Munro v ACP

[2012] NSWSC 100

Supreme Court

New South Wales

Medium Neutral Citation:	Munro v ACP [2012] NSWSC 100
Hearing dates:	9 February 2012
Decision date:	21 February 2012
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Appeal allowed. Order of the magistrate set aside. Proceedings remitted to the Local Court to be heard according to law.
Catchwords:	CRIMINAL LAW - procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - Crimes (Forensic Procedure) Act 2000 - further application for forensic procedure - additional information that justifies the making of a further application
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Forensic Procedure) Act 2000 Interpretation Act 1987 Law Enforcement (Powers and Responsibilities) Act 2002 Motor Accidents Compensation Act 1999 Search Warrants Act 1985 (repealed) Search Warrants (Amendment) Act 1991 Terrorism (Police Powers) Act 2002
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 JW v Detective Sergeant Karol Blackley [2007] NSWSC 799 L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199; (2002) 56 NSWLR 600 Maviglia v Maviglia [1999] NSWCA 188 Orban v Bayliss [2004] NSWSC 428 Parker v Churchill (1985) 9 FCR 316 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; [2010] 57 MVR 157 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416 The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635
Texts Cited:	Macquarie Dictionary 4th ed (2005)
Category:	Principal judgment
Parties:	Siobhan Munro (Plaintiff) ACP (First defendant) Local Court of New South Wales (Second defendant)
Representation:	Counsel: Ms N Adams (Plaintiff) Mr K Chapple SC (First defendant) Solicitors: Crown Solicitor Armstrong Legal
File Number(s):	2011/160616
Publication restriction:	Nothing that would identify the first defendant: s 43 Crimes (Forensic Procedure) Act 2000
Decision under appeal	Date of Decision: 2011-04-18 00:00:00 Before: A George LCM File Number(s): 2011/41289

Judgment

1. This is an appeal against the refusal of an application for the carrying out of a forensic procedure pursuant to Part 5 of the Crimes (Forensic Procedure) Act 2000 (the Act) by his Honour Magistrate George at the Hornsby Local Court on 18 April 2011.

1. The appeal is brought pursuant to s 115A(2) of the Act. A magistrate's refusal to make an order under the Act authorising the carrying out of a forensic procedure may be the subject of an appeal to this Court under Part 5 of the Crimes (Appeal and Review) Act 2001 as if the refusal were an order dismissing a matter prosecuted summarily. Such an appeal is as of right, with the stipulation that it is on a ground that involves a question of law alone: s 56(1) Crimes (Appeal and Review) Act . There is no issue that each of the grounds relied upon by the plaintiff involve such questions.

1. The second defendant, the Local Court of New South Wales, has filed a submitting appearance. For convenience, hereafter I will simply refer to the first defendant as the defendant.

1. The magistrate did not refuse the application after a hearing on the merits. Indeed, he did not engage with the merits of the application at all because he was not required to. An important feature of the application, and the appeal to this Court, is that it was not the first application that had been made in respect of the defendant. To explain, it is necessary to trace some history.

1. The defendant was charged on 2 August 2010 with having committed offences of indecent assault on 29 and 30 July 2010. The allegation is that he purported to "accidentally" bump into school girls around railway stations on the mid north shore and in doing so touched their breasts. The plaintiff contends that there are significant similarities in the manner in which the offences were committed. Two of the offences were captured on CCTV security cameras. There is limited evidence which is capable of identifying the defendant as the perpetrator. It is to the issue of identification that the forensic procedures the subject of the application were directed. Police also contend that the same type of offences were committed in very similar circumstances by a similarly described man in the same types of locations in the period October 2008 to October 2009.

1. Thus far, the only evidence available to police that tends to identify the defendant as the perpetrator is that of the manager of a local business that he frequented. She was shown still images derived from the CCTV footage and has made a statement to the effect that they depict the defendant.

1. An application was made by the plaintiff to the Local Court for the carrying out of a forensic procedure. It was heard and granted by her Honour Magistrate Stapleton at the Hornsby Local Court on 24 September 2010. This application was supported by a four page affidavit by the plaintiff. The forensic procedure sought in that application was stated to be, "Photographs of the accused head and shoulders". The taking of photographs "of a part of a person's body, other than the person's private parts" is within the definition of "non-intimate forensic procedure" in s 3(1) of the Act. These photographs were sought for use in identification procedures with complainants and eyewitnesses. Through oversight, police had failed to take photographs of the defendant when he was in custody following his arrest.

1. The defendant appealed against the making of the order. The appeal came before Pembroke J, sitting as vacation duty judge, on 27 January 2011. It was conceded by the plaintiff that there was a deficiency in the material before the magistrate and that the appeal should be allowed. His Honour made consent orders, including the quashing of the decision of the magistrate and substituting an order that the application was refused. The deficiency was that the material before the magistrate was incapable of satisfying the statutory requirement, that "there must be reasonable grounds to believe that the suspect has committed an offence": s 24 (3)(a) of the Act. There was nothing in the supporting affidavit about the local business manager having identified the defendant as the perpetrator.

1. It was on 4 February 2011 that the plaintiff made the second application which is the subject of the present proceedings. This time it was supported by a far more extensive affidavit (6 pages and about 170 pages of annexures comprised of witness statements (including that of the local business manager), transcripts of witness interviews, police notebook entries, still images from CCTV footage, and the like). The forensic procedures sought to be carried out in this application were:

1. The taking of a photograph of the respondent's face (front and sides).

2. The taking of a number of non intimate photographs of the respondent's body and body parts (face / arms / legs).

3. The taking of measurements of the respondent's body and body parts (entire body / arms / legs / torso).

1. The second and third of these procedures was sought so that the resulting photographs and measurements could be submitted to a biomechanical engineer to see whether an expert opinion would support a proposition that the man depicted in the CCTV footage was the defendant.

1. The application came before Magistrate George at the Hornsby Local Court on 18 April 2011. Objection to the application was taken by senior counsel then appearing for the defendant. The objection was based upon the provisions of s 26(3) of the Act. The section is in the following terms:

26 Application for order

(1) An authorised applicant (but no other person) may apply to a Magistrate for an order under section 24 authorising him or her to arrange the carrying out of a forensic procedure on a suspect.

(2) An application for an order must:

(a) be made in writing, and

(b) be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24 (1), and

(c) specify the type of forensic procedure sought to be carried out, and

(d) be made in the presence of the suspect (subject to any contrary order made by the Magistrate).

(3) If a Magistrate refuses an application for an order authorising the carrying out of a forensic procedure on a suspect, the authorised applicant (or any other person aware of the application) may not make a further application to carry out the same forensic procedure on the suspect unless he or she provides additional information that justifies the making of the further application. (Emphasis added).

1. Written submissions were provided by senior counsel for the defendant. There were a number of documents annexed, including copies of the first application and the affidavit in support of it, together with a copy of the affidavit in support of the second application with portions underlined to indicate "material which is over and above that which was contained in Ms Munro's Affidavit in support of the first application". These documents conveniently enabled the magistrate to consider whether there was "additional information that [justified] the making of the further application".

1. The magistrate indicated at the outset of the hearing that he had read the written submissions and annexures. Counsel then explained certain aspects of the earlier appeal to this Court, which was relevant to whether there had been a previous refusal of a magistrate but made no other oral submissions. The police prosecutor was then invited to make submissions.

1. Before looking at what the prosecutor said, it is worth noting that the written submissions for the defendant sought to make three points:

1. That the orders of Pembroke J should be regarded for the purposes of s 26(3) as amounting to a refusal of the first application by a magistrate.

2. The same forensic procedure was the subject of both the first and current applications and therefore the operation of s 26(3) was attracted. In the alternative, the first of the three procedures sought was the same as that which was sought in the first application and so, if the other two points were made good, the application in respect of that procedure would be precluded by s 26(3).

3. No "additional information", in the sense contemplated by s 26(3), had been provided in support of the current application. It was accepted that there was more information, but it was submitted that "additional information" in the context in which it appears in s 26(3) meant evidence that was not available to the police at the time of making the first application. A similar construction was given to "additional relevant information" in the s 62(1) of the Motor Accidents Compensation Act 1999 by Rothman J in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; [2010] 57 MVR 157 at [53]. The further information put forward in relation to the new application had been available to the police at the time of the first application. Accordingly, it was not "additional information".

1. The prosecutor submitted:

"[I]t has to be conceded from the outset that this is a second application for basically the same application [sic]. And what prosecution or applicant is relying on is whether or not this is new information. And, certainly, ... (not transcribable) ... in the absence of decisions in relation to this aspect of the application. That is, the question is that after the application was refused, further application was made containing that information, is that new information."

1. The prosecutor then made a submission in which he sought to persuade the magistrate that Singh v Motor Accidents Authority of NSW (No 2) was distinguishable on the basis that it involved construction of a provision in an entirely different statute which had entirely different objectives. He concluded by submitting that the application should be granted.

1. The magistrate immediately gave judgment:

"It is certainly remarkable that when police have the defendant in custody in the first place, that nobody thought to take proper pictures at the time, when I am assuming that there was ample power available to do so.

The application on is face, the original application and the current one, are for a non intimate procedure, which essentially comes down to photographing the defendant . Objective observers might say, "Well, what's the problem with all of that?" And the real issue, so far as I can see, is simply whether the effect of the Supreme Court judge, Pembroke J, whether the effect of his decision is to enliven the statutory provision which would prevent the bringing of a further application.

In my view, the application before the Court today is ostensibly the same application that was considered by the Supreme Court. I am told that it was agreed at that point in time that the orders that were made should be made, but that does not move away from the implication that there is a statutory provision which is in place which bars magistrates from continuing to consider the same application. And the only other live issue would be whether the intervention of the Supreme Court counts as a magistrate's decision. It seems to me illogical to produce any other result. Certainly, the terms of the order that Pembroke J has made are in terms of a direction concerning the magistrate's decision, and to suggest that because it is made by the Supreme Court, it is not covered by s 26(3), I think is a little bit optimistic.

This is an area which, quite plainly, has not been the subject of any close examination. But, it seems to me, that Parliament has put in place a provision here which is designed to stop repeated similar applications being made . As I have said, ostensibly whilst there are differences between the two applications, I do not think anybody can objectively conclude that what is being sought is different from what was first considered by Stapleton LCM and then latterly by Pembroke J.

In the circumstances, I do not believe I have jurisdiction to consider this application, because the relevant statutory provision would prohibit the consideration of another similar application.

In the circumstances, the application is refused on that basis." (Emphasis added).

1. It can be gleaned from what his Honour said that he was well aware that this was a second application in the matter and that the question whether the applicant was entitled to make the application depended upon the provision in s 26(3).

1. It seems clear enough that the magistrate determined that this application was not materially different to the first application. He said that they were both "for a non-intimate forensic procedure, which essentially comes down to photographing the defendant". They were "ostensibly the same" and his Honour did not think that "anybody can objectively conclude that what is being sought is different from what was first considered".

1. That is the extent of his Honour's reasoning to the conclusion that he did not have jurisdiction to consider the application because s 26(3) prohibited the consideration of "another similar application".

1. I readily acknowledge the care with which one must approach the task of reviewing ex tempore reasons for judgment of a magistrate sitting in a busy Local Court. There are many statements to this effect in judgments of this Court on appeals from magistrates: see, for example, by Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 at 478-479; by Mason P in Maviglia v Maviglia [1999] NSWCA 188 at [1]; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at [15] per Johnson J and by Sully J in L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199; (2002) 56 NSWLR 600 at [59] - [60].

1. There are, however, some minimum requirements as to the giving of reasons. In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449, Santow JA observed:

[41] It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279 per McHugh JA; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.

1. Moreover, Sully J observed in the course of his judgment in L v Lyons & anor; B and S v Lyons & Anor referred to above that:

[59] ... None of the foregoing observations, I should perhaps stress, could excuse manifest error of law on the part of a magistrate ...

1. What fell for decision by the magistrate in the present case was whether the plaintiff was permitted to make the second application. The provisions of s 26(3) required consideration of three issues.

1. First, had there been a prior refusal by a magistrate of an application? It was, and remains, common ground that the order of Pembroke J quashed the order granting the first application and substituted a refusal so there was no difficulty with this issue. The magistrate accepted that proposition.

1. Secondly, was the application "a further application to carry out the same forensic procedure"? The defendant submitted that it was. The prosecutor submitted that it was "basically the same" and focussed his submissions on the third issue. The magistrate determined that the second application was "similar" or "ostensibly the same" as the first.

1. Thirdly, if the answer to the second question was affirmative, it then had to be determined whether the applicant had provided "additional information that justifies the making of the further application".

1. There are two components to this: whether there is "additional information" and, if so, whether it "justifies the making of the further application". The first is a matter requiring objective assessment of the material put forward in support of the application and comparing it with that put forward in support of application(s) made in the past. The second is a matter for discretionary judgment. The present case was only concerned with the first component, but the second component should not be ignored.

1. The defendant conceded that there was more information but contended that "additional" meant material that was in addition to that which was available to the applicant at the time of the first application. The prosecutor may be understood to have submitted that the defendant's contention was incorrect and that there was in fact additional information that justified the further application. The magistrate did not refer to this issue, let alone determine it, at all.

Grounds of appeal

The plaintiff relied upon three grounds of appeal:

"1. The learned magistrate erred in law when determining the construction of the term "additional information" as contained in s 26(3) of the Crimes (Forensic Procedures) Act 2000.

2. The learned magistrate erred in law in determining that the Plaintiff did not provide additional information in support of an application for an order authorising the carrying out of a forensic procedure on the Defendant, pursuant to s 26(3) of the Crimes (Forensic Procedures) Act 2000.

3. The learned magistrate erred in law in determining that s 26(3) of the Crimes (Forensic Procedures) Act 2000 prevented the Plaintiff from making an application for a final order authorising the carrying out of a non-forensic procedure on the respondent pursuant to s 24, namely the taking of measurements of the respondent's body and body parts."

Ground 2

1. It is convenient to deal with the second ground first because it is determinative.

1. The point advanced on behalf of the plaintiff was not so much that the magistrate decided that the material in the plaintiff's affidavit did not amount to "additional information that justifies the making of the further application" for the purposes of s 26(3). The submission was that "the proceedings below never reached the stage where the learned Magistrate came to consider whether the additional information justified the making of the subsequent application".

1. For the defendant, it was submitted by senior counsel that it was implicit in the magistrate's reasons that he determined that the "additional information" requirement was not satisfied. This was said to arise from his Honour having made what was obviously a reference to the provisions of s 26(3). The "additional information" point was raised in the submissions that had been read by his Honour and the prosecutor had made oral submissions about it. In the defendant's submission, his Honour must have been mindful of this controversy and must be regarded as having decided it adversely to the plaintiff.

1. The problem with this is that the magistrate did not say anything about the "additional information" point. He did not give any indication whether he accepted that there was "additional information". He did not indicate whether he preferred the construction advanced by either party. If his Honour did consider the point, it may be the case that he preferred the submissions for the defendant, but it also remains possible that he accepted the prosecutor's submission yet determined that it was not of a nature that justified the making of the further application. This, unfortunately, is a matter for speculation.

1. I am satisfied that error of law has been established, probably through the failure to consider a matter necessary for decision and to make a determination of that matter. If not that, it was through the failure to give any reasons concerning the determination made.

1. Whilst that is enough to determine the appeal it is appropriate to consider the other grounds as well, particularly in the light of the issues raised in the parties' submissions.

Ground 1

1. The plaintiff submitted that the interpretation of a statutory provision begins with the ordinary and grammatical sense of the words used, having regard to their context and the legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [4] per French CJ. Reference should also be made to the judgment in the same case of Hayne, Heydon, Crennan and Kiefel JJ:

[47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted)

1. For the "ordinary" meaning of the word "additional", reference was made to the definition in the Macquarie Dictionary 4th ed (2005) of "added, supplementary". So, it was submitted that the term meant information that added to, or was supplementary to, that which was put forward in the earlier application. Whether the applicant was in possession of that information at the time of the earlier application was said to be irrelevant.

1. Other principles of statutory interpretation must be considered. There is the provision of s 33 of the Interpretation Act 1987 requiring preference to be given to a construction that would promote the purpose and object underlying the Act over one that would not promote that purpose or object. There is also the need to construe the provision in question so that it is consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ.

1. Both parties referred to the fact that whilst the objectives of the Act are not explicitly stated, they have been the subject of judicial consideration. The judgment of Simpson J in Orban v Bayliss [2004] NSWSC 428 has often been referred to in other cases concerning the Act and both parties in the present matter relied upon the following passage:

[30] The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia , magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties.

[31] The conditions that must be met before an order can be made demonstrate that the purpose of the legislation is not to enable investigating police (or other authorised persons) to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect.

1. In the defendant's submissions, reference was also made to Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416, where (at [28]) Hall J observed that Burchett J in Parker v Churchill (1985) 9 FCR 316, in relation to search warrant legislation, had referred to a Justice of the Peace (a fortiori, a magistrate) standing "between the police and the citizen". Hall J referred (at [17]) to what had been said by Simpson J in Orban v Bayliss . Later (at [53]), after referring to her Honour's characterisation of a "delicate balance", his Honour concluded that "authorisation under the Act can only be granted strictly in accordance with its provisions". Later, Simpson J said in JW v Detective Sergeant Karol Blackley [2007] NSWSC 799 at [31] that the "provisions relevant to the making of a final order [are] rigid and demanding and very specific. No order may be made unless the requirements of s 25 are met".

1. It was submitted for the defendant before the magistrate, and repeated in this Court, that "the purposes of the Act can only be achieved, and the necessary delicate balance maintained, by construing the words 'additional information' in the manner previously advanced", namely "additional to the party relying upon it as a ground for the making of a further application". In support of this it was submitted that whilst the words might be described as being of general application, because the statute impinges on fundamental rights recognised by the common law, they should be read down so as to protect those rights: see, for example, Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17.

1. With respect, I do not accept that submission. Such a construction would give far greater emphasis to a matter on one side of the scales at the expense of the matter on the other side, and the "delicate balance" of which Simpson J spoke would be decidedly unbalanced.

1. It was submitted for the defendant that without such a construction, the Act would give police officers "permission (and incentive)" to always withhold some information relevant to the determination of the application so as to provide them with an alternative avenue (aside from an appeal to this Court) of re-agitating proceedings in the event of refusal. It was also submitted that this would serve to penalise diligent officers and reward the less diligent.

1. I prefer the plaintiff's submission in response to this. If magistrates were compelled to disallow applications where there was more information put forward but which had previously been available to the applicant, that would have a tendency to encourage police officers to burden magistrates with the entirety of what was available, perhaps even to the extent of providing entire briefs of evidence. In any event, it is inconceivable that the construction for which the plaintiff contends would encourage police officers to do anything less than put the most persuasive case forward in support of applications for the carrying out of forensic procedure.

1. The effect of the submissions for the defendant was that s 26(3) should be construed so as to make no allowance whatsoever for inadvertent errors or misjudgements. That proposition is not an attractive one.

1. Submissions were also made which invoked the "principle of finality" (reference was made, for example, to The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635) in support of the proposed narrow construction of "additional information" in s 26(3). I am not persuaded that it supports the contention at all. The provision contemplates that there can be second and subsequent applications for the carrying out of the same forensic procedures. Its effect is to limit the ability of an applicant to make repeated applications based on the same material. That is consistent with the notion of finality. There was no persuasive explanation why a subsequent application would offend the principle of finality if the additional information had previously been available to the applicant, but would not if that information had only become available after an earlier refusal.

1. The formulation requiring "additional information that justifies the making of the further application" is not unique to the Crimes (Forensic Procedures) Act . My research has not been exhaustive but it was used in s 12C Search Warrants Act 1985 (repealed), s 356J (repealed) Crimes Act 1900, s 64 Law Enforcement (Powers and Responsibilities) Act 2002, and s 27M Terrorism (Police Powers) Act 2002.

1. The provision was inserted in the Search Warrants Act by the Search Warrants (Amendment) Act 1991. In support of the bill for the amending act, the then Attorney General, Mr Collins, said:

"The present Act allows unlimited applications for a warrant to any justice on the same information. Proposed new section 12C will ensure that this cannot occur. Generally only one application to an authorised justice will be allowed. If the application is refused, a new application will only be accepted if the applicant provides additional information." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 1991 at 4424).

1. Whilst the construction of a provision in legislation enacted in 2000 cannot be based upon what was said in a second reading speech in relation to different legislation enacted in 1991, I am prepared to accept that the explanation for the provision being inserted in the Search Warrants Act represents a reasonable view of the rationale for the legislature including the provision in s 26(3) in the Crimes (Forensic Procedures) Act .

1. The construction of the words "additional information" is, in my view, straightforward. They should be given their ordinary meaning. They require that in a subsequent application for the same forensic procedure the applicant must provide more information than was provided in support of the earlier application(s). An applicant is not entitled to make an application based solely upon information that was the subject of an earlier unsuccessful application.

1. There is nothing in such a construction which in any way detracts from the purpose or object underlying the Act and there is nothing that is inconsistent with the language and purpose of the Act as a whole. If a magistrate is satisfied that there is such additional information, then it will be necessary for the magistrate to then assess whether it is of such a nature, degree and quality that it justifies the making of the further application.

1. The plaintiff's submissions in relation to Ground 1, to reiterate, were that the magistrate erred by adopting the construction of "additional information" in s 26(3) that had been advanced on behalf of the defendant. If his Honour had done that, it would have been erroneous for the reasons just given. As I am not persuaded that his Honour fell into that error because there was no engagement with the issue at all, I would not uphold this ground.

Ground 3

1. The issue raised by this ground is whether the magistrate erred in not identifying that the third forensic procedure sought in the plaintiff's application (measurements of body parts) was not part of the earlier application. It was not "the same forensic procedure" and so was not caught by the provisions of s 26(3) at all. The second forensic procedure sought (photographs of "face/arm/legs") had also not been sought in the earlier application.

1. The plaintiff's contention has merit. The taking of measurements was a different procedure to the taking of photographs. Both are within the definition of "non-intimate forensic procedure" with s 3(1) but are separately itemised:

(h) the taking of a photograph of a part of a person's body, other than the person's private parts,

and

(j) the taking of a person's physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person's body, other than the person's private parts.

1. It was submitted for the defendant before the magistrate, and repeated in this Court, that the forensic procedure sought in the first and second applications were the "same forensic procedures" for the purposes of s 26(3). "Forensic procedure" is defined in s 3(1) as meaning "an intimate forensic procedure" or "a non-intimate forensic procedure". The first application sought a forensic procedure by way of a non-intimate forensic procedure. The second application also sought a forensic procedure by way of a non-intimate forensic procedure. Therefore, it was submitted that both applications sought the "same forensic procedure". Accordingly, s 26(3) applied to both applications in their entirety.

1. An alternative argument was put. The first of the three procedures sought in the present application was the same as that sought in the first application. So, s 26(3) applied at least to it.

1. Senior counsel for the defendant in this Court also made submissions on issues such as whether "the definition of non-intimate forensic procedure is a single, indivisible class"; whether there existed "recognisable sub-classes of non-intimate forensic procedures"; and whether there could be "severability in relation to a magistrate's determination of identified component sub-classes of a single forensic procedure application". Reference was made to the Act which were said to confine a magistrate's power in determining an application. There are provisions that apply in the event the application is approved and provisions that apply in the event it is refused. There is nothing in the Act authorising a magistrate "to partially approve and partially refuse severable components of a single application".

1. Simply because an application requests a number of different types of non-intimate forensic procedures (or intimate forensic procedures or a combination of the two), that cannot possibly mean they cannot each be dealt with on their merits. It is impracticable, inconceivable and would be inconsistent with any sensible construction of the provisions of the Act to hold that a magistrate only has power to grant all types of non-intimate forensic procedures sought in an application, or to refuse them all, and has no power to grant some and not others.

1. It is difficult to see how different types of the same categories of non-intimate forensic procedures (or intimate forensic procedures) need all be considered the same. To illustrate with an example away from the facts of the present case, one type of non-intimate forensic procedure is "the taking from a person of the person's hand print, finger print, foot print or toe print". One of the requirements for granting an application is that the magistrate must be satisfied that there are "reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence": s 24(3)(b). There might be information before the magistrate that indicates an offender left a hand print at the crime scene but no suggestion of any foot prints. An application that sought both a hand print and a foot print would have merit in relation to the former but none in relation to the latter. In those circumstances, and assuming other requirements are satisfied, it would be appropriate for the taking of a hand print to be authorised but not for the taking of a foot print.

1. In the present case, the first of the three procedures sought was the same procedure that had been sought in the first application. It required consideration of the matters in s 26(3). The other two procedures had not been sought in the first application. The application, insofar as it concerned those two procedures, should have been determined on its merits.

1. I am satisfied that the magistrate failed to appreciate that the second and third procedures sought in the application were different forensic procedures than what had been sought in the first application. It was erroneous to decline to deal with the application in relation to those matters. Whilst the appeal succeeds in relation to Ground 2, Ground 3 should be upheld as well.

Orders

1. Appeal allowed.

2. The order made on 18 April 2011 refusing the application is set aside.

3. The proceedings are remitted to the Local Court to be heard according to law.

4. The first defendant is to pay the plaintiff's costs.

5. Liberty to apply within 7 days if any alternative order as to costs is sought.

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Decision last updated: 22 February 2012