Lednar v Magistrates' Court
[2000] VSC 549
•22 December 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 6292 of 2000
| GARRY STEPHEN LEDNAR | First Plaintiff |
| and | |
| MICHAEL MARTIN O'BRIEN | Second Plaintiff |
| and | |
| McPHERSON ALEXANDER HILL | Third Plaintiff |
| v | |
| THE MAGISTRATES' COURT | First Defendant |
| and | |
| THE CHIEF COMMISSIONER OF POLICE (VICTORIA) | Second Defendant |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 October 2000 | |
DATE OF JUDGMENT: | 22 December 2000 | |
CASE MAY BE CITED AS: | Lednar & Ors v The Magistrates' Court & Anor | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 549 | Revised 28 March 2001 |
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Judicial Review – time extended to bring application – special circumstances not confined to reasons for failing to issue within time.
Natural Justice – right to be heard – Magistrates' Court exercising power under s.464ZF of Crimes Act 1958 – ordering taking of DNA sample – no right to be heard – application not in open court – breach of s.125 of Magistrates' Court Act 1986 – voidable order.
Exercise of Jurisdiction – satisfaction of factual matters – obligation to give reasons – failure to do so – statutory effect of failure – orders quashed – mandatory orders
made – no discretionary bar.
APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mrs F. Hampel QC with | Clayton Utz (pro bono) |
| For the 1st Defendant | No appearance | |
| For the 2nd Defendant | Mr P. Holdenson QC with Mr R. Gipp | E. John Butler Victorian Government Solicitor |
TABLE OF CONTENTS
PARTIES.......................................................................................................................................................................................... 1
BACKGROUND CIRCUMSTANCES........................................................................................................................................ 2
THE FACTS..................................................................................................................................................................................... 5
JUDICIAL REVIEW.................................................................................................................................................................... 13
EXTENSION OF TIME................................................................................................................................................................ 20
LEGISLATIVE SCHEME............................................................................................................................................................ 27
NATURAL JUSTICE................................................................................................................................................................... 34
SCOPE AND PURPOSE OF THE ACT................................................................................................................................... 49
INTERESTS OR RIGHTS AFFECTED.................................................................................................................................... 50
UNBIASED HEARING................................................................................................................................................................ 52
MINOR INFRINGEMENT OF RIGHTS................................................................................................................................... 52
DECISION MAKING PROCESS.............................................................................................................................................. 53
LEGISLATIVE FRAMEWORK AND INTENTION OF PARLIAMENT?.......................................................................... 55
OPEN COURT.............................................................................................................................................................................. 67
SATISFACTION OF TWO CONDITIONS PRECEDENT................................................................................................... 73
REASONS FOR DECISION...................................................................................................................................................... 75
SERVICE OF ORDER AND REASONS.................................................................................................................................. 77
ORDERS MADE IN ACCORDANCE WITH THE LAW?.................................................................................................... 77
DISCRETIONARY MATTERS.................................................................................................................................................. 81
CONCLUSION............................................................................................................................................................................. 81
HIS HONOUR:
The court has before it, a proceeding instituted by an originating motion seeking relief by way of judicial review pursuant to Order 56 of the Rules of Court.
Parties
The first plaintiff, Garry Stephen Lednar (also known as Ledner) ("Mr Lednar") is presently undergoing a term of imprisonment following conviction for armed robbery at the Melbourne County Court on 1 September 1999. He is due for release on 15 October 2001.
The second plaintiff, Michael Martin O'Brien ("Mr O'Brien") is presently undergoing a term of imprisonment following a conviction for armed robbery at the Melbourne County Court on 9 June 1998. He is due for release on 15 July 2002.
The third plaintiff, McPherson Alexander Hill ("Mr Hill") was sentenced to a term of imprisonment at the Geelong Magistrates' Court on 10 November 1999 for offences of breach of a combined custody and treatment order and theft of a motor vehicle. He was released from custody on 9 August 2000.
The first defendant, the Magistrates' Court, is joined in accordance with the procedure prescribed by Rule 56.01(2)(b) and (3) as representing two Magistrates whose orders are the subject of the review.
In accordance with the usual practice, the senior Magistrate has written to the Prothonotary requesting that a formal appearance be entered on behalf of the Magistrates' Court and informing the court that the defendant would not participate in the proceeding and would abide the result.
The second defendant, the Chief Commissioner of Police (Victoria) was joined representing the interests of members of the police force who obtained the orders the subject of the review. No issue was raised as to whether the Chief Commissioner was the proper defendant and accordingly I will proceed on the basis that he is the proper contradictor to the proceeding.
Background Circumstances
On 2 December 1997 the Crimes (Amendment) Act 1997 ("amending Act") was assented to.
It amended the Crimes Act 1958 ("the Act").
One of the purposes of the amending Act was to extend the range of offences for which a person could be compelled to undergo a forensic procedure and to enable a member of the police force to apply to a court for an order authorising the taking of a forensic sample from persons found guilty of certain offences including an order directing a person to undergo a compulsory procedure.
One of the new procedures was the authority given to a member of the police force to apply to a Magistrates' Court for an order directing a person to undergo a forensic procedure for the taking of a sample from any part of the body of the person. The type of sample could be an intimate or non-intimate one, which terms were defined by the Act.
The new provisions came into operation on 1 July 1998.
Thereafter members of the police force made applications to the Magistrates' Court for an order that persons who had committed what was known as a forensic sample offence and who were serving a term of imprisonment be ordered to undergo the forensic procedure, namely, to provide a sample which is commonly known as a DNA sample. The intimate samples include a blood sample, a pubic hair including the root, a sample of saliva and a swab taken from the external genitalia or anal region of a male or female.
In response to the amendment to the Act, the Forensic Procedures Implementation Team was established as part of the Victoria Police Crime Department in June 1998. The team has the responsibility of identifying persons who have been found guilty of a forensic sample offence and then to make application to the Magistrates' Court for an order to enable a sample to be obtained from those persons. The samples would be the subject of DNA testing and the information would be recorded on a DNA database which was set up pursuant to s.464ZFD of the Act. As a result of the establishment of the database comparisons could be made with DNA samples found at crime scenes.
The amending Act did not provide any procedure for the application to the Magistrates' Court and from 1 July 1998 the Team members adopted their own procedure which was apparently accepted by the Magistrates' Court. All applications have been made ex parte and without notice to the person against whom the orders were sought. The applications have not been determined in open court.
The Act does not prescribe any procedure, there are no regulations relevant to the applications to the court and the Magistrates' Court has not passed any rules of practice.
The evidence revealed the following documents were usually placed before the Magistrate –
(a)A standard form devised by the Victoria Police and headed –
"APPLICATION FOR COURT ORDER
DIRECTING A PERSON
TO UNDERGO A FORENSIC PROCEDURE"
Underneath the heading appears –
"Crimes Act 1958. Sec 464ZF"
The form notes the name of the police person making the application, the name of the person who is to give the intimate sample, his address, date of birth, the forensic sample offence the person committed, the date of the conviction and the court which convicted the person.
The form then goes on to provide a date and place of hearing of the application which in the present cases was the Melbourne Magistrates' Court and the next part of the form is headed "A BRIEF SUMMARY OF THE SCHEDULE 8 OFFENCE". Schedule 8 to the Act lists the forensic sample offences.
The member making the application signs the form.
(b)A summary prepared by a member of the police force of the Forensic Procedures Implementation Team stating the name and age of the person concerned, his conviction and sentence and whether he is presently serving a term of imprisonment.
(c)The person's criminal history summary which is contained in the Law Enforcement Assistance Programme database which is kept by the police.
Sometimes the application form was supported by a document which appears to be some form of affidavit but not in proper form.
In this document the applicant deposes to the following –
"I hereby acknowledge that this application is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury."
The court was informed by Mr O.P. Holdenson QC who appeared with Mr R. Gipp for the Chief Commissioner, that the statement was adopted from clause 8 of Schedule 5 of the Magistrates' Court Act 1989 which deals with statements tendered in committal proceedings.
It will be necessary to consider later the documents which were filed with the Magistrates' Court in respect to each of the plaintiffs.
The procedure which has been adopted is apparently acceptable to the Magistrates' Court and many orders have been made by the Magistrates' Court since 1 July 1998.
The evidence reveals that as at 6 September 2000 the police have in their possession 2,980 unexecuted orders to obtain forensic samples. Of that number 1,700 were issued ex parte and as at 9 October 2000, 1,101 orders have been executed and the information recorded upon the DNA database.
The new procedure has resulted in a number of successful matching of samples with samples identified at various crime scenes. The results show that DNA samples have been matched in 157 offences, including seven murders, 17 armed robberies and six rapes.
As at today there are approximately 1,000 applications ready to be made by the Team in order to complete the applications in respect of convicted persons presently in custody. Approximately 50 applications are being filed with the Magistrates' Court each week.
The Facts
The court orders made in respect to each of the plaintiffs were made pursuant to s.464ZF(3) of the Act.
A member of the police force may obtain an order provided the following two matters are established –
(a)At any time prior to 1 July 1998 the person has been found guilty by a court of a forensic sample offence;
(b)at any time on or after that date, the person is serving a term of imprisonment or a period of detention in a prison, police gaol or youth training centre or as a security patient in an approved mental health service for any offence whether or not a forensic sample offence.
See s.464ZF(3)(a) and (b).
A "forensic sample offence means any offence specified in Schedule 8". See s.464ZF(1).
Schedule 8 lists a number of serious offences and divides them into four categories, namely, non-sexual offences, sexual offences, property offences and drug offences. Amongst the non-sexual offences are murder, manslaughter and intentionally causing grievous bodily harm. Amongst the property offences are robbery, burglary and assault with intent to rob.
On 5 May 1994 Mr Lednar was convicted at the Springvale Magistrates' Court of three charges of burglary and received a 12 months' suspended sentence. Burglary is a forensic sample offence.
On 1 September 1999 Mr Lednar was convicted of armed robbery at the Melbourne County Court and sentenced to a term of imprisonment with a minimum period of 36 months. He is at the Loddon Prison in Castlemaine.
It follows that the two prerequisites to the making of the application were satisfied.
An application for an order directing Mr Lednar to undergo a forensic procedure for the taking of a sample was filed with the Melbourne Magistrates' Court on 25 February 2000 without notice to Mr Lednar.
On 1 March 2000 unbeknown to Mr Lednar, an order was made by Ms Popovic Magistrate in the Melbourne Magistrates' Court that he be directed to undergo a forensic procedure for the taking of an intimate sample from any part of his body.
On or about that date a meeting was held at the Bendigo Prison where Mr Lednar was undergoing his sentence, and he was informed by the Governor that court orders had been obtained against him and other prisoners and that each was obliged to provide the samples. He was informed that reasonable force could be used to obtain the sample.
Mr Lednar was aware that prisoners were being forcibly required to provide a sample but as yet he has not been requested to provide a sample but has stated in an affidavit in support of the present proceeding that he would refuse to provide a sample. Other evidence establishes that his refusal has been made clear to the prison authorities and the police.
No order has been served on Mr Lednar. On 9 June 2000 a solicitor acting on his behalf obtained a certified extract of the order made against him.
The second plaintiff, Mr O'Brien, was convicted on 9 June 1998 at the County Court for armed robbery, was sentenced to a period of five years' imprisonment and is presently at the Barwon Prison, Lara.
He is a person who has committed a forensic sample offence and is serving a term of imprisonment.
Application was also made to the Melbourne Magistrates' Court without notice to him. Unbeknown to him, on 1 March 2000 the Magistrate, Ms Popovic, sitting at the Melbourne Magistrates' Court, ordered that he be directed to undergo a forensic procedure for the taking of an intimate sample from any part of his body.
On or about 1 March 2000 he also attended a meeting at the Bendigo Prison and was informed that an order had been made against him and was required to provide a sample. He made it clear to a prison officer that he would not provide a sample. Thereafter on a number of occasions he was requested by prison officers to provide a sample but refused to do so. Some days after 14 March 2000 he attended a meeting at which he was told that the sample could be taken by force. Mr O'Brien had been informed that he could arrange for his own doctor to perform the procedure and he indicated that he wished his own doctor to perform it.
On 19 April 2000 he was locked in his cell and was then asked by prison officers would he consent to the procedure and on his refusal gas was sprayed into his cell. He started to lose consciousness and recalls having shackles placed around his wrists and being dragged to the showers where he was washed down. He was then dragged to the visitors' area and was informed by a police officer as to the procedure which was about to take place. He stated he did not want to be tested but said that he wanted his own doctor to perform the procedure if he had to. He was then held down and a blood sample was taken from his thumb. He was later moved to the Barwon Prison in early May.
He said that at no time was he served with a copy of the order but according to Senior Sergeant Amiei a copy of the order was placed on the table in front of Mr O'Brien and its contents explained. The copy of the order was placed in his property at the prison.
On 28 April 2000 a solicitor acting on behalf of Mr O'Brien obtained documents from the Criminal Co-ordinator's Office at the Melbourne Magistrates' Court concerning Mr O'Brien and it was asserted by a person at the office that the documents were the material before the Magistrate.
The documents comprised the application form with the accompanying "affidavit', a summary concerning Mr O'Brien prepared by Senior Constable Thomson and a certified extract of the order made by the Magistrate.
Mr O'Brien has deposed that he had not seen this order until it was produced to him when he swore his affidavit on 25 August 2000. As I have stated this fact is disputed.
The plaintiff Mr Hill was convicted on 25 July 1994 of 43 charges of burglary at the Dromana Magistrates' Court and sentenced to an effective term of imprisonment of two years.
Mr Hill, was convicted on 10 November 1999 at the Geelong Magistrates' Court for offences of breach of a combined custody and treatment order and also for the theft of a motor vehicle. He was released on 9 August 2000. His imprisonment was served at both Bendigo and Barwon Prisons.
It follows that he had been convicted of a forensic sample offence. There is a dispute whether the requirement of s.464ZF(3)(b) has been satisfied.
He attended a meeting in early March at the Bendigo Prison where he was told that the police were allowed to perform blood tests on him to obtain his DNA and that the police would perform the tests shortly. He was told he had no right to refuse but if he did reasonable force could be used. He was not given a copy of any court order.
On 14 March 2000 he was asked a number of times would he consent to the procedure and he refused.
On 19 April 2000 he was confronted at his cell door by a number of men and was asked to consent to the testing procedure and realising he could not stop them, decided to consent. He stated he wanted his own doctor to perform the procedure but was told it would take too long. He was seated at a table and handed a Caution before Forensic Procedure form, another form called the Endorsement for Court Orders/Interim Orders for Forensic Procedures and a certified extract of the order made by the Magistrates' Court. A male nurse approached him and a blood sample was taken from his finger. One week later he was transferred to the Barwon Prison.
The court order that was served upon him revealed that the order had been made on 5 November 1999 by Mr K.G. Mason Magistrate at the Melbourne Magistrates' Court and ordered Mr Hill to undergo a forensic procedure for the taking of an intimate sample from any part of his body. Mr Hill was not given any notice of the application and the order was made without his knowledge.
Senior Constable Susan Thwaites was instructed to prepare the application in respect of Mr Hill.
At the date of the order, which was 5 November 1999, Mr Hill was not physically in a prison.
Hence whilst it was established that he had been convicted of a forensic sample offence prior to 1 July 1998, at the date of the order he was not in a prison.
The criminal history summary revealed that on 6 January 1999 he faced a number of charges at the Geelong Magistrates' Court, including theft and burglary.
He was sentenced to an aggregate period of 12 months' imprisonment and was required to serve seven months in prison and the balance was to be served by way of a combined custody and treatment order under s.18 of the Sentencing Act 1991.
It followed that as at 5 November 1999 he was not actually in prison but he was serving a combined custody and treatment order under s.18.
One of the issues in the present proceeding concerns the satisfaction of the two conditions precedent to a police officer obtaining an order against Mr Hill. Clearly he had been convicted of a forensic sample offence prior to 1 July 1998. But was he serving a form of detention within the meaning of s.464ZF(3)(b) of the Act at the relevant time?
As each of the plaintiffs was not given any information prior to the application being made for the order, each is unable to give direct evidence as to what was before the Magistrate and what occurred.
Affidavits have been sworn by three members of the police force who have provided some information as to what was before the Magistrates and there is also evidence from a solicitor acting for each of the plaintiffs who obtained documents from the Magistrates' Court.
It would appear from the evidence that the following documents were before the Magistrate in respect to each of the plaintiffs –
(a)Mr Lednar:
(i)the application form completed by a Detective Senior Sergeant Ringin with an accompanying "affidavit";
(ii)a statement prepared in support of the application by Senior Constable Bult;
(iii)a copy from the police database printout of Mr Lednar's prior convictions.
Mr Lednar was born on 17 October 1966 and has a substantial number of criminal convictions dating from 26 June 1987 including burglary, motor car offences and drug offences.
(b)Mr O'Brien:
(i)an application completed by Detective Senior Sergeant Ringin together with accompanying "affidavit";
(ii)a statement prepared by Senior Constable Thomson in support of the application;
(iii)a copy of the police database print out of Mr O'Brien's prior convictions.
Mr O'Brien was born on 8 October 1962 and has been convicted of many offences. His first conviction was on 21 March 1980 and since then has been convicted of many offences including motor car offences, offences involving violence, burglary, armed robbery and theft.
(c)Mr Hill:
(i)an application completed by Detective Inspector Cowlishaw but no accompanying "affidavit";
(ii)a statement prepared by Senior Constable Susan Thwaites;
(iii)a copy of the police database print out of Mr Hill's prior convictions;
(iv)a copy of the certified court extract of the Schedule 8 convictions at the Dromana Magistrates' Court on 25 July 1994.
Mr Hill was born on 7 June 1963 and was first convicted of a criminal offence in February 1991. He has been convicted of a number of offences since, including theft of motor vehicles, deception, possessing cannabis, burglary and theft from a motor vehicle.
The applications made in respect to each plaintiff were made without notice to each plaintiff. There is no direct evidence as to what occurred before the Magistrates, but it is clear that the applications were heard in Chambers and not open court, and that so far as Messrs Lednar and O'Brien are concerned the Magistrate on 1 March 2000 made some 38 orders under the forensic sample procedure provisions of the Crimes Act. The police deponents have not given evidence as to whether any member of the force was present when the applications were determined by the Magistrates.
The court order made in respect of each plaintiff is in exactly the same terms.
It is convenient to refer to the order made against Mr Lednar which provided –
"Order that the respondent LEDNER AKA LEDNAR, Gary
be directed to undergo a forensic procedure for the taking of
an intimate sample from any part of his body pursuant to the
provisions of s.464ZF of the Crimes Act 1958 (as amended).
Pursuant to s.464ZF(9)(a) of the Crimes Act 1958 (as amended)
a copy of this order and reasons are to be served on the
respondent.
Pursuant to s.464ZF(9)(b) of the Crimes Act 1958 (as
amended), the respondent is informed that a member of the police
force may use reasonable force to enable the procedure to be
conducted."
Each order recited reasons. An issue has arisen whether the statements do in fact constitute reasons. They are in similar form.
Mr Mason Magistrate made the order against the third plaintiff Mr Hill and his reasons are expressed as follows –
"Reasons:
The above-named person has been found guilty by the Magistrates' Court of a forensic sample offence.
Any appeal period from such sentence has expired.
The appeal has been finally determined and the conviction for the forensic sample offence upheld.
The seriousness of the circumstances of the forensic sample offence.
In all the circumstances the making of the order is justified."
The two other court orders were made by Ms J. Popovic Magistrate and she has expressed exactly the same reasons in each case. It is convenient to refer to the reasons in respect of Mr Lednar. They are –
"Reasons:
The above named person has been found guilty by the Magistrates' Court of a forensic sample offence.
Any appeal period from such sentence has expired.
The seriousness of the circumstances of the forensic sample offence.
In all the circumstances the making of the order is justified."
Judicial Review
The originating motion was issued on 1 August 2000.
Rule 56.02 requires that a proceeding be commenced for judicial review "within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose".
The orders with respect to Messrs Lednar and O'Brien were made on 1 March 2000 and the order in respect of Mr Hill was made on 5 November 1999.
Mr Lednar obtained a copy of the order with respect to him on 9 June 2000, Mr O'Brien obtained a copy of the order in respect of him on 19 April 2000 and Mr Hill obtained a copy when it was served on him on the same day.
Each plaintiff has failed to commence the proceeding within 60 days of the making of the order.
Each plaintiff has applied to extend time under Rule 56.02.
Mr Holdenson QC for the Chief Commissioner opposed an extension of time.
Rule 56.02(3) of the Rules provides –
"(3)The court shall not extend the time fixed by paragraph (1) except in special circumstances."
Mr Holdenson QC submitted that there were no special circumstances and he relied upon the decision of Beach J in Denysenko v Dessau (1996) 2 VR 221.
In particular Mr Holdenson QC relied upon what His Honour said at p.224. His Honour held that the fact that the Magistrate's decision was demonstrably wrong could not constitute a special circumstance within the meaning of the paragraph of the rule and he held that the special circumstances must relate to the plaintiff's failure to commence the proceeding in time and not the decision subject to review. He further held that the failure of the Legal Aid Commission to grant legal aid, following what Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at 417 could not amount to a special circumstance.
I expressed some concern about Beach J's decision and because the parties had prepared their respective cases and that the matters raised by the originating motion were not only of substantial interest to the plaintiffs but also to the community I indicated that I would hear the proceeding and decide the application to extend time later.
The originating motion sought an order in the nature of certiorari to quash the orders made in respect to each of the plaintiffs and an order prohibiting the Magistrates' Court from acting in excess of jurisdiction and a declaration that the decisions were void ab initio. As against the Police Commissioner an order was sought in the nature of mandamus to produce and destroy the intimate samples taken from the second and third plaintiffs.
The plaintiffs have raised many grounds upon which relief was sought.
In summary, the grounds concerning the Magistrates' Court raise questions of jurisdiction, acting without jurisdiction, errors of law, orders on insufficient evidence breach of the rules of natural justice and failure to determine the applications in open court.
In addition, it is alleged against the Police Commissioner that there have been breaches of the rules of natural justice in connection with the execution of the decisions made by the Magistrates against the second and third plaintiffs, Messrs O'Brien and Hill.
I raised with Mrs Hampel QC who appeared with Mr Connellan of counsel whether there was any basis in law for an obligation to observe the principles of natural justice in the execution of a court order. They were unable to refer me to any authority and accordingly I made a decision that the proceeding should be divided and that any questions concerning the execution of the orders if necessary should be considered and determined later.
Accordingly, the first part of the judicial review concerns the procedures adopted and the making of the orders in respect to each plaintiff.
There is no right of appeal from an order made by a Magistrates' Court under s.464ZF of the Act.
The application is not a criminal proceeding and hence an appeal to the Supreme Court on a question of law in a criminal proceeding under s.92 of the Magistrates' Court Act 1989 is not available. This is clear from the provisions of s.26 of that Act which state that a criminal proceeding must be commenced by filing a charge.
The application is not a civil proceeding and hence the appeal provisions to this court on a question of law found in s.109 do not apply. Part 5 of that Act is concerned with civil proceedings and the extent of the jurisdiction is set out in s.100. Section 100 does not apply to the application.
It also follows that the appeal to the County Court pursuant to s.83 of the Magistrates' Court Act does not apply, because it not a criminal proceeding within the meaning of the Act.
Accordingly, the only avenue open to the plaintiffs to challenge the orders is by way of common law judicial review.
The common law jurisdiction of this court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.
The jurisdiction of the court to review decisions of inferior courts and tribunals is limited.
The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.
The judicial review procedure is concerned with the legality of what was done by the court or Tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.
Judicial review is not concerned with whether the decision was fair or correct.
Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.
The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia (1994) 184 CLR 163 at 175-76. In a joint judgment the court said:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
(Emphasis added).
In Chief Constable of North Wales Police v Evans (1982) 1 WLR 1155, Lord Brightman at p.1173 said –
"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
In R v District Court; ex parte White (1966) 116 CLR 644 Windeyer J said at p.655 –
"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is 'final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition …
I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts."
(Emphasis added).
The High Court in Craig's case, supra, at p.176 identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.
But the court is not concerned with the correctness of the decision by the Magistrate whether it be in respect to questions of fact or law.
This is made clear by what Lord Reid said in Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 at 171 when he listed the types of grounds which would render a decision a nullity. His Lordship said –
"It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some other matter which, under the provision setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides the question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. … If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law."
(Emphasis added).
This court is not concerned to examine whether in fact each Magistrate made the right decision, whether he or she misapplied some principle of law, but is concerned to ensure that the Magistrate acted within jurisdiction and that in performing his or her decision making process, complied with the law.
The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra, at pp.176 et seq where the court drew a distinction between tribunals and inferior courts. After giving examples of jurisdictional error the court said at pp.179-180 –
"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error."
(Emphasis added).
It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling.
Sometimes there is controversy about what constitutes the record for the purposes of an order in the nature of certiorari. The Rules do require, as did the common law, the production of the record.
I refer to what the High Court said in Craig's case, and emphasise that the jurisdiction is not appellate and it does not enable this court to substitute for the decision made, a decision which this court thinks should have been made.
Although the plaintiffs seek an order "in the nature of certiorari" quashing the orders of the first defendant they also seek further or other relief and it is clear from the grounds that they are not confining their attack upon the orders to an error on the face of the record.
Where the attack is made on grounds other than an error on the face of the record then the court can take into account any relevant material placed before it subject, of course, to rules of procedure and evidence.
Affidavits were filed by and on behalf of the plaintiffs and a number of members of the police force filed affidavits.
Rule 56.01(4) of the Rules of Court obliges the plaintiffs to state the grounds upon which the relief is sought. The originating motion sets out the grounds relied upon by the plaintiffs.
There are many grounds relied upon but it was clear from the submissions of counsel for both sides that there are a number of issues to be considered and determined.
They are –
(i)Did the audi alteram partem rule of natural justice apply to the applications made by members of the police force in respect of each of the plaintiffs?
(ii)Should the application have been heard and determined in open court?
(iii)Were the two conditions precedent to the making of an order pursuant to s.464ZF satisfied in respect to each plaintiff?
(iv)Was the procedure adopted by the police and Magistrates' Court a proper exercise of the jurisdiction of the court in accordance with the provisions of the Crimes Act?
(v)Was each order made in accordance with the law and in particular was there sufficient evidence to enable the Magistrate to make the order in accordance with the statutory provisions and did the Magistrate properly consider all matters before making an order?
(vi)Did the Magistrate in respect of each order give reasons for the decision?
(vii)Was a copy of the order and reasons served on each plaintiff?
(viii)If any plaintiff has established a right to relief are there any discretionary matters to deny the relief?
Before considering the issues it is necessary to consider whether the plaintiffs are entitled to an extension of time.
Extension of Time
Rule 56.02(1) provides –
"(1)A proceeding under this order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose."
Paragraph 2 of that sub-rule makes it clear that if relief is claimed in respect of an order then the date when the grounds arose is the date of the order.
Hence the 60 days' period commenced to run from 1 March 2000 with respect to the first two plaintiffs and from 5 November 1999 in respect of Mr Hill.
Paragraph 3 makes it clear that the court shall not extend time "except in special circumstances".
In my opinion it would be a gross injustice if time was to run against an aggrieved party when he did not know of the existence of an order which he wished to challenge. In my opinion the failure to serve the orders within a reasonable period constituted a special circumstance and it is appropriate to consider the position as if the period of time commenced from the time when the order came to the notice of each plaintiff. By the time the order was actually brought to the notice of Mr Lednar time had expired. If time commenced to run when he was given notice on 9 June 2000, then the originating motion was issued within time. When approached in that way it is a special circumstance that service of the order was effected so late, thereby denying him the opportunity to issue within time. So far as Messrs O'Brien and Hill are concerned each had knowledge on 19 April 2000 and accordingly the 60 days' period expired on or about 18 June 2000.
Adopting that approach Mr Lednar is entitled to an extension of time. I do not accept the contention that he knew by being told on or about 1 March 2000 that an order had been made that that is sufficient. Section 464ZF(9) of the Act requires service of a copy of the order and the reasons for it upon each person the subject of an order. In my opinion the failure to serve the order on Mr Lednar within a reasonable time in the circumstances, constitutes a special circumstance and Mr Lednar is entitled to an extension of time.
The periods in relation to Messrs O'Brien and Hill are delays of approximately 44 days.
In Denysenko v Dessau (1996) 2 VR 221, a person accused of an indictable charge sought and obtained adjournments of the committal on two occasions. The reason being that legal aid had not been granted. On the next occasion legal aid still had not been granted and the Magistrate refused a further adjournment and committed the defendant for trial denying him the opportunity to cross-examine prosecution witnesses. He sought legal aid to have the Magistrate's decision reviewed and legal aid was finally granted eight months after his application. He filed an originating motion seeking judicial review and sought an extension of time. In that case there was a delay of some seven and a half months after the 60 days' period had expired.
Two arguments were put in support of the application, namely, that the Magistrate's decision was demonstrably wrong and secondly, the delay by Legal Aid was of such a magnitude that both the error and the delay by Legal Aid constituted special circumstances.
At p.224 His Honour said this –
"In my opinion the fact that the Magistrate's decision was demonstrably wrong cannot constitute a special circumstance within the meaning of the rule."
His Honour having noted that it was clear that the Magistrate had made an error went on to say this –
"If one was to hold that an erroneous decision by a Magistrate constituted a special circumstance, then it would follow that in any such case an aggrieved party would be able to ignore the 60 day requirement safe in the knowledge that he could successfully apply for an extension of time when minded to do so. In my opinion that cannot have been the intention of the framers of the rules. 'Special' when used in this connection must mean something unusual, uncommon exceptional or extraordinary. There is nothing unusual, uncommon exceptional or extraordinary in a judicial officer, whether he or she be Magistrate or Judge, making an error of fact or law in a particular case. Indeed one's experience is to the contrary. The circumstances which must be special must relate to the plaintiff's failure to commence a proceeding in time, not the decision for it to be reviewed."
(Emphasis added).
On the question of legal aid His Honour referred to what Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at 417 where Fitzgerald J said –
"I doubt whether legislative intention that applications for review be considered expeditiously should be permitted to be frustrated by any delay in obtaining a grant of legal aid, except in exceptional circumstances. It seems to me that, in general at least, it is for the Legal Aid Commission to meet times fixed by statute or by the courts rather than for an absence of legal aid to provide an excuse for non‑compliance."
(Emphasis added).
Beach J agreed with that proposition and went on to say this –
"I consider that an absence of legal aid to assist a person to commence a proceeding for judicial review cannot amount to a special circumstance within the meaning of the rule."
In relation to what Fitzgerald J said it is to be observed that His Honour did not state that the delay by Legal Aid could never be a basis for an extension.
I respectfully disagree with Beach J's approach.
In construing Rules of Court it is necessary to determine the intention of the framers of the rules. The judges of the court would be well aware of the relevant matters considered in applications for extension of time in relation to bringing proceedings and appeals; factors such as the justice to both parties, period of delay, prejudice to either party and whether the applicant has an arguable case. If the judges intended to restrict the issue to circumstances which only related to the applicant's failure to commence the proceeding in time then the rules could have expressly so provided.
On occasions legislation has so provided.
By way of example s.109(5) of the Magistrates' Court Act 1989 provides for an extension of time to appeal, but only if "the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances". The sub‑section was considered by McDonald J in Schwerin v Equal Opportunity Board and Ors (1994) 2 VR 279 and His Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.
Rule 56.02(3) does not confine the special circumstances to the failure to institute the appeal within time and reading Order 56 as a whole there is nothing in its provisions which limit the special circumstances to the failure to institute the proceeding.
In my opinion it was not the intention of the framers of the rule to so confine the paragraph in Rule 56.02 and in my opinion one has to consider all the circumstances which include not only the reasons for failing to bring the proceeding within time but also whether the plaintiffs have an arguable case and whether the defendants would be prejudiced by an extension of time.
In determining what are special circumstances it is necessary for the court to weigh up the interests of both the plaintiff and the defendant. The rules have prescribed a 60 day period during which a proceeding should be commenced and the rules should be complied with. Further, in the area of public law it is not only the interests of the parties that may be affected but also the public interest. A party that has the benefit of an order in its favour should be able to proceed and enforce or rely upon the order or decision once the period for judicial review has expired. Indeed it is a matter of some weight if a late attack is made upon an order where a party has relied upon it and would suffer detriment or prejudice if time was extended.
The court does have a discretion which it may exercise where special circumstances are established and what constitutes special circumstances in any particular case will depend upon the circumstances of the case. It is not appropriate to attempt to fetter the jurisdiction by seeking to define what are "special circumstances". In my opinion the chances of the plaintiff being successful in the application, the injustice to a plaintiff if the decision or order is allowed to stand, prejudice to the other party and difficulties concerning legal aid in my view are relevant factors to whether or not there are special circumstances. They have to be weighed and the court has to then determine whether in totality they constitute special circumstances.
The phrase "special circumstances" appears in various legislation and hence cases on what the phrase means have to be approached with some care.
The phrase appears in the English Solicitors Act of 1843 which authorised the court to order a taxation of a bill of costs after payment if "special circumstances" required it. Some of the early cases attempted to lay down what constituted special circumstances. However, later cases emphasised that each case must depend on its own particular circumstances. In Re P & M (1895) 39 Sol Jo 640, Chitty J said at p.640 –
"The question is whether special circumstances in the opinion of the court requiring taxation are shown. Lindley L.J. in Re Cheesman dealt with the question generally, saying:
'The court has got out of the narrow groove laid down by some of the earlier cases, which decide that there must be pressure and overcharge, or overcharge so gross as to amount to fraud, and it is now settled by Re Boycott and Re Norman that each case must stand on its own circumstances. The court cannot lay down a hard and fast rule not imposed by the Act; it must be judged in each case whether there are special circumstances such as to make it right or reasonable that the bill should be taxed although it has been paid.'
In that opinion, which agrees with what had been laid down by Bowen L.J., I respectfully concur. It is dangerous to overlay the language of an Act of Parliament which has entrusted the court with a discretion by defining special circumstances under which alone taxation will be directed and reducing the discretion almost to a nullity."
(Emphases added).
I respectfully agree.
The question comes down to what matters are relevant to the issue, and in my opinion justice must be a relevant consideration. That is justice to both sides. Prejudice to the other party is a weighty matter but often can be overcome by some suitable order, for example, adjournment or costs.
In the present matter, Mr Holdenson QC expressly stated that if time was extended there would be no prejudice suffered by the members of the police force who applied and obtained the orders.
Mrs Hampel QC listed a number of reasons why time should be extended and which she submitted in totality established special circumstances.
The matters relied upon are first that the orders were made ex parte, no notice of intention to apply was given and the applicant did not have an opportunity to be heard; secondly, that the orders were not served before the taking of any sample; thirdly, that there was no opportunity to seek advice or challenge the orders made before execution; fourthly, that the three persons were in custody in country prisons without easy access to legal advice and without means; fifthly, that assistance has been provided to mount the challenge by the intervention of the Public Information Law Clearing House which resulted in lawyers being retained on a pro bono basis. Sixthly, that there were difficulties encountered in trying to obtain orders and information from the Magistrates' Court at Melbourne; seventhly, the legislation is new, giving powers of an extremely intrusive nature and that the questions raised by the judicial review were matters of public interest and importance; and finally, that there was no prejudice suffered by the members of the police force if the time was extended.
Without seeking to examine closely each particular factor put forward, in my opinion all the factors collectively constitute special circumstances and in particular that the applications were made in secret, without notice to any of the persons involved, without any public scrutiny of what took place before the Magistrate, that the orders were not served or specifically brought to the attention of the plaintiffs until a substantial time after the orders were made, that the legislation is new, the questions raised are novel and of importance to the public interest and finally, that the orders were executed at the time the second or third plaintiffs saw a copy of the order and before they could take any legal advice to do anything about it. The delays which occurred came about in no small part because of their incarceration in prisons which were in the country, and because of difficulties in obtaining information. In the absence of prejudice, in my view there are special circumstances and I extend time to bring the proceeding to 1 August 2000.
Legislative Scheme
The common law of crime has evolved over many centuries. The law has always been protective of the rights of accused persons and has been much influenced by the philosophy that it is better to acquit 99 guilty persons than ever convict an innocent person.
The right to arrest was limited and the right to detain depended upon lawful arrest. No person was obliged to answer a policeman's questions. There was no right to photograph an accused person or compel a suspect to be fingerprinted.
An accused person has always had the right to silence. He or she can refuse to answer questions put by police and can stand mute at trial. In this State such conduct cannot be criticised at trial and no adverse inference can be drawn.
An accused person could not be required to do anything which may incriminate him or her. He was presumed innocent until proven guilty and could not be convicted unless the prosecution proved beyond reasonable doubt all the elements of the offence.
Over recent years Parliament has progressively modified many of the ancient rights of persons suspected of committing crimes to meet the community's concern over ever increasing criminal activity.
More sophisticated tools are now available to enable investigators to prove the commission of a crime. One of those is the obtaining and use of DNA, a form of genetic fingerprinting which is considered by scientific experts as a reliable means of identification. It serves as an investigative tool not only to convict criminals but also serves to clear persons wrongly accused of crimes.
It is recognised that a proper balance must be struck between bringing a criminal to justice and the rights of a persons suspected of a crime.
For many years now the police have had the power to apply to a Supreme Court judge for a listening device. Now see the Surveillance Devices Act 1999. A judge of the court may issue a warrant to members of the police force to use a surveillance device to enable them, inter alia, to listen to private conversations. See Part 4 of the Act. Of course secrecy is important, as is surprise, and such applications are made in closed court and publication of the proceeding is forbidden. See s.15(6) and (7).
A Consultative Committee on Police Powers of Investigation was established in 1984 under the then chairmanship of the Director of Public Prosecutions, Mr John H. Phillips QC and that committee in 1984 recommended that the common law rule concerning the right of police to detain a person for questioning and delay in taking a person before a justice should be relaxed to allow the police up to six hours to allow consensual questioning. The government accepted this recommendation and amended the Crimes Act.
In 1985 the government asked the then Director of Public Prosecutions, Mr John Coldrey QC to reconvene the Consultative Committee to examine the effectiveness of the amendment and it found that the fixed six hour limit on consensual questioning was too inflexible and recommended a number of changes to the law which were designed to strike a balance between the need to protect individuals from unlawful conduct and the need for effective law enforcement.
The Committee proposed changes to the law on consensual questioning and replacing the fixed time limit with a reasonable time, recommended a statutory basis for the right of suspects to communicate with friends and legal advisers and the mandatory tape recording of interviews for indictable offences.
The Committee's recommendations resulted in the Crimes (Custody and Investigation) Act 1988 which covered the topics of consensual questioning and the tape recording of confessions. It introduced subdivision 30A "Custody and Investigation" into the Crimes Act.
The Committee also reported on the questioning of fingerprinting and recommended that the police have power to obtain an order from a court requiring compulsory fingerprinting. This resulted in the Crimes (Fingerprinting) Act 1988 which also inserted provisions into sub‑division 30A.
Section 1 of that Act stated the purpose as follows:
"(1)The purpose of this Act is to enable members of the police force to fingerprint certain persons either by consent or by order of the court."
Section 464M of the Crimes Act authorised a member of the police force to apply to a Magistrates' Court for an order directing that a suspect give his or her fingerprints.
Sub-section (1) provided that the application should be "without notice to any other person".
The section set out how the application was to be made and of what the court should be satisfied, before the order was made.
In contrast, s.464N concerned fingerprinting of children and that section gave jurisdiction to the Children's Court to make an order. Sub-section(9) required that the application must be served on the parent or guardian and if the young person was not in custody, on the young person. Sub-section (10) then went on to provide –
"(10)The court may dispense with the requirement of sub-section (9)(a) if satisfied that it is impracticable for the applicant to comply."
Sub-section (11) then addressed the question of representation and it provided –
"(11)With the leave of the court, a young person may be represented on an application under this section by a parent or guardian of the young person."
The Legislature made it clear that in relation to an adult person, application for an order to the Magistrates' Court was to be without notice, whereas if a child was concerned notice was required and the young person could be represented by a parent or guardian with the leave of the court.
Following on from the two reports the Consultative Committee reconvened to consider the difficult question of body samples and examinations.
The committee delivered its report in September 1989.
The preface to the report sets out the reasons why the investigative tools of the police should be increased. It stated –
"Advances in scientific knowledge and technology have, in the area of criminal investigation, resulted in the emergence of forensic science as a potent investigative and evidentiary tool and one which law enforcement agencies such as the Victorian Police increasingly seek to utilize. The value of a forensic procedure lies not merely in its capacity, either alone or in combination with other evidence, to implicate a person in the commission of a specific crime, but also in its ability to exculpate a person under suspicion.
Developments in forensic science make it difficult to resist arguments in favour of granting to law enforcement agencies the power to pursue modern modes of investigation especially where the end product is objective or real evidence as distinct from the subjective evidence derived from records of interview and identification parades.
The Committee has concluded that there is a case for empowering the police to undertake a number of forensic procedures as an adjunct to the traditional techniques of criminal inquiry.
Nonetheless it must be recognized that the granting of powers (particularly coercive powers to any law enforcement agency), requires the balancing of a number of competing interests. Those interests include the need to identify and convict those who commit criminal offences; the need to ensure that individuals in our society are not subjected to unlawful or unfair treatment; and the need to preserve privacy and civil rights."
The report noted that the police did not have "any general power to obtain samples of biological fluids or other substances whether internal, adhering to the body of a suspect or to perform a physical examination of a suspect". See p.3 of report.
The Committee considered that the police should have powers to obtain body samples and to conduct examinations of suspects even in circumstances where the suspects were not consenting to the procedure.
The Committee drafted legislation to amend the Crimes Act.
The proposed legislation concerning compulsory procedures involved an application being made to a magistrate supported by information either written or oral establishing certain defined matters and required that the suspect be present before the magistrate during the application.
The report led to the passing of the Crimes (Amendment) Act 1993. Although the draft legislation put forward by the Committee formed the basis of the legislation, it did not correspond with the draft.
The same Act also amended the earlier provisions concerning the taking of fingerprints.
Section 464K concerned fingerprinting of adults and children aged 15 or above and if the suspect did not agree to providing fingerprints then power was given to the police to use reasonable force. The power was given to obtain the fingerprints without court order, unlike the provision introduced in 1988. However, s.464L was concerned with fingerprinting of children aged 14 or under which was concerned with consent and s.464M empowered the Children's Court to order fingerprinting. Again, notice of the application must be served on the parent or guardian, although the court could dispense with that if it was impracticable.
Sub-section (7) provided that the child was not a party to the application, could not call or cross-examine any witnesses and had a limited right of address to the court. Sub-section (8) gave the right to the child to be represented by a legal practitioner or with the leave of the court a parent or guardian.
Section 464R dealt with what was called a forensic procedure on an adult suspected of an indictable offence and a forensic procedure was defined by s.464(2) as meaning the taking of a sample from any part of the body "whether an intimate or non-intimate sample".
An "intimate sample" meant, inter alia, a blood sample, a sample of pubic hair or a sample of saliva.
Section 464S dealt with informed consent being given and s.464T concerned compulsory procedure which empowered a Magistrates' Court to order a person undergo the compulsory procedure.
Sub-section (4) provided that the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person was present and the only exceptions to that requirement was where an interim order was made under ss.464V and W.
Although the suspect had to be present, sub-s.(5) made it clear that he was not a party to the application, he was not entitled to call or cross-examine any witnesses, but had a limited right of addressing the court and under sub-s.(6) he was permitted to be represented by counsel or a solicitor.
The court was obliged to consider matters set out in sub-s.(3) and was obliged, to give reasons for its decision, state the evidence on which it is satisfied and cause a note of the reasons to be entered in the records of the court – see sub-s.(7).
It is noted that if the court failed to comply with sub-s.(7) the order was not invalidated.
Section 464U concerned a court ordered forensic procedure on a child and it followed the same form with respect to the notice of the application, the presence of the child and the right to address the court.
The law has now moved on. It was with this background that the amending Act the subject of the present proceeding was passed. In 1997 the Crimes (Amendment) Act was passed.
Its purposes are set out in s.1. Section 1(c) provided –
"The purpose of this Act is to –
(a) …
(b) …
(c) Amend the Crimes Act 1958 so as to –
(i)extend the range of offences for which a person can be compelled to undergo a forensic procedure;
(ii)…
(iii)enable a member of the police force to apply to a court for a forensic sample from persons found guilty of certain offences;
(iv)extend the grounds on which a member of the police force may apply for a court order directing a person to undergo a compulsory procedure;
(v)to make provision for persons to volunteer to give samples to provide information for inclusion in a computerised data base."
The amending Act inserted a new s.464ZF which is concerned with the forensic procedure following the commission of a forensic sample offence.
This section is the one that gave power to the Magistrates' Court to make the orders which were made in the present proceeding.
It was enacted in a regime of legislation concerning compulsory procedures.
The previous two pieces of legislation established a pattern concerning procedures to be adopted to obtain evidence by compulsion. In some instances the member of the police force could take steps to demand that the evidence be given and in other instances it was necessary to make application to the Magistrates' Court. The procedure laid down in relation to an application to the Magistrates' Court differed. Sometimes nothing was said about notice, and the right to be heard, and sometimes notice was to be given. The legislation specifically set out a limited right to be heard. It could be inferred that where the legislation was silent as to notice and the right to be heard that no obligation existed to provide notice. This conclusion is reinforced by the fact that where a right to be heard was given it was indeed very limited. Where the legislation did not provide for notice, the rights affected were similar to the situation where a limited right to be heard was given.
Natural Justice
Each of the plaintiffs submits that he was entitled to notice of the proposed application for the compulsory procedure, and was entitled to appear and be heard on the application before the order was made.
Section 464ZF provides as follows –
"(1)In this section –
'child' means a child aged 10 years or more but under 17 years;
'forensic sample offence' means any offence specified in Schedule 8.
(2)If at any time on or after the commencement of section 25 of the Crimes (Amendment) Act 1997 a court finds a person guilty of –
(a) a forensic sample offence; or
(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence –
a member of the police force, at any time following that finding but not later than 6 months after the expiration of any appeal period or the final determination of an appeal (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
(3)If –
(a) at any time before the commencement of section 25 of the Crimes (Amendment) Act 1997, a person has been found guilty by a court of a forensic sample offence; and
(b) at any time on or after that commencement, that person is serving a term of imprisonment or a period of detention in a prison, police gaol or youth training centre or as a security patient in an approved mental health service for any offence, whether or not a forensic sample offence –
a member of the police force may apply to the Magistrates' Court or the Children's Court (as the case may be) for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly.
(4)In any application to a court under sub-section (2) or (3), the member of the police force must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure.
(5)If an application made under sub-section (3) is in respect of a forensic procedure to be conducted on a person who is a child, notice of the application must be served on the child and a parent or guardian of the child.
(6)An order made by a court under sub-section (2) or (3) before the appeal period in relation to the forensic sample offence has expired or an appeal (if any) has been finally determined (whichever is the later), must not be executed unless –
(a) that appeal period expires; or
(b) an appeal (if any) is finally determined and the conviction for the forensic sample offence is upheld –
which is the later.
(7)If on appeal a conviction for the forensic sample offence is quashed, an order made by a court under sub-section (2) or (3) ceases to have effect.
(8)A court hearing an application under sub-section (2) or (3) –
(a) must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order under sub-section (2) or (3); and
(b) must be satisfied that, in all the circumstances, the making of the order is justified; and
(c) may make such inquiries on oath or otherwise as it considers desirable.
(9)If a court makes an order under sub-section (2) or (3), it must –
(a) give reasons for its decision and cause a copy of the order and reasons to be served –
(i)if the order directs a person (other than a child) to undergo the forensic procedure, on the person; or
(ii)if the order directs a child to undergo the forensic procedure, on the child and a parent or guardian of the child, and
(b) inform the person ordered to undergo the forensic procedure that a member of the police force may use reasonable force to enable the procedure to be conducted.
(10)A failure of a court to comply with sub-section (9) does not invalidate any order made by it but constitutes non‑compliance for the purposes of section 464ZE(1)(a).
(11)If a forensic procedure has been conducted on a person in accordance with this section, a copy of every forensic report must be given or sent by registered post as soon as practicable but not more than 7 days after the procedure was conducted –
(a) if the person is not a child, to that person; or
(b) if the person is a child, to that child and a parent or guardian of that child."
(Emphasis added).
At the outset four observations can be made.
First, the section establishes two different procedures. The first is found in sub‑s.(2) and covers a situation where a court finds a person guilty of a forensic sample offence or an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence. A member of the force within a certain time period may apply to the court in which the person was convicted for an order directing that he undergo a forensic procedure.
This means that the actual court which dealt with the convicted person makes the order and in practice this has usually been immediately after conviction and in the presence of the convicted person.
The orders made in the present matter which are under challenge were not made pursuant to sub-s.(2). They were made under sub-s.(3). Subject to the satisfaction of two conditions, a member of the police force may obtain an order directing a person to undergo a forensic procedure for the taking of a sample. The application is made to the Magistrates' or Children's Court.
Secondly, sub-s.(5) requires the service of a notice of the application on a child or a parent or guardian of the child. There is no similar requirement where the person concerned is an adult.
The third observation is that the section does not require notice to be given to the person who is to provide the forensic sample, nor does it set out any procedure whereby that person would have any right to notification of the application or to appear on the application. In this regard it is to be compared with some of the other provisions in sub-division 30A of the Act which do require notice of an application to be given to the person the subject of any proposed order.
Finally, the Legislature has not adopted the notice requirements and the limited right to be heard which was employed in s.464T which is concerned with orders being made for compulsory procedures in respect of persons who are suspected of committing an offence.
Many years ago, the common law established a rule that certain rights or interests of members of the community could not be interfered with by a decision, unless the individual was given a fair hearing.
In the case of The King v The Chancellor, Masters and Scholars of the University of Cambridge, (1723) 1 Strange 557; 93 E.R. 698 the court was concerned with an application to restore to Richard Bentleigh his academic degrees. He was not given an opportunity to be heard.
Fortesque J said at p.704 of the E.R. –
"Besides the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such a occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded that thou should not eat? And the same question was put to Eve also."
The rule of law known as the principles of natural justice comprise two separate common law rules designed to ensure a fair hearing is given to those whose rights or interests are affected by the decision.
The two rules are, first, the hearing rule, audi alteram partem, which requires proper notice be given to the person whose interests will be affected by an adverse decision and a fair opportunity to be heard.
The second rule is the bias rule which requires that a decision maker must not be affected by bias in his decision making role. The second limb of natural justice is not relevant in this proceeding and can be put to one side.
It is trite law, that courts of law are bound by the rules of natural justice. That observation is true when the court is acting as a court of law adjudicating disputes between parties. But courts sometimes are required by statute to exercise a different power or jurisdiction which does not involve it in a dispute resolution process.
Different considerations apply and the inference that the fair hearing rule applies is weaker than in a court context.
The notice – hearing rule applies to a court in the usual case before a court where there are two parties contesting an issue and a decision is made. The procedures adopted by the courts have developed to give effect to the objective of dispute resolution by a process of an impartial adjudicator honestly and fairly hearing the dispute. The presence of a lis inter partes necessarily involves the obligation to accord natural justice.
But the power given to the Magistrates' Court by s.464ZF is a specific power which does not involve the resolution of a dispute between two parties. The power is supervisory and administrative rather than truly judicial.
That is not to say that the rules of natural justice do not apply. They can. But as the courts have pointed out, a court exercising judicial review jurisdiction should be slow to impose upon administrative decision makers the same rules as would be applied in a court of law.
Gleeson CJ when discussing the obligation to have matters heard in public and in particular an inquiry by the Independent Commissioner Against Corruption said –
"To a substantial extent, the courts, in requiring bodies over whom they exercise jurisdiction to observe procedural fairness, have been influenced in their ideas of what constitutes procedural fairness by the procedures adopted by courts. As was pointed out by Lord Shaw of Dunfermline in Local Government Board v Arlidge (1915) A.C. 120 at 138, judges have tended to imitate methods of judicial procedure when enforcing requirements of procedural fairness. The authorities have repeatedly warned against making the uncritical assumption that what is required in a court is also necessary for an administrative body."
ICAC v Chaffey (1992) 30 NSWLR 21 at 29.
But whether an inferior court is bound to accord natural justice will depend upon the nature of the proceeding and the provisions of the statute which gives it the particular jurisdiction or power it is exercising.
The law concerning the notice‑hearing rule has developed in the areas of administrative, government, executive government and licensing decisions.
In the absence of an express power, the court in certain circumstances will imply the notice‑hearing obligation into a statute.
Whether or not procedural fairness applies has been described as the "threshold test".
In Cooper v Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180; 143 E.R. 414 the defendant board was empowered by statute to demolish a house in the event of a failure to give the board seven days' written notice of intention to build. The plaintiff commenced building without giving the notice and had reached a certain stage when late one evening the employees of the board demolished the construction. The plaintiff sued the board in trespass submitting that whilst the statute authorised the board's actions, it's statutory powers should be subject to giving a party the opportunity to be heard before depriving him of his property.
At p.420 Byles J said –
"It seems to me that the board are wrong whether they acted judicially or ministerially. I can see they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions, beginning with Dr Bentleigh's case, and ending with some very recent cases, establish that, although there are no positive words in a statute requiring that a party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr Justice Fortesque in Dr Bentleigh's case, is somewhat quaint, but is very applicable, and has been the law from that time to the present."
(Emphasis added).
In McPherson v McPherson (1936) AC 177, an undefended divorce took place during a luncheon interval in the judge's law library in the courthouse at Edmonton, Alberta in Canada. This was not one of the regular courts in the courthouse. The public did not have access to the judge's law library.
The Privy Council held that the judge presiding at the divorce proceeding was denying the public attendance in his court in breach of the right to be present. The Privy Council applied the principles of the common law in Scott v Scott, supra.
The Privy Council rejected the submission that the irregularity rendered the orders null and void. After noting that there was no authority on the point, the judicial committee stated at p.203 –
"And their Lordships are of the opinion that neither on principle nor by authority can they be supported, that the decrees here in question were voidable only, and not void, and that the time for avoiding them has long gone by. …
Here their Lordships are dealing with a decree pronounced after a serious trial free from every other defect in procedure, and one entered and remaining on the court files as regular in every respect. To say that such a decree is void would seem to be out of the question. If the law was so to treat it, the remedy would be far worse than the disease it was designed to cure. To say that it is voidable states a result which, their Lordships think, entirely meets the case."
Their Lordships went on to hold that by reason of delay and the establishment of rights in third parties that the right to avoid the orders was lost.
In Dando v Anastassiou (1951) VLR 235, Dean J was concerned with an order to review a decision convicting and fining the applicant in a criminal case where the charge was heard by a single Justice of the Peace in a small room located in the local police station. His Honour held that the proceeding had not been held in an open court contrary to the law.
McPherson's case supra, was cited to His Honour.
His Honour did not have to consider whether the order was voidable or void because there was no question of delay or any other factor affecting the right to avoid the order, and His Honour quashed the conviction and sent it back for a re‑hearing.
In Sepack Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court Yarram and Ors, an unreported decision of Fullagar J delivered 12 June 1990, His Honour was concerned with a motion seeking rectification of the Register of the Magistrates' Court and an order that the Magistrate complete the hearing by delivering in open court a judgment with reasons. The facts revealed that a Magistrate reserved his judgment in a proceeding, and the Magistrate delivered a written judgment but without reasons by a letter to the Clerk of Courts who posted a copy to each party and entered the decision on the Register.
His Honour held that in the absence of some statutory authority a Magistrate was bound to deliver a judgment in open court. His Honour went on to say –
"The delivery of judgment otherwise than in open court has been described as ultra vires. See e.g. Reidy v Herry (1897) 23 VLR 508 and the decision of the Full Court of the Supreme Court of Queensland in Melville v Phillips (1899) 9 QLJ 114."
In Wandin Springs v Wagner (1991) 2 VR 496, McDonald J in very similar circumstances followed the decision of Fullagar J.
Neither of these two cases turned on the provision in the relevant Act concerning the obligation to hear a proceeding in open court.
The Legislature has not expressly provided that a breach of s.125 results in the proceeding being void, and in my opinion following the reasoning of the Privy Council in McPherson v McPherson supra, the effect of a breach of s.125(1) of the Magistrates' Court Act (1989) is that the order made is voidable at the instance of the person affected by it.
The question is whether each plaintiff has lost his right by reason of the passage of time and the execution in respect to two of the plaintiffs of the orders made.
There is no question of any third party rights accruing.
The first plaintiff Mr Lednar has not given a sample pursuant to the order made against him. In my opinion he has not lost his right to have the order made against him avoided on the ground that it was not made in open court and in breach of s.125(1) of the Magistrates' Court Act 1989. In my opinion the order should be quashed.
That brings me to the orders made against Mr O'Brien and Mr Hill.
The orders have been executed in respect to the plaintiffs Messrs O'Brien and Hill. Both provided samples on 19 April 2000. Mr O'Brien at that stage had not been provided with a copy of the extract of the order according to his evidence although there is some dispute on that question by the police, and Mr Hill actually received a copy of his order on that day.
It was not until their solicitors approached the Criminal Co-ordinator's Office at the Melbourne Magistrates' Court on 14 April 2000 that their solicitors became aware that the orders had been made ex parte and in Chambers. It was not until 26 April 2000 that the solicitors actually obtained material relating to them from the said office. In the meantime the orders had been executed.
If an order is voidable, the person affected by it, does not necessarily lose his right to set it aside until he has notice of the terms of the order and something occurs thereafter which makes it impossible to set aside the order and in effect restore the status quo prior to the order being made. That is not to say that delay in itself may not be a discretionary basis for refusing to quash the order.
I am satisfied in the circumstances of this case that neither Messrs O'Brien or Hill lost their right to come to this court to quash the orders even though they were executed.
A court will refuse to make an order if the effect of it would achieve nothing but in my opinion even though the samples have been taken this court has power to order that the samples be delivered up for destruction.
In my opinion each plaintiff is entitled to have the order made against him quashed on the ground that the order was made in breach of s.125(1) of the Magistrates' Court Act.
Satisfaction of Two Conditions Precedent
In the light of my findings that the orders should be quashed it is not necessary for me to consider whether the two conditions precedent were satisfied prior to the making of an order pursuant to s.464ZF.
However, if this proceeding is to go further, it is appropriate for me to briefly state my conclusions with respect to this issue. The parties did make submissions in relation to the issue.
I am satisfied that the plaintiffs Messrs Lednar and O'Brien each prior to 1 July 1998 had been found guilty by a court of a forensic sample offence and at the time the order was made was serving a term of imprisonment.
The circumstances with respect to Mr Hill are different.
I am satisfied that prior to 1 July 1998, Mr Hill had been found guilty by a court of a forensic sample offence.
The question is whether at the relevant time he was serving a term of imprisonment.
The application for a forensic procedure order was made on 5 July 1999 and the order was made on 5 November 1999.
At the date when the application was filed and the date when the order was made Mr Hill was not actually in prison. On 6 January 1999 he was sentenced to 12 months' imprisonment in relation to a variety of offences but as at 5 July 1999 he was no longer in prison. He was at that point in time serving his sentence by way of a combined custody and treatment order under s.18 of the Sentencing Act 1991.
It was submitted on his behalf that although the prerequisite found in s.464ZF(3)(a) had been complied with the prerequisite found in sub-s.(3)(b) was not satisfied.
In my opinion it is clear that the prerequisite found in sub-s.(3)(b) must apply at the date when the application is made to the court, that is, filed. This is clear from the provisions of s.464ZFA.
Mr Holdenson QC submitted that the prerequisites were satisfied at 5 July 1999 because in fact he was serving a term of imprisonment by reason of s.18Q(6) of the Sentencing Act.
The relevant words in sub-s.(3)(b) are –
"That person is serving a term of imprisonment … for any offence, whether or not a forensic sample offence."
What is meant by the phrase "serving a term of imprisonment"?
Section 18Q empowers a court in certain circumstances to impose a sentence of imprisonment of not more than 12 months "and an order that not less than six months of that sentence be served in custody and the balance be served in the community on the conditions attached to the order" – see s.18Q(1).
The effect of such an order is provided for in sub-s.(6) in the following terms –
"(6) A combined custody and treatment order must be taken for all purposes to be a sentence of imprisonment for the whole term stated by the court."
(Emphasis added.)
In my opinion the submission of Mr Holdenson QC is correct and that for the purposes of sub-s.(3)(b) of the Crimes Act a person "is serving a term of imprisonment" if sentenced in accordance with the provisions of s.18Q of the Sentencing Act 1991.
It follows that the two prerequisites concerning Mr Hill were satisfied in respect to his application.
Reasons for Decision
Before considering the procedures adopted by the police and the hearing and determination by the Magistrates' Court it is appropriate to consider the obligation resting on the Magistrate to give reasons for the order.
Section 464ZF(9) requires the court if an order is made under sub-s.(2) or (3) to give reasons for its decision and cause a copy of the order and reasons to be served.
Both requirements are mandatory.
In respect to each plaintiff, the Magistrates' Court followed the same procedure.
The court record reveals a court order which sets out the order made and then there is a heading called – "Reasons:".
Then underneath that heading appeared the following in respect to Messrs Lednar and O'Brien –
"The above-named person has been found guilty by the Magistrates' Court (Lednar) or County Court (O'Brien) of a forensic sample offence.
Any appeal period from such sentence has expired.
The seriousness of the circumstances of the forensic sample offence.
In all the circumstances the making of the order is justified."
The same wording was used in respect to the reasons concerning Mr Hill save that there was an additional sentence, namely –
"The appeal has been finally determined and the conviction for the forensic sample offence upheld."
In my opinion the so-called reasons are not reasons.
Section 464ZF(8) obliges a court to take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order and further, that in all the circumstances the making of the order is justified.
The so-called reasons merely assert what the court must take into account and be satisfied of and does not give any explanation for so finding.
In my opinion the reasons should as a minimum state that the seriousness of the circumstances of forensic sample offence have been considered, the effect of the consideration and that the said circumstances if it be the case lead to the conclusion that prima facie an order should be made and the reasons why. Further, the reasons should state that there is a reason or there are reasons why the order is justified and those reasons should be given.
The effect of the failure to give reasons for the decision does not result in the order being invalidated and accordingly this court cannot grant any coercive relief.
This is made clear by the provisions of sub-s.(10) which provide –
"(10) Failure of a court to comply with sub-s.(9) does not invalidate any order made by it but constitutes non-compliance for the purpose of s.464ZE(1)(a)."
The evidence obtained as a result of the forensic procedure is inadmissible as part of a prosecution case in proceedings against that person for any offence.
Service of Order and Reasons
Sub-section (9) requires the service of a copy of the order and reasons on the person the subject of the order. In my opinion service must take place prior to the execution of the order and this is made clear by the provisions of sub-s.(9)(b). Further, in my opinion service means personal service on the person who should be given the opportunity to read and understand the court order prior to the procedure being carried out.
There is some dispute as to whether or not Mr O'Brien was served with a copy of the order prior to it being executed. According to Mr O'Brien he did not receive a copy. According to Senior Sergeant Alex Amici just prior to the execution of the order on 19 April 2000 "Senior Constable Thomson served a copy of the court order by pushing a copy of the order across to the opposite side of the table dividing Thomson and O'Brien. This copy court extract was not actually handed to O'Brien but its contents were explained to him. The copy of the court order was later placed in O'Brien's property at the prison."
There is evidence that Mr Hill was served with a copy of the order just prior to the execution of same.
It is unnecessary for me to resolve these issues of fact. It would be difficult to do so on affidavits. Further, it is unnecessary for me to do so because the effect of the failure to serve does not invalidate the order but constitutes non‑compliance for the purposes of s.464ZE(1)(a). See s.464ZF(10).
Orders Made in Accordance with the Law?
It was submitted on behalf of each plaintiff that the court could infer from the material that was before each Magistrate, the fact that the orders made in respect to Messrs Lednar and O'Brien were two of some 48 applications that were heard ex parte before the same Magistrate in Chambers on 1 March 2000 and the lack of proper reasons that the Magistrate did not fully consider each application and determine same in accordance with the law.
It is further submitted that the procedure which has been adopted by the Magistrates' Court is totally inadequate and fails to require sufficient evidence to enable a decision to be made in accordance with the law.
Further, it is emphasised that the so-called "affidavit" is not a proper affidavit according to law and accordingly there is considerable doubt whether the applications were supported by sworn evidence.
Section 464ZF is silent as to what procedure should be adopted by the Magistrate on an application and there are no rules or regulations which address the question.
It is well established that in the absence of any statutory provision concerning procedure, any court has the power to formulate its own procedure and apply it.
In McGrath v Dobie, (1890) 16 VLR 646, the Full Court said at p.648 –
" … It is proper to observe pointedly, in view of this present application, that all courts of justice have the control of their own proceedings and, their proceedings being in accordance with the usual and established practice of that court, and being a practice proper in itself and not inconsistent with the Act under which the jurisdiction is constituted, such practice is absolutely free from liability to be called in question."
Section 464ZF(8)(c) permits the court on the hearing of an application to – "(c) make such enquiries on oath or otherwise as it considers desirable."
Whilst in my opinion it would be appropriate that application should be supported by evidence on oath the question of the form of evidence and whether it be on oath is a matter for the Magistrate. Whilst the so-called "affidavit" is not in appropriate form I would not infer that the applications were not made on oath and if they were not that does not seem to me to be a failure to exercise the jurisdiction in accordance with the section.
Sub-section (8) sets out what the court must take into account and what it must be satisfied of.
I would not be prepared to infer that the fact that the court entertained on 1 March some 48 applications, 38 of which were applications under s.464ZF that the Magistrate did not fully consider each application and make an order in accordance with a proper exercise of the power. Further, I would not infer from the fact that the so-called "reasons" were in a standard form and did not constitute reasons that the Magistrate failed to properly consider each and every application in accordance with the requirements of s.464ZF and in particular sub-s.(8).
The degree of satisfaction in respect to the matters to take into account, is ultimately a matter for the Magistrate. The very breadth of the authority given to the Magistrate to make such enquiries on oath or otherwise as he or she considers desirable under sub-s.(8)(c) makes it clear in my opinion that the court could rely upon hearsay evidence. However, the court should be vigilant to ensure that the factual matters which are before the court are accurate.
Whether or not the Magistrate makes an order is a matter of discretion and the discretion is unconfined save that in considering and determining the application the matters set out in sub-s.(8)(a) and (b) must be taken into account.
The High Court said in R v Australian Broadcasting Tribunal ex parte 2 HD Pty Ltd (1979) 144 CLR 45 at 49 –
"Here the problem lies in ascertaining what are the proper limits of the discretion. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except insofar as the subject matter and the scope and purpose of the statutory enactments may enable the court to pronounce given reasons to be definitely extraneous to any objects the legislature would have had in view' to use the words of Dixon J in Browning. In that case His Honour went on to remark (as he had done earlier in Swan Hill Corporation v Bradbury) 'on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power."
The Magistrate is obliged to give effect to the subject matter, scope and purpose of the statutory provision and in my opinion it is clear that the object of an application under s.464ZF is to provide the means of obtaining reliable evidence to investigate old crimes and to deter future crimes and these matters should be taken into account by the Magistrate.
Each plaintiff assumes a very heavy burden of persuading this court that the Magistrate did not take into account all proper matters and properly consider and determine the application.
As Gibbs J said in Buck v Bavone (1976) 135 CLR 110 at 118-9 –
"However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."
In considering the submissions on behalf of the plaintiffs it must be borne in mind that although it is well recognised in the context of judicial review that the making of findings and the drawing of inferences in the absence of any evidence is an error of law there is no error of law simply in making a wrong finding of fact. So long as there is some basis for an inference, in other words it is reasonably open, there is no place for judicial review because no error of law has taken place. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 per Mason CJ.
I am not persuaded that the Magistrates concerned in the decisions relating to each of the plaintiffs did not properly exercise the jurisdiction of the court and did not take into account the requirements of s.464ZF and in particular sub-s.(8).
The question of the sufficiency of evidence was ultimately a matter for the Magistrate and on the evidence that was available to the Magistrate in respect of each plaintiff, it was in my opinion open to the Magistrate to make the orders in question.
It follows that the plaintiffs have failed to persuade the court that the Magistrates did not properly exercise their jurisdiction.
Discretionary Matters
Mr Holdenson QC submitted that there were discretionary factors that should be taken into account and result in the plaintiffs failing if they were able to establish any grounds.
He relied upon delay. It can be taken into account. However, prejudice is a very important factor to weigh. There is no suggestion of prejudice being caused to the members of the police force who made the applications by reason of any delay in bringing the proceeding in this court. In my opinion there is no basis for any discretionary refusal based upon delay.
In considering the submission concerning discretion it is necessary to take into account the basis for the order of this court quashing the orders made in the Magistrates' Court. The basis is that the orders were made in closed court contrary to the provisions of s.125(1) of the Act. The orders are voidable and in the absence of a compelling reason should be set aside.
In my opinion there are no discretionary factors which would preclude this court making an appropriate order.
Conclusion
I am satisfied that the orders made against each plaintiff be quashed on the ground that they were made contrary to the provisions of s.125(1) of the Magistrates' Court Act.
It follows it is unnecessary to consider the further grounds raised by each plaintiff concerning the execution of the orders.
Subject to submissions from counsel I propose to make the following orders –
(i)That the time for each plaintiff to commence a proceeding in this court pursuant to Order 56 be extended to 1 August 2000;
(ii)that the order made by the Magistrates' Court of Victoria at Melbourne on the first day of March 2000 against Garry Stephen Lednar pursuant to s.464ZF of the Crimes Act 1958 be set aside;
(iii)that the order made by the Magistrates' Court of Victoria at Melbourne on 1 March 2000 against Michael Martin O'Brien pursuant to s.464ZF of the Crimes Act 1958 be set aside;
(iv)that the order made by the Magistrates' Court of Victoria at Melbourne on 5 November 1999 against McPherson Alexander Hill pursuant to s.464ZF of the Crimes Act 1958 be set aside;
(v)order that the Chief Commissioner of Police for the State of Victoria produce to the solicitors acting for the second and third plaintiffs, Michael Martin O'Brien and McPherson Alexander Hill, the intimate sample taken from each man and all records and any related material and information derived from the intimate sample (including information which may or may not identify the person on whom the forensic procedure was conducted) or obtained from the analysis of the samples taken or procedures conducted by no later than 4.30 p.m. on the 29th day of December 2000.
I will hear the parties on the question of costs.
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CERTIFICATE
I certify that this and the 81 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 22 December 2000.
DATED: this twenty second day of December 2000.
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Associate
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