KC v Sanger
[2012] NSWSC 98
•21 February 2012
Supreme Court
New South Wales
Medium Neutral Citation: KC v Sanger [2012] NSWSC 98 Hearing dates: 7 February 2012 Decision date: 21 February 2012 Before: R A Hulme J Decision: Appeal dismissed. Plaintiff to pay defendant's costs. Orders of the magistrate varied.
Catchwords: CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - Crimes (Forensic Procedure) Act 2000 s 24 - reasonable grounds to believe that the suspect has committed an offence - evidence tending to confirm or disprove that the suspect has committed the offence - evidence with potential to prove an element of the offence - APPEAL AND NEW TRIAL - Local Courts - appeal to Supreme Court - duty of magistrate to give reasons Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402
Fawcett v Nimmo [2005] NSWSC 1047; (2005) 156 A Crim R 431
FV v Zeitler [2007] NSWSC 333
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Jawansher v Johnson LCM [2004] NSWSC 872
L v Lyons; B and S Lyons [2002] NSWSC 1199; (2002) NSWLR 600
Orban v Bayliss [2004] NSWSC 428
R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562
Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449
Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416Category: Principal judgment Parties: KC (Plaintiff)
Snr Const Daniel Sanger (Defendant)Representation: Counsel:
Mr P D Rosser QC (Plaintiff)
Ms N Adams (Crown Advocate for Defendant)
Solicitors:
Morelaw Solicitors and Barristers
Crown Solicitors
File Number(s): 2011/164497 Publication restriction: S 43 Crimes (Forensic Procedure) Act 2000 Decision under appeal
- Date of Decision:
- 2011-05-12 00:00:00
- Before:
- McCosker LCM
- File Number(s):
- 2011/100226
Judgment
This is an appeal against orders made by his Honour Magistrate McCosker in the Local Court at Forster on 12 May 2011 under s 24 of the Crimes (Forensic Procedures) Act 2000 (the Act). On the application of a police officer, the defendant in this Court, it was ordered that a forensic procedure (obtaining a buccal swab and a sample of hair) be carried out in respect of the two plaintiffs.
Section 43 of the Act prohibits the publication of the name of a suspect in respect of whom a forensic procedure is sought, or any information likely to enable the identification of that person. Accordingly the plaintiffs and others mentioned in references to the evidence will be identified by way of initials.
The appeal is brought pursuant to s 115A(1) of the Act which permits an appeal to this Court under Part 5 of the Crimes (Appeal and Review) Act 2001. Under that Part, an appeal is as of right on a ground that involves a question of law alone (s 52(1)). Leave is required in respect of grounds that involve a question of fact or a question of mixed law and fact (s 53(1)).
Relevant provisions of the Act
Whilst the Act has undergone various amendments since it was first enacted in 2000, the following overview of its provisions by Simpson J in Orban v Bayliss [2004] NSWSC 428 remains apposite:
[30] The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to 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 cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties.
[31] 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 (or other authorised persons) to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect.
[32] A forensic procedure (as defined in s 3) necessarily involves, to a greater or lesser extent, some invasion of the personal privacy and personal bodily integrity of the person concerned. The degree to which that balance to which I have referred will warrant the making of an order that will have the consequence of causing some degree of invasion of personal privacy and personal bodily integrity is made to depend upon the interaction of two things - firstly, the seriousness of the crime of which the person is suspected, and secondly, the degree of invasion of personal privacy or integrity.
The application was brought under the provisions of Part 5 of the Act. The provisions that are relevant to the present case may be summarised as follows.
Section 23 provides that an order may be made by a magistrate under s 24 for the carrying out of a forensic procedure on a suspect if the suspect is not under arrest and has not consented to the forensic procedure. It was common ground in the proceedings before the magistrate that the plaintiffs had not consented.
A "forensic procedure" is defined in s 3(1) to include "a non-intimate forensic procedure", which in turn is defined to include "the carrying out on a person of a self-administered buccal swab" and "the taking from a person of a sample of the person's hair, other than pubic hair".
A "suspect" is defined in s 3(1) to include "a person whom a police officer suspects on reasonable grounds has committed an offence". There is an issue about this to which I shall return.
Section 24, relevantly, provides:
24 Final order for carrying out forensic procedure
(1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities:
(a) that the circumstances referred to in subsection (2) or (3) exist, and
(b) that the carrying out of such a procedure is justified in all the circumstances.
...
(3) In the case of a non-intimate forensic procedure:
(a) there must be reasonable grounds to believe that the suspect has committed an offence, and
(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).
(4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following:
(a) the gravity of the alleged offence,
(b) the seriousness of the circumstances in which the offence is alleged to have been committed,
(c) the degree to which the suspect is alleged to have participated in the commission of the offence,
(d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known,
(e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person,
(f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive,
(g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned,
(h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section,
(i) such other matters as the Magistrate considers relevant to the balancing of those interests.
It can be seen from the foregoing that resolution of the applications brought before the magistrate required consideration of a number of matters:
(1) Whether the prerequisites in s 23 were established. In this case they were that the plaintiffs were "not under arrest" and had "not consented to the forensic procedure" (s 23(a)). In other cases they might be that "the suspect is under arrest and has not consent to the forensic procedure (s 23(b)) or "the suspect is a child or an incapable person" (s 23(c)).
(2) Whether the plaintiffs were "suspects" (as defined in s 3), that is:
(a) they were suspected by a police officer of having committed an offence; and
(b) there were "reasonable grounds" for that suspicion.
(3) Whether there were reasonable grounds to believe that the plaintiffs had committed an offence (s 24(3)(a)).
(4) Whether there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that he/she had committed the offence (s 24(3)(b)).
(5) Whether the carrying out of the procedure was justified in all the circumstances (s 24(1)(b)).
Similar checklists have been usefully provided by Barr J in Jawansher v Johnson LCM [2004] NSWSC 872 at [7] and by Simpson J in Orban v Bayliss , supra, at [37] and FV v Zeitler [2007] NSWSC 333 at [31].
The applications
The applicant before the Local Court and defendant in this Court was Senior Constable Daniel Sanger of Taree police. The offence he was investigating and which he suspected the plaintiffs had committed was incest, contrary to s 78A of the Crimes Act 1900. To establish that such an offence has been committed it is necessary for there to be proof beyond reasonable doubt that a person had sexual intercourse with a close family member who is of or above the age of 16 years. "Close family member" is defined to include a parent and a daughter. The offence has prescribed for it a maximum penalty of imprisonment for 8 years. It is an offence which may only be dealt with on indictment. A prosecution for such an offence may only be commenced with the sanction of the Attorney General (s 78F Crimes Act ).
Senior Constable Sanger swore affidavits in support of the application in respect of each plaintiff. They were, in part, pro forma. There was another affidavit annexed to the pro forma affidavit. In paragraph 3 of the pro forma it was asserted that;
"The grounds for believing that the person on whom the procedure is proposed to be carried out is a suspect are: Please see attached Affidavit". (Emphasis added)
Paragraph 4 specified the offence "which I believe that the person on whom the procedure is proposed to be carried out is suspected of committing" as incest. (Emphasis added).
In paragraph 5 he specified that what was sought was:
"a non intimate forensic procedure of a buccal swab of the respondent but failing this, the taking of a sample of the respondent's hair, other than pubic hair".
In paragraph 6 he said:
" I believe that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence".
The pro forma required him to "state grounds", and he inserted that the procedure:
"will prove that the respondent is the [father/daughter] of co-accused [named] whom [he/she] is alleged to be [creating/bearing] children with".
It was necessary for the applicant to establish that he suspected that the person had committed an offence" (included in the definition of "suspect" in s 3(1)). It was appropriate for him to set out the grounds upon which he based that suspicion. However, whether those grounds were "reasonable" was for the magistrate to determine. That was a matter for submissions on the hearing of the application. The officer's assertion that there were "reasonable grounds" was not determinative: see, for example, Orban v Bayliss , supra, at [40]; Fawcett v Nimmo [2005] NSWSC 1047; (2005) 156 A Crim R 431 at [20]; FV v Zeitler [2007] NSWSC 333 at [32].
It was also necessary for it to be established to the satisfaction of the magistrate that there were "reasonable grounds to believe that the [plaintiffs] had committed an offence" (s 24(3)(a)). The applicant's assertion in his affidavits that there were such "reasonable grounds" was not determinative.
Further, it was necessary for the magistrate to be satisfied that there were "reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence". The applicant's assertion that he believed that there were such reasonable grounds was not determinative.
Nothing in the present case turns on these matters. However, I make these observations to draw attention to a risk that the pro forma affidavit used in this case might have a tendency to deflect a magistrate, sitting in a busy Local Court with a heavy case load, from making the determinations that the Act requires.
Basis for the officer's suspicion
The following matters are drawn from Senior Constable Sanger's affidavits, supplemented with evidence he gave before the magistrate.
LH was allegedly sexually assaulted by her brother-in-law, AC (the second plaintiff) in the summer of 1968-69. She was then aged 15. There had been previous sexual assaults but none thereafter. In November 1969, LH gave birth to KC (the first plaintiff).
The police became involved because of LH's age. It is said that she was frightened of AC and also concerned about a likely fall out with her sister, who was married to AC, if she nominated him as the father of her child. She had not, however, had sexual intercourse with anyone else. During her pregnancy she commenced a relationship with PG. When KC was born she nominated him as the father. PG was charged with carnal knowledge. He pleaded guilty. It is said that this was a result of advice that he would receive a bond and that he would be released on bail for another offence. PG was interviewed by police in 1998 and said that he was not the father of KC and had not been in a sexual relationship with LH prior to her giving birth to KC.
When KC was 18 years of age (1987-88), LH told her that her father was AC.
LH and KC had a telephone conversation sometime in 1996. KC told LH that she had moved in with AC. They were living on a property on the mid-north coast of New South Wales. LH and KC subsequently argued and had not spoken to each other since.
The material in the preceding four paragraphs was said by Senior Constable Sanger in cross-examination to have been "mostly" sourced from statements obtained from LH in 2000 and before. The source of the material said to have emanated from PG was an interview of him by police in Queensland in 1998 in connection with "the initial investigation [of] the alleged sexual assault" by AC of LH.
In the same year that KC moved in to live with AC (1996), AC's second wife, LC was ordered to leave the property. The property is rural and remote. There is said to be a considerable distance from the house to the road. AC remained living on the property with KC who he introduced to "the family" (presumably his own family) as his daughter. This material was said by Senior Constable Sanger to have been sourced from conversations he had with LC in December 2010 - January 2011.
Also in 1996, KC changed her name on her driver's licence so as to adopt AC's surname.
In 2000, LH was told by her niece, TeB, who is also a daughter of AC, that KC had conceived a child with AC. Senior Constable Sanger believed this to be WFC who was born in September 1998. His evidence in cross-examination was that this material was sourced from LH's statements and confirmed in conversations he had with her over the phone.
Later in 2000, LH was told by her father TrB that AC had fathered children with KC.
In December 2010, an unnamed person reported to the Department of Community Services help line that AC was fathering children with his biological daughter, KC.
In January 2011, police spoke with AC's second wife, LC. She told police that she was aware that AC and KC had produced four children who were born in September 1998, 2002, September 2003 and June 2005. LC also told police that KC was currently heavily pregnant. She said that AC denied being the father to these children. Senior Constable Sanger's evidence was that this information provided by LC had been obtained from her two daughters from her relationship with AC: TC and MC. He said that MC was "quite happy to provide a statement in relation to it" but that she had not as yet. Police subsequently learned that KC had given birth to a fifth child in December 2010.
In January 2011, police spoke with MC. MC told police that KC had been introduced to her as AC's daughter. Until April 2010, she had lived on the property with AC and KC but in a separate residence. At that time, however, she was ordered to leave. She believed that AC and KC wanted to conceal from her and the rest of the family that KC was again pregnant. MC said that there was nobody else frequenting the property at the time who could have fathered the child.
MC also told police that she had seen AC and KC kissing passionately whilst intoxicated.
Senior Constable Sanger deposed that police had also been told that TC, who is another daughter between AC and LC, that is, a sister to MC's sister, had also seen AC and KC kissing passionately and had seen them in bed together. He did not hear this from TC herself but was told it by LC.
Police have obtained copies of the birth certificates in respect of three of the five children. No father is nominated on any of them.
Police and officers of the Department of Community Services attended the home of AC and KC on 18 February 2011. AC told them initially that KC was a relative and that she was his carer. Later, after it was alleged to him that he was having an incestuous relationship with KC, he said that they were not related and that he was not the father of her children. He declined to consent to providing a DNA sample.
KC told police that a "Mark Yergon" was the father of all five of the children. He was said to frequent a nearby town on the mid-north coast. KC maintained that she was not related to AC. She was asked who her father was and she said that she did not know. She conceded that it had been suggested that AC was possibly her biological father. She refused to consent to providing a DNA sample.
Senior Constable Sanger noted in his affidavit that AC and KC live with the five children in a two bedroom house.
Under the heading "Grounds to believe that the forensic procedure(s) might produce evidence tending to confirm or disprove that the suspect has committed the offence(s): s 24(1)(a) of the Act" [sic - s 24(3)(b)], Senior Constable Sanger first noted that, although LH clearly identified AC as the father of KC, there were "credibility issues". He claimed that to ascertain whether AC is the father of KC, "a DNA profile for comparison will confirm if there is the possibility of children being created as a result of an incestuous relationship between [AC and KC]".
Under the heading "Other matters: s 24(1)(b) of the Act" [sic - s 24(4)], it was said that during interviews with the four eldest children, Department of Community Services officers had identified mental difficulties which required further professional assessment. KC had not sought any additional assistance in this respect. The children were not undertaking any formal schooling and there had been no compliance with home schooling requirements for over a year. It is also said that Mr Peter Gunn, "the Manager of the Forensic Biologist" [sic] with "extensive experience as a geneticist" had found during his research that children conceived as a result of parent-child incest are more likely to exhibit signs of intellectual disability than other children. Statistics showed that such children have a one in eight chance of receiving a defective gene compared to a "rare chance" in respect of other children.
In cross-examination, Senior Constable Sanger confirmed that what was sought was a DNA sample from both AC and KC to compare one with the other. There was no other material against which either could be compared; that is, nothing from LH or from any of the children. After the comparison of AC and KC had been carried out, and assuming it confirmed that they were father and daughter, he would then seek a DNA sample from the mother of LH who had indicated that she would co-operate (I suspect this was a slip and was intended to be a reference to KC's mother, LH). The officer said that he would also then make an application under the Act for a forensic procedure in respect of the eldest child.
Submissions before the magistrate
For the plaintiffs it was submitted in the Local Court that the present case suffered from the same deficiency that was said to have been present in Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416 . That is, as senior counsel for the plaintiffs put it, "there was no evidence that DNA had been obtained with which to compare" the DNA sample sought to be obtained through the forensic procedure. It was asserted that Hall J had "held that you can't just get DNA on the off chance that some other DNA to be obtained in the future perhaps to compare it with, you have to have something with which to compare it otherwise the Court can't be satisfied of the requirement ... that there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence". In other words, counsel submitted that the requirement in s 24(3)(b) was not satisfied.
Reference was made to the fact that the application in respect of KC depended upon the success of the application concerning AC which had not yet been determined, and vice versa. It was also submitted that even if the applications in respect of both were granted, the result of the forensic procedure would only confirm, or disprove, that AC and KC were directly related to one another. It would not tend to confirm, or disprove, that they had committed the offence of incest.
Issue was also taken with the requirement that the plaintiffs were "suspects". It was submitted that there were no reasonable grounds for the applicant officer's suspicion that the plaintiffs had committed an offence. More significantly, however, it was submitted that his Honour had to be satisfied that there were "reasonable grounds to believe" that they had committed an offence. It was put that this requirement could not be satisfied where the material relied upon was "of the most dubious provenance". It was noted that the officer had observed that there were "credibility issues" in relation to LH.
It was submitted that the other source relied upon by the applicant officer, LC, a former wife of AC, should, in effect, be regarded as unreliable second hand hearsay. LC's claim that AC had children with KC was not something about which LC could have any direct knowledge. It was, at best, something that seemed to have been derived from her daughters, MC and TC.
The decision of the magistrate
The magistrate referred to "information" emanating from persons directly related to the respondents in the period up to about 2000, particularly the observations of TC and MC of "interaction" between the respondents that is "normal human behaviour for persons in a relationship". His Honour acknowledged that there may be some aspects of the familial relationships that "may be either a dysfunctional or even a toxic state of affairs". Reference was made to the concession by the applicant officer that there may be "some credibility issues" in relation to LH. His Honour expressed the view that the officer was mindful that the accounts of LH, and others had the potential for "embellishment and/or fiction to creep into the information provided".
The magistrate understood the application to be made for the purpose of obtaining DNA profiles, which could be compared to profiles from other individuals, "to then compare it and assess whether or not the provisions of s 78A of the Crimes Act may have been breached and to do that there is a need for there to be something that this application produces to be compared to or with".
His Honour referred to the objection based upon the authority of Walker v Budgen that at present there was nothing with which to compare the DNA samples sought to be obtained. His Honour was provided with a copy of the judgment of Hall J and read it (he said "carefully") and indicated that it was of some assistance. However, he noted that it related to an application to obtain samples with which to compare what was thought might be derived from a crime scene.
His Honour then noted that authorities such as the judgment of Hall J must be considered in light of the facts underpinning the application in that case. I take his Honour to have been saying that one must be careful to distinguish statements of principle of general application with statements about the application of principles to the facts of a particular case; the facts of no two cases being identical.
The magistrate then distinguished Walker v Budgen from the present case. He referred to it as "basically a home invasion and theft, this is quite different". He described the present case as follows:
"This is said to be a set of circumstances which have occurred over a significant period of time in not only geographical isolation in terms of where the parties were in residence but also in terms of isolation from other members of their family and outside members of the broader community. That then brings into play as I have been directed to the provisions of s 24(4) of the Crimes (Forensic Procedures) Act 2000 in determining the public interest in these particular matters going forward and the circumstances of whether the application should be granted to allow information to be obtained in circumstances where there is a very serious set of circumstance alleged, a serious crime has been committed."
Aside from "the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence", his Honour specifically referred to a number of the other matters in s 24(4) that he was required by s 24(1)(b) to consider:
"The participation of the parties, well it is quite clear what is said to be the participation of the parties, cultural background et cetera and those matters in (a) through to (f) and then (i) is such other matters as the magistrate considers relevant to balancing those interests."
It is to be noted that the matters specifically omitted from consideration, that is (g) and (h) in s 24(4) were not, in the case of (g) the subject of evidence, or, in the case of (h) applicable.
Reference was made to the statement in George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112 that the requirement of a statute that there be "reasonable grounds" for a suspicion or belief requires "the existence of facts which are sufficient to induce the state of mind in a reasonable person".
His Honour returned to the submission that there was an absence of something with which to compare the DNA samples sought from the plaintiffs. He characterised the result of the applications being successful as providing "hard evidence ... to the prosecution without the hearsay elements", although he observed that hearsay could be taken into account, subject to an assessment of its weight. In relation to the latter, he repeated that there was the "potential for this dysfunctional or toxic relationship to exist", which I take him to mean that there could be an adverse effect upon the weight to be given to the hearsay assertions.
Turning specifically to consider the s 24(3)(b) requirement that "there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence", his Honour said:
"You have to come to the view that there is something to compare it with. What would be the outcome of these proceedings, would it be likely to produce evidence which would confirm or disprove that they have committed an offence. Well, on the basis of the lay of the land as it now stands, it would be only able to produce evidence which would indicate in a worse case scenario from the respondents' application and indeed from the applicant's application that they were in fact related. Now there are many standards of relationship. If they are related that may bring into play the matters which are contained in the paragraphs to which I have already referred of [TC] and [MC].
Now that is not hearsay evidence because they have - [TC] has indicated also albeit that the evidence has come via potentially a second remove form of hearsay but there is on that evidence available a consideration that there is clear and direct evidence which may in fact link the parties. So there is evidence with which to compare it and that is not for other DNA evidence or other fingerprint evidence but other evidence which is available to the prosecution which may suggest that if there is a familial relationship between the parties and it is suggested that Mr Peter Gunn, the manager of the forensic biologist, I do not know what that means but he is obviously a forensic biologist, that he can determine kinship from DNA. And if that in fact be the case, is it capable of establishing that there may have been an offence committed. Given the relationship that seems to be referred to by the parties, sorry, the relationship which is said to have occurred or activities between the parties as referred to at para 17 of the application [the applicant officer's affidavit where he referred to the claims of AC and KC having been seen kissing passionately], my view is that there is indeed evidence available from these forensic procedures which may tend to prove or disprove that an offence has been committed."
His Honour concluded:
"So in relation to the matter applying my mind to the grounds under s 24(3)(a) must be reasonable grounds to believe that the suspect has committed an offence, I think in relation to that evidence in para 17 and inclusive not exclusive reasonable grounds to believe that the procedure might produce evidence tending to prove or disprove it, again I would answer that in the affirmative. So in relation to the application for those reasons I believe that there are proper grounds upon which the application should succeed, not on the basis of there being existing DNA with which to compare it but that there are other forms of evidence available to the prosecution which may assist and produce evidence as required under s 24(3)(a) and (3)(b)."
Grounds of appeal
There are four grounds of appeal set out in the amended summons. I propose to deal with them out of the order in which they were pleaded.
Ground D: That the Magistrate misdirected himself as to what he was required to find under section 24 of the Act.
It was submitted that the magistrate failed to consider, or consider adequately, any of the matters he was required to determine under ss 23 and 24; that is, whether:
1. the plaintiffs were "suspects",
2. there were reasonable grounds to believe that they had committed an offence,
3. there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that they had committed the offence, and
4. the procedure was justified in all the circumstances.
Whilst it was acknowledged by the learned Crown Advocate that his Honour did not make a specific finding that the plaintiffs were "suspects" (as defined in s 3 of the Act), it was submitted that it was implicit in the observations made about whether the offence of incest had been committed that his Honour accepted that they were. In any event, with his Honour having found that there were reasonable grounds for believing that the offence had been committed, it was obvious that his Honour was also of the view that there were reasonable grounds for a suspicion to this effect.
In Orban v Bayliss, the magistrate made no express finding that the plaintiff was a suspect. However, Simpson J concluded (at [41]) that, had the magistrate turned her attention to the question, she could not reasonably have formed any view to the contrary. In those circumstances her Honour was not inclined to interfere on that basis.
Hall J came to a similar conclusion concerning the failure of the magistrate in Walker v Budgen to make a specific finding concerning what is now the requirement of s 24(3)(a):
[32] ... The evidence to which I have referred plainly satisfied the provisions of [s 24(3)(a)]. Whether or not it can be demonstrated that the magistrate in fact had specific regard to the provisions of [s 24(3)(a)], there would not, in the circumstances of the present case, be sufficient warrant for this court to interfere on that basis. The magistrate, on the evidence, could not have but been satisfied in terms of [s 24(3)(a)].
It was accepted that the magistrate "did not refer to every fact that was capable of grounding the required beliefs" under s 24(3)(a) and (b). However, it was tolerably clear that he was mindful of the requirements of those provisions and specifically ruled that they were satisfied.
It was also sufficiently clear that the magistrate was mindful of the provisions of s 24(4) on the question posed by s 24(1)(b) as to whether the carrying out of the procedure was "justified in all the circumstances".
I accept that to some extent there is a lack of clarity in his Honour's judgment. It is apparent as well that the reasons were not always set out in a logical and sequential fashion. However, it is appropriate to first observe what has been said about the consideration of the reasons for judgment of a magistrate sitting in a busy Local Court. In this case there was an ex tempore judgment delivered immediately upon the conclusion of submissions by counsel and the prosecutor. It is clear that the transcript has not been revised or edited.
It was submitted by the Crown Advocate that regard should be had to the practical realities of a Local Court where there is an expectation that prompt and practical judgments will be delivered: L v Lyons; B and S v Lyons [2002] NSWSC 1199; (2002) NSWLR 600 at [59] per Sully J.
The caution expressed by Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 at 478-479 is also apposite. His Honour characterised criticisms of a magistrate's judgment in that case as falling:
into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
Similar observations have been made in a number of other cases: see, for example Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at [15] per Johnson J.
There are, however, some minimum requirements. In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449, Santow JA observed:
[41] It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279 per McHugh JA; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.
On the hearing of the appeal, Mr Rosser, senior counsel for the plaintiffs, acknowledged these practical considerations but also drew attention to the fact that Sully J had included in his remarks in L v Lyons; B and S v Lyons (at [59]) that:
None of the foregoing observations, I should perhaps stress, could excuse manifest error of law on the part of a Magistrate.
The following may be distilled from his Honour's reasons:
It was noted that there was evidence of observations of persons who had seen the plaintiffs interacting in a fashion consistent with them being in a sexual relationship.
Potential credibility issues in relation to the evidence of family members were noted.
There had been a "careful" review of what had been said by Hall J in Walker v Budgen , supra, in which there appears a discussion of the statutory provisions and the need for a magistrate to specifically consider and make findings in relation to each them.
The magistrate specifically adverted to George v Rockett , supra, as to what is involved when a statute requires there to be reasonable grounds to suspect or believe something.
There was a stated awareness of the need for the requirements in s 24(3)(a) and (b) and s 24(4) to be satisfied and an indication of being so satisfied.
In relation to s 24(3)(b), the magistrate referred to there being evidence from which it could be inferred that the plaintiffs were in a sexual relationship. His Honour indicated that he was satisfied that the proposed forensic procedures could produce direct ("hard") evidence on a matter that was presently the subject of hearsay (that the plaintiffs were father and daughter). He indicated satisfaction that the forensic procedures may produce evidence "tending to prove or disprove" the suspected offence had been committed.
There was mention of the requirement of s 24(4) for there to be a balancing of two competing public interests. The magistrate referred to the requirement of the subsection that he have regard to certain matters as well as "such other matters as" he considered relevant to the balancing of those interests.
I accept the submission that there was a failure of the magistrate to articulate a finding that there were reasonable grounds for the suspicion held by the applicant officer. It might be inferred that his Honour turned his mind to this issue by his reference to what is required for there to be reasonable grounds to suspect something, but there is nothing I can distill from the judgment that indicates that a specific finding was made.
However, a failure in this respect could not warrant the interference of this Court. It is clear enough in my view that the magistrate was satisfied that there were reasonable grounds to believe that the plaintiffs had committed an offence (s 24(3)(a)). Such a finding subsumes a finding that there were reasonable grounds for the suspicion of the applicant officer.
It is also clear enough, in my view, that the his Honour considered and was satisfied that there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the plaintiffs had committed the offence (s 24(3)(b)).
As to the submission that there was a failure to "consider, or consider adequately," whether the carrying out of the proposed forensic procedures was justified in all of the circumstances, I am satisfied that the magistrate was aware of the requirement to consider the balancing exercise mandated by s 24(4) and was mindful of the various matters he was required to take into account. He specifically mentioned some of those matters: the seriousness of the suspected offence and the alleged participation in it of the plaintiffs. It is notable that of the other matters listed in the subsection, there was no suggestion in either the Local Court or this Court that any of them were of any significance. Further, there was no suggestion in either Court of there being any other relevant matter that required consideration (s 24(4)(i) - "such other matters as the Magistrate considers relevant").
I am not persuaded that the magistrate misdirected himself as Ground D asserts.
Ground C: The Magistrate was in error in failing to consider and deal with the application against each Plaintiff independently of the application of the Defendant against the other Plaintiff.
The submission in support of this ground was that each plaintiff was entitled to have the application against him/her considered individually. Doing so would have indicated that there was nothing at all to compare with the DNA sought to be obtained. In other words, the contention was that in dealing with the application in respect of one plaintiff, the magistrate should have ignored the fact that he was dealing simultaneously with an application concerning the other plaintiff.
The Crown Advocate referred to the fact that at the outset of the hearing in the Local Court, senior counsel for the plaintiffs advised his Honour that there was no objection to the applications proceeding together. Further, it was contended that there was no error in the magistrate proceeding on the basis that if one application was to be granted, the other should be as well because the applicant relied upon identical evidence in relation to each.
This ground was only faintly pressed at the hearing. In my view the submissions for the defendant should be accepted. It would have been unrealistic for the magistrate to have put completely out of his mind one application when he was determining the other. It was obvious that the purpose of the applications being made was to enable a comparison of DNA samples obtained from each of the plaintiffs. There was nothing erroneous in the magistrate considering and determining both applications simultaneously and with regard to each other.
Ground A: That the Magistrate was in error in finding that the evidence was sufficient in law to sustain a finding that there were reasonable grounds to believe that the Plaintiffs had committed an offence as required by section 24(3)(a) of 'the Act'.
In oral submissions, senior counsel for the plaintiffs clarified that what was intended to be conveyed in the statement of this ground (and ground B) by "sufficient in law" was that the evidence was incapable, on any view, of establishing the required matter.
It was submitted that the magistrate erred in not directing his mind to the question of whether there were reasonable grounds for Senior Constable Sanger's suspicion that the plaintiffs had committed the offence of incest. I have dealt with that submission under Ground D.
Mr Rosser accepted that hearsay material may provide a basis for the belief but it "must have some probative value". Reference was made to R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R at [53] where Smart AJ said, in speaking of a reasonable suspicion that it "may be based on hearsay material or materials which may be inadmissible in evidence" but added that "the materials must have some probative value".
In this case, the hearsay material was "for the most part, second-hand or even more remote hearsay. It has little probative value even in the context of belief". So, it was submitted that the evidence fell short of establishing reasonable grounds for the belief.
The Crown Advocate submitted that this ground, and ground B, raise a mixed question of fact and law: R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [11] - [27] per Spigelman CJ. The process of determining whether evidence was sufficient to establish the matters in both s 24(3)(a) and (b) required the magistrate to apply legal standards to facts that he found. That submission is undoubtedly correct. An appeal on a ground that involves a question of mixed law and fact may be permitted by leave: s 53(1) Crimes (Appeal and Review) Act . The defendant did not oppose leave being granted, given that leave is not required in relation to grounds C and D. An extension of time to further amend the summons to incorporate an application for leave was also not opposed.
It was submitted that the evidence before the magistrate was sufficient to establish that there were reasonable grounds to suspect, and believe, that KC was the daughter of AC. There was, at least, the direct evidence of LH that AC was the father of KC.
There was also sufficient evidence to establish that AC was the father of KC's children. It was accepted that this involved some hearsay but not entirely. There was the direct evidence of the living arrangements and the geographical isolation of the plaintiffs and the children, all of whom were born after KC commenced cohabitation with AC. These were matters to which the magistrate made specific reference. Reference was also made to the evidence available from MC that she had seen AC and KC kissing passionately and that up until she was forced to leave the property in April 2010, no one had been frequenting the property who could have fathered the fifth child.
There was evidence which tended to the opposite conclusion, that is that AC was not the children's father. There were the subsequent denials to the police, contrary to earlier admissions, that they were related and KC claimed that a "Mark Yergon" was the father. It was submitted that it was not fatal to the conclusion reached by the magistrate that there was this opposing body of evidence. Reference was made to George v Rockett , supra, at 116:
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.
Contrary to the submission for the plaintiffs, it was contended that the magistrate's reasons indicated that it was not merely in the final paragraph of his Honour's judgment that I have extracted above (at [56]) that he addressed the issue raised by s 24(3)(a). It was submitted that his Honour's reasons as a whole indicated that he was mindful of the statutory requirements from the outset.
I accept that the evidence of the applicant officer included a lot of hearsay, some of it being second hand or even more remote. However, it also included that there was evidence available for any potential prosecution as to the following matters.
AC was the father of KC (according to the direct evidence of LH).
KC changed her name so as to adopt AC's surname at around the time she moved in to live with him in 1996 (this may be indicative of non-related people commencing a relationship, but could be regarded as more indicative of an acknowledgement by KC that she was AC's daughter).
There was a denial made to police by KC that AC was her father, but she conceded that it had been suggested that he possibly was.
There was, initially, an admission made to police by AC that KC was related to him although he later retracted it when the allegation was put to him that they were living in an incestuous relationship.
Although both AC and KC denied that he was the father of her five children:
- the five children were all born whilst KC was living with AC;
- they lived on a remote property;
- they lived in a two bedroom house with the five children;
- they had been seen kissing passionately;
- MC had been ordered off the property soon after the fifth child was conceived (supporting an inference that there was a desire to conceal the pregnancy from her);
- MC's observations were that no-one had frequented the property around the time of the fifth child's conception; and
- birth certificates for three of the children had no father nominated (supporting an inference that there was a desire to conceal the father's true identity out of consciousness of guilt).
Having regard to all of these matters, not individually but collectively, I am of the view that it was well established by the evidence before the Local Court that there were reasonable grounds for the applicant officer's suspicion that the offence of incest had been committed and that there were reasonable grounds to believe the same.
The magistrate's conclusion that the requirement of s 24(3)(a) was satisfied, which I have indicated in relation to Ground D that I am satisfied that he reached, was one that was well open to him. Ground A has not been established.
Ground B: The Magistrate was in error in finding that the evidence was sufficient in law to sustain a finding that there were reasonable grounds to believe that a forensic procedure might produce evidence tending to confirm or disprove that the Plaintiffs had committed an offence as required section 24(3)(b).
It was submitted that the magistrate failed to "articulate the basis upon which he purports to find paragraph 3(b) satisfied beyond the statement 'You have to come to the view that there is something to compare it with'".
It appeared that the magistrate was of the view that the DNA evidence obtained might be compared with evidence of the asserted observations of witnesses and thus be of forensic significance. In this regard, reference was made to the penultimate extract from the judgment which I have set out above (at [56]).
It was submitted that s 24(3)(b) required that the material to be obtained must have been "evidence tending to confirm or disprove that the suspect has committed [an] offence". In this case, the material would establish no more than a relationship between the plaintiffs. It would not render more or less probable the fact of sexual intercourse between them. The provision did not permit the compulsory gathering of evidence for general investigative purposes.
To establish that sexual intercourse had occurred would require the further step of an application being made to the Local Court for the carrying out a forensic procedure to obtain a DNA sample from at least one of the children. It was submitted that there was no certainty that any such application would be granted. Much as was the case in Walker v Budgen it was submitted that it was a matter of speculation whether there would be any DNA sample available in order to determine the parenthood of any of the children.
It was also submitted that obtaining DNA samples to determine whether AC was the father of KC, could not, in any event, have a tendency to confirm or disprove the suspected offence because there was already evidence available in relation to that issue. In other words, the comparison of DNA samples from the plaintiffs would add nothing to what the police already had.
So, it was submitted that "it was not open to the magistrate, as a matter of law, to be satisfied with respect to paragraph (3)(b)".
It was acknowledged by the Crown Advocate that DNA samples from the plaintiffs would not definitively prove whether an offence had been committed. They would, however, confirm or disprove a primary element of the suspected offence, that is, whether there existed between the plaintiffs a "close family relationship" of parent and daughter.
It was submitted that s 24(3)(b) did not require a finding that the proposed forensic procedure would produce evidence that "must" or "will" confirm or disprove that a suspect committed an offence. Rather, it provided a lower threshold that the evidence "tends" to do the same. This is a matter that the magistrate addressed in his statement that "it would be only able to produce evidence ... that they were in fact related".
It was also submitted that his Honour was correct to distinguish the factual matrix underpinning the judgment of Hall J in Walker v Budgen , supra. In the present case there was no room for speculation at all. Even if there was no certainty that an application for a forensic procedure to obtain a DNA sample from one or more of the children would be granted, there was certainty that there could be a comparison of the DNA samples obtained from each of the plaintiffs. If comparison of those samples yielded the result that the applicant officer suspected, that would add weight to a future application that might be made in relation to one or more of the children.
In my view, "tending to confirm or disprove" in s 24(3)(b) should not be construed as requiring that the evidence be capable of establishing the suspected offence by itself. It is difficult to envisage a case in which every element of an offence could be proved by DNA evidence. For example, in a murder case, DNA might establish a suspect's presence at the scene, but it would say nothing about his or her state of mind at the time of the killing. In a sexual assault case it might establish the identity of the perpetrator but it would say nothing about whether he or she knew that the complainant was not consenting. In such cases, the DNA evidence could "[tend] to confirm or disprove that the suspect ... committed the offence" without providing (in the case of "confirm") complete proof that he or she did so.
It is obvious that the evidence sought to be produced from the forensic procedure in the present case had the potential to prove one of the two elements of the suspected offence. It had the additional potential of aiding proof of the other element, subject to the police being able to obtain further DNA samples. The first of those two matters was sufficient for the success of the application.
The fact that the police already had some evidence concerning the relationship between the plaintiffs did not mandate refusal of the application. As the magistrate was expressly aware, the existing evidence might not have been capable of satisfying a tribunal of fact beyond reasonable doubt on the issue. The evidence sought had the potential to do so.
The conclusion of the magistrate that the requirement of s 24(3)(b) was satisfied was one that was well open to him.
Conclusion
None of the grounds of appeal have been established and so the appeal will be dismissed.
Even if it had been demonstrated that any of the errors or misdirections asserted were made out, I would not be inclined to intervene. Mr Rosser conceded that if I came to the view that the evidence before the magistrate nonetheless justified the conclusion that his Honour reached then the appeal should be dismissed. Such an approach was adopted by Hall J in Walker v Budgen , supra (at [32]) and by Barr J in Jawansher v Johnson LCM [2004] NSWSC 872 at [17]. I am of that view.
There was no suggestion that costs should not follow the event and so I propose to make the usual order. I will, however, leave open the opportunity for the plaintiffs to be heard on this issue if they wish.
There is a need to vary the orders of the magistrate in terms of when the plaintiffs are to present themselves for the carrying out of the forensic procedure. Power to vary is to be found in s 55(2) Crimes (Appeal and Review) Act .
Submissions were made about the magistrate having ordered that both types of forensic procedure be carried out when they had only been sought in the alternative. There was no ground of appeal in relation to this. The Crown Advocate clarified that it was proposed that only one be carried out. It was intended that the taking of a hair sample would only be carried out in the event that there was some difficulty in the plaintiffs participating in a self-administered buccal swab procedure. I will make a slight variation to the magistrate's orders by substituting "or" for "and" upon that understanding.
Orders
1. Leave to extend time to amend summons and to appeal in relation to Grounds A and B granted.
2. The appeal is dismissed.
3. The orders of the magistrate in relation to each plaintiff are varied. The plaintiffs are to provide a buccal swab or a sample of hair (other than pubic hair) at the Forster Police Station on or before noon on Friday 9 March 2012.
4. The plaintiffs are to pay the defendant's costs.
5. Liberty to apply within 7 days if any alternative order as to costs is sought.
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Decision last updated: 22 February 2012
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