Kindermann v JQ

[2020] NSWSC 1268

Supreme Court

New South Wales

Medium Neutral Citation:

Kindermann v JQ [2020] NSWSC 1268

Hearing dates:

16 July 2020

Date of orders:

16 July 2020

Decision date:

17 September 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) The Court grants leave to appeal the interlocutory decision pursuant to s 57(2) of the Crimes (Appeal and Review Act) 2001 (NSW);

(2) The appeal made pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) be upheld;

(3)   The order made by Magistrate Clisdell on 27 April 2020 setting aside the Interim Forensic Procedure Order of the Registrar made on 25 April 2020 in respect of the first defendant be set aside;

(4)   The order of Magistrate Clisdell to destroy any forensic swab obtained as a result of performing the Interim Forensic Procedure Order be set aside;

(5)   The matter be remitted to the Children’s Court for determination according to law before the court differently constituted;

(6)   No order as to costs.

Catchwords:

CRIMINAL PROCEDURE – Forensic Procedure – Interim order on minor – permitted without hearing

LOCAL COURT – jurisdiction – mistake as to jurisdiction to order interim forensic procedure on child without hearing from the person.

Legislation Cited:

Crimes (Appeal and Review Act) 2001 (NSW), s 57(2)

Crimes (Forensic Procedures) Act 2000 (NSW), ss 3(1), 17, 23, 24, 30, 31, 32, 33, 34, 37, 38, 115A, Pt 4, Pt 5

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

JW v Detective Sergeant Karol Blackley (2007) 172 A Crim R 483; [2007] NSWSC 799

Plassas v Person [2016] NSWSC 1445

Sullivan v Department Of Transport (1978) 20 ALR 323; [1978] FCA 48

Category:

Principal judgment

Parties:

Detective Sergeant Peter Kindermann (Plaintiff)
JQ (First Defendant)
Children’s Court of New South Wales (Second Defendant)

Representation:

Counsel:
D New (Plaintiff)
K Stares (First Defendant)
Submitting appearance (Second Defendant)

Solicitors:
Office of the General Counsel, NSW Police Force (Plaintiff)
Legal Aid NSW (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2020/142284

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), there is to be no publication of the name of the victim or first defendant, including a reference to any information, picture or other material that identifies the victim or first defendant or is likely to lead to the identification of the victim or first defendant.

 Decision under appeal 

Court or tribunal:

Queanbeyan Children’s Court

Jurisdiction:

Crime

Date of Decision:

27 April 2020

Before:

Clisdell LCM

File Number(s):

2020/123616

Judgment

1. HIS HONOUR: On 16 July 2020, the Court, as presently constituted, granted orders allowing the appeal against the interlocutory decision issued by the Local Court on 27 April 2020. The issue related to the order by a Magistrate, whose intention and purpose was commendable, but, in the context of the legislative scheme under which his Honour was operating, without jurisdiction.

2. The Amended Summons seeks an appeal under s 57(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (hereinafter “the Appeal Act”). The learned Magistrate was exercising jurisdiction under the Crimes (Forensic Procedures) Act 2000 (NSW) (hereinafter “the Act”) and the appeal is brought under the Appeal Act and s 115A of the Act.

3. The applicant in the Summons for judicial review and/or appeal seeks that the orders made by the Magistrate be set aside, including any order made by the Magistrate to destroy forensic swabs that were obtained as a result of an Interim Forensic Procedure Order. Further, to the extent necessary, the applicant also seeks orders in the nature of certiorari, pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing the orders of the Children’s Court, to which reference has now been made.

4. The defendant does not oppose the orders and agrees that the learned Magistrate exceeded the jurisdiction conferred on him as a result of a misunderstanding of the jurisdiction being exercised.

Background Facts and Legislative Scheme

5. On Saturday, 25 April 2020, at 5:30 AM, an Interim Order for a Non-Intimate Forensic Procedure was made by a Registrar of the Local Court of New South Wales at Downing Centre in respect of a young person. As a result of legislative restrictions, that young person is unable to be named or identified.

6. On 27 April 2020, the learned Magistrate, at Queanbeyan, exercising the jurisdiction of the Children’s Court of New South Wales, set aside the Interim Forensic Procedure Order and further ordered the destruction of any forensic swabs obtained as a result of performing the Non-Intimate Forensic Procedure.

7. The Act allows an authorised officer to make an interim order authorising the carrying out of a forensic procedure on a suspect. There are pre-conditions to the making of such an interim order. [1] Those pre-conditions are:

1. The circumstance that s 23 of the Act applies;

2. The authorised officer being satisfied that the probative value of the evidence obtained as a result of any forensic procedure would be lost or destroyed if there were delay in carrying out the procedure; and

3. The authorised officer is satisfied that there is sufficient evidence to indicate that a Magistrate would be reasonably likely to be satisfied that an order should be made at any final determination of an application for a forensic procedure.

   1. Crimes (Forensic Procedures) Act, s 32(1).

8. Section 23 of the Act allows an order to be made by a Magistrate under s 24 (final order for the carrying out forensic procedure) or under s 32 (to which reference has already been made) to carry out a forensic procedure, if the suspect, upon whom it is intended that the forensic procedure be conducted, is not under arrest and has not consented to the procedure; or, the suspect is under arrest and has not consented to the procedure; or the suspect is a child or an incapable person.

9. From the foregoing, it is clear that, before an authorised officer may make an interim order, the authorised officer must be satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied, when an application for a final order is before the court, that a final order should be made. The final order is made under s 24 of the Act.

10. Section 24 requires a Magistrate to be satisfied, on the balance of probabilities, that the carrying out of a forensic procedure is justified in all the circumstances and that the circumstances referred to in ss 24(2) or 24(3) of the Act exist. The order in question in these proceedings involves a Non-Intimate Forensic Procedure and therefore the provisions of s 24(3) apply. Sub-section 24(3) of the Act requires the Magistrate to be satisfied that there are reasonable grounds to believe that the suspect has committed an offence and reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed that alleged offence.

11. In the evening of Friday, 24 April 2020, the applicant, being the police officer who applied for the Forensic Procedure Order, received a telephone call from other police officers relating to a report of sexual abuse upon a seven-year-old girl. The incident was alleged to have occurred in the late afternoon, earlier that day. It was reported to police almost immediately, and certainly as a matter of urgency, after the alleged victim reported the alleged incident to her mother.

12. Having formed the view that the incident met the criteria for investigation by the team in which the applicant serves, being the Southern Tablelands Child Abuse Team, of which the applicant is team leader, and, given the applicant’s experience, he considered that obtaining a forensic procedure was necessary because evidence from a forensic procedure would be highly probative at that early stage. As is a matter of judicial knowledge and well-known to the community, 25 April 2020 is a public holiday and, in this case, was a Saturday. As a consequence, the applicant sought an interim order which was granted by the Registrar, as earlier stated.

13. Before seeking that order, the alleged victim was interviewed and disclosed that she had been digitally penetrated in the anus by the defendant. In the view of the applicant, there was sufficient evidence to suspect the defendant and he gave the instructions to have the defendant arrested and for an application to be made for an Interim Forensic Procedure.

14. Part of the urgency for the taking of such a procedure was to obtain scrapings or swabs from under the defendant’s fingernails, as a result of the nature of the allegation. Such a procedure is different from a buccal swab for DNA evidence and, if successful, would reveal, or is likely to reveal, DNA and other material deriving from the alleged victim.

15. After all the procedures were finalised, it was already very early on Saturday morning and the applicant emailed the application for the Interim Forensic Procedure Order to the after-hours Registrar at 4:58 AM on 25 April 2020.

16. The applicant was advised at or about 5:30 AM that the Interim Forensic Procedure Order had been granted and was next listed in Queanbeyan Local Court on 27 April 2020 for consideration of the final order. An email was received at about 5:50 AM on 25 April with a copy of the Interim Order.

17. The Interim Order, which is Annexure B to the Affidavit of the applicant in these proceedings, is before the Court and refers, expressly, to the Registrar being satisfied of the matters referred to under the Act. The order required the taking of a buccal swab by the applicant himself; the taking of a sample of the suspect’s nails or of matter under the suspect’s nails, including nail clippings; the taking of a sample of any matter by swab or washing of an external part of the suspect’s body, other than private parts; the taking of a sample of any matter by vacuum suction, scraping or lifting by tape (again other than in relation to private parts); and the taking of a photograph or photographs.

18. The learned Registrar gave short reasons, which it is convenient to repeat:

“The relevant grounds upon which I relied to justify the making of the order are as follows:

• The suspect is accused of committing a serious indictable offence, to wit sexual intercourse with child under 10 years

• Seriousness of the circumstances surrounding the allegations of the alleged offence

• Degree of participation of the alleged defendant

• Currently being held in custody for said offence

• Police require forensic evidence to confirm suspects [sic] involvement in this offence”

19. There is, under the heading Information to Person Undergoing Forensic Procedure, information provided as to the police being able to use reasonable force and the like. A note to the order, made by the learned Registrar, is to the following effect:

“Note the Authorised Justice spoke to the mother of the young person [name deleted] over the telephone. I explained the process and the young person’s mother agreed to the forensic procedure being carried out on her son [name deleted].”

20. Prior to the issuing of the order, the defendant’s hands had been placed into bags for the purpose of ensuring that, accidentally or otherwise, the material that might otherwise be the subject of the forensic procedure would not be interfered with. The police then undertook the forensic procedures permitted under the Interim Order, to which reference has already been made.

21. After the forensic procedures were conducted, the defendant’s hands were removed from the bags and he was placed in custody. The defendant was refused Bail by police, but granted Bail by Parramatta Children’s Court on 25 April 2020. The substantive matter was next listed before Goulburn Children’s Court on 15 May 2020.

22. As for the forensic procedure, the final hearing for that application was listed in Queanbeyan Local Court on 27 April 2020 and the learned Magistrate made the orders to which this appeal relates. Those orders included the setting aside of the Interim Order and an order that any swab or material obtained by the forensic procedure be destroyed.

23. As a consequence of the foregoing, this appeal has been taken. The orders on 27 April 2020 did not deal with the merits of the application. The Magistrate, for understandable but incorrect reasons, took the strong view that, in relation to children, no order, including an interim order, could be made without the young person being represented.

Proceedings before the Magistrate

24. On 27 April 2020, the proceedings were very short. The prosecutor informed the Court that the applicant was before the Court and that the matter was a forensic procedure application. The prosecutor informed the Magistrate that the applicant could give evidence confirming the order that was made by the Registrar.

25. The learned Magistrate asked whether the young person had received a chance to answer yet and then stated the following:

“You can’t make an order by consent and there would have to be [sic] hearing to determine whether an order should be made, so I won’t be making any order today. It’s different with adults but with children there’s a completely different test and they are meant to be represented on these types of applications.”

26. After the Magistrate had made that comment, his Honour was informed that the substantive matter was listed on 15 May 2020 and the Magistrate adjourned the proceedings to that date at Goulburn. His Honour then proceeded to set aside the interim order.

27. At the time that order was made or foreshadowed, his Honour seemed to assume that the forensic procedure had not yet been executed. On being informed that the procedure had been undertaken, but had not yet been analysed, or could not be analysed, the learned Magistrate proceeded to set aside the order and make an order that any samples or results obtained from the procedures be destroyed.

28. Without seeking to cavil with the Magistrate’s orders, by then announced, the prosecutor informed the Magistrate that the interim order had been made by the Registrar of the Local Court and the Magistrate, nevertheless, set it aside on the basis that the Court could not issue such an order without providing the young person with a hearing on the question.

Jurisdiction to make Interim Orders

29. Ordinarily, a Non-Intimate Forensic Procedure may be carried out by consent and, where consent is not forthcoming, may be ordered. Each of those provisions is contained within Pt 4 of the Act. However, by operation of s 17(2) of the Act, Pt 4 does not authorise the carrying out of a forensic procedure on a suspect who is under the age of 18 years or acting under an incapacity.

30. Part 5 of the Act permits the making of Forensic Procedure Orders by order of a Magistrate or other authorised officer. As already indicated, a final order may be made under s 24 of the Act in circumstances described in s 23 of the Act. Section 24 of the Act expressly permits the issuing of a Forensic Procedure Order in relation to a child or a person under an incapacity. [2]

    2. Crimes (Forensic Procedures) Act, s 24(4)(e); cf s 23(c).

31. By operation of s 30, the Act requires, at a hearing in relation to an application for a final order, in relation to a child, that the person have an interview friend present if the suspect is present, and the person may be represented by a legal representative. [3] That which must and may be the subject of an order is prescribed by s 31 of the Act.

    3. Crimes (Forensic Procedures) Act, s 30(2).

32. Division 3 of Pt 5 of the Act deals with the making of interim orders and has already been described in these Reasons for Judgment. By operation of s 34 of the Act, the suspect or the suspect’s interview friend must be given an opportunity to speak with an authorised officer. As already indicated, that opportunity was provided.

33. As a matter of abundant caution, I note that the “bagging” of the hands of the defendant was a procedure permitted by s 37 of the Act. By operation of s 38 of the Act, the sample taken pursuant to an interim order must not be analysed until a final order is made, unless the sample is likely to perish before that order can be made. If it is taken, as a consequence of its status as perishable, the results of the analysis may not be disclosed, except to the suspect, until a final order is made. The disclosure of such a result, intentionally or recklessly, is a criminal offence.

The Forensic Procedures Act

34. The object of the Act is the public interest in facilitating the investigation of crime and the administration of justice in securing the conviction of those who are guilty and the non-prosecution or acquittal of those who are not guilty. [4]

    4. Plassas v Person [2016] NSWSC 1445 at [32], per Bellew J.

35. As earlier stated, Pt 5 Div 2 of the Act governs procedures for a final order and Pt 5 Div 3 of the Act governs procedures for applying for an interim order.

36. An authorised officer may order the carrying out of a forensic procedure on a child under s 32 of the Act, as indicated above. An authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (hereinafter “LEPRA”). [5] An authorised officer includes a Registrar of the Local Court.

    5. Crimes (Forensic Procedures) Act, s 3(1).

37. By operation of s 33 of the Act, an authorised applicant for those purposes, which, relevantly includes the applicant/plaintiff in these proceedings, is authorised to seek an Interim Forensic Procedure Order in respect of a child and the provision expressly provides that it may be the subject of an application “without bringing a suspect before an authorised officer and without obtaining an order under section 24”.

38. Section 33(1) of the Act permits an authorised applicant to make an application for an Interim Forensic Procedure Order on a child, in circumstances where it is necessary so to do without delay. That order (and the results of its execution), once issued, subsist until such time as a Magistrate hears the matter, in accordance with s 30 of the Act.

39. At the hearing under s 30 of the Act, the mandatory considerations in s 24 of the Act inform the decision and the Magistrate is entitled to confirm or disallow the Interim Forensic Procedure Order. [6] The Court has already set out or summarised the provisions of s 32(1) of the Act.

    6. Crimes (Forensic Procedures) Act, s 32(3).

40. In short, there is no requirement for a hearing at which a young person is entitled to be represented and entitled to test the evidence against them for the making of an interim order. The interim order subsists, as earlier stated, until the final order issues. If the final order rejected the application, then the results or any samples obtained pursuant to the interim order would be required to be destroyed.

41. It is at a final hearing that the defendant, or any suspect, can be heard; can test the evidence adduced against them; and is entitled to the rules of procedural fairness. Those rules would entitle a suspect to a reasonable opportunity to prepare and to present whatever case could relevantly be put forward. [7]

    7. Sullivan v Department Of Transport (1978) 20 ALR 323 at 343; [1978] FCA 48.

42. The Act makes clear that the purpose of an Interim Forensic Procedure Order is to maintain evidence and ensure that the evidence is not, as a result of unnecessary delay, lost.

43. The stringent provisions relating to the making of a final order and the other protections that are provided to ensure that the rights of a young person are sufficiently protected before the evidence that is gleaned, if any, can be used against the young person in any proceedings or at all, do not apply to the making of an interim order and the learned Magistrate misunderstood that aspect.

34. The foregoing is consistent with the reasons for judgment of Simpson J (as her Honour then was) in JW v Detective Sergeant Karol Blackley,[8] in which her Honour said:

“[4] What might not be apparent from the above summary of the legislative provisions is the purpose, the nature, and the limits upon, an interim order. I have pointed out that s 25 contains detailed, and quite stringent, provisions itemising the matters of which the magistrate asked to make a final order must be satisfied before doing so. There are no such limits on the making of an interim order. That is because, as is apparent from the language of ss 32 and 33, such an order may be made where it is necessary that the procedure be carried out ‘without delay’. However, there are then limits upon what use may be made of the product of any forensic procedure so authorised: s 38(1). Statutory recognition is given to the exigencies of any given situation: s 38 prohibits analysis of any sample taken under an interim order before a final order is made, unless the sample is likely to perish before that can be done.

[5] The effect of Pt 5 is that, while an interim order may be made in order to obtain and preserve evidence that may otherwise be lost, and may be made without the safeguards provided by s 25, no use (including analysis) may be made of the product of the forensic procedure unless a final order is made in accordance with the safeguards specified in s 25.”[9]

8. JW v Detective Sergeant Karol Blackley (2007) 172 A Crim R 483; [2007] NSWSC 799.

9. Ibid at [4] and [5].

45. The learned Magistrate misunderstood the jurisdiction of the Registrar of the Local Court to order an Interim Forensic Procedure Order and addressed the wrong question.

46. A question raised by the Court during the course of the appeal was whether that which was most appropriate was the appeal pursuant to the terms of s 115A of the Act or whether it was more appropriate to issue orders in the nature of certiorari. Ordinarily, where there is a full right of appeal, judicial review would not be the preferred option and an application for both may, in many circumstances, be an abuse of process.

47. Nevertheless, in these proceedings, I do not consider that the application for both sets of orders is an abuse. There can be little doubt that, absent a right of appeal, orders in the nature of certiorari would issue as a result of the jurisdictional error of the learned Magistrate. However, an appeal against a Magistrate’s refusal to make an order under s 115A(2) of the Act is an appeal on the same basis as if the refusal were an order dismissing a matter. As a consequence, an error of law of the kind evidenced in these orders, or in the making of these orders, is amenable to quashing and/or rectification on appeal and, on that basis, orders arising in the appeal are the preferred option.

48. It is for the foregoing reasons that on 16 July 2020, the Court made the following orders:

1. The Court grants leave to appeal the interlocutory decision pursuant to s 57(2) of the Crimes (Appeal and Review Act) 2001 (NSW);

2. The appeal made pursuant to s 115A of the Crimes (Forensic Procedures) Act 2000 (NSW) be upheld;

3. The order made by Magistrate Clisdell on 27 April 2020 setting aside the Interim Forensic Procedure Order of the Registrar made on 25 April 2020 in respect of the first defendant be set aside;

4. The order of Magistrate Clisdell to destroy any forensic swab obtained as a result of performing the Interim Forensic Procedure Order be set aside;

5. The matter be remitted to the Children’s Court for determination according to law before the court differently constituted;

6. No order as to costs.

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Endnotes

Decision last updated: 21 September 2020