Walker v Bugden

[2005] NSWSC 898

Reported Decision: 155 A Crim R 416

New South Wales

Supreme Court

CITATION:	WALKER v. BUDGEN [2005] NSWSC 898
HEARING DATE(S):	Thursday 4 August 2005
JUDGMENT DATE :	7 September 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(a) grant leave to appeal; (b) that the order of the second defendant made on 16 March 2005 be vacated; (c) that the matters be remitted to the learned magistrate for re-determination according to law; (d) that the learned magistrate consider the matter set out in s.25(f) and (g) of the Crimes (Forensic Procedures) Act 2002.

CATCHWORDS:	Forensic procedure on a suspect - non-intimate buccal swab - aggravated robbery - offence occurred at the victim's home - no DNA evidence from crime scene - procurement of evidence against a person who is already a suspect - reasonable grounds to believe the suspect committed teh relevant offence - affidavit evidence provided factual material to support the belief the plaintiff was a suspect - material placed before a magistrate.
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 (NSW) Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) Crimes (Local Courts Appeal & Review) Act 2001
CASES CITED:	Orban v. Bayliss [2004] NSWSC 428 George v. Rockett (1990) 170 CLR 104 Parker v. Churchill (1985) 9 FCR 316 Rondo (2001) 126 A. Crim. R. 552
PARTIES:	WALKER, Eugene v. BUDGEN, Senior Constable Geoffrey & ANOR
FILE NUMBER(S):	SC No. 12072 of 2005
COUNSEL:	Plaintiff: J. Stratton, SC. Defendant: H. Bell
SOLICITORS:	Plaintiff: S. O'Connor Defendant: I.V. Knight

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Reimer

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 7 SEPTEMBER 2005

No. 12072 of 2005

EUGENE WALKER v. SENIOR CONSTABLE GEOFFREY BUDGEN & ANOR

JUDGMENT

1 HIS HONOUR: The question in these proceedings is whether, on an application under the Crimes (Forensic Procedures) Act 2000 (NSW) (the “Forensic Procedures Act), the evidence before the learned magistrate, his Honour, the second defendant, established the matters that are required to be considered on an application under the Act. Part 5 entitled “Forensic procedures by order of magistrate or other authorised justice” require specified matters to be considered before a magistrate may order the carrying out of a forensic procedure on a suspect.

The proceedings

2 The proceedings in this Court were commenced by summons filed on 18 May 2005. The summons is supported by an affidavit of Antony Townsden, solicitor, sworn 16 May 2005 and filed on 18 May 2005. No point has been taken as to the plaintiff’s capacity to bring these proceedings in his own name, having regard to his age and the provisions of Part 63 Rule 2(1) of the Supreme Court Rules.

3 The present proceedings by way of appeal are authorised by s.115A(1) of the Crimes (Local Courts Appeal and Review) Act 2001 in respect of an order made under s.24 of the Forensic Procedures Act.

4 The first defendant is a senior constable of police. The second defendant has filed a submitting appearance save as to costs.

5 The plaintiff seeks to have the order of the learned magistrate made on 16 March 2005 vacated and the matter remitted to him for re-determination in accordance with the provisions of s.25 of the Forensic Procedures Act.

6 The grounds relied upon by the plaintiff are set out in a document entitled Statement of Grounds filed on 18 May 2005. They are:-

“Ground 1: the learned magistrate erred in making the order without making a finding (under s.25(c), Crimes (Forensic Procedures) Act) that there were reasonable grounds to believe that the accused had committed the offence.
Ground 2: the learned magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence (under s.25(f), Crimes (Forensic Procedures) Act, when there was no evidence that any DNA material had been found at the crime scene.
Ground 3: the learned magistrate erred in finding that the forensic procedure was justified in all the circumstances, when there was no evidence that any DNA material had been found at the crime scene under s.25(g), Crimes (Forensic Procedures) Act.”

The salient facts

7 The application, dated 10 February 2005, was made by the first defendant, as an authorised applicant, pursuant to s.24 of the Forensic Procedures Act. It sought a final order authorising the carrying out of a forensic procedure on the plaintiff who is stated in the application to have been then 14 years of age. The application indicates that the plaintiff was a suspect in relation to an offence. (The word “suspect” is defined in s.3 of the Act).

8 The affidavit in support of the application appears to be a pro forma document with relevant information inserted into it. By reason of the plaintiff’s age, although a suspect, he was not able to consent to the forensic procedure in question: s.8 of the Forensic Procedures Act.

9 In paragraph 2 of the affidavit, the deponent sets out the grounds for believing that the plaintiff was a suspect. By reason of its significance to the application, I set it out in full:-

The grounds for believing that the person on whom the procedure is proposed to be carried out is a suspect are:-
The suspect has been identified as participating in the prescribed offence. This is supported by the following information:-
On 21 December 2004, Eugene Walker attended the residence of the victim, Barbara Macintosh, situated at 21 Campbell Crescent, Goonellabah. The victim is 80 years of age, frail and suffering from mild hearing loss and the early onset of Alzheimer’s Disease. The victim resides alone in her own home.
The victim states that … Walker made a phone call from her residence. Following this call, a short time later, the co-accused, Kelly Walker, arrived at the location with a third involved person.
All three persons have entered the premises of the victim, through the closed, unlocked front screen door.
Once inside, the victim prepared a meal of meat and vegetables for the young persons … as they had both been asking her to give them money to which she refused.
Both Eugene and Kelly Walker placed socks on their hands, in an attempt to avoid leaving fingerprints.
The victim states that the young male (Eugene Walker) grabbed her from behind and put her in a head lock around her mouth, causing her to be unable to breath. At this point, one of the females (Kelly Walker) reached down into the victim’s dress, down underneath her singlet and into her bra. The victim was carrying a quantity of cash and her house keys in this location, in a green plastic soap container (box). The three offenders in the house ran out with the soap box containing the money and her house keys.
Both Eugene and Kelly Walker had been identified by nearby residents that sen (sic) them running from the victim’s house. They had also been identified by the third person in the house and who entered the house with the offender, Kelly Walker, Pamela Blomel …”

10 The evidence disclosed that the plaintiff was suspected of committing an offence of aggravated robbery pursuant to s.95(1) of the Crimes Act 1900 and robbery in company: s.97(1) of the Crimes Act. The application sought an order authorising a non-intimate buccal swab be taken from the plaintiff.

11 In paragraph 5 of the affidavit, the following appears:-

“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.
See paragraph 2.”

12 Paragraph 7 of the affidavit is in the following terms:-

“The probative value of evidence contained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure. Provide details:-
Items at the house, particularly eating utensils, have been seized. The suspect has been identified by witnesses and a third witness who was in the house at the time. There is a likelihood that a comparative match may be made between the suspect and the possible collected DNA samples.”

13 The affidavit stated that the suspect was under arrest at the time that the application was made under the Forensic Procedures Act. It referred to an intention that the buccal swab be sent to the Division of Analytical Laboratories for required comparative testing.

14 The transcript of the proceedings before the second defendant of 16 May 2005 was attached to the affidavit of Mr. Townsden.

15 The transcript reveals that the plaintiff’s representative indicated to the learned magistrate that the application was opposed, on the ground that there was no evidence that either the plaintiff or Kelly Walker ate any of the meals and, indeed, it was said that there was evidence to the contrary both from the victim on the basis of a statement that she had allegedly made and in which she said that neither of them touched the meal nor had the other child who admitted being at the residence on the day. These facts were relied upon in relation to the requirement arising under s.25(f) of the Forensic Procedures Act. The plaintiff’s representative submitted that there was no evidence of any kind which would show that the projected analysis of any DNA would take the matter anywhere.

16 The appeal is brought upon the basis that it raises questions of law. I am of the opinion that the summons and statement of grounds do raise questions of law concerning the interpretation and application of the provisions of s.25(c), (f) and (g) of the Act.

Relevant provisions of the Forensic Procedures Act

17 In Orban v. Bayliss [2004] NSWSC 428, Simpson, J. examined the circumstances in which a magistrate may make an order authorising the carrying out of a forensic procedure under the Forensic Procedures Act. In relation to the operation of the Act generally, her Honour observed at [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 co-operate 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 co-operate 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.”

18 Simpson, J. further observed that the conditions that must be met before an order can be made under the Forensic Procedures Act 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 (at [31]).

19 The Forensic Procedures Act provides for three different categories of forensic procedures. These comprise “intimate forensic procedures”, “non-intimate forensic procedures” (both defined in s.3), and the taking of samples by buccal swab. As Simpson, J. observed, the legislature has drawn 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 the intensive procedure may be so authorised is dependent upon the seriousness of the crime suspected, balanced against the invasiveness of the procedure for which the order is sought (at [29]).

20 By s.24 of the Act, a magistrate may make an order for the carrying out of a forensic procedure on a suspect if:-

(a) s.23 of the Act applies; and

(b) the magistrate is satisfied as required by s.25.

21 The provisions of s.25, in particular s.25(c), (f) and (g), are central to the questions that arise in this appeal. The section specifies the particular matters that are to be considered before he or she may order a forensic procedure. It provides that the magistrate must be satisfied of the matters set out in subparagraphs (a) to (g) of that section.

22 Section 25(c) provides that the magistrate must be satisfied that:-

“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 …”

23 Section 25(f) and (g) require that a magistrate be satisfied that:-

“(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.”

24 Accordingly, the key pre-conditions for the purposes of the present matter are that the magistrate had to be satisfied that:-

• there were reasonable grounds to believe that the suspect (the plaintiff) committed a prescribed offence, another prescribed offence arising out of the same circumstances as that offence, or another prescribed offence;

• in respect of such offence evidence likely to be obtained as a result of carrying out the procedure on the plaintiff was likely to have the probative value referred to in s.25(f); and

• that the carrying out of the forensic procedure was justified in all the circumstances.

25 As Simpson, J. observed in Orban (supra) at [32], a forensic procedure (as defined in s.3 of the Forensic Procedures Act) necessarily involves, to a greater or lesser extent, some invasion of the personal privacy and personal bodily integrity of the person concerned. As noted above, the degree to which that balance will warrant the making of an order that will have the consequence of causing some degree of invasion of personal privacy and of 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.

26 The statutory formula which is central to a consideration by a magistrate before ordering a forensic procedure under s.25 is encapsulated in the phrase “there are reasonable grounds to believe that …”. That expression plays a central role in the application of the provisions of s.25 in the same way that similar expressions have been employed in search warrant legislation. In George v. Rockett (1990) 170 CLR 104 at 112, (a case involving the issue of a search warrant under s.679(b) of the Criminal Code (Q)), Mason, CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh, JJ. stated:-

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person …”

27 Accordingly, in the application of s.25, there must be information establishing the existence of specific facts, namely those that are sufficient to induce the requisite state of mind, being the asserted belief as to the suspect having committed a prescribed offence within s.25(e) and sufficient to induce a belief that a forensic procedure might produce evidence which tends to either confirm or disprove that the suspect committed the relevant offence.

28 It follows that the process of consideration required by the provisions of s.25 is not merely a ritualistic one to be addressed in a peremptory fashion without due regard to the import of those provisions. The nature of the obligation of an authorising magistrate in this respect is not dissimilar to that described by Burchett, J. in Parker v. Churchill (1985) 9 FCR 316 at 322 in a passage which was cited by the High Court in George v. Rockett (supra) at 111:-

“The duty, which the Justice of the Peace must perform in respect of an information, is not some quaint ritual of the law, requiring a perfunctory scanning of the formal phrases, perceived but not considered, and followed by simply an inevitable signature. What is required by the law is that the Justice of the Peace should stand between the police and the citizen, to give real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”

29 The position under the Forensic Procedures Act, then, is not unlike that of a justice or other authorised officer who is required to consider whether the requisite grounds exist for the specified belief in the issue of a search warrant. In that context, as with provisions such as those contained in s.25, it is for the magistrate or authorising officer to consider and come to his or her own conclusions on the basis of the material presented on an application under the Act.

Plaintiff’s grounds of appeal

Ground 1

30 Mr. John Stratton, SC., on behalf of the appellant, contended that at no stage did the learned magistrate address or determine the issue of whether there were reasonable grounds for him to believe that the plaintiff committed an offence. It was contended that in making the order in the absence of such a finding, the learned magistrate was in error.

31 The affidavit evidence that was before the second defendant raised a number of factual matters for consideration by him. In particular, it disclosed, not only the fact that the plaintiff was a suspect but provided factual material concerning the presence of the plaintiff at the residence of the victim as confirmed by the victim herself and of particular conduct alleged against him which, plainly, provided reasonable grounds for the statement by the first defendant that the plaintiff was a suspect in relation to an offence or offences referred to in the affidavit.

32 Accordingly, I do not consider that it has been demonstrated that the asserted error has been made out. The evidence to which I have referred plainly satisfied the provisions of s.25(c). Whether or not it can be demonstrated that the magistrate in fact had specific regard to the provisions of s.25(c), there would not, in the circumstances of the present case, be sufficient warrant for this court to interfere on that basis. The magistrate, on the evidence, could not have but been satisfied in terms of s.25(c).

33 The affidavit evidence amounted to more than a mere assertion that the plaintiff was a suspect who had committed the relevant offence. It provided factual material to support the claimed belief.

Grounds 2 and 3 – s.25(f) and (g)

34 These two grounds may be dealt with together. Mr. Stratton, SC. submitted that there was an absence of any evidence of DNA having in fact been found at the victim’s premises. Accordingly, it was submitted it was not open to the learned magistrate to find that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff committed the offence. More precisely, it was contended that there were no reasonable grounds for any belief to that effect. The submission continued:-

“… Whatever was the result of the DNA analysis of any buccal swab taken from the plaintiff, such a result could not tend to confirm or disprove the plaintiff’s guilt unless there was DNA material at the scene of the crime to compare it with.”

35 Mr. H.C. Bell, solicitor, on behalf of the first defendant, submitted that the order made is no different to a case in which a suspect is required to be fingerprinted, even though no fingerprints have yet been found at the scene of the crime. I, however, do not, with respect, consider that the special forensic procedures under the Forensic Procedures Act is sufficiently analogous to fingerprinting as suggested. I will discuss those procedures below.

36 Mr. Bell further submitted that the Act does not require material found at the crime scene to already have been analysed at the time of making an order for a forensic procedure. It was contended that the term “might produce” in s.25(f) in context should be taken as denoting a relatively low threshold of probability and that the magistrate need only be satisfied that the prospective evidence has a potential to “tend to confirm or disprove” the plaintiff’s involvement. It was contended that there was sufficient material to establish that a DNA sample from the plaintiff might produce evidence having that potential. However, the affidavit evidence did not reveal whether any items seized from the crime scene had yielded any material that was susceptible to comparative DNA analysis.

37 The expression in s.25(f) “might produce” cannot be divorced from the preceding expression “reasonable grounds to believe” in that provision. It does not, with respect, assist in saying simply that s.25(f) provides a relatively low threshold of probability. Firstly, the notion of belief is a different concept from suspicion. Facts that can reasonably ground a suspicion may be substantially less than would be reasonably required to ground a belief: George v. Rockett (supra) at 115. Secondly, although a reasonable suspicion involves less than a reasonable belief, nonetheless, it still requires more than a possibility: Regina v. Rondo (2001) 126 A. Crim. R. 552. In Rondo, it was stated that a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence A fortiori, with a provision requiring reasonable grounds for a belief as to a specified matter.

38 Mr. Bell observed that at the hearing before the magistrate, a photograph was handed to the court demonstrating that one of the meals had been half eaten. Even assuming that the photograph can be taken as the meal that had been prepared by the victim, there was no information pointing to the fact that it was the plaintiff had consumed part of the meal or that DNA material had been found by investigating police who attended the crime scene.

39 On another aspect, the affidavit evidence disclosed that the victim claimed that the plaintiff had made a phone call from her residence. The deponent also stated that items at the house, particularly eating utensils, had been seized. Whilst the phone, depending upon how it was used, may have yielded DNA material, there was no information one way or the other as to what investigations had established. In paragraph 7 of the supporting affidavit, there is only reference to “the possible collected DNA samples”.

Analysis of Grounds 2 and 3

40 The provisions of s.25, which an applicant for a final order authorising the carrying out of a forensic procedure must satisfy, can only be met by information or material being placed before a magistrate that establishes the matters specified in the sub-paragraphs of that section.

41 In the present matter, the first defendant purportedly addressed the factual matters relevant to s.25(f) in paragraph 5 of the affidavit. That paragraph, as earlier noted, simply states, “see paragraph 2”. One accordingly turns to that paragraph in order to determine whether the evidence contained in it is sufficient to satisfy the preconditions or requirements specified in s.25(f).

42 The expression in s.25(f) “reasonable grounds to believe” is used in s.25(b), (c), (d) and (e), although the belief in each of those sub-paragraphs is related to past facts. In s.25(f), the grounds of the requisite belief must relate to a matter in prospect but one based on an assessment of existing facts, namely, the prospective outcome of a forensic procedure if undertaken.

43 It is clear that an applicant for a final order under the Forensic Procedures Act must place before the magistrate information which enables the latter to be able to assess whether or not there are reasonable grounds for the asserted belief. The mere assertion or contention in an affidavit that there are reasonable grounds to believe that a forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence is clearly insufficient: see Orban (supra) at [40]. The factual foundation constituting reasonable grounds for the specified belief must be given with sufficient particularity to permit an authorising magistrate to be in a position to determine whether there are reasonable grounds to believe that the forensic procedure might produce the outcome or result referred to in the sub-paragraph.

44 Whilst the factual matters set out in paragraph 2 to the first defendant’s affidavit in support of the application disclosed factual matters that constitute reasonable grounds for believing that the plaintiff was a “suspect” within the meaning of s.3 of the Act in relation to a prescribed offence, they do not, in my opinion, establish matters that were necessary to satisfy the provisions of s.25(f).

45 Section 25(f) focuses attention upon the existence of reasonable grounds for a belief that a forensic procedure can, in a given situation, produce evidence that either tends to confirm or disprove that the suspect committed the relevant offence. In order to satisfy that pre-condition, there is a need in an application of the kind in question for an applicant to identify the basis upon for the belief that such a forensic outcome might be produced. The technique of DNA identification is, of course, one employed on the basis that there, in fact, exists forensic material upon which identification can be made or disproved. In an article, DNA Identification in the Criminal Justice System, by Jeremy Gans and Gregor Urbas (May 2002), Australian Institute of Criminology Trends and Issues and Crime and Criminal Justice, the learned authors discuss the technique of DNA identification involving, as it does, the essential comparison of DNA from two bodily samples, crime scene DNA and samples taken of other human bodily material:-

“… contemporary profiling techniques can generally be used on such tiny samples as the root of a pulled hair, saliva on a cigarette butt, a square-centimetre blood stain, skin cells from clothing or three micrograms of semen from a vaginal swab; standard or alternative techniques will sometimes succeed on other, less optimal, samples such as shed hair or skin cells from a handled object …”

46 The evidence before the magistrate in the application before him failed to identify the basis for the claimed belief that DNA matching could be undertaken. Specifically, there is no information as to the taking or availability of crime scene DNA material from the victim’s premises. There are references to the possibility that a meal or meals had or may have been half eaten by someone and there is reference to the fact that a telephone call may have been made by the plaintiff. However, what is left to speculation is the existence of any relevant DNA crime scene sample(s) or material that could provide the reasonable grounds for the belief stated in and made necessary by the provisions of s.25(f). The existence and nature of any such samples or material, if they existed, would, no doubt, be readily ascertainable by or known to those who have been involved in the investigation.

47 I do not consider, as was argued on behalf of the first defendant, that the pre-condition specified in s.25(f) sets such a low threshold that the reference to “might produce evidence” meant that the magistrate need only be satisfied that there existed a potential outcome envisaged by s.25(f) without more. The inclusion of the expression “reasonable grounds to believe” means, there must be more than mere speculation or more than a mere theoretical possibility that evidence referred to in the provision might be produced. A factual foundation sufficient to constitute reasonable grounds for such belief must be demonstrated. The factual material in paragraph 2 of the affidavit, as I have earlier stated, was insufficient and was not directed to satisfying the pre-condition to s.25(f). It was directed and limited to satisfying the pre-condition stated in s.25(c).

48 In determining the correct interpretation and application of the provisions of s.25, it is, of course, necessary to bear in mind practical issues surrounding the availability of forensic procedures to authorised persons. In other words, an interpretation which would in any way frustrate the purpose of the legislature is, of course, one that must be avoided.

49 The first defendant submitted, as earlier mentioned, that the Act does not require material found at the crime scene to already have been analysed at the time of the making of an order for a forensic procedure. It was emphasised that an application is made whilst an investigation is still in progress and that “the spirit of intendment of the Act, particularly based on the working of s.25(f), is such to investigate that orders of this nature might be made where the factual framework is relatively thin on the ground”.

50 An interpretation of a statutory provision that requires factual material to be placed before a magistrate on a forensic procedure application is not one that works against a practical application of the Act itself. The particular difficulty in the present matter arises simply from the absence of information or material that establishes relevant primary factual matters. In Orban (supra), for example, there existed specific material which established primary facts as to:-

• specified quantities of drug obtained in undercover operations that had been subjected to examination for trace elements of DNA;

• samples that had been conveyed to the laboratory for analysis and which established a trace of male DNA from saliva;

• the common methodology of drug suppliers (secreting heroin in small water balloons which are in turn secreted in the mouth) which gave rise to the presence of saliva.

51 What the court, however, found in that case was a failure to link the package that became exhibit C834817 (it having been obtained by an undercover police officer from another person who pleaded guilty to a drug charge against him) to the plaintiff. There were no facts that suggested that the DNA located on it might have belonged to the plaintiff.

52 What will often need to be established in relation to s.25(f) is a chain of facts which, in some way and to some extent, link the suspect to crime scene material Accordingly, the conclusion which I express in the next paragraph is one based not upon a narrow interpretation of s.25(f) but from the absence of factual information of the kind to which I have referred.

53 The subject of the investigation in this matter, an alleged callous attack upon an elderly and defenceless lady is, of course, one of great concern. However, as Simpson, J. observed in Orban (supra), the legislature was intent on maintaining a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, 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 acquittal of the not guilty. Authorisation under the Act can only be granted strictly in accordance with its provisions. The application in question was not, in my opinion supported by material upon which the learned magistrate could be satisfied of the matters set out in s.25(f) and (g).

Section 25(g)

54 There was no formal decision on the application. The learned magistrate dealt with the matter of an extempore basis. The transcript of 16 March 2005 records exchanges and submissions between the prosecutor, the plaintiff’s representative and the bench.

55 The transcript essentially records the learned magistrate’s conclusion that there were reasonable grounds in relation to the matter required to be considered under s.25(f) without any elaboration as to the reasoning.

56 Similarly, in relation to the matter required to be considered under s.25(g), the learned magistrate recorded that he considered that the procedure was justified in all the circumstances. However, that provision requires a consideration and balancing of the invasiveness of a compulsory forensic procedure and interests of the community to which reference has earlier been made. The issues posed by s.25(g) were not addressed by the learned magistrate and that, of itself, is sufficient to constitute an error of law.

57 The orders I propose are as follows:-

(a) Grant leave to appeal;

(b) That the order of the second defendant made on 16 March 2005 be vacated;

(c) That the matters be remitted to the learned magistrate for re-determination according to law;

(d) That the learned magistrate consider the matter set out in s.25(f) and (g) of the Crimes (Forensic Procedures) Act 2002 .

58 I will hear any submissions on the question of costs.

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