Helen Maguire v Jason Beaton

[2005] NSWSC 1241

Reported Decision: 162 A Crim R 21

New South Wales

Supreme Court

CITATION:	Helen Maguire v Jason Beaton [2005] NSWSC 1241
HEARING DATE(S):	9 May 2005
JUDGMENT DATE :	11 May 2005
JUDGMENT OF:	Latham J
DECISION:	Declaration that the Magistrate erred in law in making an order providing for a non-intimate forensic procedure, namely the taking of the plaintiff’s fingerprints and palm prints; The order made by the Magistrate is set aside; Declaration that insufficient evidence exists to allow for the making of an order pursuant to s 24 of the Crimes (Forensic Procedures) Act against the plaintiff; The respondent's undertaking that the plaintiff’s costs of this application will be met is noted.

CATCHWORDS:	Non-intimate forensic procedure - whether plaintiff a "suspect" - reasonable grounds for suspicion.
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 Crimes (Local Courts Appeal and Review) Act 2001
CASES CITED:	Regina v Rondo [2001] NSW CCA 540 Orban v Bayliss (2004) NSW SC 428
PARTIES:	Plaintiff - Helen Maguire Defendant - Jason Beaton
FILE NUMBER(S):	SC 10051/04
COUNSEL:	Plaintiff - R Wilson Defendant - H Bell

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

LATHAM J

11 MAY 2005

10051/04 HELEN MAGUIRE v JASON BEATON

JUDGMENT

1 LATHAM J: By amended summons filed in court on 10 May 2005 the plaintiff seeks a declaration that the Magistrate erred in law in making an order for a non-intimate forensic procedure, namely, the taking of the plaintiff’s fingerprints and palm prints and an order setting aside the order of the Magistrate.

2 The plaintiff further seeks a declaration that insufficient evidence exists to allow for the making of such an order pursuant to section 24 of the Crimes (Forensic Procedures) Act 2000. In the alternative the plaintiff seeks an order remitting the matter to the Magistrate for determination in accordance with a direction from this Court.

3 Further, or in the alternative, the plaintiff seeks leave to appeal against the order on the grounds that the Magistrate erred in fact or erred on a question of mixed fact and law.

4 The provisions of the Crimes (Forensic Procedures) Act, (hereinafter referred to as the Act) which are relevant to this matter are set out below:

“suspect” relevantly means:
“A person whom a police officer suspects on reasonable grounds has committed an offence.”

22 Forensic procedure may be carried out by order of Magistrate or other authorised justice

A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised justice under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.

23 Circumstances in which Magistrate or other authorised justice may order forensic procedure

An order may be made by a Magistrate under section 24, or by an authorised justice under section 32, for the carrying out of a forensic procedure on a suspect if:

(a) the suspect is not under arrest
and has not consented to the
forensic procedure.
...

24 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 23 applies, and

(b) The Magistrate is satisfied as
required by section 25.

25 Matters to be considered by Magistrate before ordering forensic procedure

The Magistrate must be satisfied that:

(a) the person on whom the procedure is
proposed to be carried out is a
suspect, and
...

(c) if the forensic procedure concerned
is a non-intimate forensic procedure
other than the taking of a sample of
hair other than pubic hair, on the
evidence before the Magistrate,
there are reasonable grounds to believe that the suspect committed

(i) an indictable or a summary
offence, or

(ii) another indictable or summary offence
arising out of the same circumstance
as that offence,
or

(iii) another indictable or summary offence in respect of which
evidence likely to be obtained
as a result of carrying out the
procedure on the suspect is
likely to have probative value
and
...

(f) there are reasonable ground to believe
that the forensic procedure might
produce evidence tending to confirm
or disprove that the suspect committed
the relevant offence, and

(g) the carrying out of the forensic
procedure is justified in all the
circumstances.”

5 I turn to the facts of the matter. The circumstances giving rise to the order are set out in the course of his Honour’s reasons. The relevant facts that are not in issue appear at pp 3-4 of the transcript of 21 December 2004:

“On Wednesday 24 September 2003, police made observations of the premises located at 59 Birriwa Street, Greystanes. Whilst police were observing the residential premises motor vehicle VTT-293 arrived. A short time later two males have left the garage of the premises carrying a box and a milk crate containing items. These items were then placed into the boot of motor vehicle VTT-293.

Inquiries at the scene by police revealed the vehicle was currently unregistered. A short time later the vehicle left the premises, a male person driving the vehicle and the plaintiff’s son, Anthony Maguire, seated in the front passenger’s seat.

Police followed the vehicle on to the Cumberland Highway where it made a sharp turn to the left on to the Great Western Highway. A short time later the vehicle has turned into Millers Storage located at 409 Great Western Highway, Wentworthville. Police have stopped the vehicle and spoken to the driver and to Anthony Maguire. The driver gave police permission to search the vehicle. Located in the boot of the vehicle was a box and a milk crate containing a number of beakers similar to those used in the manufacture of prohibited drugs.

Anthony Maguire stated that he owned the property and used it to brew alcohol. Also located on the person of Anthony Maguire were a number of sets of keys. Anthony Maguire was placed under arrest, and taken to Merrylands police station where he was entered into custody.

...

At 8.55 p.m. police executed a search warrant at locker 84A Millers Storage, 409 Great Western Highway at Wentworthville. Entry was gained to the locker and a search took place. Police discovered that one of the keys seized from Anthony Maguire unlocked the padlock fitted to the door of locker 84A. Inside the locker police located two long rifles and a small Beretta pistol with a magazine clip containing four live rounds. Police located a number of carry bags containing plastic bags and paper bags, containing a large number of pseudoephedrine based blister tablet packets, including such brands as Sudafed, Actifed, Demazine, Logicin and Decongester. Also located were a number of plastic resealable bags containing a large number of tablets of similar description.”

6 The quantity of pseudoephedrine based tablets located in the storage shed, combined with the scientific glassware located in the possession of Anthony Maguire, indicated to police that Anthony Maguire possessed the precursor, namely pseudoephedrine, with the intention to manufacture a prohibited drug either by himself or with another person. Police estimate that there were approximately 26,285 tablets containing pseudoephedrine. At the time the search warrant was executed at locker 84A Miller Storage a large quantity of tools and other items reasonably suspected of being stolen were also seized.

7 During the execution of the search warrant on the offices of Millers Storage, documents relating to the lease of locker 84A in the name of the plaintiff, Helen Maguire, including documents authorising Anthony Maguire to access locker 85 were seized. Police also executed a search warrant at the plaintiff’s work premises, which revealed nothing of relevance.

8 Thirty-four fingerprints were subsequently isolated on a number of items found in locker 84A; five of those thirty-four prints were later identified as belonging to Anthony Maguire and one Dean Guppy. The remaining twenty-nine prints were unidentified.

9 Under s 115A(1) of the Act an appeal lies to this court against an order under s 24 pursuant to Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001, as if the order were a sentence. By the operation of this provision and ss 52(1) and 53 of the Crimes (Local Courts Appeal and Review) Act the plaintiff has an appeal as of right on a question of law and an appeal on a question of mixed law and fact only by leave of the court.

10 The plaintiff’s appeal principally attacks the Magistrate’s determination that the plaintiff came within the definition of “suspect” for the purposes of s 25(a) of the Act and the Magistrate’s determination that there were reasonable grounds to believe that the suspect had committed an offence for the purposes of s 25(c). Only one of these alleged errors of law needs to be made out for the plaintiff to succeed on this appeal. For the reasons which appear below I am of the view that the Magistrate could not have been satisfied as a matter of law that the plaintiff was a suspect. There is therefore no necessity to consider the remaining limbs of the plaintiff’s argument although it follows that the absence of reasonable grounds to suspect the plaintiff infects the belief required under s 25(c) of the Act.

11 Evidence was given before the Magistrate in the form of a statement by Derrick Foot of Millers Storage. The effect of that evidence was that an access code in the form of a PIN number was supplied to the lessee of each locker. That access code allowed vehicles to enter the premises through a boom gate. Once inside the premises the lessee of the unit was responsible for the supply of padlocks for the security of the individual unit. Further, the unit holder was able to authorise other named people to access the premises. Millers Storage did not verify if people seeking access to the unit were authorised so to do unless those persons attended the office before proceeding to the unit. Attendance at the office was not necessary if entry to the premises was gained via the boom gate. During the relevant period, being between February 2003 and September 2003 the rent for unit 84A was paid in cash. No record was available as to the identity of the person making those cash payments. There was no evidence of anyone resembling the plaintiff ever having attended Millers Storage, nor could the plaintiff be identified from surveillance footage at the premises. The plaintiff has no criminal record, she is a woman in her late fifties who has been employed for some time as a hairdresser at a hospital and she exhibited no trappings of unexplained wealth.

12 The plaintiff declined to be interviewed. The evidence before the Magistrate on the issue of the basis for the order amounted to a suspicion on the part of police that the plaintiff had leased unit 84A and had supplied an authority to her son to enter the unit, where the various items were located.

13 In that regard it is apposite to refer to the evidence given before his Honour at p 14 of the transcript of 20 December 2004. The following questions were asked of the police officer deposing to the relevant suspicion:

“Q. Your suspicion that she’s the one who rented the unit and gave her son access, that’s as far as your suspicions go before they became mere speculation, do you agree with that?
A. I wasn’t in a position to confirm that she leased the unit any more than I have at the moment. As I said Mrs Maguire chose not to make a comment in relation to that. So I couldn’t put to her in relation to leasing the unit or the contents of the unit as I’d been informed that she wasn’t going to make a comment about that.

Q. But what I’m suggesting to you is that what you think might be the case, apart from the mere fact of her renting the unit and letting her son use it, is, after that point its speculation that she may or may not have had some further involvement or knowledge?
A. My suspicion is on the - she’s leased the unit and she’s given authority to her son to be the only person other than her to enter that unit.

Q. Yes.
A. And that those goods were then located in the unit that she’s leased, that’s where my suspicion lay.”

14 There was no evidence of police inquiries to ascertain whether any of the personal details such as licence number, address, home phone number or mobile number, set out on the documents seized in the offices of Millers Storage in fact related to the plaintiff. No key to the unit 84A was found in the plaintiff’s possession and nothing located within unit 84A could be said to belong to the plaintiff. No evidence was given of any attempt to verify that the signature appearing on the lease document is in fact the plaintiff’s signature.

15 I go now to the Magistrate’s reasons for the order. Bearing the state of the evidence in mind it is pertinent to note the Magistrate’s reasons recorded in the transcript of 21 December 2004 at pp 5-8, commencing at p 5:

“It was discovered that Mrs Helen Maguire took out rental of the relevant premises and that document was tendered yesterday in evidence and on the rental documents themselves she indicated the following:

‘I Mrs Helen Maguire have storage
space 84 at Millers Self Storage,
Wentworthville and acknowledge that my
access code and its security is my
responsibility ...’

She also signed another document, ‘Helen Maguire who has rented storage space gives authority to the following persons as their agent to enter the storage space on their behalf. This authority must bear the storer’s signature, signed by, it appears, Mrs Helen Maguire, 23 February 2003’. The person she has nominated as the agent authorised is Anthony Maguire.

...

It was indicated that the person on whom the procedure was proposed to be carried out is a suspected person [this aspect of the Magistrate’s reasons refers to the affidavit in support of the application seeking the relevant order)]

...

Since Helen Maguire is the lease holder of the storage unit police need her to obtain a set of fingerprints for comparison to the fingerprints obtained from exhibits inside the storage unit.

...

The definition of a suspect is mentioned in ‘definition’ section of the Act which is s 3 and ‘suspect” means the following:

‘(a) A person whom a police officer
suspects on reasonable grounds
has committed an offence’.

...

It is the first aspect of that, that obviously applies to Mrs Maguire, a person whom police suspect on reasonable grounds has committed an offence.

...

To summarise things in very broad terms, Mrs Maguire in the instant case has taken out rental premises. She is the lease holder so to speak. She has the control over the premises and has authorised her son to have virtually unlimited access to those premises but nonetheless she exercised dominion over the premises as being the lease holder, the one that has the legal relationship as it were with the owner of the premises.

...

She has exercised her right to remain silent. Therefore she has not, I suppose, afforded an opportunity where a more full assessment may be made of the situation. She is entitled to say nothing of course to the police, but in so doing of course there is insufficient, sort of, material, I suppose, to make a complete assessment of the situation. And the police would like the opportunity to see whether in fact she may be implicated any more, in these very, very serious matters that they allude to. Hence the present application before the court.

...

In my view she certainly satisfies the definition of a suspect, namely a person whom a police officer could suspect on reasonable grounds as committing an offence.”

16 Two things emerge clearly from the Magistrate’s reasons, to which I have just referred. First, at no stage did the Magistrate articulate the basis on which he was satisfied that the plaintiff was a suspect; that is whether the Magistrate was satisfied that the police officer had reasonable grounds for a suspicion that the plaintiff had committed an offence. The Magistrate appeared to accept that the requirement in s 25(a) was met by the fact of the police officer’s assertion in the affidavit grounding the application. To the extent that he did turn his mind to that question, his Honour proceeded on an erroneous basis, namely that it had been established by the evidence that the plaintiff was the lessee of the unit. There was no concession made by the plaintiff that her signature appeared on the documents. An inference of course may have been available but it was far from the only reasonable inference available in all of the circumstances.

17 The principal offender and the person who was charged with a number of offences, including possession of a precursor with intention to manufacture a prohibited drug, was the plaintiff’s son. No doubt he had access to personal information of the nature which found its way on to the lease documents. The rental of a unit by a mature woman in employment would be unlikely to attract attention. In other words, the plaintiff’s son had every motive to represent the plaintiff as the lessee of the unit.

18 The remarks of Simpson J in Regina v. Rondo [2001] NSW CCA 540 at par 53 are apposite to the present matter. At that paragraph her Honour summarised the propositions applying to a reasonable suspicion as follows:

“(a) A reasonable suspicion involved less than a reasonable belief but more than a possibility. There must be some thing which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs cover by s 357E. A reason to suspect that a factor exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer (undertaking the relevant course of action). Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of these surrounding circumstances.”

19 Having regard to those propositions it is my view that the reference to the plaintiff being the lessee of the relevant premises was no more than a possibility and that the factual basis for the suspicion that the plaintiff was the lessee of the unit was of dubious probative value in the whole of the circumstances.

20 Secondly, his Honour referred to the plaintiff’s exercise of the right to silence in terms which fell foul of Simpson J’s admonition in Orban v. Bayliss (2004) NSW SC 428 at pars 30 and 31:

“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 co-operate in the investigation of the crime(s) of which they are suspected, and to provide, 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 co-operate 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 a specific response to scientific and technological developments, but in the context of valued traditional civil liberties.

The conditions that must be met before an order can be made demonstrate that the purpose of the legislation is not to enable investigating police ... to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect.”

21 I place particular emphasis upon the last paragraph set out above. In all the circumstances it appears to me that the police had formed a view that a forensic procedure would allow them to identify the plaintiff as a suspect and that reasonable grounds did not exist to establish that the plaintiff was already a suspect. Accordingly the plaintiff has established an error of law and I make the following orders and declarations:

(1) I declare that the learned Magistrate erred in law

in making an order providing for a non-intimate

forensic procedure, namely the taking of the

plaintiff’s fingerprints and palm prints.

(2) I order that that order made by the Magistrate be

set aside.

(3) I declare that insufficient evidence exists to

allow for the making of an order pursuant to

s 24 of the Crimes (Forensic Procedures) Act

against the plaintiff.

(4) I note that the respondent has given an undertaking

that the plaintiff’s costs of this application will

be met. I reserve the question of costs otherwise

and adjourn the matter generally.

**********