Roberts v Magistrate Gett

Case [2025] FCA 360

FEDERAL COURT OF AUSTRALIA

Roberts v Magistrate Gett [2025] FCA 360  

File number(s): QUD 610 of 2024
Judgment of: DOWNES J
Date of judgment: 14 April 2025
Catchwords: CRIMINAL LAW – judicial review of a decision of magistrate to issue a forensic procedure order – fragmentation of criminal proceedings – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Crimes Act 1914 (Cth)

Judiciary Act 1903 (Cth)
Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Cain v Glass (No 2) (1985) 3 NSWLR 230

Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145

Commissioner of Australian Federal Police v [REDACTED] [2024] QSC 291

Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development (2023) 414 ALR 26; [2023] WASCA 36

Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149

Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120

Hutson v Australian Securities and Investments Commission [2023] QCA 167

Kizon v Palmer (No 2) (1993) 82 FCR 310

Palmer v Australian Securities and Investments Commission [2024] FCA 1167

Yates v Wilson (1989) 168 CLR 338
Division: General Division
Registry: Queensland
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 33
Date of hearing: 9 April 2025
Counsel for the Applicant: Mr A Scott KC and Ms A Hughes
Solicitor for the Applicant: Owens & Associates
Counsel for the Second Respondent: Mr S Walpole
Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

QUD 610 of 2024
BETWEEN:

DANIEL WAYNE JOHN ROBERTS

Applicant
AND:

MAGISTRATE ANTHONY GETT

First Respondent

DETECTIVE SENIOR CONSTABLE NATHAN SCOTT

Second Respondent

ORDER MADE BY:

DOWNES J

DATE OF ORDER:

14 APRIL 2025

THE COURT ORDERS THAT:

1.The amended originating application filed 1 November 2024 is dismissed.

2.The applicant pay the second respondent’s costs of the proceeding on the standard basis.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DOWNES J:

  1. Mr Daniel Roberts (the applicant) applies for judicial review of a decision of Deputy Chief Magistrate Gett (the Magistrate) pursuant to s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth).

  2. The decision under review is a forensic procedure order made by the Magistrate on 2 October 2024 (as amended on 11 October 2024). The order was made pursuant to ss 23WS and related provisions of the Crimes Act 1914 (Cth) and (in effect) requires the applicant to submit to a procedure to the taking of his fingerprints and handprints by authorised members of the Australian Federal Police and the Queensland Police Service. The Magistrate directed that the applicant’s solicitor be permitted to be present during the procedure.

  3. For the following reasons, the application will be dismissed.  Costs should follow the event.

    BACKGROUND

  4. The applicant has been charged with a number of serious Commonwealth criminal offences, and has been remanded in custody.…

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Roberts v Magistrate Gett [2025] FCA 360
Case
[2025] FCA 360
Decision Date

CaseChat Overview and Summary

The applicant, who is facing serious criminal charges and is in custody, applied for judicial review of a decision by a Magistrate to issue a forensic procedure order. The applicant sought to quash the order, which authorised the carrying out of a forensic procedure on him, by taking his fingerprints and handprints. The applicant alleged that the decision was made without regard to whether there was a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that he committed the relevant offence. The Federal Court of Australia was called upon to determine whether the application for judicial review should be dismissed due to the risk of fragmenting the criminal proceedings. The Court considered whether the grant of relief by way of judicial review could be seen to produce a discernible benefit. The Court concluded that the relief sought should be refused in the exercise of the Court’s discretion to prevent fragmentation of the criminal proceedings. The Court found that the undesirable consequences of fragmentation of criminal proceedings included discontinuity, disruption or delay in committal proceedings, and the diversion of attention from the real substance of the accusations brought. The Court found that the application for judicial review should be dismissed and that the applicant should pay the costs of the proceeding on the standard basis.

Orders

Orders of the court

1. The amended originating application filed 1 November 2024 is dismissed.

2. The applicant pay the second respondent’s costs of the proceeding on the standard basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, the application will be dismissed. Costs should follow the event. BACKGROUND The applicant has been charged with a number of serious Commonwealth criminal offences, and has been remanded in custody. The prosecution is at the pre-committal stage in the Magistrates Court of Queensland. The applicant is alleged by the prosecution to have used an encrypted messaging application in the course of the alleged offending. An aspect of the circumstantial evidence relied upon is a high-definition image of a hand which was sent to a group chat. The image was able to be analysed by a fingerprint expert, who determined that the fingerprints matched older fingerprint records of the applicant, as well as a set of his fingerprints taken when he was arrested on 17 April 2024. A fingerprint examiner advised Detective Senior Constable Nathan Scott (the second respondent) that “a further procedure that appropriately captures the relevant area of the palm would enable a further comparison to be undertaken, using a newly obtained sample”. Consent was sought from the applicant to provide a new set of prints, but he refused. On 5 August 2024, the second respondent made an application under s 23WU of the Crimes Act for a forensic procedure order to take the applicant’s fingerprints and handprints. On 30 September 2024, the Magistrate made the decision pursuant to ss 23WU and 23WS of the Crimes Act authorising the forensic procedure to be performed on the applicant. The Magistrate gave ex tempore reasons for the decision. An order was then made on 2 October 2024, which was amended on 11 October 2024. The forensic procedure has not yet been carried out on the applicant. By an amended originating application for judicial review filed 1 November 2024, the applicant seeks an order in the nature of certiorari quashing the decision. THE LAWJurisdiction There was no dispute that the Court has jurisdiction to issue the relief sought. Statutory framework Part ID Division 5 of the Crimes Act establishes the statutory scheme for the carrying out of forensic procedures on a suspect by order of a magistrate. Section 23WU of the Crimes Act provides that an “authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect”. Section 23WS of the Crimes Act provides for the making of a final order for carrying out a forensic procedure: 23WS Final order for carrying out of forensic procedureA magistrate may order the carrying out of a forensic procedure on a suspect if: (a)subsection 23WR(1) applies; and (b)the magistrate is satisfied as required by section 23WT. Section 23WR(1) provides that the magistrate may order the carrying out of a forensic procedure on a suspect if, relevantly, the suspect is in custody and has not consented to the forensic procedure (whether or not consent has been sought). Section 23WT sets out the matters that must be considered before ordering a forensic procedure. Relevantly, s 23WT(3)(f) required the Magistrate to have regard to “whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence”.CONSIDERATION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, I consider that the relief sought should be refused in the exercise of the Court’s discretion to prevent fragmentation of the criminal proceedings.CONCLUSION As I have concluded that the application should be dismissed on fragmentation grounds, it is not necessary to consider the grounds of review advanced by the applicant.

Ratio Decidendi

Legal Principle Established

Section 23WT sets out the matters that must be considered before ordering a forensic procedure. Relevantly, s 23WT(3)(f) required the Magistrate to have regard to “whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence”.CONSIDERATION Fragmentation is a threshold question and should be determined before consideration of the merits: Hutson v Australian Securities and Investments Commission [2023] QCA 167 at [61]–[62] (Mullins P, Dalton JA and Henry J agreeing). In the recent decision of Palmer v Australian Securities and Investments Commission [2024] FCA 1167, Button J observed at [55] that “[t]he undesirability of civil courts permitting their jurisdiction to be exercised so as to give rise to the fragmentation of criminal proceedings has been confirmed, time and again”. The High Court has “repeatedly stressed the need for civil courts to avoid becoming involved in aspects of the criminal justice system”: see Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7] (O’Loughlin, North and Weinberg JJ) and that the “fragmentation of the criminal process is to be actively discouraged”: see Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [23] (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ). Reasons for the “basic rule of restraint” against fragmenting criminal proceedings were canvassed by Kirby P in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235 as including: (1)the undesirability of discontinuity, disruption or delay in committal proceedings; (2)the superior knowledge of the committing magistrate concerning the whole facts and circumstances of the case under their consideration; (3)the undesirability of the beneficial remedies of declaration or the prerogative writs being misused to justify transfer to the superior courts of matters committed by law to the magistracy; (4)the cost, which is largely borne by the public purse, of proliferating litigation, particularly at an interlocutory stage, which diverts attention from the real substance of the accusations brought and concentrates instead on peripheral and often procedural matters; (5)the undue advantage that may be given to rich and powerful defendants to interrupt and delay the operation of the criminal law in a way not so readily available to ordinary citizens; and(6)the power of the Attorney-General to present an ex officio indictment or to refuse to present an indictment, whatever the outcome of the committal proceedings. However, restraint does not constitute an abdication of responsibility, as courts continue to assert an entitlement to intervene in exceptional or special circumstances, where the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit: Yates v Wilson (1989) 168 CLR 338 at 339 (Mason CJ, Toohey and Gaudron JJ); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 339 (Mason CJ, with whom Brennan and Deane JJ agreed); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 187 (Beaumont, Ryan and Lindgren JJ).