Iskra v Police

[2003] SASC 50

ISKRA v POLICE
[2003] SASC 50

Magistrates Court:  Criminal

1. PERRY J.               The appellant has been charged on an information filed in the Magistrates Court with one count of attempted murder and one count of wounding with intent to cause grievous bodily harm. He appeals to this Court against the making of final orders for the carrying out of forensic procedures pursuant to the Criminal Law (Forensic Procedures) Act 1998 (“the Act”).

2. The offences are alleged to have been committed on 24 September 2002. The appellant was arrested the next day, on 25 September, on which day an interim order was made under the Act by Inspector Buckley at the Port Adelaide police station. That was for the taking of hand swabs and the making of an external examination of the body of the appellant.

3. On 6 November 2002, an application was filed in the Magistrates Court seeking a final order confirming the interim order which had been made by Inspector Buckley.

4. Before that application had been determined, on 18 December 2002, a further application was filed seeking a final order to authorise another forensic procedure, namely the obtaining of a buccal swab from the appellant.

5. On the same date, that is, on 18 December 2002, a magistrate heard both applications. Both parties, that is, the applicant and the appellant, were represented by counsel. Counsel for the appellant sought to cross-examine the applicant, who is the investigating police officer, Senior Constable Mark Gallagher, and another officer, Detective Sergeant John Schulz.

6. After hearing argument, the magistrate gave ex tempore reasons for his decision. He held that the requests to cross-examine the two officers should be refused, and that both final orders should be made.

7. It is from those orders that the present appeal is brought.

   The Procedures under the Act

8. Before dealing with other aspects of the matter, I will refer briefly to the procedures laid down by the Act.

9. A “forensic procedure” is defined in the Act to include the taking of various specimens or samples from a person’s body, including samples of hair, blood, saliva, finger nails, toe nails, or samples of “biological or other material from an external part of the body”. The procedure also includes the taking of a sample by buccal swab, the taking of hand, finger, feet or toe prints, and the examination of an external part of an orifice of a person’s body.[1]

   [1] See the definition of “forensic procedure” in s 3 of the Act.

10. The Act authorises the carrying out of a forensic procedure in two categories of cases: where the person concerned is “not under suspicion”, or where that person is “under suspicion”.

11. The words “under suspicion” are defined in s 4 of the Act as follows:

    “4.For the purposes of this Act, a person is under suspicion if the police officer by or on whose instructions a forensic procedure is to be carried out on the person suspects the person, on reasonable grounds, of having committed a criminal offence.”

12. In the case of either category, that is, a person who is not under suspicion or a person who is under suspicion, if the person consents to the procedure, a forensic procedure within the meaning of the Act may be carried out without any further formalities other than those associated with the giving and recording of the consent (s 7). A consent must be clearly indicated in the manner stipulated in s 8, and if the person is under suspicion of committing an offence, the requirements set out in s 16, designed to ensure that the person gives informed consent, must be followed.

13. The relevant sections of the Act for present purposes are those to be found in Part 3 (s 14 to s 31 inclusive), which deals with the authorisation of a forensic procedure on a person who does not consent and who is under suspicion. Part 3 also provides for forensic procedures which may be invoked after a court has dealt with a charge, but it is unnecessary for me to refer further to those procedures.

14. The Act provides that orders authorising forensic procedures may be either interim orders or final orders (s 17). In both class of case, an order may only be made by an appropriate authority as provided in s 18:

    “18.(1)    An order authorising a forensic procedure on a person who is under suspicion (the respondent) may be made under this Part by an appropriate authority.

    (2)A magistrate is an appropriate authority for the purpose of proceedings for an interim order under this Act.

    (3)The Magistrates Court (in its Criminal Division) is an appropriate authority for the purpose of proceedings for a final order under this Act.

    (4)A senior police officer is an appropriate authority for the purpose of proceedings for an interim or a final order under this Act if-

    (a)the officer is not involved in the investigation for which the authorisation is sought; and

    (b)the respondent is in lawful custody; and

    (c)the respondent is not a protected person; and

    (d)the forensic procedure for which an authorisation is sought is non-intrusive.”

15. A “senior police officer” is defined as a police officer of or above the rank of inspector (s 3).

16. A non-intrusive forensic procedure is defined to mean a forensic procedure other than an “intimate forensic procedure” (s 3). An “intimate forensic procedure” is defined in terms which include a forensic procedure involving intrusion into a person’s mouth, so that the taking of a buccal swab is, for the purposes of the Act, an intrusive forensic procedure.

17. The procedure for an interim order is designed to answer to situations where evidence may be lost or destroyed unless the forensic procedure is carried out urgently. It is a further requirement that an interim order is not to be made unless the authority is satisfied that “... there are reasonable grounds to believe that the grounds for making a final order will ultimately be established”.

18. The hearing of an application for an interim order may be informal, and neither the applicant nor the respondent need necessarily be present (s 22).

19. There are limitations on the use which may be made of forensic material obtained under an interim order.

20. In the first place, it must not be analysed unless it is likely to perish or lose its evidentiary value, or unless a final order is made confirming the interim order (s 42).

21. Furthermore, the evidence obtained pursuant to an interim order is inadmissible against the person from whom the forensic material has been obtained, unless a final order has been made confirming the interim order (s 22(3)).

22. An appropriate authority may make a final order confirming an interim order if it is satisfied, following a hearing conducted pursuant to the Act, that “proper grounds exist for making a final order” (s 27(1)).

23. The making of an interim order is not a pre-condition to the making of a final order. There will be cases where an interim order has been made followed by an application for it to be confirmed as a final order, or in other cases there may be an application for a final order, without an interim order having first been made.

24. The requirements for the making of a final order and the procedure for the determination of an application for a final order are set out in Division 6 of the Act, comprising s 24 to s 27 (inclusive). It is those provisions which are of particular importance for the purposes of this appeal.

25. Section 19 stipulates who may apply for an interim or final order. It provides:

    “19.An application for an interim or final order authorising a forensic procedure may be made to an appropriate authority by-

    (a)    a police officer in charge of a police station; or

    (b)    the investigating police officer who has the respondent under suspicion; or

    (c)    the DPP.”

26. The criteria for the making of a final order are set out in s 26 which relevantly provides:

    “26.(1)    An appropriate authority may make a final order for carrying out a forensic procedure on a respondent if satisfied that-

    (a)there are reasonable grounds to suspect that the respondent has committed a criminal offence; and

    (b)there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence; and

    (c)the public interest in obtaining evidence tending to prove or disprove the respondent’s guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference.”

27. I do not pause to refer to s 26(2) which sets out considerations which must be taken into account by the authority in addressing the question where the public interest lies in a particular case.

28. The procedure to be followed at the hearing of an application for a final order is set out in s 25. I refer to that section later in this judgment.

29. Having regard to the scheme of the Act, the matters to be addressed by an authority entertaining an application for a final order will be different, at least in one respect, depending upon whether or not the application is made by “the investigating police officer who has the respondent under suspicion” (s 19(b)).

30. Where the application is by an investigating police officer who answers to that description, the court must be satisfied that the requirements of s 4 are made out, namely that the “... police officer by or on whose instructions” the forensic procedure is to be carried out “... suspects the person, on reasonable grounds, of having committed a criminal offence”. Presumably “the investigating police officer who has the respondent under suspicion” within the meaning of s 19(b) will be the “police officer by or on whose instructions” the forensic procedure is to be carried out within the meaning of s 4, but I must say that the drafting of the two sections could have been clearer.

31. At all events, it would appear from the combined effect of those two sections that where it is the investigating police officer who has made the application, it must be established at the hearing of the application that he or she suspects the respondent, on reasonable grounds, of having committed a criminal offence in order that the court may be satisfied that the applicant has standing to bring the application pursuant to s 19(b).

32. There is no such requirement, however, if the applicant is a police officer in charge of a police station, or the DPP.

33. However, in the case of all three categories of applicant, namely the police officer in charge of a police station, the investigating police officer or the DPP, the requirements of s 26(1)(a) must be addressed, namely the authority must be satisfied “that ... there are reasonable grounds to suspect that the respondent has committed a criminal offence”.

34. That is a purely objective inquiry, which does not turn on the state of mind of the applicant or of the investigating police officer.

35. Furthermore, even if the application is brought after the respondent has been charged with a specific offence, a forensic procedure may be ordered if the reasonable grounds of suspicion relate to the commission of any offence, whether or not it is the offence charged.

36. Section 26(1)(b) imposes an additional requirement, namely satisfaction on the part of the authority that there are “reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence”.

37. As to the approach to be adopted by the authority in addressing the requirements of s 26(1)(a), I agree, with respect, with the observations of Martin J in Police v Beck:[2]

    [2] (2001) 79 SASR 98 at 106-107.

    “36Section 26(1) of the Act did not require that the magistrate form a personal belief or suspicion that the respondent had committed the offence. The test is whether the magistrate was satisfied that there existed reasonable grounds to suspect that the respondent had committed the offence. The relevant test was identified by the High Court in George v Rockett:[3]

    [3] (1990) 170 CLR 104 at 112.

    ‘When a statute prescribes that there must be “reasonable grounds” for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.’

    37The decision for the magistrate was, therefore, whether facts existed which were sufficient to induce in the mind of a reasonable person a suspicion that the respondent had committed a criminal offence. Put another way, the magistrate was required to decide whether reasonable grounds existed to create in the mind of a reasonable person an apprehension that the respondent might possibly have committed an offence: R v Heaney.[4]

    38A suspicion is different from a belief. The nature of a suspicion was identified by the High Court in George v Rockett:[5]

    ‘Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam,[6] “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees,[7] a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said:[8]

    “A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’ as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in subs (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”

    The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.’

    39In determining whether reasonable grounds existed, the magistrate was not bound by the rules of evidence. I agree with the following observations of Vincent J in Walsh v Loughnan:[9]

    ‘The questions to be determined by the learned magistrate were not to be resolved by reference to the rules of evidence or by the application of a test related to the balance of probabilities. In the process of investigation it is by no means uncommon for information to be obtained which would not be admissible in a court of law, or for well-founded suspicions and belief to be developed on the basis of a variety of pieces and types of information, including evidence of consistency or inconsistency of conduct, which could not be advanced as proof of the facts outlined or suspected to exist.’”

    [4] [1992] 2 VR 531 at 547-548.

    [5]    Supra at 115-116.

    [6] [1970] AC 942 at 948.

    [7] (1966) 115 CLR 266.

    [8] Ibid at 303.

    [9] [1991] 2 VR 351 at 357.

38. As for the requirements of s 26(1)(b), I agree with the remarks which fell from Mullighan J in BJM v Police:[10]

    “23The legislation recognises the intrusive nature of the forensic procedures. It does not permit the forensic procedures merely because a person is suspected of, or even charged with, committing a serious offence. There must be reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence (my emphasis). Also, consideration must be given to the rights of the suspected person. The public interest in obtaining evidence tending to prove or disprove the suspect’s guilt must outweigh the public interest in ensuring that private individuals are protected from unwanted interference.

    24It is submitted that something more than speculation or the assumption of a theoretical possibility is required to establish that there are reasonable grounds to suspect that the forensic procedure could produce material of value. The suspicion must be founded on grounds that are objectively reasonable. These submissions are undoubtedly sound, however what is necessary is that there are reasonable grounds for suspecting that the forensic procedure could produce material of value.”

    [10] (unreported) [2002] SASC 333.

39. As I have explained, on the day of the appellant’s arrest, Senior Constable Gallagher obtained an interim order from Inspector Buckley authorising an external body examination and the taking of hand swabs. The appeal does not raise any issues as to the propriety of the application to Inspector Buckley or as to the order which he made. Rather, the appeal focuses on the two applications to the Magistrates Court being the applications for the making of a final order confirming the interim order made by Inspector Buckley and for a final order to permit the obtaining of a buccal swab.

40. In the notice of appeal, the appellant advances the following amended grounds:

    “5.1The learned magistrate erred in law in refusing to have the Respondent produced for cross-examination by the Appellant on the application for a forensic procedure.

    5.2The learned magistrate erred in law in refusing the application of the Appellant to have John William Schulz produced for cross-examination by the Appellant on the application for a forensic procedure.

    5.3The learned magistrate erred in law in refusing to allow the cross-examination of the Respondent by the Appellant.

    5.4The learned magistrate erred in law in refusing to dismiss the (two) application(s) on the basis that the Respondent had not complied with section 20 of the Criminal Law (Forensic Procedures) Act, 1998.”

    The evidence before the magistrate

41. The first application, that is, the application dated 6 November 2002, was supported by an affidavit of the applicant, Senior Constable Gallagher, who identified himself in the affidavit as the investigating officer.

42. He stated in the affidavit that he suspected on reasonable grounds that the appellant had committed the offences upon which he stood charged, and further, that he suspected on reasonable grounds that a forensic procedure “namely an external body examination, hand swabs and the taking of a buccal swab .... may produce evidence of value to the investigation of the suspected offence”.

43. He went on to state that the grounds for his suspicion that the forensic procedures might produce evidence of value to the investigation were based on the information set out in the remaining paragraphs of the affidavit. He did not specifically identify the “reasonable grounds” upon which he suspected that the appellant had committed the offences.

44. At all events, the remainder of the affidavit, sworn on the information and belief of various witnesses, constituted evidence to the effect that:

    (1)a shooting occurred at the appellant’s home address on 24 September 2002;

    (2)that a neighbour heard male voices yelling and noises that sounded like gunshots and saw blue-coloured flashes coming from the appellant’s home;

    (3)that the same neighbour saw a vehicle leaving the premises and then saw the appellant in the yard of his premises;

    (4)evidence from three different firearms (which I assume means evidence which was consistent with three different firearms having been used) was removed from the scene by crime scene examiners;

    (5)a gun was handed to police by the appellant;

    (6)blood, DNA and other physical evidence was taken from the scene;

    (7)the victim of the shooting was treated for three gunshot wounds, and two bullets were removed.

1. In his affidavit, Senior Constable Gallagher stated:

   “I suspect on reasonable grounds that a forensic procedure is necessary for the purpose of matching biological samples obtained from the respondent [the appellant] with those obtained from the scene and from the firearms supplied by the respondent.”

2. The later application taken out on 18 December 2002 was also supported by an affidavit from Senior Constable Gallagher. This was in the same terms as the first affidavit, except that it did not refer to the grant of the interim order by Inspector Buckley, and instead referred to his desire that a final order be made authorising the taking of the buccal swab.

3. I mention in passing that, in my view, neither affidavit should have been accepted by the magistrate, as in the introductory paragraph the words “make oath and say/affirm” are left in full without the alternative being deleted, and the same defect appears in the jurat which states “sworn (or affirmed)”.

4. Section 25(2) provides that “Evidence must be verified on oath or by affidavit”. These affidavits should have been rejected as being bad in form. The irregularity appears to have escaped the attention of the magistrate and of counsel. It came to my attention after the completion of the hearing of the appeal.

5. I will proceed to deal with the other matters which were argued.

6. On the hearing on 18 December 2002, the magistrate received a statement from Detective Sergeant Schulz which in turn had annexed to it a statement purporting to have been handwritten by the appellant. Detective Sergeant Schulz’s statement was not verified on oath or by affidavit and accordingly did not comply with s 25(2). It should not have been received by the magistrate.

7. In his handwritten statement the appellant states that he was present during the incident in which the victim was shot, that he fired his own pistol and that he had shot a man.

8. In view of the irregularity associated by the receipt by the magistrate of Sergeant Schulz’s statement, Ms Barnett, who appeared for the respondent on the hearing of the appeal, proffered a sworn affidavit by Sergeant Schulz annexing and verifying his statement and annexing the handwritten statement by the appellant.

9. I accept Ms Barnett’s argument that an appeal to this Court of the kind now in question is by way of a re-hearing, and that if the appeal was to turn simply on the question of the receipt of Detective Sergeant Schulz’s evidence, it would be open to me to receive his affidavit.[11]

   [11]    See Leuschel v Police (unreported) [1999] SASC 409.

10. However, in his grounds of appeal the appellant does not complain that the evidence which was before the magistrate was insufficient to justify the making of the final order. Rather, with the exception of the s 20 point, the complaint is as to the magistrate’s refusal to permit cross-examination.

11. I turn to that question now.

    The right to cross-examine at the hearing

12. The first question to address is as to the proper construction of s 25, more particularly s 25(3). The section is in the following terms:

    “25.(1)    The applicant for a final order may submit evidence orally or in writing.

    (2)Evidence must be verified on oath or by affidavit.

    (3)The respondent or a person representing the respondent-

    (a)may give or call evidence; and

    (b)may cross-examine the applicant and other witnesses called by the applicant and, by leave of the appropriate authority, witnesses whose evidence has been submitted in writing; and

    (c)may make submissions to the appropriate authority.”

13. As for s 25(1) and s 25(2), these seem clearly enough to provide that the applicant for a final order must either call witnesses to give oral evidence, or submit evidence in writing, in which event the writing must take the form of an affidavit.

14. Furthermore, I would read the word “may” where it appears in s 25(1) to identify a right to submit evidence by one or other of the two means referred to. I would not construe that subsection to mean that the court had a discretion as to whether to allow the applicant to submit evidence by one or other of the stated means.

15. I would give the same construction to the word “may” where it appears in the three sub-paragraphs to s 25(3).

16. To be specific, if the respondent or a person representing the respondent wishes to give or call evidence, he or she has the right to do so. The exercise of the right is not subject to any discretion on the part of the court.

17. Likewise, the right to cross-examine and the right to make submissions, as provided for in s 25(3)(b) and s 25(3)(c), are rights which are not fettered by any discretion on the part of the court.

18. I reach that view as a final order for the carrying out of a forensic procedure involves a not insignificant invasion of the body of the respondent to the application and a departure from the rule against self-incrimination, a rule which is central to the administration of criminal justice.

19. Bearing that in mind, the procedures laid down in s 25 for the giving or calling of evidence, for the cross-examination of an applicant or witnesses and for the making of submissions are procedures which the respondent should be able to invoke as of right. To construe the word “may” in s 25 so as to identify a discretion on the part of the court would be to deny to the respondent procedural fairness. The construction which affords to the respondent procedural fairness must be preferred, where such a construction, as is the case here, is fairly open.

20. The more difficult question is as to the extent of the right to cross-examination, more particularly whether the right to cross-examine the applicant applies where the applicant has not been called to give oral evidence and has not furnished an affidavit.

21. The position taken in argument by Mr Abbott QC for the appellant is that the opening words of s 25(3)(b) “may cross-examine the applicant” should be interpreted to mean that there is an unqualified right of cross-examination of the applicant, whether or not the applicant gives oral evidence or furnishes an affidavit in support of the application.

22. Certainly, it must be accepted that s 25(3)(b) appears to draw a distinction between the applicant on the one hand and witnesses, and a further distinction between witnesses called by the applicant and witnesses whose evidence has been submitted in writing.

23. I think that the answer lies in a consideration of s 25 in the context of the Act as a whole.

24. Under s 19, an application for an interim or final order may be made by any one of the three persons referred to, namely a police officer in charge of a police station, the investigating police officer who has the respondent under suspicion, or the DPP. There is no requirement that in the case of an application brought by any of those persons the applicant must personally give oral evidence or furnish an affidavit sworn by himself or herself. The applicant may rely on oral or affidavit evidence furnished by others. There is no obvious reason why the respondent should have the right, whether by leave or without leave, to cross-examine the applicant, if the applicant has neither given oral evidence nor sworn an affidavit.

25. Where evidence is given orally, either by the applicant or a witness called by the applicant, the respondent has a right to cross-examine without having to apply for leave to do so.

26. Where evidence is given in writing, that is, by affidavit, whether by the applicant or by some other person, I would construe the section to permit cross-examination only by leave.

27. That was the situation here. Leave was required if the appellant was to be permitted to cross-examine either the applicant, Senior Constable Gallagher or Detective Sergeant Schulz.

28. I accept that the section might have been better expressed. As drafted, there is a degree of ambiguity. The resolution of that ambiguity in the manner which I have suggested, seems to me to accord with the contextual considerations and the requirements of fairness.

29. The imposition of a requirement for leave to cross-examine where the evidence has been submitted in writing is understandable. To bring the deponent of an affidavit to court for cross-examination may well involve an adjournment, which would inevitably be associated with delay and expense. It is not unreasonable to expect that the respondent should be obliged to identify some good reason to do so before that course should be followed.

30. The question arises as to how the discretion to permit cross-examination, when leave is required, should be exercised.

31. It should be borne in mind that applications may be brought seeking an order for the administration of a forensic procedure before any charge is brought, or even if a charge has been brought, at a stage when the investigation is uncompleted. In that and other situations the capability of abuse by a respondent who might attempt to exercise the right of cross-examination for reasons which are not germane to the question whether the requirements for the administration of a forensic procedure have been made out by the applicant, are obvious.

32. In my view, leave should only be given if the precise nature of the questions which the respondent wishes to ask is made clear, and further, if it appears that the proposed cross-examination directly relates to evidentiary matters which have a bearing upon whether or not a case has been made out for an order for the carrying out of the forensic procedure sought to be administered.

33. It would not be right to permit cross-examination, whether by leave or where evidence has been given orally, simply as a vehicle to challenge the adequacy of the investigation, or to attempt to lay the blame for the crime on some other person, or in an endeavour to establish some ground of defence. The hearing of an application for an order for the carrying out of a forensic procedure involves completely different considerations from those which might arise on the hearing of a complaint or information or on a preliminary examination.

34. Relevantly, all that is involved in an application of the kind in question is an enquiry as to whether or not there is evidence of facts which are sufficient to satisfy the court that there are reasonable grounds to suspect that the respondent has committed any offence, and whether there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the offence.

35. Furthermore, the evidence proffered to address those requirements may be hearsay, or otherwise of a kind which would not necessarily be admissible at a criminal trial.[12]

    [12]    See Walsh v Loughman [1991] 2 VR 351 cited in Police v Beck (2001) 79 SASR 98 at 107.

36. I cannot imagine that it would be in the interests of justice to give leave to cross-examine if the written evidence adduced, if accepted, would clearly support the making of the order sought, and if the respondent is unable to point to any cogent reason why it should not be accepted. Such a reason would not ordinarily be demonstrated if all that the respondent wished to do was to cross-examine at large in an endeavour to see if anything emerges which might tend against the making of the order sought.

37. In this case, the only evidence before the magistrate was in writing. Part of it, the statement of Detective Sergeant Schulz, was in a form which was inadmissible under the Act. The other part (the affidavit of Senior Constable Gallagher) was inadmissible because of a defect in its identification of the manner in which it was executed.

38. While it is true that on one reading of the magistrate’s reasons for judgment it seems likely that he would have made the order irrespective of the statement of Detective Sergeant Schulz, the fact that, for the reasons which I have given, the affidavit of Senior Constable Gallagher should not have been received, means that the hearing was tainted by procedural irregularities which, if they had been recognised at the time, would inevitably have led to the magistrate taking some other course.

39. The appellant complains of a further procedural shortcoming, namely that the magistrate should have dismissed the two applications on the footing that the respondent had not complied with s 20 of the Act (ground of appeal 5.4). I will deal with that now.

    Section 20

40. Relevantly, this section provides:

    “20.(1)    An application for an interim or final order-

    (a)must be made in writing; and

    (b)must state the nature of the suspected offence and the grounds for suspecting that the person has committed the offence; and

    (c)must state the nature of the forensic procedure for which the order is sought and the grounds for suspecting the forensic procedure could produce evidence of value to the investigation of the suspected offence; and

    (d)if the application is for an interim order - must state the reasons for urgency.”

41. With the exception of a reference in the application dated 6 November 2002 to the interim order made by Inspector Buckley, the grounds set out in each of the two applications are the same. They are:

    “The respondent is suspected on reasonable grounds of having committed the criminal offences of:

    Attempted Murder - Sections 270(A) and 11 of the Criminal Law Consolidation Act, 1935.
    Wounding with intent - Section 21(b) of the Criminal Law Consolidation Act, 1935.

    These offences are indictable offences.

    The grounds of suspicion are contained in the affidavit attached.

    The respondent refused to give consent for the conduct of a forensic procedure. A copy of the refusal is attached.”

42. Mr Abbott QC contended that the requirements of s 20(1)(b) and s 20(1)(c) cannot be met unless the grounds for suspecting that the respondent has committed the offence and the grounds for suspecting that the forensic procedure could produce evidence of value in the investigation of the suspected offence are set out in the application itself.

43. While an application will comply with s 20 if the grounds in each case are set out in the body of the application, I see no reason why the commonly used drafting device of identifying some other attached document in which the requirements are said to be satisfied should not be permitted.

44. However, in this case, it is open to question as to whether the attempt to answer to the statutory requirements by adopting that technique has been satisfactorily carried out.

45. The words “the grounds of suspicion are contained in the affidavit attached” do not distinguish between the requirements of s 20(1)(b) on the one hand and s 20(1)(c) on the other. It would be better if there was to be a separate reference in the application to the grounds relating to each of the subsections.

46. Furthermore, while the affidavits of Senior Constable Gallagher are certainly sufficient to identify what he asserts to be the reasonable grounds upon which he entertains a suspicion that the respondent has committed the offences in question, the affidavits do not satisfactorily identify the specific grounds for suspecting that the forensic procedure sought could produce evidence of value to the investigation.

47. For example, in the affidavit sworn by him in support of the application filed on 18 December 2002, Senior Constable Gallagher deposes as follows:

    “3.I further suspect on reasonable grounds that a forensic procedure, namely an external body examination, hand swabs and the taking of a buccal swab of Phillip John Iskra, the respondent in this matter, may produce evidence of value to the investigation of the suspected offence. The grounds for my suspicion are based upon the information set out in paragraphs 4 to 10 of this affidavit.”

48. Paragraphs 4 to 10 simply refer to the evidence said to justify the making of the order sought.

49. Another paragraph, namely 12, reads:

    “I suspect on reasonable grounds that a forensic procedure is necessary for the purpose of matching biological samples obtained from the respondent with those obtained from the scene and from the firearms supplied by the respondent.”

50. While that paragraph gets closer towards satisfying the requirements of s 20(1)(c), I think Mr Abbott QC is right when he suggests that greater particularity should have been given to identify the particular way in which, for example, a buccal swab, considered in conjunction with some specific specimen obtained from the alleged crime scene, might provide evidence of value to the investigation.

    The magistrate’s reasons for ruling

51. After referring to the affidavit of Senior Constable Gallagher and the statutory requirements, the magistrate went on to observe:

    “This morning Ms Shaw informed me and it is not disputed that shortly after the alleged incident occurred the defendant in the company of his solicitor handed to police a firearm; a revolver. In addition; this morning a further affidavit of John William Schulz, a detective sergeant of police, was filed as part of the declarations in relation to the major indictable offences which are presently before the court. Annexed to the affidavit of Detective Schulz is a statement from Mr Iskra. With that additional information there is no argument on the defendant’s behalf that he was at the scene, that an incident did take place and that firearms were used and that he was involved in the use of firearms. As to what, if any, offences have been committed by the defendant and what, if any, defences may arise in relation to those offences are not issues for this court to determine and have absolutely no relevance to the applications at bar. I am mindful that the suspicion must be in the mind of the investigating officer and it is for this court to determine whether that suspicion is based on reasonable grounds. Given the collective materials before me that is to say the two applications for forensic procedure orders, the affidavits in support of those applications, the recent affidavit filed by Detective Schulz, the annexure to that affidavit, the statement contained in the additional agreed material that the defendant handed himself in together with the weapon I am constrained to say that it is not an appropriate matter for which the detective should be subjected to cross-examination.

    Accordingly I confirm the interim order made on 6 November 2002. The application to cross-examine is refused.”

52. Subsequently, the magistrate referred to s 25(3)(b) in terms indicating that he took the view that leave would be required before he could permit cross-examination of Senior Constable Gallagher and Sergeant Schulz, as requested by Mr Abbott QC.

53. He does not specifically deal with the argument that there was a right of cross-examination without the necessity for leave, which I am satisfied that Mr Abbott QC put to him. But at all events, in the result, his perception that leave was necessary was, for the reasons which I have given, correct.

    Conclusions

54. If the evidence of Senior Constable Gallagher and Detective Sergeant Schulz had been in proper form and had been properly admitted, it would have provided a strong basis for the making of an order. Given that the appellant apparently admitted that he was in possession of a gun and had shot at another person, the evidentiary matters set out by the two officers provide a strong case indeed from which to conclude the existence of reasonable grounds for the suspicion required by s 4, and at the same time reasonable grounds to suspect that the respondent had committed a criminal offence within the meaning of s 26(1)(a).

55. As I have indicated, I think that the evidentiary material offered to satisfy s 26(1)(b), namely the existence of reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence, would be better presented if the link between the suggested procedures and the value of the carrying out of those procedures to the investigation was more clearly spelled out.

56. It follows that, in my view, the orders under appeal should not have been made due to procedural shortcomings, rather than a lack of cogency in the evidence which the applicant sought to adduce.

1. In those circumstances it would be unfortunate if the application was to be dismissed.

2. Rather, I think that the proper order for this Court to make is to quash the orders under appeal and substitute an order that the matter be remitted for further hearing in the Magistrates Court.

3. I would further direct that the applicant be at liberty to file further affidavits from Senior Constable Gallagher and Detective Sergeant Schulz or other persons which address the concerns which I have expressed.

4. Once that is done, I doubt that a case could be made out for leave to cross-examine either of those two police officers. I say that because nowhere in his argument had Mr Abbott QC sought to challenge any of the evidentiary material sought to be put forward by them.

5. Rather, when Mr Abbott QC sought to cross-examine the two police officers at the hearing in the court below, his stated purpose was, according to his submissions before me:

   “I wanted to cross-examine on the two aspects, namely the satisfaction as to his [Senior Constable Gallagher’s] grounds for suspecting that offences had been committed, and his satisfaction on the basis of the final orders required for the forensic purpose sought. The application to cross-examine ... was done referrable to those two topics only.”

6. I hardly think that it is a proper reason for cross-examination that a respondent should ostensibly be attempting to adduce further evidence by cross-examination as to the basis upon which the deponent to an affidavit had reasonable grounds to suspect either of the matters referred to in s 26(1), or to afford an opportunity for a perceived shortcoming in that evidence to be overcome. The witnesses’ belief as to those matters is in any event irrelevant in the context of s 26(1)(a) and s 26(1)(b)although it may be relevant in the context of s 19 when read with s 4.

7. In either case, the existence of reasonable grounds for the relevant suspicion turns on the court’s evaluation of the evidence of the factual circumstances disclosed in the evidence put before the court.

8. Here, as I have said, the evidence of relevant factual circumstances provided a strong basis for the making of the orders sought, and was not under challenge. Whether that evidence was sufficient to satisfy the court as to the statutory requirements was a matter for argument rather than cross-examination.

9. If whoever hears the matter when it is referred back to the Magistrates Court takes a similar view, and that evidentiary material (properly adduced) relevant to the factual issues is not placed under serious challenge, there would not appear to be any basis established to yield to an application for leave to cross-examine.

10. I order:

    1.that the orders under appeal be quashed.

    2.that the matter be remitted for further hearing and determination in the Magistrates Court.

    3.that the applicant in the Magistrates Court be at liberty to file in that court further affidavits, whether from Senior Constable Gallagher or Detective Sergeant Schulz, or from some other person or persons as he may be advised, in light of these reasons.

11. I will hear the parties as to costs.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1. See the definition of “forensic procedure” in s 3 of the Act.

    2. (2001) 79 SASR 98 at 106-107.

    3. (1990) 170 CLR 104 at 112.

    4. [1992] 2 VR 531 at 547-548.

    5.    Supra at 115-116.

    6. [1970] AC 942 at 948.

    7. (1966) 115 CLR 266.

    8. Ibid at 303.

    9. [1991] 2 VR 351 at 357.

    10. (unreported) [2002] SASC 333.

    11.    See Leuschel v Police (unreported) [1999] SASC 409.

    12.    See Walsh v Loughman [1991] 2 VR 351 cited in Police v Beck (2001) 79 SASR 98 at 107.