Orban v Bayliss

[2004] NSWSC 428

CITATION:	Orban v Bayliss [2004] NSWSC 428
HEARING DATE(S):	5 April 2004
JUDGMENT DATE:	31 May 2004
JUDGMENT OF:	Simpson J
DECISION:	(i) appeal allowed, order of magistrate set aside; (ii) matter remitted to the Local Court for re-determination in accordance with these reasons.
CATCHWORDS:	appeal against decision of a Local Court magistrate - order to supply a buccal swab and hair sample to police - circumstances authorising forensic procedure - Crimes (Forensic Procedures) Act, s23, 24, 25 and others - plaintiff a suspect - reasonable grounds to believe that the plaintiff had committed a prescribed offence - reasonable grounds to believe that the forensic procedure might produce relevant evidence - is procedure justified in all the circumstances - nature of evidence required in application - questions involved in determination
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000, s3, ss22 - 26, s115A Crimes (Local Courts Appeal and Review) Act 2001, s52(1), s53(1), s55(2)(c)
PARTIES :	Steven Orban - Plaintiff Brendan Bayliss - Defendant
FILE NUMBER(S):	SC 10469/04
COUNSEL:	Ms L McSpeddin - Plaintiff Mr HC Bell (Sol) - Defendant
SOLICITORS:	Jenny Bull - Plaintiff Michael North Holmes - Defendant

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	Betts LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Monday 31 May 2004

10469/04 Steven ORBAN v Brendan BAYLISS

JUDGMENT

1 HER HONOUR:

the nature of the present proceedings

2 By summons filed on 20 February 2004 the plaintiff, Steven Orban, claimed an order in the following terms:

“That the Defendant’s application dated 28 January, 2004 seeking an order for the carrying out of a forensic procedure upon the Plaintiff pursuant to s24 of the Crimes (Forensic Procedures) Act 2000 be dismissed.”

Appended to the summons was a “statement of grounds”, which, in brief, alleged that a magistrate had, in a variety of ways, erred in law.

3 At the commencement of the hearing of the summons I was told that the proceedings were an appeal against the decision of a magistrate, on 9 February 2004, to make an order pursuant to s24 of the Crimes (Forensic Procedures) Act (hereinafter referred to as the “Forensic Procedures Act”) that the then defendant (the present plaintiff) supply a buccal swab and hair sample to police.

4 It was apparent that the relief sought in the summons as originally framed was inappropriate to an appeal against a decision of a judicial officer. Leave was granted to the plaintiff to amend the summons; the relief claimed by the amendment was then formulated as follows:

“1 That the order of the learned magistrate herein made on 8 (sic) February 2004 be vacated;
2 That the matter be remitted to the learned magistrate for redetermination according to law;
3 That the learned magistrate consider the matters set out in s25(d), (e), (f) and (g) of the Crimes (Forensic Procedures) Act, 2002.”

5 S3 of the Forensic Procedures Act defines “forensic procedure” so as to include, inter alia, the taking of a blood sample (an intimate forensic procedure), the taking of a hair sample other than pubic hair (a non-intimate forensic procedure), and the taking of a buccal swab. (This is far from an exhaustive list of the procedures included in the definition; I have referred only to those material to the present appeal.)

6 Ss22 – 24 of the Forensic Procedures Act provide:

“ 22 Forensic procedure may be carried out by order of Magistrate or other authorised justice

A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised justice under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.

23 Circumstances in which Magistrate or other authorised justice may order forensic procedure

An order may be made by a Magistrate under section 24, or by an authorised justice under section 32, for the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not under arrest and has not consented to the forensic procedure, or
(b) the suspect is under arrest and has not consented to the forensic procedure, or
(c) under section 8, the suspect cannot consent to the forensic procedure.

24 Final order for carrying out of forensic procedure

A Magistrate may order the carrying out of a forensic procedure on a suspect if:
(a) section 23 applies, and
(b) the Magistrate is satisfied as required by section 25.”

7 “Suspect” is defined in s3 and relevantly includes a person suspected by a police officer, on reasonable grounds, of having committed an offence, and a person who has been charged with an offence.

8 S25 sets out the matters required to be considered by a magistrate before ordering that a forensic procedure be carried out. The section is in the following terms:

“25 Matters to be considered by Magistrate before ordering forensic procedure

The Magistrate must be satisfied that:
(a) the person on whom the procedure is proposed to be carried out is a suspect, and
(b) if the forensic procedure concerned is an intimate forensic procedure, on the evidence before the Magistrate there are reasonable grounds to believe that the suspect committed:
(i) a prescribed offence, or
(ii) another prescribed offence arising out of the same circumstances as that offence, or
(iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
Note . A "prescribed offence" is defined in section 3 as an indictable offence or any other offence prescribed by the regulations.
(c) if the forensic procedure concerned is a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:
(i) an indictable or a summary offence, or
(ii) another indictable or summary offence arising out of the same circumstances as that offence, or
(iii) another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(d) if the forensic procedure concerned is the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:
(i) a prescribed offence, or
(ii) another prescribed offence arising out of the same circumstances as that offence, or
(iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(e) if the forensic procedure concerned is the taking of a sample by buccal swab, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:
(i) a prescribed offence, or
(ii) another prescribed offence arising out of the same circumstances as that offence, or
(iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(f) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence, and
(g) the carrying out of the forensic procedure is justified in all the circumstances.”

9 By s26 an authorised person, but no other person, may apply to a magistrate for an order authorising the carrying out of a forensic procedure on a person.

10 The Forensic Procedures Act provides for three different categories of forensic procedures. These are “intimate forensic procedures”, “non-intimate forensic procedures” (both defined in s3), and the taking of samples by buccal swab.

11 By s115A(1) an appeal against an order under s24 lies to this Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act2001 (“the Appeal and Review Act”):

“as if the order were a sentence arising from a court attendance notice dealt with under Part 2 , Chapter 4 of the Criminal Procedure Act 1986.”

By ss52(1) and 53(1) of the Appeal and Review Act, which appear in Part 5, a person who has been convicted or sentenced by a Local Court may appeal to this Court, but only on a ground that involves a question of law alone (s52(1)), or, by leave of this Court, on a question of fact or a question of mixed law and fact (s53(1)). (In each case there is an exception in relation to a person convicted of an environmental offence, but that is of no present relevance, and it is unnecessary to do more than, for completeness, note that it exists.) The effect of s115A of the Forensic Procedures Act and the incorporation of the relevant provisions of the Appeal and Review Act is that an appeal lies to this Court against an order under s24, but only on a ground that involves a question of law alone, or, by leave of this Court, on a question of fact or a question of mixed fact and law.

12 In the present appeal, no question of leave arises. The grounds of the appeal clearly involve questions of law alone.

facts

13 On or about 28 January 2004, Detective Senior Constable Brendan Bayliss applied to the Local Court under s26 of the Forensic Procedures Act for an order for the carrying out of forensic procedures on the plaintiff. The initiating process by which the order was sought was not in evidence in the present proceedings, but the evidence establishes that the application was for orders that a sample by buccal swab, a hair sample (other than pubic hair), and a sample of blood be taken from the plaintiff.

14 The application was supported by an affidavit sworn by Detective Bayliss, who deposed that he was “an authorised person” (within the meaning of s26). The affidavit appears to have been completed on a pro-forma. Paragraph 3 commences:

“The grounds for believing that the person on whom the procedure is proposed to be carried out is a suspect are: ...”

The opening words of paragraph 3 are followed by a narrative of a police investigation; included in the narrative is the assertion:

“From evidence gathered throughout this investigation ... it became apparent that the Accused Steven ORBAN, was dealing heroin from his hair dressing business address ...”

In a later paragraph, Detective Bayliss deposed:

“It is alleged that the Accused supplied a drug runner with the deal of heroin, and in turn the drug runner would supply the undercover police operative with the deal of heroin in turn (sic) for money. The drug runner would then return to Orban’s Hair Salon and give the Accused the money. Police used numerous evidence gathering techniques in which to colate (sic) relevant evidence ... which included different forms of electronic surveillance and field surveillance.”

15 Subsequent paragraphs reinforce the impression that the document was completed on a pro-forma. For example, paragraphs 7 to 12 inclusive contain opening words and sentences that relate to presently irrelevant parts of the Forensic Procedures Act. Those opening words are followed by spaces which have been left blank.

16 For reasons I will give below, the format of the affidavit was, in my view, apt to mislead both the deponent and the magistrate.

17 Detective Bayliss deposed that, between 19 March and 27 June 2002, undercover police officers made sixteen separate purchases of heroin. Fourteen of the sixteen quantities of the drug that were purchased were analysed and the packaging tested for fingerprints. The remaining two packages of drugs were subjected to examination for trace elements of DNA. These were identified as Blacktown Drug exhibits C767289 and C834817. They were conveyed to a laboratory on, respectively, 20 May 2002 and 4 June 2002. Because of heavy workload they were not examined until November 2003. In December 2003 an analyst advised that a trace of male DNA from saliva had been located on the exhibit numbered C834817. The DNA did not match any recorded profile. Detective Bayliss deposed that it was common methodology for drug suppliers to secrete heroin deals in small water balloons, in turn secreted in their mouths. The investigating police notified the plaintiff’s legal advisors of the existence of the DNA evidence, and requested that he supply a buccal swab. He declined to do so.

18 In paragraph 4 Detective Bayliss deposed:

“The offences which I believe that the person on whom the procedure is proposed to be carried out is suspected of committing are as follows: [he identified the offences with which the plaintiff was charged].

In paragraph 6 he deposed:

“I believe that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence:
I believe that there are reasonable grounds to believe that the DNA evidence to be obtained from the accused will match that from the DNA evidence obtained from the drug exhibit C834817 at the Division of Analytical Laboratories by forensic biology analysts. Such evidence combined with the various direct, indirect and circumstantial evidence obtained to date would prove that the Accused committed the mentioned offences .” (italics in original)

19 The application came on for hearing in the Local Court at Blacktown on 9 February 2004.

20 Detective Bayliss gave oral evidence and was cross-examined. He confirmed that, on 27 June 2002, the plaintiff and two others (Alexander Stojic and Gaye Iffland) were arrested and charged with various drug offences. The plaintiff was charged with, and had pleaded not guilty to, charges of supplying not less than the indictable quantity of heroin, three counts of supplying a prohibited drug on an ongoing basis and sixteen counts of supplying heroin. He has been committed to stand trial on these charges. Stojic had pleaded guilty to the charge(s) against him and, by the time of the hearing the subject of the present appeal, had been dealt with (with what result is not apparent, and is not material). In cross-examination Detective Bayliss confirmed that the package of heroin which became exhibit C384817 had been obtained by an undercover police officer from Stojic. Because of Stojic’s plea of guilty, Detective Bayliss had not considered it necessary or appropriate to seek a DNA sample from him. Nor (in the light of the scientific report that the DNA trace was that of a male) had he sought a DNA sample from Iffland.

21 Counsel who appeared for the plaintiff both in the Local Court and again on the appeal opposed the making of the order. From the transcript of her submissions in the Local Court, it is plain that she did so principally (if not solely) on a discretionary basis, citing the delay in the submission of the exhibits for testing, and in the production of the results of the test. In that context she said (and it appears to have been accepted) that on 2 February 2004 a trial had been fixed to commence on 19 April. By reference to the listing arrangements in the District Court, she contended that, if the trial date of 19 April were to be vacated (as, presumably, it would have had to be if the order(s) were to be made) the plaintiff could anticipate a substitute trial date no earlier than June or July. She therefore submitted that it was “not in the interests of justice at this stage” that an order be made.

22 The Prosecutor who appeared on behalf of the applicant (Detective Bayliss) declined to address.

the magistrate’s judgment

23 The magistrate referred to the submissions made. The transcript then records her reasons for judgment as follows:

“The question of delay is one matter that the Court can take into account in assessing the requirements of the Act. Certainly one could accept that the proposed examination of samples from the defendant would have the potential to either confirm or disprove that he is a suspect or he being connected with the exhibit. It works both ways in relation to fairness. ...
The overwhelming consideration, of course, is the interests of justice ought to be made. Now, the Court has to balanced (sic) up the defendant’s right to have a fair trial and have his matters disposed of at the first available opportunity. And also have the adequate time to address whatever evidence is brought before the court in relation to the allegations. The allegations the defendant is facing are extremely serious. They are drug related activity on an ongoing basis and that is where the interests of the community, to ensure that matters such as this are prosecuted effectively and to the fullest in relation to obtaining all available relevant evidence. Whether any sample taken from the accused would link him or not is unknown. As I said before, it could confirm or disprove his involvement at least in relation to that supply, at least in relation to being touching (sic) or having any dealings with that balloon.
I take into account the matters set out in the affidavit and evidence given by Constable Bayliss and I am of the view that in the interests of justice the order should be made accordingly.”

24 She ordered that the plaintiff supply a buccal swab and a hair sample forthwith to police. She made no order that a blood sample be taken. Nor did she expressly decline that application or give reasons for so doing.

the Forensic Procedures Act

25 It is convenient here to say a little about the circumstances in which a magistrate may make an order authorising the carrying out of a forensic procedure.

(i) By s24, the magistrate may make an order only –
(a) where s23 applies; and
(b) where the magistrate is satisfied as to the relevant matters set out in s25.

(ii) S23 is curiously worded. It applies where:
(a) the suspect is not under arrest and has not consented to the procedure;
(b) the suspect is under arrest and has not consented to the procedure;
(c) by reason of his/her being under 18 years of age, or incapable (as defined in s3), the suspect is precluded from consenting to the procedure.

(iii) S25 prescribes the matters of which a magistrate must be satisfied before making an order. Generally, those matters are (in relation to orders for all kinds of forensic procedures):

(a) that the person on whom the procedure is proposed to be carried out is a suspect (as defined in s3) (s25(a));

(b) that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed a relevant offence (see paragraphs [27] – [28] below) (s25(f));

(c) that the carrying out of the forensic procedure is justified in all the circumstances (s25(g)).

26 Sub-paragraphs (b), (c), (d) and (e) of s25 draw a distinction between different categories of forensic procedures. They are, respectively: -

· intimate forensic procedures

· non-intimate procedures

· the taking of a hair sample other than pubic hair

· the taking of a sample by buccal swab.

The taking of a blood sample is an intimate forensic procedure and falls into the first category; the applications thus raised for consideration the pre-conditions specified in s25(b), (d) and (e).

27 Each of those sub-paragraphs prescribes the remaining precondition for the making of an order in relation to the particular kind of forensic procedure with which it deals. In relation to intimate forensic procedures, hair samples (other than pubic hair) and buccal swab samples, the final precondition is identical: the magistrate must be satisfied that, on the evidence, there are reasonable grounds to believe that the suspect committed a prescribed offence, another prescribed offence arising out of the same circumstances as that offence, or another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value. (It will be remembered that “a prescribed offence” is an indictable offence or other offence prescribed by regulation: it will be convenient, and not do a disservice to the interpretation of the legislation, to refer to the relevant offences as “a prescribed offence or related offence”.)

28 In relation to a non-intimate forensic procedure, the remaining pre-condition is that the magistrate be satisfied that, on the evidence, there are reasonable grounds to believe that the suspect committed an indictable or a summary offence, another indictable or summary offence arising out of the same circumstances as that offence, or another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value. Put simply, the legislation permits a magistrate to order that a non-intimate forensic procedure be carried out where the offence of which the person concerned is suspected is either indictable or summary; it permits a magistrate to make an order that other forensic procedures be carried out only where the offence of which the person is suspected is an indictable offence, or is otherwise prescribed by regulation as one in relation to which an order may be made. The taking of a hair sample (other than pubic hair) which is otherwise classified as a non-intimate procedure, is treated differently, and may only be ordered in relation to persons suspected of having committed indictable (or otherwise prescribed) or related offences. Buccal swabs, which are treated in s3 as in a category of their own may similarly only be ordered where the offence of which the person is suspected is an indictable or otherwise prescribed or related offence.

29 What emerges from an analysis of these provisions is that the legislature perceived a distinction between the kinds of offences that would warrant the authorisation by a magistrate of forensic procedures against the will of a suspect. The extent to which an intrusive procedure may be so authorised is dependent upon the seriousness of the crime suspected, balanced against the intrusiveness of the procedure for which an order is sought. That can be explained in a short digression from the facts and circumstances of this case.

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

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

32 A forensic procedure (as defined in s3) necessarily involves, to a greater or lesser extent, some invasion of the personal privacy and personal bodily integrity of the person concerned. The degree to which that balance to which I have referred will warrant the making of an order that will have the consequence of causing some degree of invasion of personal privacy and personal bodily integrity is made to depend upon the interaction of two things – firstly, the seriousness of the crime of which the person is suspected, and secondly, the degree of invasion of personal privacy or integrity.

33 Reference to the definition of non-intimate forensic procedures in s3 shows that, in the main, those procedures involve limited invasion, and limited touching of the body, and no invasion or touching of genital, anal or female or trans gender breast areas. The degree of intrusion into personal privacy or bodily integrity is apparently perceived to be small in relation to those procedures. It is, presumably, for that reason that a magistrate is empowered to make an order for a forensic procedure even where the offence of which the person is suspected is a summary one.

34 By definition, the taking of a hair sample (other than pubic hair) is a non-intimate forensic procedure, but is specifically excluded from s25(c). This, presumably, is because of the nature of the procedure involved, which is deemed to be sufficiently invasive to warrant its being authorised only in relation to more serious offences: see the particular provisions relating to the taking of hair samples contained in s49.

35 Intimate forensic procedures, and the taking of hair samples other than pubic hair, and buccal swabs, may only be authorised where the offence of which the person is suspected is a prescribed offence (or a related offence.)

what did the application require of the magistrate?: the correct approach to the application

36 As indicated above, the application was for:

(i) the taking of a sample by buccal swab;
(ii) the taking of a hair sample;
(iii) the taking of a blood sample.

37 By ss24 and 25, the magistrate was required, before making any of the orders, to be satisfied: -

(i) that s23 applied;
(ii) that the plaintiff was a suspect (as defined in s3);
(iii) that there were reasonable grounds to believe that the plaintiff had committed a prescribed (i.e. indictable) offence (or a related offence);
(iv) that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the plaintiff had committed the offence(s) of which he was suspected;
(v) that the carrying out of the forensic procedure was justified in all circumstances (s25(g)).

38 The magistrate did not turn her mind to any of these questions. She focused upon broader questions, that is, the discretionary factors of delay, and whether, in the interests of justice, the order ought be made. Nor was her attention drawn to the requirements of the Act. Indeed, counsel’s submissions were directed only to delay, and consequent discretionary considerations. The Prosecutor did not address at all.

(i) s23

39 Had the magistrate’s attention been drawn to s23, she must inevitably have found that it applied. The plaintiff either was (s23(b)) or was not (s23(a)) under arrest, and had not consented to any of the forensic procedures for which orders were sought. He had expressly declined to provide a buccal swab. It is unnecessary to take further time on that requirement.

(ii) that the plaintiff was a suspect

40 The magistrate did not explicitly make any finding, in terms of s25(a), that the plaintiff was a suspect. Since the definition of “suspect” in s3 includes a person who has been charged with an offence, and there was uncontroversial evidence that the plaintiff was such a person, that also could hardly have been in issue, and it was not. Nevertheless, the section requires a positive finding to that effect. The definition also includes:

“a person whom a police officer suspects on reasonable grounds has committed an offence”

and thus is applicable to a person who is not, at the time of the application, the subject of any charge. Where an order is sought in relation to such a person, then the evidence put before the magistrate must be evidence which will enable the magistrate to satisfy himself or herself not only that the police officer does suspect that that person had committed an offence but also that the police officer has reasonable grounds for that suspicion. Evaluation of whether the grounds for suspicion are reasonable or not, for this purpose, must be the independent evaluation of the magistrate. The mere assertion by a police officer that he or she suspects, or even that he or she suspects on reasonable grounds, that the person the subject of the order sought has committed an offence, would not satisfy the sub-paragraph.

41 Although the procedure in relation to s25(a) was deficient, I would not set aside the orders on that ground alone. That is because, had the magistrate turned her attention to the question, she could not reasonably have formed any view other than that the plaintiff was a suspect (as a person who had been charged: it was not necessary, in that circumstance, to consider the more complex question of whether Detective Bayliss had reasonable grounds for suspecting that the plaintiff had committed any offence); and because no issue was taken about that question at the hearing of the appeal.

42 The remaining matters are of more concern.

(iii) reasonable grounds to believe that the plaintiff had committed a prescribed offence

43 The next question the magistrate should have asked herself, in relation to each of the forensic procedures for which an order was sought, was whether there were reasonable grounds to believe that the plaintiff had committed a prescribed (or related) offence. This required her own individual assessment of two things: the grounds upon which the plaintiff was suspected, and reasonableness of those grounds. At no stage did she direct her mind to the questions. Nor was she given evidence that would have enabled her to make relevant findings or reach the required satisfaction. The opening words of paragraph 3 of Detective Bayliss’ affidavit are, in my view, intended to achieve that purpose, but they reflect a degree of confusion about what is required by s25. It is for this reason that I earlier characterised the format of the affidavit as apt to mislead.

44 In paragraph 3, Detective Bayliss outlines the grounds for believing that the plaintiff was “a suspect”. But whether the plaintiff was “a suspect” or not was a question of objective fact: if he came within the definition, he was “a suspect”. In order to establish that the plaintiff was a suspect it was only necessary for Detective Bayliss to state that he had been charged. That brought him within the definition. Detective Bayliss’ belief as to that, and his grounds therefor, were of no relevance.

45 What required addressing were the grounds for believing that the plaintiff had committed a prescribed offence, or a related offence. Those grounds were required to be set out in order to enable the magistrate to form her own independent opinion as to their reasonableness. The magistrate had to be given evidence to satisfy herself that grounds existed for believing that the plaintiff was guilty of a prescribed (or related) offence; and that those grounds were reasonable.

46 Even in Detective Bayliss’ narrative no concrete facts to establish the grounds of belief or their reasonableness, were stated. It is insufficient to say, as he did, that:

“ ... it became apparent that [the plaintiff] was dealing heroin ...”

or that

“It is alleged that [the plaintiff] supplied a drug runner with a deal of heroin [and] [t]he drug runner would then return to [the plaintiff’s] Hair Salon, and give [the plaintiff] the money.”

47 That gave the magistrate no basis at all for a finding that grounds existed for believing that the plaintiff had committed a prescribed (or related) offence, or, if she so held, that those grounds were reasonable.

48 When attention is directed to the nature of the orders sought, and having regard to the delicate balance struck by Parliament, it will be recognised that what I have said is no mere pedantry. Parliament intended that orders for involuntary forensic procedures be made only where its stated preconditions are met. Those preconditions include a magistrate’s independent satisfaction that reasonable grounds exist for the police officer’s suspicion.

49 The magistrate did not focus upon either of these important questions. That constituted error of law.

(iv) reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff had committed the relevant offence

50 The next question which arises is that set out in s25(f). As to this, I have already referred to paragraph 6 of the affidavit of Detective Bayliss and the finding of the magistrate (see [18] and [23]). The paragraph in the affidavit begins:

“I believe that there are reasonable grounds to believe that he forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence ...”

51 In this paragraph the first sentence appears in ordinary type. The remainder is, in the original, in italics. This is further ground for my view that Detective Bayliss used a pro-forma supplied to him in preparing his affidavit evidence. However it came about, this paragraph suffers from the same defect as does paragraph 3. The question at issue is not whether or not an applicant for an order believes that there are reasonable grounds for believing that the forensic procedure sought might produce evidence of the required kind: it requires evidence to enable a magistrate to reach that conclusion. The italicised passage, apparently inserted by Detective Bayliss to fit the circumstances of the particular application, did not advance the matter any further. It is insufficient for him to depose that he believed there were reasonable grounds to believe that the DNA evidence to be obtained from the plaintiff may match that obtained from the exhibit. He had to specify what those grounds were in order to enable the magistrate to make her evaluation, and reach (or not reach) the satisfaction required.

52 The magistrate did make a partial finding in relation to this question. I repeat what the transcript records her as saying:

“Certainly one could accept that the proposed examination of samples from the defendant would have the potential to either confirm or disprove that he is a suspect or he being connected with the exhibit ... Whether any sample taken from the accused would link him or not is unknown. As I said before, it could confirm or disprove his involvement, at least in relation to that supply, at least in relation to being, touching or having any dealings with that balloon.”

53 The submission made on appeal was that the magistrate did not turn her mind to the question required by s25(f). The quoted passages show that, at least in part, she had in mind the requirement: that is, whether confirmation or disproof of the plaintiff’s involvement might result from the forensic procedures. But that is not the issue raised by s25(f). The issues raised are, again, the grounds specified and their reasonableness. That required some evidence about the circumstances in which the plaintiff was suspected, and the basis for the belief that the forensic procedures sought might produce evidence of the kind described. No submission was put on the appeal that the evidence, as a matter of law, did not permit such a finding to that effect. Notwithstanding the absence of any such submission, I have concluded that it did not. In this respect it is to be remembered that the evidence of Detective Bayliss was that the package which became exhibit C834817 had been obtained from Stojic. As far as the evidence before the magistrate went, there was nothing to link the plaintiff with that package. No facts were asserted that were capable of linking the plaintiff with that package or suggesting that DNA located on it might have been his. No facts were asserted that were capable of giving rise to a finding that there were reasonable grounds to believe that either a buccal swab or a hair sample (or a blood sample) might produce evidence of the statutory description. Further, the requirement demanded attention individually to each of the procedures in relation to which an order was sought. It is entirely possible that available evidence might have established reasonable grounds for believing that one or the other, but not both, procedures for which orders were made might produce the relevant evidence. No finding under s25(f) was open on the evidence. The approach taken to this question also discloses error of law.

(v) that the carrying out of the forensic procedures was justified in all the circumstances

54 The final question, raised by s25(g), is whether the particular forensic procedure in question was “justified in all the circumstances”. In respect of this question it is also necessary to pay particular and individual attention to each of the three different procedures proposed. Although it may be thought that the magistrate’s focus on “the interests of justice” raises a question related to that specified in s25(g), it is not an identical question and is not co-extensive with the question raised by s25(g). Application of s25(g) requires a balancing of, inter alia, the invasiveness of a compulsory forensic procedure, against the anticipated evidence to be obtained from it, and the requirements of the administration of justice in the most accurate solution of a particular crime. This question also was not addressed. That also constitutes error of law.

the appeal

55 On the appeal, counsel who appeared for the defendant (that is, defendant on the appeal, Detective Bayliss) tendered an affidavit sworn by Detective Bayliss on 1 April 2004. Counsel for the plaintiff successfully objected to some paragraphs of the affidavit, but not to the affidavit as a whole, and the balance of the affidavit was read. No application was made to adduce fresh evidence on the appeal. That makes the status of this affidavit unclear. It not having been the subject of objection, and having been read, effectively, by consent, it may be unfair now to discard that part of the affidavit to which no objection was taken. But, it seems to me, the tender of additional evidence on an appeal limited to a question of law misconceives the nature of such an appeal. I have been able to reach a view as to the outcome of the appeal without regard to the surviving content of this affidavit. I have also considered whether, if I were to take into account its surviving contents, the result would have been different. It would not. I will mention the only factual matter of any potential significance. That was that, when the undercover police officer purchased heroin from Stojic, the heroin was, in fact, produced from Stojic’s mouth. That, had it been before the magistrate, may have raised serious questions about the potential value of DNA evidence hoped to be obtained from the plaintiff as a result of the application. But that evidence, not having been before the magistrate (although it appears to have been known to counsel for the plaintiff) is of no assistance in determining the present questions of law.

56 None of the evidence, in my opinion, was capable of satisfying the magistrate that there were reasonable grounds for believing that the plaintiff committed a prescribed or related offence, or that there existed reasonable grounds for believing that any of the forensic procedures sought might produce evidence tending to confirm or disprove that the plaintiff committed the relevant offence; nor that any of the forensic procedures in question was justified in all the circumstances. In order to reach the necessary state of satisfaction, it is necessary that the magistrate bring his or her own independent evaluation to the evidence which the prosecution contends amounts to reasonable grounds to believe that the suspect committed the relevant offence. It is insufficient, in my view, merely to recount that “it is alleged” that a suspected person engaged in certain acts. In order to enable the magistrate to reach the required level of satisfaction on that question it is necessary to put before the magistrate sufficient evidence to enable him or her to be satisfied that reasonable grounds for believing that the person suspected committed the offence exist. This was not done. The same may be said of evidence to enable answers to be given to the other questions.

57 Counsel who appeared for the plaintiff did not argue before the magistrate against any of the propositions that arise from s25, and did not draw her attention to the procedure required by the sub-paragraphs. Indeed, by making submissions founded only on a discretionary matter, delay, counsel participated in the error which I find was committed.

58 The magistrate did not direct her attention to the correct question. The statute sets out, in clear tones, the matters of which the magistrate must be satisfied before making an order. S24 makes it plain that, even if the magistrate is satisfied under s25(d), a discretion to decline to make the order remains, and delay and the interests of justice are factors which may be taken into account on that question. S25(g) also requires consideration of general discretionary factors.

59 There was some evidence before the magistrate relevant to this question. The evidence of delay was in that category, tending to a negative conclusion. By reason of the defects in the nature of the evidence adduced, there was little that could reasonably have resulted in a positive conclusion. That is because, in relation to this question as to the others, Detective Bayliss’ belief was irrelevant and should have been discarded, and there was no evidence of facts which would have enabled the magistrate to reach her own independent satisfaction.

60 I am satisfied that the application was, from the start (the affidavit evidence) to the finish (the approach taken by the magistrate) affected by errors of law. The magistrate was not provided with evidence which would have enabled her properly to perform the task committed to her by the legislation. She did not direct her attention to the matters of which she was required to be satisfied. Had she considered the correct questions, the evidence would not have enabled her to reach positive conclusions such as to permit the making of the orders.

61 The order must be set aside. By s55(2)(c ) of the Appeal and Review Act (as applied and adopted by s115A of the Forensic Procedures Act), this Court is empowered to remit the matter to the Local Court for re-determination in accordance with the directions of this Court. This is the course I propose to take.

ORDERS

62 (i) Appeal allowed, order of magistrate set aside;

(ii) matter remitted to the Local Court for re-determination in accordance with these reasons.

**********

Last Modified: 06/07/2004