.
37․Section 47 says:
47 Results of forensic procedures carried out under interim order
(1)A sample taken under an interim order may be analysed only if—
(a)the sample is likely to perish before a final order is made; or
(b)a final order is made confirming the interim order.
(2)A person who conducts an analysis in the circumstances mentioned in subsection (1) (a) must not intentionally or recklessly disclose the results of the analysis to anyone—
(a)during the period before a final order is made; or
(b)if the interim order is disallowed.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
38․Division 2.5.2 titled “Final orders”, contains the following relevant provisions:
33 Final order for carrying out of forensic procedure
A magistrate may order the carrying out of a forensic procedure on a suspect if—
(a)section 32 applies; and
(b)the magistrate is satisfied as required by section 34.
34 Matters to be considered by magistrate before ordering forensic procedure
(1)The magistrate must be satisfied on the balance of probabilities that—
(a)the person on whom the forensic procedure is proposed to be carried out is a suspect; and
(b)if the forensic procedure is a procedure other than the taking of a handprint, fingerprint, footprint or toeprint—the offence for which the person is a suspect is a serious offence and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed—
(i) that offence; or
(ii) another serious offence arising out of the same circumstances as that offence; or
(iii) another serious offence for which the evidence likely to be obtained because of carrying out the procedure on the suspect is likely to have probative value; and
(c)if the forensic procedure is the taking of a handprint, fingerprint, footprint or toeprint—the offence for which the person is a suspect is an offence other than an offence that may be dealt with by way of infringement notice and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed—
(i) that offence; pr
(ii) another offence (other than an offence that may be dealt with by way of infringement notice) arising out of the same circumstances as that offence; or
(iii) another offence (other than an offence that may be dealt with by way of infringement notice) for which the handprints, fingerprints, footprints or toeprints are likely to have probative value; and
(d)the carrying out of the forensic procedure is justified in all the circumstances.
(2)In deciding whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)In balancing those interests, the magistrate must have regard to the following matters:
(a)the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;
(b)the degree of the suspect’s alleged participation in the commission of the offence;
(c)the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the magistrate;
(d)if the suspect is a child or incapable person—the best interests of the suspect;
(e)whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;
(f)if the suspect gives any reasons for refusing to consent—the reasons;
(g)if the suspect is in custody and the investigation period when the suspect may lawfully be held has not expired—
(i) the period for which the suspect has already been detained; and
(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;
(h)any other matter considered relevant to balancing those interests.
…
38 Procedure at hearing of application for order
(1)This section applies if an authorised applicant has applied under section 35 for an order authorising the carrying out of a forensic procedure on a suspect.
(2)The suspect must be present at the hearing of the application unless—
(a)the suspect is remanded or otherwise detained in lawful custody in a State and it is not practicable for the suspect to be present by audio link or audiovisual link; or
Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1).
Note 2 The Evidence (Miscellaneous Provisions) Act 1991, ch 3 applies in relation to the taking of evidence and making of submissions by audiovisual link or audio link from a State. See also the Magistrates Court Act 1930, s 311 (Appearance by audiovisual or audio links etc).
(b)the application (and any summons issued under section 37 (1) (a)) has been served on the suspect and the suspect is not present.
(3)If the suspect is a child, incapable person or Aboriginal or Torres Strait Islander person, the suspect must be represented by an interview friend and may also be represented by a lawyer.
(4)Any other suspect may be represented by a lawyer.
(5)The suspect or his or her representative—
(a)may cross-examine the applicant for the order; and
(b)may, with the leave of the magistrate, call or cross-examine any other witnesses; and
(c)may address the magistrate.
(6)A magistrate may give leave under subsection (5) (b) only if the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined.
(7)In this section:
audio link means a system of 2-way communication linking different places so that a person speaking at any of them can be heard at the other places.
audiovisual link means a system of 2-way communication linking different places so that a person at any of them can be seen and heard at the other places.
39․Returning to the factual narrative, at the final hearing the learned magistrate considered all of the relevant matters set out in s 34 which apply to final hearings, and, with respect, the learned magistrate's decision is a model decision on the application of the section to the facts of the particular case.
40․The learned magistrate took into account the misleading evidence referred to earlier in this judgment and the absence of a lawyer or interview friend at the time of the interim application. The learned magistrate took those matters into account in undertaking the balancing exercise required by s 34(2) and made a final order confirming the interim order.
41․The orders made by the learned magistrate on 23 February 2023 were:
Forensic Procedure Order
Having heard the application pursuant to part 2.5 of the Crimes (Forensic Procedures) Act 2000 dated January 2023:
I find that the application complies with the requirements of section 35 (Application for) order;
I find that section 32 (circumstances in which Magistrate may order forensic procedure) applies; and
I have considered the matters listed in section 34 (matters to be considered by Magistrate before ordering forensic procedure)
For these reasons, I make the following orders in writing pursuant to section 31 (Forensic procedures may be carried out by order of Magistrate), section 33 (Final order for carrying of forensic procedure), and section 39 (Action to be taken on making of orders).
THE COURT ORDERS THAT:
1.The interim order made by Magistrate Cook on 27 January 2023 for the carrying out of the following non-intimate forensic procedure on [Child A], dated of birth [redacted for legal reasons], be confirmed, namely:
(a) The taking of photographs;
(b) The taking of fingerprints; and
(c) The taking of DNA, namely a buccal swab.
2. A written record of this order is kept.
3. This order takes effect from 4:00pm on 2 March 2023.
Dated this 24th day of February 2023
42․On 2 March 2023 the plaintiff filed an originating application seeking judicial review of the magistrate's decision following the final hearing on 23 February 2023, pursuant to the terms of the Administrative Decisions (Judicial Review) Acts 1989 (ACT) and particularly ss 5 and 17.
43․The first defendant filed a submitting appearance and did not appear on the application.
The application
44․The relevant orders sought on this application were:
…
3.Pursuant to section 17 of the ADJR Act, the final forensic procedure order entered by Special Magistrate Christensen on 23 February 2023 (“the decision”) be quashed.
4.In the alternative to order 3 above, the decision be set aside and remitted to the First Defendant for reconsideration.
5.Any other orders that the Court considers appropriate.
45․The plaintiff's grounds were:
1.The procedures that were required by law to be observed in making the decision were not observed, as her Honour, in making a final order, did not first consider whether to confirm or disallow the interim forensic procedure order as required by section 41(2) [of the] Crimes (Forensic Procedures) Act 2000 (ACT) (“the Act”) and consequently did not turn her mind to the criteria in section 41(1) of the Act.
2.That the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made as her Honour failed to take into account relevant considerations in exercising her power to make the final forensic procedure order, being:
(i)whether to confirm or disallow the interim order under section 41(2) of the Act; and
(ii)whether the criteria for the making of an interim order under section 41(1) of the Act, particularly section 41(1)(b) were met.
3.The decision involved an error of law in that her Honour misconstrued the statutory task she was required to undertake, which was to first consider whether it was appropriate to confirm or disallow the interim forensic procedure order pursuant to s 41(2) of the Act and make a determination about that issue, before proceeding to address part 2.5.2 of the Act. In doing so, her Honour’s reasons were affected by an error, in that her Honour considered any errors or improprieties affecting the interim decision to be relevant only to the balancing exercise in section 34(3) of the Act.
4.The decision was otherwise contrary to law.
46․In short, and hopefully without doing too much violence to the skill and eloquence of the plaintiff's submissions, the plaintiff's position may be summarised by saying that the plaintiff contended that the legislation requires a magistrate, on a final hearing under the Act to first review and determine the validity of the interim order before proceeding to the hearing of any final order.
47․On this application it is agreed that the plaintiff was and is a child. It is also agreed that the magistrate's final order is amenable to review under the Administrative Decisions (Judicial Review) Act 1989 (ACT), in according with the holdings in Sleiman v Murray [2009] ACTSC 82 and Sleiman v Murray [2010] ACTCA 2.
48․The grounds of the application, although expressed in four separate paragraphs, really amount to one submission and that is that on a final hearing the Act requires a review or examination of the interim order.
49․Rather than imperfectly summarising the plaintiff's submissions, the relevant paragraphs of the plaintiff's written submissions were as follows:
5. The Plaintiff’s position, broadly speaking, is that the language of sections 41(2) and 44(2) of the Act required Special Magistrate Christensen to consider matters relevant to the validity of the Interim Order, including the evidence relied upon when the application for the Interim Order was made to establish the criteria in section 41(1) of the Act, prior to considering whether to confirm or disallow the Interim Order by reference to the criteria in section 34. The Plaintiff says that a magistrate’s task when considering an application to confirm or disallow an interim order at a final hearing is twofold:
(a)First, to consider the validity of the interim order, by reference to the criteria in section 41 of the Act and other requirements for entry of an interim order (for example, whether the procedure is being carried [out] in the presence of a lawyer or interview friend). If these criteria are not met, the interim order would be disallowed; and
(b)Second, if the interim order is deemed to [be] valid following examination of the issues referred to in paragraph 5(a) above, to consider whether to confirm the interim order by reference [to] criteria in section 34 of the Act.
…
49. The Plaintiff submits that the following considerations support a construction of the Act that would require a magistrate to consider the validity of the interim order, before turning to the criteria in section 34 of the Act:
(a)Ordinary meaning of “disallow”: Disallow is not defined in the Act. Therefore, in accordance with the common law approach to statutory interpretation, which the Plaintiff acknowledges is supplemented in the Territory by the provisions of the Legislation Act, regard should be had to the ordinary meaning of the term “disallow”. The Macquarie Dictionary defines disallow to mean “to refuse to admit the truth or validity of”. Given the reference to validity, the ordinary meaning of disallow appears to suggest that a magistrate, who conducts a final hearing, is required to first turn their mind to whether an interim order could have been validly made, before they consider whether to confirm the interim order by reference to the criteria in section 34 of the Act. It is difficult to see how a magistrate conducting a final hearing could properly consider the validity of an interim order without turning their mind to whether the criteria for the making of an interim order could have been met on the evidence available to the magistrate.
(b)Text of Div 2.5.3: Section 44(2) of the Act specifically contemplates a “further hearing on the application” and “the application being finally decided”. It is clear from the structure of the Act and the context of those statements that the application referred to is the application for the interim order. That application is required to be supported by evidence on oath or by affidavit dealing with the matters mentioned in section 41(1), and to satisfy subsection 41(1)(c) it would have to include the evidence to be relief on to satisfy the criteria in section 34 of the Act at a final hearing. It is submitted that these are strong indications that a magistrate, in deciding whether to confirm or disallow the application for the interim order, is required to do more than consider the criteria in section 34 of the Act and consider any issues with the interim order to be relevant only to the balancing exercise therein. Instead, they are required to finally determined the application for an interim order, and in doing so, independent consideration would need to be given to any matters affecting the validity of the interim order when considering whether to disallow the order.
(c)Principle of legality: the effect of making an order under the Act is to abrogate a right that a suspect would otherwise have to reuse to provide samples from their own body to an investigating authority consistent with the privilege against self-incrimination. This was recognised by Simpson J in Orban v Bayliss [2004] NSWSC 428, where her Honour said the following in relation to the Crimes (Forensic Procedures) Act 2000 (NSW) [at [30]]:
The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provided, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was specific response to scientific and technological developments, but in the context of valued traditional civil liberties.
Given that the effect of the legislation is to abrogate a fundamental right, the principle of legality suggests that a strict construction of the provisions of the Act should be adopted. The need for a strict construction is further supported by the Act enabling an intrusion with an individual’s right to privacy. The importance of applying such an approach to legislation involving an intrusion of privacy was recognised in Ousley v The Queen (1997) 97 A Crim R 195, where Kirby J said the following [at 566]:
the approach of strictness requires, for the protection of the fundamental rights involved, that a court should not be overly astute to sustain a warrant which, on its face, reveals relevant defects. Courts properly tend to take a practical rather than an unduly technical view of challenges to warrants permitting intrusion into the property and privacy of those subject to them. But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected. (emphasis added)
[citation omitted in original]
It is submitted that adopting a strict construction in the circumstances of the case would involve a magistrate considering by reference to the requirements of Div 2.5.3, any matters affecting the validity of the Interim Order including whether there was evidence to satisfy the criteria in section 41(1), before proceeding to consider the criteria in section 34 of the Act.
(d)Interpretation consistent with Human Rights Act 2004 (ACT) (“the HRA”): section 30 of the HRA requires that so far as it is possible to do so a Territory law be interpreted in a manner that is consistent with human rights. Relevantly, the HRA provides that everyone has a right not to have his or her privacy interfered with unlawfully, and provides that a child charged with a criminal offence has the right to procedure that takes account of the child’s age and the desirability of promoting rehabilitation. A reading that would involve an interim order being disallowed where the [sic] there was unlawful conduct or impropriety would be more consistent with each of these rights. This is particularly so in circumstances where on of the issues identified by her Honour was the young person not having an interview friend, or lawyer, which is a specific protection provided for young people in the context of criminal matters.
[citations omitted]
…
54. The plaintiff is ultimately concerned that, if the process for confirming or disallowing an interim order is not held to involve the twofold consideration process posited above, then there is scope for applications for interim orders to be made, and then confirmed, in circumstances where police officers do not reasonably believe there is a genuine risk that evidence will be lost or destroyed if an order is not made immediately (as required [by] section 41(1) of the Act). Further, because the process for applying for a final order under the Act is more stringent than is the process for applying for interim orders, the legislative scheme for obtaining an interim order is more apt to be misused, particularly if there is no proper and separate consideration given to the validity of the entry of an interim order at a review. The review process in relation to interim orders exists, the Plaintiff says, to provide protection to a respondent to an application, and ensure there is a proper review of use of the process. It is essentially there to maintain the integrity of system which is used to obtain urgent orders.
55. Accordingly, the Plaintiff submits that if the reading of the statutory task imposed on a magistrate in conducting a review of an interim order is not as she contends, then the protection purportedly provided to a respondent by virtue of the review process for an interim order once entered would have no real effect. The word “disallow”, properly construed, would simply have no work to do. The Plaintiff submits that, in order for the review process to have its intended effect – maintaining the integrity of the interim application process – the construction of the statutory task imposed on a magistrate as follows. Firstly, the magistrate must review the validity of an interim order; and secondly, they must consider the section 34 factors. It is not sufficient for a magistrate to engage in the latter task, without first specifically turning his or her mind to the former, and making an express decision about validity. That is an essential part of the review process; and the Plaintiffs says that unfortunately, it was not undertaken in her case.
50․The second defendant took a different position to the plaintiff. Avoiding again my imperfect summary of competent submissions, the second defendant's submissions were encapsulated in the following paragraphs:
10. First, it is contrary to the plain language of the statute. As is clear from the [Crimes (Forensic Procedures) Act 2000 (ACT)] (“CFPA”), the authority to take forensic samples from an individual can be conferred in two broad ways. The first is with the consent of an individual. Where this is not forthcoming, or the individual is a child or incapable person, an order for forensic procedure may be obtained from a magistrate. Division 2.5 of the CFPA relates to orders for forensic procedures by magistrates. It is not in dispute that because the plaintiff was a child, a forensic procedure could only be obtained by an order of magistrate. Part 2.3, which relates to forensic procedures by consent, does not apply to a child.
…
13. With respect, there is no uncertainty as to the process involved. The statutory scheme involves two separate orders. That is, a magistrate who makes an interim order under s 41(1) on the one hand (“the interim order”), and a magistrate who confirms or disallows an interim order pursuant to ss 33 and 34 (“the final order”) on the other hand. A magistrate making a final order must apply the criteria in s 34 (which does not refer to the first decision) in accordance with the process provided in Division 2.5.2, as if it were determining an application for a final order. The direction in s 41(3) that Division 2.5.2 applies to the making of an order confirming or disallowing an interim order is significant in reflecting the separate and distinct statutory tasks required of a magistrate, depending on whether the order sought is interim or final (whether by way of initial final order or confirming of an interim order).
14. As provided for by s 41(2), the interim order continues to operate until a second order either confirms or disallows the interim order in accordance with the process in Division 2.5.2. Whilst s 44(2) refers to a “further hearing on the application” and that “the application will be finally decided”, and s 41(2) refers to ‘confirming or disallowing’ the interim order, this language should not be read so as to obfuscate the fact that there are two different decisions being made, requiring different degrees of satisfaction against different statutory criteria. Whilst the making of an interim order triggers the statutory process for the decision with respect to a final order, the basis upon which the interim order was made has no bearing on the determination of whether a final order should be made, which is itself government by its own criteria.
(citations omitted)
51․The second defendant also submitted that the plaintiff's submissions were contrary to the presumption of validity (a matter I find unnecessary to decide). The second defendant's submissions then proceeded at [17]-[18]:
17. That the word ‘disallow’ is used in s 41(2) is of no assistance to the plaintiff. Whilst the ordinary meaning of the word may include a reference to ‘validity of’, this does not provide a foundation for negating the presumption of validity in the relevant sense. When read in its proper statutory context, a decision which confirms or disallows an interim order is no different to an order granting or refusing a final order at first instance.
18. There are good reasons why the presumption of validity operates with resect to the interim order. If the position were otherwise, proceedings in the Magistrates Court in cases like the present, would involve lengthy hearings relitigating the circumstances in which the first decision was made, and divert the magistrate from their clear statutory task in determining whether an order should be made pursuant to s 34 in the circumstances which are presented to them. There is no basis to suggest, as the plaintiff does, that if the interpretation she contends for is not adopted, that the integrity of the system would be compromised. To the contrary, the presumption of validity is necessary for the workability of the statutory scheme. The protections inbuilt into the making of an final order guard against any risk that the circumstances which existed to justify the first decision may, in retrospect, be erroneous. That is, the magistrate proposing to make a final order is required to have a higher level of satisfaction and apply more stringent and proscriptive criteria in determining the appropriateness of a final order. Further, an affected person has the additional safeguards by way of appropriate review procedures under the ADJR Act, and relief in the same nature as the prerogative writs.
(citations omitted)
Principles of statutory construction
52․In Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30 I summarised what I understood to be the relevant principles of statutory construction. In my judgment in that case I said:
101. The process of statutory construction begins and ends with the words of the statute. That oft-repeated mantra does not prescribe a rigid order of analysis. Rather, it serves to emphasise the primacy of the words used in the statute.
102. Context must be considered in the first instance. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron J agreeing, said at 408:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
(Footnote omitted.)
103. In Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 Allsop CJ said at [7] that that passage from CIC had been cited too often to be doubted and cited 15 joint or single judgments of the High Court in support of that proposition.
104. With that said, the primacy of the words used in the statute and the process of statutory construction was described in the joint judgment of French CJ, Hayne, Crennan, Bell and Gageler JJ in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] wherein their Honours said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
(Footnote omitted.)
105. The first sentence of the quote which appears immediately above is a quote from the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ (as her Honour then was) in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] wherein their Honours said:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
(Footnotes omitted.)
106. I should add, for completeness, that in the ACT s 140 of the Legislation Act 2001 (ACT) requires that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole, and s 139 requires that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
53․Paragraph [106] of my judgment (quoted above) was something touched upon by the Court of Appeal in UD v Bishop [2021] ACTSCFC 1. In that case the Full Court said at [64]-[68]:
64. Chapter 14 of the Legislation Act 2001 (ACT) provides an appropriate starting point for the interpretation of the provisions of the ACT Code. It provides guidance about the interpretation of Acts but is not intended to be a comprehensive statement of the law relating to the interpretation of Acts and assumes that “common law presumptions” operate in conjunction with its provisions: s 137(2)-(3).
65. Fundamental to the interpretation of any Act is its text. That includes the words used and the structure of the instrument as a whole. Care must be taken to place sufficient emphasis upon the text used when considering the weight to be given to extrinsic indications of the purpose of the Act. This has been emphasised by the High Court: Collins at [99], Alcan at [47] and Baini at [14].
66. The Legislation Act contains specific directions that reinforce or supplement common law principles of interpretation. They include:
(a)the requirement that in “working out the meaning of Act” an interpretation that would “best achieve the purpose of the Act” is to be preferred to any other interpretation: s 139;
(b)the requirement that in “working out the meaning of an Act” particular provisions of an Act must be read in the context of the Act as a whole: s 140;
(c)provisions permitting material not forming part of the Act to be considered in “working out the meaning of an Act” subject to various considerations, including the desirability of being able to rely upon the ordinary meaning of the Act: s 141; and
(d)providing specific permission in “working out the meaning of an Act” to rely upon certain legislative material such as material contained in an authorised version of the Act, explanatory statements and presentation speech for the Bill which became the Act: s 142.
67. Central to the operation of these provisions is the concept of “working out the meaning of an Act” which is defined in s 138 as:
(a)resolving an ambiguous or obscure provision of the Act; or
(b)confirming or displacing the apparent meaning of the Act; or
(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d)finding the meaning of the Act in any other case.
68. Plainly enough, having regard to the terms of paragraph (b) above, the process of “working out the meaning of an Act” extends beyond cases where an ambiguity exists. Legislative purpose is central from the beginning of the interpretive process.
Decision
54․As attractively as it was put, I do not accept the plaintiff’s submission that the word 'disallow' in the Act has the meaning for which the plaintiff contends; namely, to mean 'to refuse to admit the truth or validity of'.
55․Dictionary definitions (relied on by the plaintiff) can be useful, but are not determinative as to the meaning of words in a statute.
56․Justice McDougall, writing extrajudicially, said in a paper delivered at the Commercial Law Association Judges Series on 26 June 2015 entitled “Construction of Contracts: The High Court's Approach” said at [23]:
The distinction between the dictionary definition of a word and its legal meaning is not often well understood. While dictionaries can be used as an aid to identifying the conventional meaning of a word, they are no substitute for the interpretive process. Nor is the legal meaning of the words used in a contract merely the sum of the individual meanings of the words used, ascertained from dictionaries. Holmes J once famously said that words are but 'a skin of a living thought'. It is the thoughts themselves (regarded objectively) that courts must ascertain and apply.
57․In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ said at [78]:
[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:
The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that parliament intended to deal with [footnotes omitted].
(citations omitted)
58․Various synonyms of the word 'disallow' include the words refuse, dismiss, stop, cancel, overrule, quash and overturn. In my view those synonyms better describe the legal meaning of the word 'disallow' where it appears in s 41 of the Act and the word ‘disallow” in the Act does not include any notions of validity. That is, the word ‘disallow’ in the Act is limited to meaning something akin to the bringing to an end (of the interim order) rather than encompassing an examination of the validity of the interim order (in addition to brining it to an end in appropriate circumstances).
59․In my view, that meaning is consistent with the terms of the Explanatory Memorandum for the Crimes (Forensic Procedures) Bill 2000 (ACT) in clause 41 wherein the Memorandum says:
This clause enables a magistrate to make an interim order so that a forensic procedure can be carried out immediately, without a full hearing in the court, in limited circumstances. The clause lists the matters a magistrate must be satisfied about before making an interim order; these matters include that the magistrate is satisfied that the probative value of the evidence generated by the forensic procedure is likely to be lost or destroyed if there is delay. An example could be where it is reasonably believed that a suspect has a victim's blood or other body tissues on his or her person which would be lost if the suspect were to wash before a final order could be made.
Interim orders operate only until they are confirmed or disallowed. The process for confirming an interim order is the same as the process for obtaining a final order - that is, there is a hearing as provide by clause 38 and the magistrate considers the matters in clause 34.
60․As explained in the Explanatory Memorandum, and as it appears to me from the text and context of the Act taken as a whole, the statutory purpose of s 41 is to provide a truncated procedure in certain urgent circumstances to allow for the collection and preservation of certain types of forensic evidence. This is exemplified in the different considerations and tests applied in an interim application as compared to a final hearing.
61․Section 41 of the Act relevantly provides that a magistrate may make an interim order if the magistrate is satisfied that the probative value of evidence obtained is likely to be lost or destroyed by any delay in carrying out the procedure and (most significantly) the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters mentioned in s 34(1) when the application is finally decided.
62․That is all that is required to be established at the hearing of the interim application.
63․Those truncated considerations are to be contrasted with the much more extensive considerations to be applied at a final hearing.
64․Section 34 has been quoted above, but it is relevant to note that the section provides that a magistrate must be satisfied “on the balance of probabilities” that the offence for which a person is a suspect is a “serious offence” (defined elsewhere in the Act) and the various other matters set out in s 34(1).
65․Section 34 also provides in subsection (2) that in deciding whether the carrying out of a forensic procedure is justified a magistrate must balance the public interest in obtaining the evidence against the public interest in upholding the physical integrity of the suspect. Such a provision does not apply to the interim application procedure.
66․It is also relevant to note that s 34(3) mandates that a magistrate must have regard to the matters set out therein in balancing those particular public interests. Again, a provision such as s 34(3) does not apply to the interim application procedure.
67․It is also pertinent to note that s 38(5)(a) and (b) allow for the cross-examination of the applicant for the final order, and with the leave of the magistrate, to call or cross-examine any other witness. Again, these express provisions apply to final hearings, but not to applications for interim orders.
68․It is not to be overlooked that s 41(3) provides that those provisions in Division 2.5.2 (which concern final orders) apply in the same way as they would apply if there were an application for a final order without a preceding interim order. To my mind that is yet another indicator that final hearings following interim orders are to be conducted no differently than final hearings which are not preceded by any interim order.
69․In my view, in that statutory context, where an interim order precedes an application for a final order, all the word 'disallow' does is to make provision for circumstances in which a magistrate on the hearing for a final order, if not satisfied of the relevant matters in s 34, would 'disallow' the interim order which would have the effect of bringing the interim order to an end.
70․Another reason for not accepting the plaintiff's submissions is that the words ‘valid’ or ‘validity’ do not appear anywhere in the Act and most particularly in relation to the sections referring to the procedure to be undertaken at a final hearing.
71․The word ‘review’ (used by the plaintiff in submissions) only appears once in the Act and that is in s 94A(4) which says:
If the minister enters into a database agreement, the minister may access the ACT DNA database to review and audit it.
72․Otherwise, the word 'reviewing' appears twice in the Act in ss 96(3) and 111(2)(d), both of which sections only concern the ACT DNA database.
73․It seems to me, as a matter of statutory construction, that if parliament's purpose in s 41 was to provide for some type of review of an earlier interim order, then words such as 'review' or ‘validity’ or their synonyms would appear in s 41.
74․Also of great significance to me is that the Act does not include any provisions as to how such a review would be conducted and what considerations would be taken into account on such a review given that there are different types of reviews that are known to the law.
75․For example, would the review be conducted or assessed on grounds such as those set out in s 5 of the Administrative Decisions (Judicial Review) Act1989 (ACT). That section says:
5 Applications for review of decisions
(1)An eligible person may apply to the Supreme Court for an order of review in relation to a decision to which this Act applies on 1 or more of the following grounds:
(a)that a breach of the rules of natural justice happened in relation to the making of the decision;
(b)that procedures that were required by law to be observed in relation to the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorised by the enactment under which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(i)that the decision was otherwise contrary to law.
…
76․Or, would such a review be conducted like an appeal. Having said that, there is more than one type of appeal and the Act does not specify which one was intended (if any review by way of appeal was intended).
77․In Halsbury's Laws of Australia online edition at [325-11105] the learned authors describe the two basic different types of appeal: an appeal in the strict sense and an appeal by way of rehearing. They say:
In an appeal in the strict sense, the appellate court is restricted to reconsidering the rights and liabilities of the parties as they existed when the judgment appealed from was given. The question is whether the judgment was correct when given, that is, whether the judgment was correct on the evidence which the lower court had before it and in the light of the law as it then stood. The appeal court is entitled to re-examine the evidence and the law. It can reconsider the conclusions of fact reached by the court below, but only on the basis of the evidence before that court. It cannot set aside a judgment correctly pronounced because of matters subsequently occurring.
In an appeal by way of rehearing, the appeal court must determine the rights and liabilities of the parties by applying the law to the circumstances as they exist when the appeal is heard, including the law which then operates. On a rehearing, the appeal court can consider events up to the date of the rehearing and take into account changes in the law since the original hearing. Thus, on a rehearing, the court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.
…
However a rehearing is not a retrial, and the court’s power to receive further or fresh evidence is limited to that provided by the statute creating the right to appeal.
(citations omitted)
78․In this case fresh evidence was admitted without objection at the final hearing, which suggested at least that the parties were of the view that fresh evidence was allowed (if what was being conducted included a review of the interim order by way of an appeal), but the parties' actions are not determinative of the rights and obligations under the Act. Of course, if an appeal was involved, one would expect some mechanism to allow for grounds of appeal so the parties and the Court would know what was being challenged and why. No such mechanism appears in the Act.
79․An appeal in the strict sense which is limited to reconsidering the rights and liabilities of the parties as they existed when the interim order was made, and on the basis of the evidence given at that time, would necessarily fail in this case because the accuracy or probity of the evidence given to the magistrate hearing the interim application could not be questioned on such an appeal.
80․It is only if it was an appeal by way of rehearing that the possibility existed of the admission of fresh evidence which (if the plaintiff's contentions were correct) would include the possibility of cross-examining witnesses so that concessions, such as were extracted in this case from the relevant police officer, could be extracted.
81․Finally, as another possibility, would any review be conducted by way of an inquiry of some sort? Why that might be so is because the identified problem in this case was not with the magistrate's judgment itself, or the magistrate’s decision-making process in making the interim order, but was rather an attack on the accuracy and probity of the evidence which was provided to the magistrate.
82․The absence of any statutory terms identifying how the suggested review would be conducted, against the background of the various and differing methods outlined above, points strongly in my view towards the conclusion that parliament did not intend that at a final hearing the validity of the preceding interim order would be examined.
83․Another reason for not accepting the plaintiff's contentions, at least insofar as submissions were made to the effect that a purpose of the statute (should the plaintiff’s submissions on the proper construction of the statute be accepted) would be to provide some measure of control or oversight on the accuracy and probity of evidence given to magistrates on interim applications, is that any inaccuracies and impropriety can be taken into account on a final hearing. That is what occurred in this case where the learned magistrate considered the misleading evidence given by the constable on the interim application and the absence at that time of a lawyer or interview friend under s 34(3)(h). Those matters were and could be weighed in the balance on a final hearing and any applicants who provide misleading or inaccurate evidence for the purpose of an interim order face the risk that a final order will not be granted for those reasons.
84․In relation to those matters and the balancing exercise required the learned magistrate in this case said, in giving judgment on the final hearing:
The primary issue then becomes the court’s determination under section 34(2), with subsection (3) providing matters that are mandatory for the court’s consideration in balancing the interests. Subsection (2) provides:
In deciding whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
I am satisfied that there is significant public interest in obtaining evidence tending to confirm or disprove that the young person committed the alleged offence or offences. The alleged offending conduct is very serious and the community has a particular concern as to offending of this type. The alleged offending conduct is in the nature of putting road users at risk.
The detection of alleged offenders for this type is a priority for the community. The forensic examinations to date have identified multiple traces of DNA and forensic procedures and there is also CCTV. The forensic procedures sought and the examinations which could follow are readily capable of having the capacity to confirm or disprove involvement.
Equally, there is a public interest in the confirmation or exclusion of persons suspected of involvement in such offences. This is not only in the interests of the individual young person, but also to the community benefit in the detection or exclusion of persons engaging in such conduct. The public interest in obtaining the evidence is high.
I am satisfied also that there is a significant public interest in upholding the physical integrity of the suspect. This conclusion is drawn in circumstances where the suspect is a young person. The invasionary [sic] nature of a forensic procedure on a young person is not an order that should be done lightly. The youth justice principles in section 94 of the Children and Young Persons Act must be borne in mind, as must section 8 and 9, which includes that the best interests of the young people are the paramount consideration.
I take into account under this consideration that the young person is now aged [redacted for legal reasons] and that any young person being subjected to a forensic procedure process is likely to experience anxiety. I also take into account that while there is a level of intrusion involved, the proposed procedures that have already occurred are not necessarily unduly intrusive when regard is had to the scale of procedures that can occur. The police officer did, though, accept under cross-examination that there is a level of intrusion from the procedures, particularly for the buccal swab.
In all of the circumstances, the public interest in ensuring the physical integrity of the suspect, where a young person of this age and the procedures sought is involved, must be accorded due weight in the decision to be made. Those considerations do not, thought, determine the issue under subsection (2).
…
I conclude that there is sufficient reason to have cause for concern as to the impropriety or potential unlawfulness of the taking of the interim sample. This is not a conclusion that the circumstances did amount to impropriety or illegality, but rather that there are features that raise concern. The issue is then what this means in the balancing exercise as to whether the order of the taking of sample is justified.
I rely on Yousha Sleiman v Jason Murray [2010] ACTCA 2 for this determination. I was helpfully assisted by the prosecution with the Supreme Court authority of this matter of Refshauge J. Less helpfully, the prosecution did not draw the court’s attention to this decision having been the subject of an appeal. While it is not the case that the reasoning of the judicial officer the subject of an appeal is necessarily without relevance, it is always relevant for the parties to undertake a Lawcite search for any decision relied upon and to ensure the court is appraised of all relevant law and authority.
In any event, I have had the opportunity to consider both decisions and I find the Court of Appeal decision particularly instructive. It considers the role that the question of admissibility has the section 34(2) considerations. While the admissibility question was different in Sleiman v Murray, the Court of Appeal does provide, as Refshauge J, that issues of admissibility and essentially other relevant factors that can be determined by implication from the subject matter, scope and purposes of the Act are capable of being relevant to the balancing exercise.
The court found section 34 to be unconfined. I am consolidated in this view by the terms of section 34(3)(h), and as the respondent relies on, section 31(2) of the Act, which provides that the carrying out of the procedure is to be in accordance with part 2.6 and not otherwise. Accordingly, I conclude that the circumstances of the taking of the interim order is a relevant consideration in the balancing exercise.
What I am not persuaded by is the respondent’s submission, that I understood to be to the effect that it is a determining factor, that is, if I am satisfied that there was any level of impropriety in the taking of the interim sample, then I must refuse the final order. I am not satisfied this [is] the exercise of the discretion I am called to do. This is because the circumstances of the taking of the interim sample are but one of the considerations I must balance. The other matters are outlined section 34(2) and (3) must also be considered.
The conclusion I have drawn as to the potential concerning circumstances of the interim order do result in another consequence that becomes a relevant consideration for the best interests of the child, and that is, as the respondent has submitted, that an prosecution on the basis of the contended improperly obtained sample will necessitate drawn out court proceedings involving presumably section 138 Evidence Act considerations.
The converse to that is that if I do not issue the final order, there is a prospect of a further application being brought with a view to the police not having to rely on the earlier interim samples, but rather a fresh application. The respondent submitted that even this avenue could not be in the best interests of the child.
I am not persuaded that anticipated legal challenges to forensic procedure applications and admissibility issues of any such evidence amounts to a significant consideration that I must refuse the application. The prospect of this occurring is largely a speculative matter at this stage and such a position relies on a conclusion that the outcome of the forensic process will tend to confirm the young person’s involvement in the alleged offending.
The prospect that instead the forensic examinations would disprove the young person’s involvement, and this being in [their] best interests must also be accorded appropriate consideration and weight in the balancing exercise to be undertaken.
Balancing then all relevant considerations as I have set out above, I conclude that the issuing of the final order for the carrying out of the forensic procedure is justified in all the circumstances. I grant the order and will hear the parties as to the appropriate terms of that order before it is finalised.
85․The way the learned magistrate dealt with the two identified deficiencies in the applicant’s case for the interim order, pursuant to the statute and particularly s 34(3)(h), indicates [in s 34(3)(h)] parliament’s intention that control or oversight on the accuracy and probity of evidence given to magistrates on interim applications would be provided by such matters being taken into account on final hearings and offers a measure of protection to persons such as the plaintiff from any misleading or inaccurate evidence provided at the time of seeking an interim order.
86․Conversely, if the plaintiff's submissions were correct as a proper construction of the Act, there seems to me a very real risk that hearings for final orders would become substantially longer and substantially more costly as it would be in the interests of suspects to seek to 'invalidate' interim orders on the basis of any inaccuracy or non-disclosure or similar invalidating factor to which they could point in obtaining the interim order.
87․To my mind, that would frustrate the purposes of the Act and would divert attention from the real issues in dispute on a final hearing.
88․The plaintiff also placed reliance on the words “further hearing on the application” and “the application being finally decided” which appear in s 44(2) of the Act. To my mind, those words do not have the effect for which the plaintiff contended in [49(b)] of the plaintiff's written submissions which have been quoted above.
89․A hopefully useful analogy was drawn during the hearing of this application with civil applications for injunctions when an ex parte application would be roughly equivalent to the seeking of an interim order in cases such as this and the first return date of those injunction proceedings, when the defendant would appear, would be roughly equivalent to a final hearing under the Act.
90․In civil injunction proceedings there is no review as to whether a judge was right or wrong in granting the ex parte injunction. However, should some relevant non-disclosure be revealed on the first return date the usual course is for the ex parte injunction to be automatically dissolved. But the significant fact is that there is no review of the judge's decision.
91․In cases such as the present, if there had been some relevant non-disclosure or misleading or inaccurate evidence, then that matter can be taken into account under s 34(3)(h) as it was in this case.
92․If anything, to my mind the words relied upon by the plaintiff support my view that the word ‘disallow’ simply means something like refuse, dismiss or stop.
93․The plaintiff is probably correct in observing that the words 'the application' refer to the application for the interim order.
94․However, in my view on a final hearing, if a magistrate is not satisfied to the relevant standard of the matters set out in s 34, then that application (the interim order) is ‘disallowed’ meaning it is brought to an end in the sense of being dismissed, stopped, cancelled, overruled, quashed or overturned.
95․The final submission made by the plaintiff was to the effect that an interpretation of the Act is influenced by s 30 of the Human Rights Act 2004 (ACT).
96․Section 30 of that Act says:
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
97․It is to be observed that that section does not require a territory law to be compatible with human rights but is only required to be compatible with human rights “insofar as it is possible to do so consistently with its purpose”.
98․It is also relevant to note s 28(1) of the Human Rights Act which says:
Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
99․I have set out the purpose of the Act above as I perceive it to be. The Human Rights Act only requires interpretation compatible with human rights insofar as it is possible to do so consistently with the Act’s purpose. To accept the plaintiff’s submissions on this point would be to interpret the Act inconsistently with its purpose.
100․Further, the Human Rights Act expressly states in s 28 that limits may be set on human rights. To the extent the Act imposes limits on the plaintiff’s human rights, those limits are reasonable and justified. The learned magistrate’s reasons (quoted above) in relation to the public interests involved in obtaining the evidence, which are reasonable considerations, demonstrate that any limitation on the plaintiff’s human rights is reasonable and justified.
101․As is demonstrated by the learned magistrate's balancing exercise in the reasons for judgment I have quoted above, the purpose of the Act recognises not only the public interests of the suspect, but the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence.
102․In any event, in my view, I do not consider s 41, as I have construed it, as being incompatible with the plaintiff's human rights.
103․I should note that on 2 March 2023 McWilliam AsJ (as her Honour then was) “suspended” the final forensic procedure order made on 23 February 2023 pending the hearing of this application for judicial review (Order 1). As this application is to be dismissed, her Honour’s order should be vacated.
Orders
104․For all of those reason, I make the following Orders:
(1)Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) I order that the name of the plaintiff not be published.
(2)I order that the plaintiff be referred to as “Child A”.
(3)I dismiss the application.
(4)I vacate order 1 made by McWilliam AsJ on 2 March 2023.
(5)By consent there will be no order as to costs.
| I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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