SK v Children's Court of the Australian Capital Territory
[2014] ACTSC 255
•30 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SK v Children’s Court of the Australian Capital Territory & Anor |
Citation: | [2014] ACTSC 255 |
Hearing Date(s): | 30 July 2014 |
DecisionDate: | 30 July 2014 |
Before: | Murrell CJ |
Decision: | Application is dismissed |
Category: | Interlocutory application |
Catchwords: | ADMINISTRATIVE LAW – Judicial review – order for forensic procedures – whether failure to take account of relevant consideration – whether error of law – whether evidence or material to justify decision |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5, 7 Crimes (Forensic Procedures) Act 2000 (ACT) s 33, 34 |
Cases Cited: | R v Tillett; ex parte Newton (1969) 14 FLR 101 Sleiman v Murray (2010) 173 ACTLR 1 |
Parties: | S K (Plaintiff) Children’s Court of the Australian Capital Territory (First Defendant) Director of Public Prosecutions (ACT) (Second Defendant) |
Representation: | Counsel Ms L Taylor (Plaintiff) Not present (First Defendant) Mr J White SC (Second Defendant) |
| Solicitors Legal Aid ACT (Plaintiff) ACT Government Solicitor (First Defendant) Director of Public Prosecutions (ACT) (Second Defendant) | |
File Number(s): | SC 171 of 2014 |
MURRELL CJ:
Background
The applicant, a 16-year-old Aboriginal boy, seeks judicial review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) of an order made by the Children’s Court for the collection of the forensic material by the second defendant (the informant) pursuant to s 33 of the Crimes (Forensic Procedures) Act 2000 (ACT) (Forensic Procedures Act). The order authorised the forensic procedures of taking a buccal swab, fingerprints and photographs of the applicant’s face and genital area. The First Defendant filed a notice of intention to respond to the application submitting to the orders of the Court except as to costs on 13 May 2014. The Second Defendant filed a notice of intention to respond to the application on 5 June 2014.
Proceedings in the Children’s Court
On 26 April 2014 the applicant was charged with damaging property and attempted burglary. On 29 April 2014, he was charged with committing an act of indecency by exposing himself to a 13 year old girl on 28 April 2014. By 2 May 2014, when the application for forensic procedures came before the Children’s Court, further charges had been laid. Relevantly, the applicant had been charged with a second count of exposing his genitals on 28 April 2014 and with intentional damage to property and attempted burglary on 26 April 2014 at 23 and 60 Hetherington Circuit, McKellar in the ACT. On 19 May 2014, he was charged with two further burglaries and five further acts of indecency. All offences were allegedly committed in April 2014.
On the application for forensic procedures, the informant sought photographs of the applicant’s face and genitals in relation to the alleged acts of indecency on 28 April 2014, and a buccal swab and fingerprints in relation to the Hetherington Circuit burglaries.
On 2 May 2014 the informant gave evidence by way of affidavit and oral evidence, upon which she was cross-examined. She said that the complainant in relation to the offence on 28 April 2014 provided “a detailed description of (the offender’s) genital area)” and that she “described quite in detail what she saw”. As the complainant was “in shock”, she had focused on the perpetrator’s genital area rather than on the perpetrator’s face and, as a consequence, she would be unable to give evidence about the perpetrator’s face. However, the informant believed that photographs of the genital area would assist the complainant to identify the perpetrator.
In relation to fingerprints and the DNA sample that would be obtained through the buccal swab, the informant said that fingerprints had been taken from the scene at 60 Hetherington Circuit and that the applicant had admitted committing a burglary at another unspecified address at which fingerprints and DNA had been collected. If the applicant’s fingerprints and DNA were obtained through a forensic procedure, then they could be compared with material collected from 60 Hetherington Street and the unspecified address.
The Children’s Court gave the following reasons for granting the application:
In relation to the application for the forensic order, based on the evidence before me in both affidavit and oral form, I’m satisfied of the following things on the balance of probabilities: that the young person is a suspect, given that he has been charged with an offence, that is, a suspect for a serious offence and that there are reasonable grounds for believing on the evidence before me that he committed that or other serious offences. I’m also satisfied that the public interest is in favour of obtaining evidence tending to prove or disprove that the young person committed the offence, taking into account all of the matters set out in section 34(3).
In particular, Mr Robertson has raised the intrusiveness of the taking of photographs of the young person’s genital area, but I am satisfied on the balance of probabilities that having regard to all of those factors the carrying out of the forensic procedures are justified in all the circumstances.
Accordingly, I grant the application in the terms as it has been filed.
Application for judicial review
The applicant sought judicial review under the ADJR Act on following bases:
(a)The making of the decision was an improper exercise of the power given by the enactment under which it was purportedly made (s 5(1)(e) of the ADJR Act).
(b)The decision involved an error of law, whether or not the error appears on the record of the decision (s 5(1)(f) of the ADJR act).
(c)There was no evidence or other material to justify the making of the decision (s 5(1)(h) of the ADJR act).
In connexion with the s 5(1)(e) ground (improper exercise of the power given by the enactment), the applicant relied on s 5(2)(b) of the ADJR act, which provides:
(2)The reference in subsection (1)(e) to an improper exercise of a power includes a reference to –
(b)failing to take a relevant consideration into account in the exercise of a power;
The applicant sought an order quashing the decision to order a forensic procedure (s 7(1)(a) of the ADJR Act). The applicant abandoned an application for an order directing the destruction of the forensic material collected.
Forensic Procedures Act
Section 34 of the Forensic Procedures Act requires that a magistrate be satisfied on the balance of probabilities of a number of matters. First, the magistrate must be satisfied that the person is a “suspect” (s 34(1)(a)). In relation to intrusive procedures, the magistrate must be satisfied that the relevant offence is “a serious offence” and that “on the evidence before the magistrate there are reasonable grounds to believe that the suspect committed” that offence or another serious offence (s 34(1)(b)). In relation to non-intrusive procedures, the magistrate must be satisfied that “on the evidence before the magistrate, there are reasonable grounds to believe” that the suspect committed that offence, another offence arising out of the same circumstances or another offence for which the forensic material is likely to have probative value (s 34(1)(c)). Most relevantly for these proceedings, s 34(1)(d) provides:
(1) The magistrate must be satisfied on the balance of probabilities that –
(d) the carrying out of the forensic procedure is justified in all the circumstances.
Section 34 further provides:
(2) In deciding whether the carrying out of the forensic procedure is justified in all circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;
...
(d)if the suspect is a child or incapable person – the best interests of the suspect;
(e)whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;
...
(h)any other matter considered relevant to balancing those interests.
Nature of the magistrate’s task
The making of an order for a forensic procedure involves an administrative decision undertaken as part of the investigative phase of the criminal justice system. Because the taking of forensic samples is potentially intrusive, the involvement of a magistrate provides a check by an independent person that is designed to ensure that only justified procedures are undertaken. The magistrate acts as persona designata: Sleiman v Murray (2010) 173 ACTLR 1 at [23]-[26].
In deciding whether to make an order, a magistrate is not required to weigh or evaluate evidence in the way in which evidence is weighed or evaluated in judicial proceedings. Rather, the magistrate is required to have regard to the matters set out in s 34(3) of the Forensic Procedures Act (including “any other matter considered relevant” by the magistrate), weigh the competing public interests, and then determine whether he or she is satisfied on the balance of probabilities that the procedure is justified in all circumstances. This task requires the magistrate to come to his or her own conclusion on the materials presented and not merely act upon bald assertions made by the informant, such as an assertion that “there are reasonable grounds” upon which the relevant conclusion may be reached: R v Tillett; ex parte Newton (1969) 14 FLR 101.
Decision to permit genital photography
The applicant noted that the Children’s Court was not provided with any detail of the genital description given by the complainant.
In support of the claim based on s 5(1)(e) of the ADJR Act, the applicant said that the magistrate failed to take a relevant consideration into account under s 5(2) of the ADJR Act, being the probative value and associated admissibility of any genital photographs. The applicant submitted that, absent any evidence that the applicant’s genital area was unusual, peculiar or distinctive, the probative value of any pictures of that area would be so low that it was unlikely that the pictures would be admitted as evidence or could support the admission of other identification evidence.
In Sleiman v Murray at [39] it was observed that the prospective admissibility of evidence may be a relevant consideration and, for the purposes of argument in this case, I am prepared to accept that, pursuant to s 34(3)(h) of the Forensic Procedures Act, a magistrate may decide that evidence associated with a proposed forensic procedure is unlikely to be admissible and may take that consideration into account (along with all other relevant considerations) when deciding whether to make an order.
In this case, the evidence (limited as it was) supported the contrary proposition; that genital photography may well result in evidence with probative value because the complainant had given a detailed description of the perpetrator’s genital area. If, at the hearing, it appears that there is nothing distinctive about that area then that may well provide a basis for excluding the photographs or evidence derived from the photographs, but that will be a matter to be decided by the presiding judicial officer.
Next, the applicant submitted that there was an error of law in that the informant had failed to discharge the onus of proof by showing on the balance of probabilities that genital photography was “justified”. There was an associated submission that there was no evidence at all that genital photography may tend to confirm or disprove that the applicant was the perpetrator.
As stated above, there was evidence that genital photography may tend to confirm or disprove that the applicant was the perpetrator; the complainant had provided a detailed description of the perpetrator’s genital area.
There was a further submission that the magistrate had failed to consider whether there was an alternative and less intrusive means of obtaining relevant evidence, i.e. facial photography. The consideration under s 34(3)(e) of the Forensic Procedures Act is expressed as “whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence” (emphasis added). However, inferentially, s 34(3)(e) of the Forensic Procedures Act is focused on the issue of whether evidence to substantially the same effect could be obtained in a less intrusive way.
In this case, the evidence most relevant to identification would be evidence relating to the genital area as that was the area about which the complainant was able to give a detailed description. She was not concentrating on the perpetrator’s face. Consequently, evidence of facial appearance would be of very limited use on the issue of identification, whereas evidence of genital appearance may be of significant use. The magistrate was quite entitled to ignore the availability of facial photography when considering whether to permit genital photography.
In substance, the applicant’s real complaint is that the magistrate should not have exercised her discretion in the manner in which she did exercise it. The application to quash the order in relation to genital photography should be dismissed.
Decision to permit buccal swab and fingerprinting
In relation to this aspect of the order, the applicant relied on s 5(1)(f) of the ADJR Act, claiming that the decision involved an error of law because, having regard to the paucity of evidence supporting the need to obtain DNA and fingerprint samples from the applicant, the magistrate could not have been satisfied on the balance of probabilities that the making of the order was “justified”.
This argument requires reference to the evidence that the applicant had admitted to committing another burglary at an unspecified address and that DNA and fingerprint evidence had been obtained from that unspecified address.
Initially, the relevance of that evidence was unclear to the magistrate. Similarly, it was initially unclear to this Court. However, upon reflection it would seem that the evidence was introduced to satisfy the requirement in s 34(1)(b) of the Forensic Procedures Act by showing that the applicant had committed another offence for which the forensic material was likely to have probative value. Without reference to the other offence at the unspecified address, the requirement of s 34(1)(b) may well not have been satisfied.
At the hearing before the magistrate, the focus was on s 34(1)(d) of the Forensic Procedures Act, that is “justification”. Regardless of the evidence concerning the unspecified address, there was evidence establishing “justification” because fingerprint/DNA material had been collected from 60 Hetherington Circuit and the provision of a sample may very well be capable of tending to confirm or disprove that the applicant committed that offence.
The application should be dismissed.
Insofar as the application relates to fingerprint/DNA samples, it should be dismissed.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 1 October 2014 |
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