L v Lyons; B and S v Lyons

[2002] NSWSC 1199

Reported Decision: (2002) 56 NSWLR 600
137 A Crim R 93

New South Wales

Supreme Court

CITATION:	L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199
FILE NUMBER(S):	SC 10625/02; 10640/02
HEARING DATE(S):	20 November 2002
JUDGMENT DATE:	13 December 2002
PARTIES :	L v Lyons & anor. B and S v Lyons & anor.
JUDGMENT OF:	Sully J at 1

LOWER COURT JURISDICTION :
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	C. M. Haskett - Children's Court Magistrate

COUNSEL :	H. Cox - Plaintiffs B and S A. Cook - Plaintiff J P. Singleton - 1st Defendant
SOLICITORS:	Christine Bourke - Plaintiffs B and S Robertson Saxton Primrose Dunn - Plaintiff J Michael North Holmes - 1st Defendant I. V. Knight, Crown Solicitor - 2nd Defendant submitting
LEGISLATION CITED:	Justices Act 1902 (NSW) Crimes (Forensic Procedures) Act 2000 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW)
DECISION:	In each of proceedings 10625/02 and 10640/02 the appeal is dismissed; the orders of the Local Court are confirmed; and the originating summons is dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

Friday 13 December 2002

10625/02 – L v LYONS & ANOR.
10640/02 – B and S v LYONS & ANOR.

JUDGMENT

INTRODUCTION

1 SULLY J: Before the Court are two sets of proceedings, each commenced by Summons. The two sets of proceedings are, in substance, appeals to this Court pursuant to Part 5 of the Justices Act 1902 (NSW), (“the Justices Act”). In the proceedings numbered 10625/02 there is one plaintiff. In the proceedings numbered 10640/02 there are two co-plaintiffs. Each of the three plaintiffs was at all material times a young man aged less than 18 years. It is, therefore, appropriate to refer to each plaintiff by a pseudonym. To that end, orders have been made that the plaintiff in the proceedings numbered 10625/02 is to be referred to by the pseudonym:J; and that the two co-plaintiffs in the proceedings numbered 10640/02 are to be known, respectively, by the pseudonyms: B and S. Each plaintiff proceeds by way of a tutor; but it is both inappropriate and unnecessary to say anything apt to identify the respective tutors.

2 Each summons cites two defendants. In each case the first defendant is one Julie Lyons. Miss/Mrs Lyons was at all material times a constable of police. As such, she made the original application which issued, eventually, in the making against each of the present plaintiffs of a Local Court order against which each plaintiff now seeks to appeal. Constable Lyons appeared by counsel at the hearing of the present summonses, and contested the plaintiffs’ various claims to relief. The second defendant in each case is the Local Court Magistrate who made, at first instance, the orders against which the present appeals have been brought. Her Worship entered, prior to the hearing before this Court, an appearance submitting to the orders of this Court, save only as to costs.

3 The power of this Court to entertain the present claims for relief depends upon, in particular, section 104(6) of the Justices Act. That sub-section provides:

“(6) An appeal under this division on a ground that involves a question of law alone may be made to the Supreme Court:
(a) against an order ………….. made by a magistrate under the Crimes (Forensic Procedures) Act 2000 authorising the carrying out of a forensic procedure on a person, or
(b) against the refusal of a Magistrate to make such an order”

4 The powers of this Court in determining, relevantly, a section 104(6) appeal are delineated in section 109 of the Justices Act. That section provides:

“109 The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:
(a) Confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it,
(b) Increasing or reducing the sentence appealed against,
(c) Making such other orders as it thinks just,
(d) Remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal.”

5 All of the present proceedings are governed by SCR Part 51B. SCR Part 51B Rules 7 and 8 provide:

“7. Subject to Rule 5, an appeal to the Court shall be instituted by filing a summons that
(a) states an appointment for hearing in accordance with Part 5 rule 4A; and
(b) claims the decision which the party instituting the appeal seeks in place of the decision of the tribunal below.
8. The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement:
(a) of the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law; and
(b) as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below.”

6 In the proceedings 10625/02 the original summons has undergone a number of transformations by amendment. In its form as finally amended, that summons seeks the following relief:

“1. Pursuant to s.104(6) Justices Act 1902, to appeal the Order of the Second Defendant providing for the taking of non-intimate photographs of the Plaintiff pursuant to s.24 Crimes (Forensic Procedure) Act.
2. A Declaration pursuant to s.75 Supreme Court Act, that insufficient evidence exists to allow for the making of an Order pursuant to s.24 Crimes (Forensic Procedure) Act against the Plaintiff.
In the alternative,
3. An order pursuant to s.65 Supreme Court Act that the Second Defendant re-hear the application of the First Defendant under the Crimes (Forensic Procedure) Act, and
4. A Declaration pursuant to s.75 Supreme Court Act, that at the rehearing of the application of the First Defendant under the Crimes (Forensic Procedure) Act, the Second Defendant apply s.13 Children (Criminal Procedure) Act to the evidence of young persons in the application of the First Defendant, and
5. Declarations pursuant to s.75 Supreme Court Act that the
(i) evidence of admissions made by the young person …(B)…be excluded totally; or in the alternative
(ii) evidence of admissions made by the young person …(B)… only be used against …(B)… and not the plaintiff; and
(iii) evidence of a record of interview conducted with the Plaintiff be excluded; or in the alternative; and
(iv) a voir dire into the admissibility of the record of interview, particularly into the inducements offered; and
(v) (a) A Declaration that the Second Defendant apply s.75 Evidence Act to exclude hearsay evidence of alleged victims of robberies.
In the alternative,
(b) The evidence of the alleged victims be presented in affidavit form as provided for by s.26(2)(a) Crimes (Forensic Procedure) Act.
6. A declaration that the learned Magistrate erred in law in that she failed to properly consider s.25(f) and s.25(g) Crimes (Forensic Procedures) Act in her consideration of the Application in the matter.
7. A declaration that the learned Magistrate did not discharge her duties properly according to law in that she failed to properly give the reasons for her decision to grant the Application in the matter.
8. Such other order as the Court deems fit.
9. Costs.”

7 In this set of proceedings only one statement, purporting to comply with SCR Part 51B Rule 8 has been filed. It contains the following material:

“1. Background
(i) On 23 November 2001 at Bidura Children’s Court the First Defendant provided information on oath to a Magistrate and a summons was issued to the Plaintiff and two other young persons joined as suspects in these proceedings, …(B)… and …(S)… , pursuant to Section 29(3) Crimes (Forensic Procedures) Act 2000 requiring the Plaintiff and …(B)… and …(S)…(referred to in these proceedings before a Magistrate as “suspects”) to appear at Bidura Children’s Court for a hearing of the application pursuant to Part V of the Crimes (Forensic Procedures) Act 2000.
(ii) The First Defendant sought orders from the Court for a non intimate forensic procedure to be carried out, specifically a photograph of the head and face of the Plaintiff for placement in a photographic line-up for the purposes of identification pursuant to Part V of the Crimes (Forensic Procedures) Act 2000.
(iii) On 11 January 2002 the hearing of the proceedings commenced before the Second Defendant at Bidura Children’s Court.
(iv) The First Defendant gave evidence in the proceedings before the Second Defendant setting forth the grounds upon which the Plaintiff and other young persons, …(B)… and …(S)…were suspects in a number of robberies.
(v) On 4 March 2002 the Second Defendant found that the hearing was not a criminal proceeding and held that Section 13 of the Children (Criminal Proceedings) Act 1987 did not prohibit her from receiving into evidence unsigned verbal admissions made to the First Defendant by the young person …(B)…, a young person then aged 15 years and made in the absence of a responsible adult.
(vi) During the proceedings the Second Defendant ruled that Section 59 Evidence Act did not apply and allowed into evidence as against the Plaintiff the admissions made by the young person …(B)… (as set forth in paragraph (v) ).
(vii) During the proceedings the Second Defendant refused to hear submissions or allow a voir dire on the admissibility of the contents of the record of interview conducted by a police officer despite allegations of the interview having been obtained by way of inducement, to wit suggestions by the First Defendant to the Plaintiff, a young person then aged 15 years, and his mother, that he should give an interview to the First Defendant and he would simply be cautioned as it would be a first offence.
(viii) On 4 march 2002 the Second Defendant allowed as evidence against the Plaintiff the finding of a replica pistol, similar to one alleged to have been used in a number of robberies, at the home of the young person …(B) … .
(ix) During the proceedings, the Second Defendant allowed as evidence against the Plaintiff, evidence tending to establish that a mobile phone stolen during a robbery on 26 September was later used with a SIM card registered in the name of…(the mother of) …(B)…, a young person.
(x) during the proceedings the Second Defendant allowed into evidence against the Plaintiff information tending to establish that a mobile phone stolen during a robbery on 21 September 2001 was later used with a SIM card registered in the name of …(the mother of the Plaintiff).
2. On the appeal of the Second Defendant’s determination it will be contended that the Second Defendant erred in law by finding the proceedings were not criminal proceedings and that Section 13 of the Children (Criminal Proceedings) Act 1987 did not apply to prohibit her from allowing into evidence the admissions by the Plaintiff without first embarking upon a voir dire to establish the provenance and reliability of the alleged admissions made in a record of interview with Police.
3. It will further be argued the Second Defendant erred in law as to the application of Section 59 of the Evidence Act to the proceedings and allowing hearsay evidence, as set forth in paragraphs (v), (vi), (vii) above.
4. It will be further argued that the Second Defendant erred in law in the admission of the evidence as set forth in paragraphs (viii) and (ix) above.”

8 In the proceedings numbered 10640/02, also, the summons as originally filed has been transformed somewhat by subsequent amendment. This summons, in its finally settled form, claims the following relief:

“3.1 An order pursuant to Section 109(a) of the Justice’s Act 1902 quashing the order of Ms C. Haskett, Magistrate, that the Plaintiffs attend at 3.00 p.m on Friday the 8th March 2002 for the Non Intimate forensic procedure namely obtaining a photograph of the plaintiffs’ heads and faces.
3.2 A declaration that the Magistrate erred in law in finding that the proceedings before her did not amount to criminal proceedings and that section 13 of the Children (Criminal Proceedings) Act 1987 did not prohibit her from allowing into evidence the admission made by the First Plaintiff.
3.3 A declaration that the Magistrate erred in law in allowing hearsay evidence from the Defendant without considering the application of the Evidence Act 1995.
3.4 A declaration that the Magistrate erred in law as the application of the Evidence Act 1995 to the proceedings in allowing into evidence as against the Second Plaintiff the admission of the First Plaintiff.
3.5 A declaration that the Magistrate erred in law as to the application of the Evidence Act 1995 to the proceedings in allowing into evidence as against the First and Second Plaintiff the admissions by (…J…), another young person joined as a “suspect” in the application before the Magistrate.
3.6 A declaration that the Magistrate erred in law in allowing as evidence against the Second Plaintiff the finding of a replica pistol at the home of the First Plaintiff.
3.7 A declaration that the Magistrate erred in law in allowing as evidence against the Second Plaintiff information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of “…(the mother of the First Plaintiff).
3.8 A declaration that the Magistrate erred in law in allowing as evidence against the First and Second Plaintiffs information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of … (the mother of another young person joined as a “suspect” in these proceedings).
3.9 An order that the matter be remitted to the Magistrate to be dealt with according to law.
3.10 Costs.”

9 The statement furnished in compliance with SCR Part 51B Rule 8 states the following grounds:

“1. BACKGROUND
(i) On the 23rd November 2001 at Bidura Children’s Court the Defendant provided information on oath to a Magistrate and a summons was issued to each Plaintiff and another young person joined as a suspect in these proceedings, …(J)…, pursuant to section 29(3) of the Crimes (Forensic Procedures) Act 2000 requiring each plaintiff and (…J…) (referred to in the proceedings before the Magistrate as “suspects”) to appear at Bidura Children’s Court for a hearing of the application pursuant to Part V of the Crimes (Forensic Procedures) Act 2000.
(ii) the defendant sought orders from the Court for a non intimate forensic procedure to be carried out, specifically a photograph of the head and face of each Plaintiff for placement in a photographic line-up for the purposes of identification pursuant to Part V of the Crimes (Forensic Procedures) Act 2000.
(iii) On the 11th January 2002 the hearing of the proceedings commenced before Ms C. Haskett, Magistrate at Bidura Children’s Court.
(iv) The defendant gave evidence in the proceedings before the Magistrate setting forth the grounds upon which police believed the Plaintiffs and another young person, (…J…), were suspects in a number of robberies.
(v) On 4th March 2002, the Magistrate found that the hearing was not a criminal proceeding and held that section 13 of the Children (Criminal Proceedings) Act 1987 did not prohibit her from receiving into evidence, unsigned verbal admissions made to the police by the First Plaintiff, a young person then aged 15 and made in the absence of a responsible adult.
(vi) During the proceedings the Magistrate allowed into evidence as against the Second Plaintiff the admissions made by the First Plaintiff (as set forth in paragraph (v) ).
(vii) During proceedings the Magistrate allowed into evidence as against the First and Second Plaintiffs the admissions made by the young person …(J)… .
(viii) During the proceedings the Magistrate allowed the Defendant to give hearsay evidence as to the contents of witnesses statements and COPS entries without considering the provisions of the Evidence Act 1995.
(ix) On the 4th March 2002 the Magistrate allowed as evidence against the Second Plaintiff evidence of the finding of a replica pistol similar to one used in a number of robberies at the First Plaintiff’s residence.
(x) During the proceedings, the Magistrate allowed as evidence against the Second Plaintiff, evidence tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of … (the mother of the First Plaintiff).
(xi) During the proceedings the Magistrate allowed into evidence against the First and Second Plaintiffs information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of … (the mother of another young person joined as a “suspect” in these proceedings).
2. On the hearing of the summons it will be contended that the Magistrate erred in law by finding that the proceedings were not criminal proceedings and that section 13 of the Children (Criminal Proceedings) Act 1987 did not apply to prohibit her from allowing into evidence the admission made by the First Plaintiff.
3. It will further be argued that the Magistrate erred in law as to the application of the Evidence Act 1995 to the proceedings and allowing hearsay evidence, as set forth in paragraphs (vi), (vii), (viii) above.
4. It will be further argued that the Magistrate erred in law in the admission of the evidence as set forth in paragraphs (ix), (x) and (xi) above.”

The Relevant Provisions of the Crimes (Forensic Procedures) Act 2000 (NSW), (“the Forensic Procedures Act”)

10 The Forensic Procedures Act received the Royal Assent on 5 July 2000. Its long title is:

“An Act to make provision with respect to the powers to carry out forensic procedures on certain persons and to make provision with respect to a DNA database system; to make a related amendment to the Justices Act 1902 and consequential amendments to the Crimes Act 1900; and for other purposes.”

11 The provisions of the Act which are particularly relevant to the present appeals are to be found in Part 5 of the Act. Part 5 deals with forensic procedures authorised by an order of a Local Court Magistrate.

12 Section 22, the opening section of Part 5, provides for the making by a Local Court Magistrate of an order authorising, pursuant to sections 24, 27 or 32 of the Act, the carrying out of a forensic procedure on a suspect. The relevant statutory definitions, taken from section 3 of the Act, are relevant to an understanding of the operation of Part 5 of the Act:

“ Forensic procedure means
(a) an intimate forensic procedure, or
(b) a non-intimate forensic procedure, or
(c) the taking of a sample by buccal swab
but does not include:
(d) any intrusion into a person’s body cavities except the mouth, or
(e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.
…………………………………………………………………………..
Non-intimate forensic procedure means the following forensic procedures:
(g) the taking of a photograph of a part of the body other than:
(i) the genital or anal area or the buttocks, or
(ii) the breasts of a female or a transgender person who identifies as a female.
[Note: The statutory definition is a very long one. Only that part of it which is immediately relevant to the present proceedings has been reproduced]
………………………………………………………………………..
Suspect means the following:

(a) a person whom a police officer suspects on reasonable grounds has committed an offence,
(b) a person charged with an offence,
(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person,
(d) a person who has been served with an attendance notice issued under section 100AB of the Justices Act 1902 in relation to an offence.”

13 It is provided by section 24 of the Act that a Magistrate may order the carrying out of a forensic procedure on a suspect if two conditions are fulfilled, namely:

(a) the condition that section 23 of the Act is applicable, and
(b) the condition that the Magistrate is satisfied in the sense required by section 25 that such an order ought to be made.

14 In the case of each of the present plaintiffs it is not disputed that section 23 applied for the reason that each plaintiff, as a suspect, could not consent to the carrying out of a forensic procedure because, relevantly, section 23 provides that a child, that is to say a person who is at least 10 years of age but under 18 years of age, cannot consent to the carrying out of a forensic procedure.

15 The challenges now made to the orders of the Local Court are based upon an alleged failure on the part of the Local Court Magistrate to comply with section 25 of the Act. The provisions, now relevant, of section 25 are:

“25. The magistrate must be satisfied that:
(a) the person on whom the procedure is proposed to be carried out is a suspect, and
(c) if the forensic procedure concerned is a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed:
(i) an indictable or a summary offence, or
(ii) another indictable or summary offence arising out of the same circumstances as that offence, or
(iii) another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(f) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence, and
(g) the carrying out of the forensic procedure is justified in all the circumstances.”

16 There are two further sections which require consideration. One is section 31; the other is section 103:

17 Section 31 provides as follows:

“31(1) If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must
(a) specify the forensic procedure authorised to be carried out, and
(b) give reasons for making the order, and
(c) ensure that a written record of the order is kept, and
(d) order the suspect to attend for the carrying out of the forensic procedure, and
(e) inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.
(2) The magistrate may give directions as to the time and place at which the procedure is to be carried out.”

18 Section 103 provides:

“In a proceeding, the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds, or suspected on reasonable grounds, as to a matter referred to in this Act.”

The Submissions of the Appellant J

19 (1) The learned Magistrate wrongly admitted evidence of a confessional statement made by the plaintiff B to Constable Lyons.

20 Constable Lyons gave oral evidence at the Local Court hearing. Her evidence dealt, relevantly, with information gathered by her in connection with a series of nine robberies that had been committed between 21 and 28 September 2001 in a particular area, at Kingsford and in the vicinity of the University of New South Wales. Constable Lyons gave evidence that her information was based on written statements obtained by investigating police from various witnesses in connection with six of the nine incidents; and upon the contents of entries in the Police Service’s COPS computer system in connection with the remaining incidents. Const. Lyons gave evidence that she had herself attended the scene of the ninth robbery. She had not herself seen the particular incident, but had arrived at the scene less than a minute after the incident. She gave evidence of having arrested the plaintiffs J and B; and of the decamping from the scene of a third person said to be the plaintiff S. Constable Lyons gave evidence of having spoken with the plaintiff B and of having had with him a conversations as follows:

“I said ‘What’s your name?’. He said ‘…… (B) …….’
I said ‘How old are you?’.
He said ‘fifteen’.
I said ‘Okay you’re under arrest for attempted robbery, you don’t have to say or do anything if you don’t want to, do you understand that?’.
He said ‘Yes’.
I said ‘We will record what you say or do, we can use this recording in court, do you understand that?’.
He said ‘Yes’.
At that time he was searched and Snr. Const. Ritter said ‘Look’ and a couple of metres away from us there was a length of white pipe in the bushes. I picked that up and held it out to the young person …(B) …. I said ‘Did you guys have this?’. He said ‘yes’.” [T11.1.02: at 35 (33) – (44)]

21 The solicitor then appearing for J, and the solicitor then appearing for B and S, both objected vehemently to the admission of evidence of this conversation. The submissions in support of the objections rested, relevantly, upon the following process of reasoning:

[1] The character of an application brought pursuant to Part 5 of the Forensic Procedures Act is that of criminal proceedings and not that of civil proceedings;


[2] Such an application made in respect of a person aged less than 18 years is, therefore, governed by the provisions of the Children (Criminal Proceedings) Act 1987 (NSW), (“the Criminal Proceedings Act”;

[3] Section 13 of the Criminal Proceedings Act provides that a statement, confession, admission or information “made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings” unless certain preconditions, which are established by section 13, are satisfied;

[4] The statement made by the plaintiff B to Constable Lyons did not satisfy those statutory preconditions;

[5] The evidence given by Constable Lyons in connection with her conversation with B was, therefore, inadmissible in the application made pursuant to the Forensic Procedures Act, and the Local Court Magistrate erred in law in ruling otherwise.

22 It is not disputed by the first defendant that, if section 13 of the Criminal Proceedings Act is applicable at all, its requirements were not complied with in connection with the statement made, according to the evidence of Constable Lyons, to her by the plaintiff B .

23 The real point for present decision is, therefore, whether the provisions of the Criminal Proceedings Act are applicable at all to an application brought pursuant to the Forensic Procedures Act against a person aged less than 18 years.

24 The Criminal Proceedings Act itself speaks at a number of different points and in a number of different particular contexts of “criminal proceedings”, but does not in terms define that concept.

25 That being so, it is appropriate to give the words “criminal proceedings” their ordinary grammatical meaning in the overall statutory context of which they form a part. It is convenient to begin that exercise by referring to section 8 of the Criminal Proceedings Act. That section provides:

“8(1) Criminal proceedings should not be commenced against a child otherwise than by way of summons or attendance notice.
(2) Sub-section (1) does not apply:
(a) if the offence for which proceedings are being commenced consists of:
(i) a serious indictable offence,
(ii) an indictable offence under Division 2 of Part 2 of the Drug Misuse & Trafficking Act 1985, or
(iii) an offence (whether indictable or otherwise) prescribed by the regulations for the purposes of this paragraph,
(b) if, in the opinion of the person by whom the proceedings are commenced, there are reasonable grounds for believing that
(i) the child is unlikely to comply with a summons or attendance notice, or
(ii) the child is likely to commit further offences, if the proceedings were to be commenced by summons or attendance notice, or
(c) if, in the opinion of the person by whom the proceedings are commenced:
(i) the violent behaviour of the child, or
(ii) the violent nature of the offence, indicates that the child should not be allowed to remain at liberty.
(3) If a child fails to comply with an attendance notice, the child’s attendance at the proceedings to which the notice relates should, unless there are exceptional circumstances, be enforced by way of summons rather than by way of warrant.”

26 It seems to me that the expression “criminal proceedings” in that particular context describes curial proceedings based upon an allegation that a child has in fact committed an offence that is both known to, and punishable under, the current criminal law. Such a construction of the expression “criminal proceedings” seems to me to be consistent throughout the Criminal Proceedings Act.

27 It seems to me that the policy objectives of the Forensic Procedures Act are not compatible with such an understanding of what is meant by the expression “criminal proceedings” as used in the Criminal Proceedings Act. The present plaintiffs have not been charged, as yet, with having committed any offence. They are, certainly, suspected of having committed a number of serious criminal offences. It seems to me, however, that it could not be contended reasonably that the Forensic Procedures Act proceedings in the Local Court were intended to culminate, or were capable whether in fact or in law of culminating, in either convictions or acquittals in respect of substantive crimes charged, heard and determined in those Local Court proceedings. The distinct requirements, earlier herein referred to, of section 25 of the Forensic Procedures Act contemplate clearly, in my opinion, an ultimate outcome which does not correspond at all to what would be contemplated ordinarily as the outcome of “criminal proceedings” in the sense in which that expression is conventionally employed by the law.

28 I am, therefore, of the opinion that the Local Court proceedings brought pursuant to the Forensic Procedures Act were not governed by the Criminal Proceedings Act.

(2) The Magistrate admitted hearsay evidence from Constable Lyons, which evidence took the form of the Constable’s reading from statements made to police officers by alleged witnesses and victims of various of the nine robberies

29 During the course of her evidence in the Local Court, Constable Lyons produced:

[1] a number of statements which she identified as written statements made by eye witnesses to, and in some cases victims of, some of the relevant robberies;

[2] evidence of entries in the Police Service Computer Data Base, which entries had been made by various police officers. Transcripts of these entries were received in evidence;

[3] evidence of oral statements made to her and to other police officers; and in particular, evidence of such oral statements made at the time of the arrests of the present plaintiffs J and B;

[4] evidence of statements made by the present plaintiff B to her;

[5] evidence of statements made by the present plaintiff J to other police officers, and recorded by those police officers in transcripts which Constable Lyons herself produced to the Court.

30 The documents variously identified by Constable Lyons in the course of her giving of her evidence respecting each of the foregoing five categories of evidence, were admitted into evidence over objection.

31 It was submitted for the plaintiff J that all of this material was hearsay material in the sense of that description as used in, particularly, Part 3.2 of the Evidence Act 1995 (NSW) (“the Evidence Act”). It was submitted that the Magistrate virtually ignored the provisions of Part 3.2 of the Evidence Act, with the result that evidence which was hearsay evidence, and governed as such by the provisions of Part 3.2, was admitted without any proper consideration of the effect upon the admissibility of the evidence of the relevant provisions of Part 3.2.

32 The initial ruling of the Magistrate, upon objection being taken to the admission of this body of evidence, was expressed as follows:

“I am not dealing with a criminal proceeding, I have made that finding, and hearsay evidence I find is admissible in these proceedings. It may not be admissible in any later criminal proceedings, if charges are laid, but that is not my view here.” [T 4.3.02: at 11,12]

33 As the evidence of Constable Lyons proceeded; and as various particular items were tendered through her, and as continuing objection was taken to those successive tenders as being tenders of inadmissible hearsay evidence, it became apparent from brief successive rulings of the learned Magistrate that her Worship’s real view was that the challenged material was admissible in the particular proceedings with which her Worship was dealing, not as hearsay evidence to prove the truth of what was asserted in the statements, but as a composite body of evidence to establish the maters required to be established by the relevant provisions, as herein previously quoted, of section 25 of the Forensic Procedures Act.

34 In my respectful opinion, this approach of the learned Magistrate was correct in law. Section 26(2)(b) of the Forensic Procedures Act required that the application made by Constable Lyons for orders pursuant to the Forensic Procedures Act be supported by evidence on oath dealing with the matters referred to in the relevant parts of section 25 of that Act. That did not entail, however, that Constable Lyons had to prove, by reference to whatever standard of proof might be thought appropriate to such an application, that the plaintiffs, or any of them, were guilty in fact of the crimes which they were respectively suspected by her of having committed. Constable Lyons was entitled to put before the Magistrate the composite body of material which she had collected and collated in connection with her application for orders under the Forensic Procedures Act; and she was entitled to argue, upon the basis of that composite body of material, that the Magistrate ought to be satisfied of, relevantly, the matters to which reference is made in paragraphs (a), (c), (f) and (g), all quoted previously herein, of section 25 of the Forensic Procedures Act. That seems to me to be the way in which the learned Magistrate approached the matter. In my opinion that approach of the learned Magistrate was correct in law.

(3) The Magistrate erred in law in that her Worship admitted in the particular case of the plaintiff J evidence of what the plaintiff B had said to the police.

(4) The Magistrate erred in admitting transcripts of the relevant entries in the Police Service COPS data base.

35 It seems to me that the essential flaw in these two submissions is the same as the essential flaw in the submission numbered (2) above. The material was not admitted in aid of a prosecution case aimed at establishing beyond reasonable doubt that J had committed offences distinctly charged against him. The material was admitted for the very different purpose of establishing to the satisfaction of the learned Magistrate, the matters prescribed by paragraphs (a), (c), (f) and (g) of section 25 of the Forensic Procedures Act, of all of which matters her Worship had to be satisfied before becoming entitled to make any order pursuant to that Act.

(5) The Magistrate erred in law in admitting the contents of an electronically recorded interview between the plaintiff J and investigating police.

36 Const. Lyons was extensively cross-examined by the two legal representatives then appearing for the present plaintiffs. In the cross-examination by the solicitor then appearing for the plaintiff J, the following is recorded as having occurred:

“Q. Were you present when Sgt. Pratt and …… (the plaintiff J’s mother)……were having a conversation at any time?
A. No. I don’t believe so. I was with …… (B) …… most of the night.
Q. You’re absolutely certain that there was no conversations between …(the plaintiff J’s mother) … and Sgt. Pratt that you overheard?
A. Not that I recall no. I was mostly with …(B)…, but I know that they were talking, but I don’t remember what was said.
Q. I’ll suggest to you in respect of …(the plaintiff J)…taking part in an electronic record of interview, that Sgt. Pratt said to …(the plaintiff J’s mother)… words to the effect of ‘Your son is a minor. This is a first offence, there won’t be any charges, he’ll get off, it’ll be a caution’.”

37 There was an objection, followed by legal argument, and a ruling of the learned Magistrate disallowing the question last quoted.

38 Very shortly thereafter, and at the close of the case for the applicant, the solicitor then representing the plaintiff Jasked to be allowed to call J’s mother “in respect of the issue I wish this court to consider, that is the induced statement”.

39 The Magistrate asked why such evidence was relevant to the particular proceedings with which her Worship was dealing. There ensued the following:

“[SOLICITOR]: Because if your Worship intends to give any weight to that document whatsoever your Worship needs to be aware under the circumstances which it was obtained. So your Worship would have been clear as to what weight you could give it.
BENCH: I’ve said again, I’ve said it before and I’ll say it again, I am not dealing with a criminal proceeding. To my mind matters that may or may not be admissible in some other proceedings, if any proceedings are ever brought in this matter, is not a relevant matter for me to consider. I am dealing with information being put forward to the court not in terms of it being evidence with respect to the truth of what was said, merely as being information, as part of the material which …. (not transcribable) … gives the police reasonable grounds for belief .. police officer ….(not transcribable) … . Anything else you want to say?
[SOLICITOR]: No apart from I’m astounded. That’s probably off the record.
BENCH: Leave is not granted.” [T 4.3.02: at 41,43]

40 Two submissions were put for the plaintiff J. One depends upon the operation of section 85 of the Evidence Act; and the other depends upon certain of the provisions of section 30 of the Forensic Procedures Act.

41 Section 85 of the Evidence Act provides:

“85(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:
(a) in the course of official questioning, or
(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for the purposes of sub-section (2), it is to take into account:
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject, and

(b) if the admission was made in response to questioning:
(i) the nature of the questions and the manner in which they were put, and
(ii) the nature of any threat, promise or other inducement made to the person questioned.”

42 Relevant to the construction and application of section 85 of the Evidence Act is the following definition, which is to be found in the Dictionary forming part of that Act:

“ Criminal proceeding means a prosecution for an offence and includes:
(a) a proceeding for the committal of a person for trial or sentence for an offence, and
(b) a proceeding relating to bail, but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth.”

43 The proceedings with which the Local Court was dealing, howsoever they might be characterised in law, cannot be fitted within that statutory definition of a criminal proceeding. It seems to me to follow that section 85 of the Evidence Act was not applicable to those particular Local Court proceedings.

44 The relevant provisions of section 30 of the Forensic Procedures Act are as follows:

“(6) The suspect or his or her representative:
(a) may cross-examine the applicant for the order, and
(b) may, with the leave of the Magistrate, call or cross-examine any other witness, and
(c) may address the Magistrate.
(7) A magistrate must not give leave under sub-section (6)(b) unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined.”

45 It seems to me to be clear from the material which I have earlier quoted that the learned Magistrate took the view that evidence of the kind that was proposed to be led from J’s mother was not relevant to the particular kind of inquiry with which her Worship was concerned. In my respectful opinion that approach was correct. The contents of the record of interview were admissible, and were in my opinion correctly admitted, as part of that composite body of information upon which the primary application had been made, and upon the basis of which the learned Magistrate was required herself to be satisfied of the relevant matters prescribed by section 25 of the Forensic Procedures Act.

(6) The Magistrate erred in that her Worship failed to consider properly the requirements of paragraphs (f) and (g) of section 25 of the Forensic Procedures Act.

46 In considering this topic it is important to be clear about the nature of the issue that was actually joined at the Local Court hearing.

47 The essential objective of Constable Lyons, as the applicant for the orders, was to obtain photographs which could be included in an array of photographs to be shown to the victims of the robberies and to other potential witnesses. The hope was, obviously, that the proper use of such an array of photographs would yield some identification evidence that was sufficiently strong, and apparently reliable, as to support prosecutions of J, B and S .

48 The issue joined at the Local Court hearing was, put simply, that the police had not been able to locate the people to whom they hoped to put such an array of photographs; and that there was, therefore, no real prospect that the taking of the photographs “might produce evidence tending to confirm or disprove that the suspect committed the relevant offence”.

49 The solicitor then appearing for the present plaintiffs B and S cross-examined Const. Lyons extensively on this topic. The cross-examination culminated in the following:

“Q. Constable there’s very little hope that you’ll be able to contact any of these witnesses isn’t there?
A. Well within a week, we haven’t been able to contact them, but I think we can. A lot of them know each other I think. Like for example Mr. Cheung, Mr. Chin said he’s got friends who have his number. I believe the one at Houston Road I’ll be able to find, locate him. We haven’t had much time to actually locate them. Could probably locate them through going through the university.”

50 In re-examination Constable Lyons gave this further brief evidence:

“Q. The only thing arising is the question that …(the legal representatives of J, B and S) … asked you questions of whether or not your expectations of finding these victims. Do you feel with further time and exhausting all your avenues that you that you would be more successful than you have been today to find these victims?
A. Yeah. I think it’s only fair to the victims that we follow every avenue we’ve got.” [T 4.3.02 at 42]

51 It was, in my opinion, undoubtedly open to the Magistrate to accept this evidence. I think that it is incontestable that, in the event, that is precisely what her Worship did. The evidence once accepted, it was, in my opinion, clearly open to the Magistrate to be satisfied that there were reasonable grounds for believing that the photographs, if available to the investigating police, “might” produce evidence in the sense contemplated by section 25(f).

52 The solicitor appearing in the Local Court for the present plaintiffs B and S put, in her final submissions, the following submissions directed in particular at section 25(g):

“The fourth step is you have to find that the carrying out of the forensic procedure is justified in all the circumstances. Your Worship in relation to both of my clients I would ask you to consider that section carefully. Whether it is justified to make an order to have the photographs taken of young people who have no previously criminal record and there’s no photographs with the police already, whether it’s justified to be shown to witnesses who may or may not be able to be contacted, who at the very least have made no attempt to keep in contact with the police.” [T4.3.02: at 48]

53 The solicitor then appearing for the present plaintiff J does not appear to have made any corresponding particular submission; but I think that it is fair to infer that he, and his colleague representing B and S, ran their respective cases, essentially, in tandem; and that the relevant submissions of either one of them might fairly be regarded as having been put by both of them.

54 The competing point of view was put succinctly and as follows:

“You have situation where the prosecution are alleging nine robberies have taken place, a handgun has been used in some of those and a metallic bar has been used in some of them. What more reason would you need than that to suggest these peoples’ photograph need to be taken if the prosecution have justified that they are suspects.” [T 4.3.02: at 53]

55 The learned Magistrate, in her final judgment, which was given ex tempore, canvassed briefly the foregoing submissions and then said:

“The prosecution submitted to the court that pursuant to the provisions of s 25 that the forensic procedure was justified pursuant to sub-section G, that there were nine robberies in this area over a very short period of time, that a hand-gun was supposedly used in several of them and metallic bars were used. The prosecution submitted that the photographs of the three young persons needed to be taken, that pursuant to the provisions of s 3, the three young persons were suspects, or are suspects, the persons whom the police suspect on reasonable grounds to have committed an offence or offences and given that some of the victims’ phones, I think it was three that were referred to, had two of the mothers’ SIM cards in them. The prosecution say again that the forensic procedure is justified in those circumstances, with respect to the record of interview of …(J)… and the comments made by …(B)… with Constable Lyons the Court should make a finding on the balance of probabilities that the three persons are suspects and they are suspects only and that their photographs should be taken.
Taking all of those matters into account and looking at the volume of evidence that has been presented to the Court, pursuant to the provisions of s 25 the court must be satisfied that person or persons on whom the procedure is proposed to be carried out is or aren’t suspects and to my mind that has been made out on the evidence presented to the Court, that on the evidence before the Court there are reasonable grounds to believe that the suspect or suspects committed the indictable offence of Robbery in Company Whilst Armed. That there are reasonable grounds to believe that the forensic procedure, that is the taking of photographs, might produce evidence tending to confirm or disprove that the suspect or suspects committed the various offences and the carrying out of the forensic procedure is justified in the circumstances. To my mind all of those provisions within s 25 have been made out and I make the order accordingly.” [T 4.3.02: at 62]

56 I have taken the extracts verbatim from the transcript of the Local Court proceedings. It is clear that the quality of the transcription leaves something to be desired, to say the least. I have kept that deficiency in mind in connection with anything to do with an assessment of the reasons of the learned Magistrate.

57 None of the present plaintiffs gave evidence or called evidence in the Local Court. The result was, necessarily, that the balancing exercise for which section 25(g) of the Forensic Procedures Act calls had to be carried out by the learned Magistrate upon the basis of very limited evidence.

58 In those circumstances, I am unpersuaded that it was not reasonably open to the learned Magistrate to conclude that the requirements of section 25(g) had been satisfied.

(7) The Magistrate did not discharge her Worship’s duty to give adequate reasons for her decision to grant the application

59 The first thing to be said about this submission is that the issue which it raises is not an issue of literary style but an issue of reasonable sufficiency. What is reasonable sufficiency is not some rhetorical abstraction, but a practical question related to the particular circumstances of the individual case that is being considered. Much will depend, of necessity, upon the complexity of the issues that have to be decided; upon the volume and the complexity of the evidence which has to be assessed in resolving those questions; and upon the nature and complexity of the competing submissions that have been put to the particular Court. It is necessary, in my opinion, to allow also for the pressures to which Local Court Magistrates are subject; and, in particular, to the expectation that a Local Court Magistrate will give, at least in the normal run of case, a prompt and practical judgment. None of the foregoing observations, I should perhaps stress, could excuse manifest error of law on the part of a Magistrate; but those considerations are, in my view, illustrative of the practical realities that need to be kept in mind in assessing a criticism that a particular Local Court decision is so lacking in clarity and in sufficiency of expression as to constitute error of law.

60 I am unpersuaded that the decision of the learned Magistrate in the present case was, when tested in that way, so deficient as to constitute error of law. There is no warrant for inferring that her Worship overlooked any of the requirements of, in particular, section 25; or that her Worship misunderstood the evidence, such as it was, that it had been placed before her. Her Worship was required to give a judgment that was just, practical and sensible, and prompt. I do not think that it can be found fairly that her Worship fell so far short of that requirement as to constitute error of law.

The Submissions of the Plaintiffs B and S

61 The written submissions of learned counsel for these two plaintiffs outline as follows the errors allegedly committed by the learned Magistrate:

“19. It is submitted that the Magistrate erred:
- when she found that section 13 of the Children’s (Criminal Proceedings) Act 1987 did not apply to the proceedings and thus admitted statements made by (J) and (B) which were inadmissible.
- admitted into evidence as against (S) and (B) evidence of statements made by (J) to police.
- admitted into evidence as against (S) and (J) statements made by (B) to police.
- allowed hearsay evidence into the proceedings from the Defendant namely reading by her of statements made by alleged victims and witnesses and contents of COPS entries.
- admitted into evidence as against (S) evidence tending to establish that a mobile phone stolen during the robbery was later used with a SIM card registered in the name of (the mother of B).
- admitted as evidence against both (S) and (B) information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of (the mother of J).”

62 The plaintiffs B and S relied, in addition, on the submissions which I have numbered above as submissions 6 and 7 in the matter of J.

63 As to those two particular submissions, I need not repeat what I have said in connection with them when dealing with the matter of J.

64 In relation to the six matters noted in the dot point paragraphs quoted above, the first and the fourth of those six matters have already been dealt with in connection with the case of J.

65 The remaining four of those six matters mirror, essentially, complaints with which I have previously dealt in connection with the matter of J. What I have earlier said about the admissibility of a composite body of information put forward as satisfying the requirements of section 25 of the Forensic Procedures Act, is applicable equally in the case of J, and in the related cases of B and S.

CONCLUSIONS AND ORDERS

66 I do not propose to canvass in any particular way the claims for relief in the two summonses. I prefer to approach, upon the basis only of section 109 of the Justices Act, the formulation of the orders that I consider to be appropriate.

67 To that end, I make the following orders:

In each of the proceedings 10625/02 and 10640/02 the appeal is dismissed; the orders of the Local Court are confirmed; and the originating summons is dismissed with costs.
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Last Modified: 12/17/2002