Child A v Hasler

[2019] NSWSC 672

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Child A v Hasler & Ors [2019] NSWSC 672
Hearing dates:	9 May 2019, 10 May 2019
Date of orders:	10 May 2019
Decision date:	07 June 2019
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Leave to file a Further Amended Summons refused 2. Dismiss the Amended Summons filed on 25 October 2018 and 1 November 2018 3. Each party to bear his own costs
Catchwords:	APPEAL – appeal from an order of the Children’s Court – application by police for an order permitting the carrying out of a forensic procedure – decision of the Magistrate to refuse leave to the suspect to cross-examine a witness to the application – question of whether evidence was illegally or improperly obtained by police – decision of the Children’s Court that the evidence was lawfully obtained – challenge to the making of an order
Legislation Cited:	Australian Human Rights Commission Act 1986 (Cth) International Covenant on Civil and Political Rights Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Forensic Procedures) Act 2000 Children (Criminal Proceedings) Act 1987 Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 Bell v Veigel [2008] NSWCA 36 Black v R [2017] NSWDC 326 Liberty Investments Pty Limited v Sakatik Pty Limited (unreported, New South Wales Court of Appeal, 30 August 1996) Police v [Child A] (unreported decision of the Children’s Court, 29 March 2018) R v Daley [2001] NSWSC 1211 R v Kane (2004) 144 A Crim R 496; [2004] NSWCCA 78 R v Nicola [2002] NSWCCA 63 R v White [2005] NSWSC 60 Tre Cavalli Pty Ltd v Berry Rural Co-Operative Society Ltd [2013] NSWCA 235 Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419
Texts Cited:	Concise Oxford Dictionary, 9th edition
Category:	Principal judgment
Parties:	Plaintiff: “Child A” (a pseudonym) First Defendant: Detective Senior Constable Joel Hasler Second Defendant: Commissioner of Police NSW Third Defendant: Magistrate G Blewitt AM
Representation:	Counsel: Mr S Beckett (Plaintiff) Ms J Single (First & Second Defendants) Submitting appearance (Third Defendant) Solicitors: Legal Aid Commission, Children’s Legal Service (Plaintiff) Hicksons Lawyers (First and Second Defendants) Crown Solicitor’s Office (Third Defendant)
File Number(s):	2018/256443
Publication restriction:	NoneSection 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) makes it an offence to publish or broadcast the name of Child A
Decision under appeal	Court or tribunal: Children's Court of New South Wales Jurisdiction: Criminal Date of Decision: 29 March 2018 Before: Magistrate G Blewitt AM File Number(s): 2017/00374162

Judgment

1. HER HONOUR: This matter concerns an appeal against the order of a Magistrate sitting in the Children’s Court of New South Wales permitting NSW Police to conduct a non-intimate forensic procedure upon the plaintiff, who is known for the purposes of these proceedings as “Child A”.

2. On 10 May 2019, having heard evidence and submissions in the appeal, this Court made the following orders:

1. Refuse leave to further amend the Amended Summons, and dismiss the Notice of Motion filed on 29 April 2019.

2. Dismiss the Amended Summons filed on 25 October 2018 and 1 November 2018.

3. Each party is to bear his own costs.

4. Reserve reasons for the orders.

3. What follows are my reasons for making those orders.

Background

4. The appeal brought by Child A, and determined by the orders made on 10 May 2019, relates to a criminal prosecution of him for offences alleged to have been committed on 31 December 2016. What follows is the account alleged against him.

The Allegations Against the Plaintiff

5. At about 9pm on New Year’s Eve 2016, Child A (who was then 16 years of age) caught a train at Circular Quay, travelling to Minto. Also on the train and travelling in the same carriage was the complainant, SR. The two were unknown to each other. During the journey the complainant saw that Child A was staring at him from a nearby seat, and they exchanged looks. Child A nodded to the complainant, and then got up and walked through the carriage. The complainant followed him.

6. The train stopped at Minto Railway Station and both Child A and the complainant alighted from the train. Closed circuit security footage (“CCTV”) in operation at the Station recorded the two males there, apparently together. The plaintiff left the platform and made his way to a dimly lit car park nearby, with the complainant following him closely. Once in the car park the two began kissing, and shortly after engaged in consensual oral intercourse. Child A began fondling the complainant’s penis and buttocks, and moved his fingers close to the complainant’s anus in an apparent attempt to digitally penetrate him. The complainant moved his body away to signal his resistance to that act. Child A turned the complainant around and pressed his erect penis between the complainant’s exposed buttocks. The complainant told him to stop and tried to move away. Child A held the complainant, and pushed his penis inside the complainant’s anus. After a time the complainant pulled Child A’s penis from his anus. Child A then pushed his penis into the complainant’s mouth until he ejaculated.

7. Soon after, the complainant was hit in the back of the head. His companion pushed him, causing SR to fall backward and hit his head on the gravel surface of the car park. The complainant’s backpack was taken from him. The bag contained a mobile telephone, clothing, and other personal items. The complainant heard a number of male voices, and more than one person running away from the scene.

8. The complainant immediately contacted police, and complained of having been robbed and sexually assaulted. He was taken to Liverpool Hospital where he was examined, and a Sexual Assault Investigation Kit (“SAIK”) was completed by the examining doctor. Forensic samples recovered during the examination were later examined and DNA, from an unknown male, was extracted.

9. Child A was identified as possibly being involved in the offences through the CCTV footage taken at Minto Railway Station, after a police officer who had had previous dealings with him thought that he looked like the male with the complainant in the footage. It was noted on the police computer database that a covert DNA sample was required from Child A, to compare with that recovered during the SAIK process involving the complainant.

The Recovery of a DNA Sample

10. Months later, on the evening of 9 November 2017, two police officers unconnected with the investigation into the complaint made by SR, were patrolling Eucalyptus Drive Macquarie Fields in an unmarked police car. The officers saw the plaintiff walking along the street in the same direction as the police car, on the opposite side of the road. Despite the time of year, the plaintiff was wearing a black hooded jumper, and the hood was up and pulled over his face. His face was down.

11. Noting what the officers thought was the plaintiff’s unusual behaviour, after passing him the officers turned their vehicle and drove back towards him. The plaintiff immediately turned, and started to walk in the opposite direction. He was smoking a cigarette.

12. The officers formed the view that the plaintiff was trying to avoid them, and stopped to speak to him. Senior Constable Matthew Boys identified himself to the plaintiff as a police officer, and displayed his police identification. He asked the plaintiff what he was “up to”, and for some “ID”. The plaintiff supplied his name and date of birth, and gave a residential address. S/C Boys thought that the plaintiff’s manner was suspicious, and thought that he was either drug affected, or attempting to avoid any interaction with the officers.

13. A radio check was then conducted, with the police database returning two “warnings”. The first revealed that the address supplied by the plaintiff did not exist; the second was the request added to the database following SR’s complaint of the previous year, noting that a covert DNA sample was required in connection with serious allegations.

14. Because of the plaintiff’s apparent attempt to avoid the officers, the false address provided by him, and his manner (lowering his face into the hood of his jacket, potentially drug affected, “withdrawn, indifferent, and very quiet”), S/C Boys suspected that the plaintiff may have something in his possession connected with the commission of an offence, and he decided to search him. He told the plaintiff that S/C Penman, the second of the officers, would conduct the search.

15. S/C Penman walked towards the plaintiff to carry out the search. As the officer approached, the plaintiff flicked the remains of the cigarette that he had been smoking to the ground. He was searched by the officer, but nothing of interest was located. The plaintiff was allowed to leave by the officers, and he walked away.

16. After he left the area S/C Boys took a photograph of what he described as “the cigarette bu[tt]” lying on the grassed footpath, where it had been discarded by the plaintiff. The butt was then recovered and taken to Macquarie Fields Police Station where it was entered formally as an exhibit.

17. Subsequently, on 23 November 2017, the cigarette butt was sent for forensic examination, and DNA extracted from it was matched to that extracted from the forensic samples obtained during the sexual assault examination of the complainant.

18. On 2 December 2017 the plaintiff was charged with robbery contrary to s 94 of the Crimes Act 1900 (NSW) and sexual intercourse without consent contrary to s 61I of that Act. He was admitted to bail.

The Application to the Children’s Court for a Forensic Procedure

The Children’s Court Proceedings

19. On 2 December 2017 the police officer in charge of the investigation into the offences alleged by SR, Detective Senior Constable Joel Hasler, served the plaintiff with a copy of an application he had made that day to the Children’s Court for an order pursuant to s 26 of the Crimes (Forensic Procedures) Act 2000 (NSW) (“the FP Act”). The forensic procedure the police sought to carry out was to obtain a buccal swab from the plaintiff (which involved a special cotton bud being swept along the lining of the plaintiff’s inner cheek, in his mouth).

20. The application was heard by Magistrate Blewitt AM on 27 and 29 March 2018. The plaintiff opposed the order for a forensic procedure, and sought to cross-examine both the officer in charge and S/C Boys, pursuant to s 30(6) of the FP Act.

21. In support of the forensic procedure application the police tendered an affidavit from D/S/C Hasler setting out the nature of the case against the plaintiff for the criminal offences, a copy of the statement made by the complainant, still images derived from the Minto Railway Station CCTV, a copy of a summary of the DNA analysis of the forensic samples including the cigarette butt, and a statement from S/C Boys. A statement from another police officer, S/C Adam Rae, was excluded by the Magistrate from evidence.

22. Section 30(6)(a) of the FP Act provides for the cross-examination of the applicant for the order, and D/S/C Hasler gave evidence on 27 March 2018, and was cross-examined by the plaintiff’s legal representative.

23. Section 30(6)(b) of the FP Act provides for the suspect or his or her legal representative to call or cross-examine a witness, with the leave of the Magistrate. The plaintiff sought leave to cross-examine S/C Boys. For leave to be given the court had to conclude that the statutory test had been met; that is, that there were substantial reasons why, in the interests of justice, the witness should be cross examined. Both parties made submissions to the Magistrate on that question. The application was adjourned part-heard to 29 March 2018, for decision on that aspect of the matter, and further hearing.

24. On 29 March 2018 the plaintiff’s legal representative provided the Magistrate with a further decision that, it was argued, was relevant to the question of the grant of leave. His Honour gave a decision refusing the grant of leave.

25. The submissions of the parties were then heard on the application for the forensic procedure order, following which the Magistrate gave a judgment, and made an order pursuant to s 24 of the FP Act granting the application.

The Decision of the Magistrate

26. The first decision made by the Magistrate about which the plaintiff complains is the decision to refuse him leave to cross-examine S/C Boys.

27. Before the Children’s Court the plaintiff argued that the decision to search the plaintiff had been taken by S/C Boys not because he had formed a reasonable suspicion that the plaintiff had an item connected with the commission of an offence in his possession but, rather, to obtain the DNA evidence required to advance D/S/C Hasler’s investigation. The search was, in the plaintiff’s submission, illegal and the cigarette butt was secured as a consequence of an illegal search. It was submitted that cross-examination of the officer would reveal that illegality.

28. Having adjourned the matter for decision, on 29 March 2018 the Magistrate indicated to the parties that he had concluded that the plaintiff had not met the statutory test for an order for the cross-examination of a witness. Written reasons had been prepared by his Honour, but the reasons were overtaken to a degree by the provision by the plaintiff to the court of a further authority (Black v R [2017] NSWDC 326) in support of his application for leave. The Magistrate gave the parties access to his written judgment, but said that he would need to consider and address the authority just provided to him.

29. Having considered the authority, his Honour gave some further, oral, reasons for the decision to refuse to permit the cross-examination of a witness.

30. In the written reasons his Honour referred to a line of authority which held that the covert recovery of a DNA sample by police was ordinarily lawful in many circumstances. He then said,

After an interaction with the young person, when Boys established his identity and exercised his power to search the young person, the young person then discarded the cigarette he had been smoking. The cigarette butt was recovered by police […].

31. His Honour concluded that there was nothing unlawful in that process and it had not been established that there were substantial reasons why, in the interests of justice, leave should be granted to the plaintiff to cross-examine S/C Boys.

32. In the oral reasons that followed the Magistrate’s consideration of Black v R, his Honour maintained his earlier conclusion that the search of the plaintiff had not been unlawful, and substantial reasons for the cross-examination of the officer had not been established. He said,

I think the material contained in Boise’s [sic] statement is sufficient to have enabled him to form the reasonable suspicion that led him to searching the young person, during the course of which he discarded the cigarette butt […].

33. After hearing from the parties as to whether the forensic order should be made, His Honour gave an ex tempore judgment, making the order sought by D/S/C Hasler. In his reasons, his Honour said, in part,

In my view, it is somewhat equivocal whether it was the search that made the young person discard the cigarette, other possibilities exist, that he elected to discard it because the cigarette was almost spent, but I think it is not conclusive that the only thing that made the young person discard the cigarette was the fact that he was about to be searched by the police. It is clear the police did not ask the young person to get rid of his cigarette or to discard it, nor did they make any demand that he do so.

Rather, he was informed that he was about to be searched and he then discarded the cigarette. So, in my view, it is somewhat equivocal and it is too much of a bow to be drawn to conclude that it was only the search that made him discard the cigarette, which he was smoking when the police first saw him. It is not as if the police offered him to smoke a cigarette and then sought to retrieve the cigarette butt, rather, it appears to be a voluntary act by the accused to discard the cigarette and I am not satisfied that it was discarded because of any search.

Accordingly, I am, under the circumstances, not prepared to find that the search was unlawful, nor inappropriate in the circumstances.

34. The Magistrate went on to consider the application of s 138 of the Evidence Act 1995 (NSW), concluding that, even if he had been of the view that the search of the plaintiff was illegal, he would still have admitted evidence of the DNA recovered from the cigarette butt, and granted the order.

35. Finally, the Magistrate outlined his reasons for his conclusion that it was proper in all of the circumstances to make the order sought by police. He said,

I have already indicated that the cigarette butt was not obtained as a result of any illegality or impropriety by the police and so, on balance, I find that there are reasonable grounds to believe that the suspect has committed an offence and I am satisfied that there are reasonable grounds to believe that the evidence to be obtained from a forensic procedure might produce evidence tending to confirm or disprove that the suspect has committed the offences of robbery and sexual assault without consent.

Finally, I am satisfied that, for the reasons I have already outlined, that the carrying out of the forensic procedure sought, which is the buccal swab, which is a non-intimate forensic procedure, that it is justified in all of the circumstances.

The Appeal to this Court

36. The decision made in the Children’s Court on 29 March 2018 was a final order with respect to the forensic procedure application, and an interlocutory order in the criminal proceedings against the plaintiff pending in that court.

37. The application to this Court is brought pursuant to ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”).

38. Section 52(1) of the CAR Act provides for an appeal as of right against a sentence imposed by the Local Court, but only on a ground that involves a question of law alone. For the purposes of this provision, s 115A(1) of the FP Act provides that an appeal against an order made by a Magistrate authorising the carrying out of a forensic procedure on a person may be made to the Supreme Court as if the order were a sentence.

39. Section 53(3)(b) of the CAR Act provides for an appeal to the Supreme Court, by leave, against an interlocutory order on a ground that involves a question of law alone.

40. Section 3 of the CAR Act defines “Local Court” as including the Children’s Court.

41. Appeal proceedings were initially commenced by the plaintiff by summons filed on 21 August 2018. An Amended Summons was filed on 25 October 2018 and 1 November 2018. It was the Amended Summons which was listed for hearing before this Court on 9 May 2019. By Notice of Motion filed on 29 April 2019, the plaintiff sought leave to file a Further Amended Summons. The Motion was also listed for hearing on 9 May 2019.

42. The Amended Summons filed by the plaintiff sought the following orders:

1. Time for filing the appeal be extended

2. Appeal allowed

3. Order of the court below refusing leave to cross examine a witness be set aside.

4. Order of the court below granting the forensic procedure application be set aside.

5. Leave be granted to appeal a mixed question of fact and law: s 53 Crimes (Appeal and Review) Act 2001.

6. Forensic sample taken as a consequence of the stop and search on 9 November 2017 be destroyed

7. Forensic samples taken as a consequence of the order be destroyed

8. That the second defendant pay the plaintiff’s costs.

43. The following grounds of appeal were advanced:

1. “The Magistrate erred in refusing leave for the Plaintiff to cross examine a police witness, Sen Con Boys: s 30(6),(7) Crimes (Forensic Procedures) Act 2000, in particular:

1. The Magistrate misconstrued the test to be satisfied before granting leave for a witness to be called for cross-examination;

2. The Magistrate took into account irrelevant considerations.

2. The Magistrate erred in finding that Sen Con Boys had validly exercised a LEPRA power to stop and search the Plaintiff on 9 November 2017: s 21 Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”).

3. In the alternative, that Sen Con Boys exercised his power to stop and search the Plaintiff unlawfully. [This ground is not pressed.]

4. The Magistrate erred in finding that, even if he were wrong in finding the police had validly exercised a LEPRA power, that he would have exercised his discretion to permit the evidence obtained as a result of the stop and search to be adduced on the application: s 138 Evidence Act 1995.

5. The Magistrate erred in granting the application, by the defendant, for a forensic procedure to be carried out on the plaintiff.”

44. The Further Amended Summons that, by his Notice of Motion the plaintiff sought leave to file, would have added an additional order to the orders sought, and an additional ground of appeal. The additional proposed order, being order 1A, was:

Leave be granted to appeal the interlocutory decision by the third defendant to refuse leave to cross-examine Sen Constable Boys.

45. The additional ground, being proposed ground 3A, was:

The Magistrate erred at law in finding that, in order to prove causation, the search of the plaintiff had to be the only cause of the obtaining of the cigarette butt.

Ground 1 of the Amended Summons

46. By this ground the plaintiff contends that, in determining that the statutory test for a grant of leave to cross-examine a witness had not been met, the Magistrate applied the incorrect test and took into account irrelevant considerations. Three asserted errors are particularised

47. Section 30 of the FP Act relevantly provides:

30   Procedure at hearing of application for order

(1)  An order may be made in the presence of the suspect concerned or, at the discretion of the Magistrate, ex parte.

(2)  […]

(3)  […]

(4)  […]

(5)  Any other suspect (including a suspect covered by subsection (2)) may be represented by an Australian legal practitioner.

(6)  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 witness, and

(c)  may address the Magistrate.

(7)  A Magistrate must not give leave under subsection (6) (b) unless 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.

(8)  […].

48. By reference to the Magistrate’s written reasons the plaintiff argues that his Honour incorrectly required the plaintiff to meet a test higher than that provided by s 30(7) of the FP Act (the first asserted error). The impugned section of the reasons is at [23], that being the penultimate paragraph of the written judgment, where his Honour said:

In my opinion there is nothing extraordinary about these circumstances giving rise to a conclusion that there are substantial reasons to grant leave for Sen. Con. Boys to be cross-examined.

49. The plaintiff submitted that there is an appreciable difference in the meaning between the phrases “substantial reasons” and “extraordinary circumstances”, the latter being far more stringent, and referred the Court to the 9th edition of the Concise Oxford English Dictionary to make good that contention.

50. The second asserted error relies upon the absence of any specific reference in the written reasons to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Section 21 is in these terms:

21   Power to search persons and seize and detain things without warrant

(1)  A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

(a)  the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b)  the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c)  the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(d)  the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

(2)  A police officer may seize and detain:

(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

(c)  any dangerous article, and

(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

found as a result of a search under this section.

51. The plaintiff contends that, because the Magistrate did not give explicit consideration to those matters referred to in s 21(1)(a), he necessarily failed to turn his mind to the basis of the power to stop and search, and whether S/C suspected on reasonable grounds that any of the circumstances set out at ss (1)(a) to (1)(d) existed.

52. The third asserted error particularised relevant to this ground relies upon his Honour’s reference in his written reasons to the line of authority that, as a general proposition, supports the legality of the covert recovery of DNA in certain circumstances. Referring to that practice, his Honour said, at [22],

Such a practice has been considered for well over a decade by the superior courts of this State, and that practice has not been found to be inappropriate, improper or illegal.

53. The plaintiff submits that, in taking into account the fact that other covertly obtained DNA samples had been held by the courts to be legally obtained, his Honour had regard to an irrelevant consideration, giving rise, in his contention, to

[…] the distinct impression that the learned Magistrate refused to grant the application to cross-examine the police officer because he found that the practice of taking covert DNA samples was not extraordinary (written submissions at [64]).

Ground 2 of the Amended Summons

54. The second ground is one already raised to a degree by the second asserted error of ground 1. The plaintiff complains that the Magistrate erred in finding that the search of the plaintiff was lawful, as he failed to determine whether S/C Boys had validly exercised the power to stop and search the plaintiff on 9 November 2017 that is provided by s 21 of LEPRA.

55. It is argued that, as the Magistrate did not set out the terms of ss 20 and 21 of LEPRA, or record his conclusions as to the basis for S/C Boys to have reasonable grounds for the suspicion referred to in s 21, his Honour misunderstood the nature of the statutory test, and failed to properly determine the validity of the exercise of the power to stop and search. Had he done so, it is argued, he should have concluded that there was no basis for a lawful search, and thus that the cigarette butt was illegally obtained.

Ground 4 of the Amended Summons

56. This ground relates to the reference in the ex tempore reasons for the making of the forensic procedure order to the operation of s 138 of the Evidence Act, and the Magistrate’s conclusion that, even had he found that the search of the plaintiff was unlawful, he would have admitted the evidence of the cigarette butt in any event. In coming to that conclusion his Honour had regard to the probative value of the evidence, the serious nature of the offences alleged against the plaintiff, the limited nature of any impropriety in the search, and the desirability of admitting the evidence.

57. The plaintiff contends that the Magistrate failed to consider a number of features that were of direct relevance to the exercise of the discretion to admit improperly obtained evidence, and thus that the discretion miscarried. It is argued that his Honour did not have regard to the operation of s 21 of LEPRA when assessing the extent of the impropriety or illegality involved in the search; that he did not consider the plaintiff’s age in determining the gravity of any breach of law; that he did not refer to Schedule 1 to the Australian Human Rights Commission Act 1986 (Cth), being the International Covenant on Civil and Political Rights in reaching his decision; and that he did not consider the prospect of the plaintiff commencing civil proceedings against the police (such as for assault and battery) following the unlawful detention of him on 9 November 2017.

Ground 5 of the Amended Summons

58. Ground 5 asserts error in the decision of the Magistrate to grant the police application for a forensic procedure, and is dependent upon the other grounds being made good. No separate error is particularised.

Determination

A Preliminary Question: What Constitutes the Magistrate’s Judgment?

59. As noted above, in the course of giving judgment and making orders on 29 March 2018 the Magistrate gave reasons in stages. He initially gave the parties access to his written judgment on the question of the grant of leave to cross-examine S/C Boys; then, having been asked by the plaintiff to consider a further authority on that question, his Honour gave some short oral reasons concerning the s 30(6)(b) FP Act application; and finally, having heard submissions from the parties on the question of whether an order pursuant to s 24 of the FP Act should be made, an ex tempore judgment was given.

60. At the hearing before me counsel for the plaintiff argued that, with respect to the s 30(6)(b) application, only the Magistrate’s written reasons constituted his Honour’s judgment, the additional oral reasons not forming part of it.

61. It is submitted that the oral reasons delivered after his Honour had considered the decision of Black v R provided to him on the morning of 29 March 2018 were not properly given in the exercise of judicial power, and should be disregarded as “additional improper reasons”, particularly so in that they contained a substantive additional finding of fact as to S/C Boys having a sufficient reason to search the plaintiff. The Court was referred to Tre Cavalli Pty Ltd v Berry Rural Co-Operative Society Ltd [2013] NSWCA 235 per Gleeson JA, McColl and Leeming JJA agreeing, at [54] – [57] in support of that contention.

62. The First and Second Defendants argue that the whole of the reasons given by the Magistrate, both oral and in writing, constitutes the reasons of the court for refusing the grant of leave to cross-examine S/C Boys. Counsel for the defendants referred to the obligation on a court to provide adequate reasons so as to facilitate an aggrieved litigant’s access to an appellate court, and to enable parties to understand the basis of the decision.

63. In determining the plaintiff’s appeal to this Court, and specifically ground 1, to which it directly relates, I have had regard to both the written and oral reasons delivered by the Magistrate concerning the refusal to grant leave to cross-examine S/C Boys. Whilst it may be accepted that it is not open to a court to extensively revise reasons after their delivery and the pronouncement of orders such as to alter their substance, the situation with which Tre Cavalli was concerned, that is not what occurred in this instance.

64. The authorities to which the plaintiff referred the Court, being Tre Cavalli, Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419; Bell v Veigel [2008] NSWCA 36; and Bar-Mordecai v Rotman& Ors [2000] NSWCA 123 are of no direct application in the circumstances of this case which is not, in my opinion, one of revision, addition, or correction of a finalised judgment. Tre Cavalli, by way of example, considered the propriety of the addition to ex tempore reasons of eight pages of written reasons delivered nineteen days after the oral judgment. This is not that case.

65. Here, his Honour had prepared written reasons ready to publish to the parties on refusing leave to permit the cross-examination of a witness. Prior to delivering the reasons, or making the order, his Honour was asked by the plaintiff to consider an additional authority, of Black v R, as relevant to and supportive of the plaintiff’s application. In that context, and without having read Black v R to that point, his Honour said,

[…] I’ve now prepared a written judgment […] I’ve got a copy of the judgment for the prosecution and for Mr Etkind. What I’m proposing is, seeing that there are other matters in the list, I will give you an opportunity to go away and read that. The conclusion is, in my view, that Mr Etkind has not met the test that there are substantial reasons for the court to give leave to cross-examine Senior Constable Boise [sic] and the reasons for that are set out towards the end of that judgment. […]

I’ll need to now, and I’ll do it now, is give some – well, address this case that Mr Etkind has raised this morning, the case of Black v R, which is a decision of the District Court dealing with an appeal from the Local Court. Having read that [….]

66. His Honour then continued, setting out the “thrust” of Black v R, being its discussion of unlawful arrest and unlawful search; the question of what is required for a search to be lawful under LEPRA; and making a brief comparison of the facts in Black v R and in the present matter. He concluded,

If there had been an unlawful arrest, then obviously everything flowing from that, including a search, would be subject to be rejected by the Court. That’s not the case here. I think the material contained in Boise’s [sic] statement is sufficient to have enabled him to form the reasonable suspicion that led him to searching the young person, during the course of which he discarded the cigarette butt which then became the subject of the current proceedings.

67. His Honour then pronounced orders, being “I’ve rejected the application for leave and that’s where we’re at in the proceedings”.

68. The only reasonable conclusion on the basis of the transcript of the proceedings of 29 March 2018 is that the reasons for that order were given partly in writing and partly orally. His Honour, having prepared but not published or delivered written reasons, was asked by the plaintiff to, in effect, hear from him again in support of the application. Having given the plaintiff that indulgence, and received and considered the authority upon which he wished to rely, his Honour gave the parties his written reasons, supplemented by oral reasons which addressed the additional material the plaintiff had asked his Honour to consider. Had he ignored the authority he had been given that morning, provided the pre-prepared written reasons to the parties and said nothing about Black v R, doubtless the failure to take it into account would have been pointed out in these proceedings as an error.

69. The Magistrate did no more than accede to the plaintiff’s request to consider further authority, and thereafter included a discussion of it in his oral reasons. Because of the unexpected request to him to consider additional material, his Honour had to be flexible in the delivery of his reasons, which were a “practical working document”. An extract from Liberty Investments Pty Limited v Sakatik Pty Limited (unreported, New South Wales Court of Appeal, 30 August 1996) given at [38] in Todorovic v Moussa is not inapposite:

In deciding what reasons are to be given and to be given under pain of being found guilty of an error of law, it is in my respectful opinion proper that the law have regard to reality and not to concepts. The law is not a game. It is not an academic exercise in which the Judge is required by way of a schematic statement of the dispute to itemise exclusively or to exhaustion all of the points which may be of relevance in relation to the case. A judgment is a practical working document.

70. It is hardly fair for a litigant to ask a judicial officer to receive and consider additional material, after submissions have closed, and then to criticise him or her for expanding upon reasons already written to take into account the newly provided information.

71. There is no rational basis upon which to exclude the orally delivered reasons as a legitimate part of the judgment given on 29 March 2018 as to the question of leave to cross-examine a witness, and I have had regard to both written and oral reasons in determining this matter.

Ground 1

72. Applications for the carrying out of a forensic procedure are governed by Part 5 of the FP Act. Section 30 regulates the procedure at hearing of an application for an order, and ss 30(6) and 30(7), extracted above at [47], set out the requirements for the cross-examination of a witness.

73. The plaintiff complains that, in determining his s 30(6) application, the Magistrate applied a more difficult test than that provided by statute, failed to have regard to the lawfulness of the search pursuant to s 21 of LEPRA, and had regard to an irrelevant consideration, being the conclusion of other courts on other occasions that covertly obtained DNA was not unlawfully obtained.

74. Whilst these asserted errors are errors of law if made out, and are amenable to appeal as of right, the plaintiff has overlooked or ignored the fact that, as the first and second defendants submitted, the decision of the Magistrate was underpinned by a finding of fact, not amenable to appellate review without leave.

75. Critical to his Honour’s determination of the application for leave to cross-examine S/C Boys was his finding of fact that the cigarette butt had been discarded by the plaintiff, coincidental to rather than as a product of or related to, the search conducted by police.

76. His Honour said, at [22] of the written reasons,

After an interaction with the young person, when Boys established his identity and exercised his power to search the young person, the young person then discarded the cigarette he had been smoking. [Emphasis added.]

77. In the oral reasons, having considered Black v R, his Honour restated that finding, referring (at AB 47:10) to the plaintiff discarding the cigarette butt during the course of the search. That is, the Magistrate held as a conclusion of fact based upon the evidence that the plaintiff had disposed of his cigarette butt, by flicking it to the ground, without any conduct by police officers that caused him to do so.

78. That this was his Honour’s factual finding is made even more plain by the reasons given ex tempore when the s 24 FP Act order was made. There, the Magistrate said that he was not satisfied that the cigarette butt was discarded because of the search, the act of discarding it being a “voluntary act by the accused”.

79. If, as his Honour found, the plaintiff disposed of the remains of his cigarette by flicking it to the ground, unconnected with the search that was about to be conducted of him, the question of the legality or otherwise of the search was wholly irrelevant to the plaintiff’s application to cross-examine S/C Boys, and to the police application for a forensic procedure order.

80. As I read the evidence, that finding of fact was entirely open to the Magistrate. The plaintiff had been smoking the cigarette when he was first observed by police walking in Eucalyptus Drive at Macquarie Fields. He continued to smoke it, or it continued to burn, during the time it took the police to turn the police car about, stop it, speak to the plaintiff and obtain his details, conduct a check on him and his address via police radio, and inform him that he was going to be searched. As a matter of common sense, the cigarette must have been at its end. What the plaintiff then did with it was a matter for him, undirected by anything said or done by the police officers.

77. The plaintiff could have held the cigarette and allowed it to continue to burn, if he was prepared to burn his fingers along with it. He could have put it down and left it to burn. He could have extinguished the cigarette but retained possession of the butt in his hand. He could have extinguished the cigarette, put it on the ground whilst he was searched, and then collected it to take with him, or to dispose of it properly in a garbage bin. There were a number of options available to him. It was well open to the Magistrate to conclude that the plaintiff discarded the cigarette by flicking it to the ground on a public footpath, in the ordinary course, and not as a consequence of, or connected with, the search of his person that followed.

78. That being the factual conclusion reached by the Children’s Court, the three errors of law advanced by the plaintiff in support of this ground fall away. For completeness, however, I have considered each and I am not satisfied that any of the three errors are made out.

79. Whilst his Honour used the phrase “nothing extraordinary about these circumstances”, only by isolating the phrase from the whole, and taking it out of the context of the reasons as a whole, can error be argued for. It is important when considering a court’s reasons for the orders made by it to consider the whole of the reasons, rather than to select a word or phrase in isolation and attribute meaning to that word or phrase taken out of its overall context.

80. Although the phrase used by his Honour might be regarded by itself as infelicitous, it is clear from the whole of the judgment that it was no more than that. At the commencement of the written reasons the Magistrate set out the terms of s 30(6) and (7), adding an emphasis not in the original to the phrases “with the leave of the Magistrate, call or cross-examine any other witness”, “substantial reasons” and “in the interests of justice”.

81. Having summarised the evidence led in support of the application for a forensic procedure, his Honour again referred to the statutory test, noting at [17],

Mr Etkind conceded that the test for leave being given to cross-examine Sen Const. Boys required him to establish that there are substantial reasons why, in the interests of justice, the witness should be cross-examined (s30(7)).

86. His Honour then correctly recorded the plaintiff’s arguments as to why there were substantial reasons why, in the interests of justice, leave should be granted to cross-examine the witness.

87. His conclusion, at [24], was to refer again to the “test” required to be met for the leave contemplated by s 30(6) to be granted.

88. In making the written reasons available to the parties his Honour said,

The conclusion is, in my view, that Mr Etkind has not met the test that there are substantial reasons for the court to give leave to cross-examine Senior Constable Boise [sic] and the reasons for that are set out towards the end of that judgment. […]

89. It is clear that the Magistrate was well aware of the statutory requirement for it to be established that there were substantial reasons why in the interests of justice leave should be granted to permit the cross-examination of a witness. His use of everyday words not expressive of the test in the course of his judgment is not sufficient to demonstrate that he applied an incorrect test. Taking the impugned phrase in its overall context, there was no error. The first error is not made out.

90. The second asserted error cannot be made out in circumstances where his Honour concluded that the cigarette butt was voluntarily thrown away by the plaintiff. Because of that conclusion, it was entirely unnecessary for the Magistrate to have regard in any detailed way, or at all, to s 20 and s 21 of LEPRA. That he did not specifically refer to the provision may be because neither of the parties made reference to it in submissions to the court. His Honour can hardly be reasonably criticised for not considering the operation and effect of s 21 when he was never asked to do so and it was of no direct relevance, having regard to the facts as he found them to be.

91. The Magistrate did however, make observations relevant to the lawfulness of the search, referring to the evidence of S/C Boys in which the officer referred to the features of the plaintiff’s conduct that had caused him to hold suspicions about him. They included his evasive demeanour; the fact that [in November] he was wearing a hooded jumper with the hood obscuring his face; that he turned around and walked in the opposite direction when the police car performed a U-turn; that he provided a false address; and that he appeared drug-affected. It was open to conclude that the combination of these features gave rise to a suspicion based on reasonable grounds that the plaintiff had in his possession (at least) a prohibited drug, contrary to the Drug Misuse and Trafficking Act 1985 (NSW) (s 21(1)(d) LEPRA).

92. The third asserted error complains that the Magistrate wrongly took into account an irrelevant feature, that in other cases where DNA samples had been obtained covertly, the evidence was not found to have been illegally obtained.

93. His Honour’s reference to other cases was prompted by the provision to him of a number of decisions by the plaintiff. In the course of argument the plaintiff provided the Magistrate with the decisions of R v Kane (2004) 144 A Crim R 496; [2004] NSWCCA 78, R v Nicola [2002] NSWCCA 63, and R v Daley [2001] NSWSC 1211. His Honour also had regard to the decision of R v White [2005] NSWSC 60, a decision of Studdert J which his Honour told the parties he had found in his own researches.

94. Those decisions serve to emphasise the admissibility of forensic evidence where it has been obtained without “reference to or interference with the person”. That was what was held by Sully J at [13] of R v Kane, wherein it was said (with the agreement of Studdert and Dunford JJ),

A careful examination of the s 3 definitions earlier herein quoted shows, in my opinion, that what is contemplated by the notion of a forensic procedure, whether intimate or non-intimate, is that it is a procedure actually carried out on the person of some specific individual. The chance circumstance that a person throws away, relevantly, a cigarette butt which is retrieved without any reference to, or interference with the person, and which turns out to have significant probative value in terms of what it says about the relevant DNA profile, does not seem to me to satisfy, either in principle or in practice, either in law or in fact, what is contemplated by the Crimes (Forensic Procedures) Act 2000.

95. Since the plaintiff’s submissions in the Children’s Court referenced Kane, Nicola, and Davey heavily, arguably there would have been error in the Magistrate failing to give attention to them. In any event, there is no error in a judicial officer referring to authoritative decisions to assist him or her in understanding the relevant law, and applying it to the facts of the case at hand.

96. That his Honour undertook the latter task is demonstrated by the conclusions he reached in finding that the cigarette butt was discarded by the plaintiff without any causal or other relevant intervention by police.

97. This asserted error is without substance.

98. The first ground cannot be made good. Since it is not a ground that rests wholly on a question of law, leave is required. I would not grant that leave.

Ground 2

99. This ground rests upon the same argument, and the same misconception, as the second error raised in support of ground 1. For the same reasons, it must fail. I would not grant leave to advance it.

Ground 4

100. By this ground the plaintiff points to a number of features that resulted in error by the Magistrate in considering the exercise of the discretion pursuant to s 138 of the Evidence Act to admit the evidence of the cigarette butt, even if that evidence had been improperly obtained.

101. The defendants concede that his Honour erred in an aspect of the application of the section, by failing to have regard to whether any impropriety was in contravention of the International Covenant on Civil and Political Rights. However, it is contended that it is an error of no significance, since the s 138 exercise was one which there was no need to undertake.

102. I accept that submission.

103. His Honour made a finding of fact, entirely open to him on the evidence, that the plaintiff discarded the cigarette butt without any causal or relevant interference by the police officers. That factual conclusion is not the subject of any challenge by the plaintiff and, in any event, it cannot be challenged without the leave of this Court.

104. Since there is no finding of error in his Honour’s factual finding, the weighing exercise his Honour was induced by the parties to undertake, to consider whether the evidence of the cigarette butt should have been admitted if its collection was in fact in breach of some rule of law or propriety, was entirely unnecessary. Whether or not his Honour properly applied the section was irrelevant to the outcome in the Children’s Court.

105. Since this ground of appeal, like grounds 1 and 2, rests in part upon a factual finding, leave is required to argue it. I would not grant that leave.

Ground 5

106. This ground rests entirely upon the success of grounds 1, 2 and 4. It cannot be made good in the face of the failure of those grounds.

The Question of Leave

107. In that the individual grounds raised questions of, at best, mixed law and fact, the leave of the Court was required to advance them: s 53 CAR Act.

108. The appeal overall was filed well out of time, and leave is also required on that basis. Since the matter relates to proceedings for serious offences in the Children’s Court, and it has been necessary to consider the merits of each ground to determine whether any was meritorious, leave is granted. The Amended Summons must, however, be dismissed, since no material error has been established.

The Notice of Motion

109. On 29 April 2019, just days before the hearing of the appeal proceedings, the plaintiff filed a Motion seeking leave to file a Further Amended Summons, as noted at [44] – [45] above. The proposed Further Amended Summons sought an additional order granting leave to appeal the interlocutory decision by the third defendant to refuse leave to cross-examine Sen Constable Boys. A further additional ground was proposed, being a contention that the Magistrate erred in law “in finding that, in order to prove causation, the search of the plaintiff had to be the only cause of the obtaining of the cigarette butt”.

110. The order of 10 May 2019 to refuse leave to file the Further Amended Summons and dismiss the Notice of Motion was based principally on three features of the matter: the absence of merit in the proposed ground, the serious delay in seeking to advance it, and the prejudice potentially occasioned to the defendants in permitting the plaintiff to add a ground of appeal, and seek a further order.

111. I have already considered the merits attaching to the complaints associated with the Magistrate’s refusal of leave to cross-examine S/C Boys, and determined that there was no error in the decision made by the Magistrate. That being the case, little or nothing was to be served in allowing the plaintiff to advance a slightly different ground of appeal, differently nuanced to call upon the avenue of appellate review provided by s 53 of the CAR Act.

112. The serious delay in seeking the proposed order and raising the further ground was also a material consideration: it must be recalled that this appeal relates to orders made on 29 March 2018 referable to the prosecution of offences alleged to have been committed on 31 December 2016. Although delay is a feature of limited significance where an appeal is meritorious, I do not regard the further ground and order as such.

113. Finally, there was some unfairness to the first and second defendants in granting leave to file the Further Amended Summons, in that they had arguably had inadequate time to consider its contents and, it appeared, the plaintiff only sought leave to file the further amendments after receiving the written submissions filed and served by the defendants as to the Amended Summons, some of the content of which prompted the plaintiff to reconsider his position.

Conclusion

114. In all of the circumstances the orders set out above at [2] were made.

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Amendments

12 June 2019 - A change of date from 29 March 2017 to 29 March 2018 - the dates referred to in paragraphs 59, 61, 68 and 71.

12 June 2019 - Citation removed from Decision under Appeal section of coversheet.

Decision last updated: 12 June 2019