Yarran v Magistrates' Court of Victoria

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00280

BETWEEN:

DANIEL YARRAN (BY HIS LITIGATION GUARDIAN SISTER MARIE BRIGID ARTHUR)	Plaintiff
-and-
MAGISTRATES’ COURT OF VICTORIA	First Defendant
DETECTIVE SENIOR CONSTABLE JESSICA KAS	Second Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2022
DATE OF JUDGMENT:	9 September 2022
CASE MAY BE CITED AS:	Yarran v Magistrates’ Court of Victoria
MEDIUM NEUTRAL CITATION:	[2022] VSC 531

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ADMINISTRATIVE LAW – Judicial review – Statutory interpretation – Whether s 464T of the Crimes Act 1958 (Vic) empowers a Magistrates’ Court to order a compulsory procedure for DNA purposes, where the suspect is incapable of giving informed consent by reason of mental impairment – Whether interpretation affected by s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) – Whether s 38(1) of the Charter engaged – Whether magistrate could have come to a different decision – Crimes Act 1958 (Vic) ss 464(2), 464R, 464S, 464T, 464SC, 464SE, 464Y, 464ZD – Charter of Human rights and Responsibilities Act 2006 (Vic) ss 10(c), 13(1), 25(2)(k), 32, 38(1), 38(2).

CRIMINAL PROCEDURE – Investigation — Forensic sample by buccal swab sought by compulsory procedure — Suspect incapable of giving informed consent by reason of mental impairment — Powers of magistrate under s 464T of the Crimes Act 1958 (Vic) — Relevant considerations — Crimes Act 1958 (Vic) ss 464(2), 464R, 464S, 464T, 464SC, 464SE, 464Y, 464ZD.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S. Fitzgerald with Ms J. Munster and Ms H. Canham	Victoria Legal Aid
For the Second Defendant	Ms E. Ruddle QC with Mr L. McAuliffe	Office of Public Prosecutions Victoria

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 1

Magistrate’s order and reasons........................................................................................................ 2

Claim and grounds for review......................................................................................................... 4

Legal principles.................................................................................................................................. 6

Statutory interpretation................................................................................................................ 6

The legislative framework............................................................................................................... 8

Section 464T................................................................................................................................... 8

Ground 1 - Consideration of the text............................................................................................ 10

The plaintiff’s submissions........................................................................................................ 13
Second defendant’s submissions.............................................................................................. 19

Ground 2 - Charter rights............................................................................................................... 24

Ground 2(a).................................................................................................................................. 24
Ground 2(b).................................................................................................................................. 25
Analysis........................................................................................................................................ 29

Ground 3 - Jurisdictional error...................................................................................................... 32

Conclusion......................................................................................................................................... 34

HIS HONOUR:

Introduction

The plaintiff sought judicial review of a Magistrates’ Court decision directing the plaintiff to undergo a compulsory procedure, by means of a buccal (cheek) swab, under s 464T(3) of the Crimes Act 1958 (Vic).

The crux of the dispute is the correct interpretation of s 464T of the Crimes Act: whether it empowers a Magistrates’ Court to direct a person to undergo a buccal swab by compulsory procedure in the circumstances of this application, if that person is incapable of giving informed consent by reason of mental impairment.

The plaintiff prosecuted this application by a litigation guardian.

The plaintiff contended that the section does not apply to authorise the taking of a DNA profile sample, which was what was sought from him. The second defendant maintained that the section did extend to the sample sought in this case.

For the reasons that follow, I have concluded that, properly construed, the section did empower the magistrate to grant an order for the compulsory taking of a buccal swab sample from the plaintiff. The application must fail.

Background

The plaintiff is a 20-year-old Aboriginal man with an intellectual disability, Tourette’s syndrome, autism and schizophrenia.

On 18 March 2021, he was arrested in relation to a serious assault earlier that day. Soon after, Senior Forensic Medical Registrar Dr Phillipa Brook of the Victorian Institute of Forensic Medicine attended at the Melton police station to assess the plaintiff’s mental state and to ascertain if he was fit to be interviewed. She assessed the plaintiff as unfit for interview by reason of mental impairment,[1] having no grasp of the gravity of the alleged offending and not having capacity to give informed consent to any police request that he undertake a forensic procedure. He was charged with attempted murder. An interim order was made by a magistrate for an examination and taking non-intimate samples, but the application for a buccal swab was deferred.
[1]Includes impairment because of mental illness, intellectual disability, dementia or brain injury.

The plaintiff is alleged to have entered the room of a fellow resident of a residential care facility and struck her numerous times to the head with a brick, causing serious and life-threatening injuries.

On 8 October 2021, the second defendant, Detective Senior Constable Kas, applied to a magistrate under s 464T(1) of the Crimes Act for an order directing the plaintiff to undergo a compulsory procedure, for a sample/examination identified as a buccal swab. The application was made by completing a printed form on which the second defendant had checked the box that ‘the person is incapable of giving informed consent to undergo the forensic procedure by reason of mental impairment’.

The second defendant gave evidence by affidavit that male DNA was recovered from a brick found next to the victim. The purpose of the compulsory procedure was to obtain a buccal swab from the plaintiff to compare with the DNA profile obtained from the weapon (brick) used to seriously assault the victim. The DNA was also requested for general use regarding further examination of items seized in relation to the investigation.

Magistrate’s order and reasons

On 7 December 2021, the magistrate granted the order in terms of s 464T(3) of the Crimes Act. The order states:

Final order for compulsory procedure granted.
Evidence: Sworn affidavit
The Court is satisfied on the balance of probabilities that:
- the respondent is a relevant suspect; and
-there are reasonable grounds to believe that the respondent has committed the offence in respect of which the application is made; and
-there are reasonable grounds to believe that the conduct of the procedure on the respondent may tend to confirm or disprove his or her involvement in the commission of the offence; and
-the respondent has refused to give consent to a request under s 464R(1) or is incapable of giving informed consent by reason of mental impairment; and

- in all circumstances, the making of the order is justified; and
- Other reasons:
Details of compulsory procedure(s):
BUCCAL SWAB/DNA PROFILE SAMPLE

In the transcript of the magistrate’s oral reasons, he briefly noted the background facts described above, although he described the application as being for a DNA profile sample to be obtained from the accused pursuant to s 464T(3) of the Crimes Act. He recorded the diagnosis of the forensic medical registrar, that the accused was unable to give informed consent to the taking of a forensic sample due to mental impairment.

The magistrate identified that the dispute between the parties turned on the interpretation of s 464T, which he described as being whether the section empowered the court to order that a DNA profile sample be taken from an adult suspect who was unable to consent due to mental impairment. He described the defence contention to be that the Act does not empower the court to order, or senior police officers to authorise, the taking of a DNA sample in such circumstances.

The magistrate described the relevant legislative provisions as somewhat contradictory and stated that identifying Parliament’s intention was not a straightforward task. He examined the definitions within this part of the Act. The defence submission was that there was no power under either ss 464R or 464T to take a DNA profile sample because such sample is explicitly excluded from the definition of ‘forensic procedure’.

The magistrate referred to the explanatory memorandum to the Bill introducing the 2019 amendments.[2] He described the amendments as intended simply to streamline the process by which police could obtain various intimate samples, be they forensic procedures or DNA profile samples, without needing to make time-consuming applications to a court, but not to remove court oversight where it is inappropriate for the police to exercise such powers, such as where someone is vulnerable because they cannot give informed consent.
[2]Justice Legislation Amendment (Police and Others Matters) Act 2019 (Vic) (‘2019 Amendments’).

Having deduced Parliament’s intention from the memorandum, the magistrate determined that s 464T must be read and interpreted with Parliament’s intention in mind, because it cannot have been the intention of Parliament that investigators have no recourse to the courts ‘to prove or disprove a relevant suspect’s involvement’ where that suspect cannot give consent. He was fortified in his construction of the section by reference to s 464R, which describes the circumstances in which a suspect may undergo a forensic procedure.

Turning to s 464T, the magistrate, concentrating on the text of s 464T(1)(a) (set out below), interpreted it to operate disjunctively such that the issue of capacity was not limited to consenting to a ‘forensic procedure’ and applied to any procedure to which a suspect cannot give informed consent by reason of mental impairment. He rejected the contention that the reference to compulsory procedure in s 464T was simply a reference to a forensic procedure that became compulsory by virtue of a court order.

The magistrate made a number of findings that were not contested on the review. These findings follow the requirements of s 464T(3) in a manner that suggests the requirements of the section were copied. Relevantly, to the extent that the order records that the court was satisfied that ‘the respondent has refused to give consent to a request under s 464R(1) or is incapable of giving informed consent by reason of mental impairment’, the transcript shows that the magistrate did not refer to s 464R(1) when pronouncing his reasons. His finding was limited to ‘the accused is incapable of giving informed consent by reason of mental impairment’.[3]
[3]Exhibit p 45, line 19-20.

Claim and grounds for review

In these proceedings, the plaintiff claims:

(a) An order in the nature of certiorari quashing the magistrate’s order under s 464T(3) of the Crimes Act;

(b) Further or alternatively, a declaration that the order was invalid and of no force and effect;

(c) A declaration that the order was unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter);

(d) An order in the nature of a mandamus requiring the Magistrates’ Court, differently constituted, to redetermine the application of the second defendant, pursuant to s 464T(1) of the Crimes Act according to the law.

These claims are based on three grounds:

(a) Ground 1 - Proper interpretation of s 464T: The Magistrates’ Court made a jurisdictional error and an error of law on the face of the record by acting in excess of jurisdiction. It misconstrued the scope of the power under s 464T(3) by mistakenly concluding that the power extended to taking a DNA profile sample.

(b) Ground 2 - Charter Contraventions: The Magistrates’ Court made an error of law on the face of the record in that it:

(i) contravened s 38(1) of the Charter by failing to give proper consideration to the plaintiff’s rights under ss 10(c), 13(a) and s 25(2)(k) of the Charter;

(ii) contravened s 38(1) of the Charter by acting incompatibly with the plaintiff’s rights under those sections;

(iii) further, or in the alternative, contravened s 32(1) of the Charter by failing to interpret s 464T of the Crimes Act compatibly with the rights contained in those sections, so far as it is possible to do so consistently with its purpose.

(c) Ground 3 - Jurisdictional error: The Magistrates’ Court made a jurisdictional error in that a precondition to the exercise of jurisdiction was not met, because the magistrate failed to reach a state of satisfaction that the plaintiff was incapable of consenting to a forensic procedure by reason of mental impairment, as required by s 464T(3)(g) of the Crimes Act.

I will first set out the legal principles relevant to interpreting s 464T of the Crimes Act. By reference to these principles, I am satisfied that the magistrate did not correctly approach the task of construing s 464T. That is not to say that he reached the wrong conclusion in the circumstances of the application before him.

Legal principles
Statutory interpretation

These principles have been well traversed and explained by the High Court and the Victorian Court of Appeal. In the context of the parties’ submissions, I can briefly state the principles being applied.

The task of statutory interpretation begins and ends with the words that Parliament has used; it is through the text that the legislature expresses its intention.[4] It is for Parliament to legislate and for the courts to interpret. Close adherence to the text and the natural and ordinary meaning of the words used avoids the danger of the court constructing its own idea of a desirable policy or making some a priori assumption about its purpose.[5]
[4]Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22] (‘Thiess’); see also Baini v The Queen (2012) 246 CLR 469, 476 [14]; Legal Services Board v Gillespie Jones (2013) 249 CLR 493, 509 [49], 511 [59]; DPP v Walters (a pseudonym) (2015) 49 VR 356, 358 [2] (‘Walters’); The Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [101]–[102].
[5]Walters (2015) 49 VR 356, 358 [3].

A court construing a statutory provision must strive to give meaning to every word of the provision and to the provisions as a whole. Except in extremely limited circumstances, the court has no power to fill a gap in a statute or otherwise to read in words which the legislature has not used; it cannot engage in judicial legislation.[6] This means that where legislation specifies an object but is silent as to the means by which it is to be achieved, the court has no authority to fill the gap by reading in powers or duties which the legislature might have conferred for that purpose. Extrinsic materials, like the Minister’s Second Reading Speech, or even the explanatory note to the legislative provision, may be used to clarify the meaning of a provision, but cannot displace the meaning and effect of the statutory text or be used to fill in substantive gaps.[7]
[6]Ibid 359 [4].
[7]Ibid 359 [7].

The court is not bound to look narrowly at the strict and literal meaning of the text of the provision in question. The context and purpose of the provision must also be taken into account.[8] An interpretation that is available on the statutory text that would best achieve the statutory purpose is to be preferred over other possible interpretations.[9]
[8]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20].
[9]Thiess (2014) 250 CLR 664, 671 [22]; Interpretation of Legislation Act 1984 (Vic) s 35(a).

Considerations of context for the provision should also be undertaken at the first stage of the process of construction. Context should be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief the statute seeks to remedy. This may point most clearly to what it is the statute seeks to achieve.[10]
[10]The Queen v A2 (2019) 269 CLR 507, 521 [33] (‘A2’).

In addition, it is appropriate to have regard to the legislative history of the provisions in question and to extrinsic material that may shed light on the meaning and intended scope of the provisions.[11] It is also permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.[12]
[11]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39]; Lacey v A-G (Qld) (2011) 242 CLR 573, 592 [44].
[12]R v Young (1999) 46 NSWLR 681, 687-8 [15].

A literal approach to construction which requires the courts to obey the ordinary meaning of the words, even if the result is improbable, has long been eschewed by the courts. Even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.[13]
[13]A2 (2019) 269 CLR 507, 520-1 [32] (Kiefel CJ and Keane J), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].

The legislative framework
Section 464T

The magistrate acted under the power found in s 464T of the Crimes Act. Beginning with the text, I set out the relevant provisions. In doing so, I have extracted only those parts of the text that are relevant to the issues raised and in order to aid understanding of how the power exercised by the magistrate is to be properly construed. On any view, the statutory provisions are complex, which is unfortunate given that they must be readily understood and applied by police and magistrates in urgent situations.

Beginning with the second defendant’s right to seek an order, s 464T(1) states:

If—
(a)a person refuses to undergo a forensic procedure after being requested to do so or is incapable of giving informed consent by reason of mental impairment; and
(b)the sample or examination sought may be obtained by a compulsory procedure; and
(c)the person is a relevant suspect; and
(d)a police officer believes on reasonable grounds that the person has committed the offence in respect of which the procedure was requested—

the police may apply to the Magistrates’ Court for an order directing the person to undergo the compulsory procedure.

A number of the terms used in this sub-section are defined by the Act. In the order in which they appear, those definitions (found in s 464(2)) are:
forensic procedure means the taking of a sample from any part of the body, whether an intimate or non-intimate sample or any other type of sample, or the conduct of any procedure on or physical examination of the body but does not include the taking of a fingerprint or a DNA profile sample
intimate sample means—
          …
          (d)      a sample of saliva;
          (e)       a scraping taken from the mouth;
…

DNA profile sample means a sample taken for the purpose of deriving a DNA profile that is—
          …
          (c)       a sample of saliva;
(d)      a scraping taken from the mouth;

compulsory procedure means the taking of an intimate or non-intimate sample or the conduct of a physical examination;

It was not in issue that the plaintiff was incapable of giving informed consent by reason of mental impairment, or that he was a relevant suspect, or that the police officer reasonably held the belief required by s 464T(1)(d).

The requirements for the application are set out in s 464T(2). The application must specify the type of compulsory procedure sought to be conducted.

Section 464T(3) defines when the court may make an order directing a person to undergo a compulsory procedure. The magistrate must be satisfied on the balance of probabilities that:

(a) the person is a suspect; and

(b) there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and

(c) material reasonably believed to be from the body of a person who committed the offence has been found (in circumstances defined by the section); and

(d) there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence; and

(e) the person has refused to give consent to a request under s 464R(1) or the person is incapable of giving informed consent by reason of mental impairment (s 464T(3)(g)); and

(f) in all the circumstances, the making of the order is justified.

Ground 1 - Consideration of the text

I will set out my conclusions reached by application of the primary rule that statutory construction begins and ends with the text, before turning to the contentions of the parties.

In my view, the provisions of s 464T, considered alone, are unambiguous and clear. That conclusion is unaffected by reference to context or purpose, properly understood. The construction of the initial requirement of sub-paragraph (1) enabling a police officer to make an application was in contest. I agree with the second defendant’s contention that sub-paragraph (1)(a) must be construed by reference to the disjunctive ‘or’, which divides the sub-paragraph into two limbs. Grammatically, sub-paragraph (1)(a) is a disjunctive conjunction. The concept of ‘refuses’ must relate, on the ordinary and natural use of language, to ‘a person’. Thus the first limb contemplated by the sub-paragraph is ‘If a person refuses to undergo a forensic procedure after being requested to do so’. Likewise the concept of ‘incapacity’ must also relate, on the ordinary and natural use of language, to ‘a person’. Thus the alternate limb contemplated by the sub-paragraph is ‘If a person is incapable of giving informed consent by reason of mental impairment’.

Grammatically, each disjunctive limb stands alone in the ordinary and natural use of the language and it is a strained and inappropriate construction to relate the concept of capacity to consent in the second limb of the conjunction, to a phrase in the first limb – ‘a forensic procedure’ – rather than the introductory phrase ‘If a person’.

Here, no question of a refusal to give consent to anything ever arose. There was no evidence of a request. The probable inference was that no request was made because the police immediately upon arresting the plaintiff understood the need to seek expert opinion as to his mental state and then understood that he was not fit to be interviewed or to give consent to any forensic process, whether that be a forensic procedure, an intimate sample, a non-intimate sample or an examination. Consistently, the police immediately sought an interim order permitting them to take non-intimate samples and conduct an examination.

It is plain on the ordinary and natural meaning of the words used that the first limb has no application in the plaintiff’s circumstances but the second limb does. The second defendant was entitled to apply for an order for a compulsory procedure when a person (the plaintiff) is incapable of giving informed consent by reason of mental impairment, subject to satisfying the other requirements of the sub-section that were not contentious. Sub-section (1) does not by its text raise the question ‘consent to what’. The reference to a forensic procedure defines the request that was refused. A refusal can only follow on a request. A request might be for participation in a procedure that would be, in the statutory language, an examination, or providing an intimate sample, a non-intimate sample or a DNA profile sample.

The statutory language of s 464T(1)(a) does not parse the concept of a person’s capacity when limited by mental impairment by distinguishing between these different processes and whether the suspect is able to consent to one procedure if not to another. While the concept of ‘informed consent’ is linked to particular provisions in the Act and therefore particular procedures (ss 464S and 464SD), a lack of capacity is not so defined or confined to a particular procedure. A person, as a matter of fact, may be capable of consenting to one type of procedure and not another. Section 464T(3)(g) is referring to a lack of capacity to consent to whichever procedure is the subject of the compulsory procedure application. The relevant procedure must be specified in the application (s 464T(2)(c)). In this context, there is no gap to fill in s 464T(1)(a) or (3)(g) by adding a reference to the type of process to which the person is incapable of consenting.

The section answers the question: consent to what? The second defendant was entitled to apply for an order that the plaintiff undergo a compulsory procedure, meaning the taking of an intimate or non-intimate sample or the conduct of a physical examination. Section 464T(2) required the second defendant to specify the type of compulsory procedure sought to be conducted. The application specified a buccal swab, which is a procedure to take an intimate sample, as defined in s 464(2). The relevant inquiry about whether a person is incapable of giving informed consent by reason of mental impairment must focus on the process involved and the consequences for the suspect in participating in that process. The assessment of mental status is both issue and time specific.

In cases of incapacity to give informed consent, the purpose of the investigator in seeking the process or procedure may be relevant to the assessment of capacity at a general level. Whether the purpose of collecting the sample is to derive a DNA profile, or to use the sample for some other forensic purpose that would address the separate requirement that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence, is a relevant consideration for informed consent.[14] However, if a person does not even have the capacity to consent to the particular procedure sought by the application as a compulsory process, the purpose or intention of the investigator in respect of the future use of the sample will likely be irrelevant.
[14]In that a person gives informed consent under, for example s 464S(1), ‘if he or she consents to the request after a police officer informs the person in language likely to be understood by the person (a) of the purpose for which the procedure is required; and (b) the nature of the procedure sought to be conducted…’.

The magistrate had a (confined or limited) discretion to direct that a person undergo a compulsory procedure in the form of a buccal swab if satisfied on the balance of probabilities of the matters specified in sub-paragraphs (a) – (h) of that sub-section. The magistrate’s findings in respect of all but one of these matters were not challenged. The contest raised before me concerned whether the second limb of the disjunctive conjunction created by the use of the word ‘or’ in s 464T(1)(a) and (3)(g), refers to the capacity to consent to a forensic procedure (as defined), having regard to other provisions in that Part of the Act, beginning with s 464R(1), and raising the definitional complexities in the interrelationship between a ‘forensic procedure’ and a ‘DNA profile sample’.

Section 464T(3)(g) is to be construed in the same way as s 464T(1)(a). It too is a disjunctive conjunction that comprises two limbs and only the second limb was ever relevant on the circumstances of the application to the magistrate. So much was plain to the magistrate from the way he expressed his findings. The difference in wording is found only in the first limb and if at all relevant, which I doubt, can be disregarded by reference to the facts.

The proper interpretation of s 464T is unambiguous. There is one clear meaning. Although the magistrate’s statutory interpretation method was not in accordance with the authorities, his conclusion that he was empowered by the section to grant the order for the buccal swab was correct. As emerges from the following discussion of the parties’ submissions, there is no reason arising from context or statutory purpose to depart from the ordinary and natural meaning of the text of the section.

The plaintiff’s submissions

For the following reasons, I was not persuaded by the plaintiff’s submissions that some other, or different, construction of the magistrate’s power under s 464T was open.

The plaintiff’s point on the first ground was that the magistrate erred in concluding that s 464T(3) permitted an order for a DNA profile sample. However, this submission misconceived what occurred. The second defendant applied for an order for a compulsory procedure and that is what the magistrate granted. I set out the definition of a compulsory procedure above. It extends to taking an intimate sample, which includes taking a sample of saliva and a scraping taken from the mouth. Taking a buccal swab is within the definition of a compulsory procedure.

The source of the plaintiff’s misconception appears to lie, first, in defining the procedure sought by compulsion as taking a DNA profile sample, and secondly, in the definition of ‘forensic procedure’, which now excludes taking a DNA profile sample. A DNA profile sample can include a buccal swab where the sample is taken for the purpose of deriving a DNA profile. A buccal swab is also within the definition of an intimate sample, a forensic procedure and a compulsory procedure. There is a particular statutory process set out for forensic procedures. That process became more complex as a result of legislative amendments in 2019,[15] but one constant requirement remained that if the suspect was incapable of giving informed consent, that person could only be sampled or examined by being subjected to a compulsory procedure under s 464T by order of a magistrate. The legislation, until 2019, did not distinguish between taking a forensic sample for the purposes of obtaining a DNA profile or some other purpose. The compulsory procedure process remains unchanged in respect of suspects who are incapable of giving informed consent.
[15]2019 Amendments.

Prior to the 2019 amendments, ss 464R to 464ZGFB of the Act were headed ‘Forensic Procedures’. This part of the Act dealt with taking forensic samples from suspects. The definition of ‘forensic procedure’ was not materially different from the definition of ‘compulsory procedure’. Either definition included a sample taken for the purposes of obtaining a DNA profile of a suspect.

The 2019 amendments introduced a new power for police. The amendments added provisions in respect of ‘DNA profile samples’. Certain intimate samples can now be compulsorily taken by the authorisation of senior police without recourse to the Magistrates’ Court. The statement of compatibility for the 2019 Bill stated ‘The overarching purpose of the new DNA sampling regime is to reduce the administrative burden on police and courts’ and that it is ’appropriate for senior police to make decisions in order to reserve court resources for more significant applications, including for compulsory orders for more intrusive forensic procedures’.

The starting point for an investigator to obtain a sample did not change with the 2019 amendments. In the case of an adult, a police officer could request a suspect undergo a forensic procedure if the requirements of s 464R(1) were satisfied, but that is not this case. In this case, the police made no request of any sort of the plaintiff and the provisions of the Act governing ‘informed consent’ (s 464S) and the circumstances in which a senior police officer may authorise a forensic procedure (s 464SA) were not engaged. Once Dr Brook expressed her opinion to the second defendant, the only option for obtaining the samples that she desired for the purposes of the police investigation was by a compulsory procedure. As I have stated, having made no request for a forensic procedure, the second defendant limited the options for obtaining a buccal swab to obtaining an order from a magistrate under s 464T(3) or s 464V(5).[16]
[16]Section 464R(2). Section 464V(5) governs interim applications.

The plaintiff emphasised what the 2019 amendments introduced into this part of the Act, including the concepts of a ‘DNA profile sample’ and ‘senior police officer authorisations’ for taking that sample.

(a) A DNA profile sample was defined as a sample taken for the purpose of deriving a DNA profile that is a sample of blood, hair (other than pubic), saliva, or mouth scraping. This is a mixture of intimate and non-intimate samples.

(b) The definition of ‘forensic procedure’ was amended to insert, after the exclusion of ‘fingerprint’, the further exclusion ‘or DNA profile sample’.

(c) The concept of a ‘DNA person’ was introduced and appears in the provisions dealing with the taking of a DNA profile sample, as the subject of the procedure.[17]

(d) Section 464SC was introduced to empower a police officer to take a DNA profile sample from a DNA profile person. Section 464SC(3) provides that a DNA profile sample may be taken from a DNA person who is an adult if the adult gives informed consent or a senior police officer gives an authorisation under s 464SE or the DNA person is a child and certain conditions are met.

(e) Section 464SE was also introduced to empower a senior police officer to authorise the taking of a DNA profile sample from a DNA person without their consent. However, this power is not available if the person is incapable of giving informed consent by reason of mental impairment.

[17]A ‘DNA person’ is defined as a person 18 years or older who is suspected of having committed or attempted to commit, or has been charged with, or has been summonsed to answer a charge for, an indictable offence; or a child between 15 and 18 years old who is suspected of, has been charged with, or summonsed to answer to a charge for, a ‘DNA sample offence’.

Taken together, the new provisions provide that a police officer has authority to take a DNA profile sample, if satisfied of certain matters, by requesting a DNA person who is an adult to give a DNA profile sample (s 464SC). A DNA profile sample may be taken if the suspect gives informed consent (s 464SD) or the authorisation of a senior police officer is given if satisfied of certain matters (s 464 SE). However, a senior police officer cannot authorise the taking of a sample from a person who is incapable of giving informed consent by reason of mental impairment (s 464SE(1)(b)).

Pausing here, none of these provisions were engaged in the circumstances, or were relevant to the power of the magistrate under s 464T. The references to DNA profiling in the application to the magistrate, and in the affidavit in support, do not engage the 2019 amendments just mentioned.

It is plain from the structure and text of the sections of the Act that the definition of ‘forensic procedure’ was amended to distinguish the statutory processes for forensic procedures from the processes for DNA profile samples. These amendments leave unchanged the process for compulsory procedures under s 464T that operate by court order rather than by consent or police authorisation.

The plaintiff submitted the second defendant’s application was for a compulsory procedure to obtain a DNA profile sample from the plaintiff, pursuant to s 464T of the Crimes Act. While I accept there is imprecision in the language that was used, I was not persuaded that the magistrate so found, or, if he did, that he could correctly so find. The application was to obtain a sample by a buccal swab. Within the language of the Act, that is a sample taken by a compulsory, intimate procedure. The purpose for which the sample was taken does not limit the magistrate’s power to order a compulsory procedure on the text of s 464T.

The plaintiff submitted that there is no specific provision, as the Act now stands, for compulsory sampling in respect of blood, hair (other than pubic), saliva or a mouth scraping, for the purposes of deriving a DNA profile, where the suspect lacks capacity to consent to a procedure to obtain a DNA profile sample because of mental impairment. Since the 2019 amendments, s 464T does not apply to samples taken for the purposes of obtaining a DNA profile, and there is simply no way, under the legislation as currently formulated, for suspects in such cases to face a compulsory procedure.

Pausing again, this interpretation produces the anomalous result that other samples taken for the purpose of deriving a DNA profile (pubic hair, genital swab, dental impressions, matter from under nails, or a swab from any external body part) can be obtained by compulsory procedure under s 464T where the suspect is incapable of giving informed consent by reason of mental impairment – because these samples remain ‘forensic procedures’.

The plaintiff contended that this consequence must follow because s 464T(1)(a) and 464T(3)(g) of the Act, properly construed, relate ‘forensic procedure’ to both the refusal of informed consent, and the suspect’s incapacity to consent. DNA profile sampling has been expressly excluded from the definition of ‘forensic procedure’.

The plaintiff submitted that in s 464T(1)(a) a police officer may apply for a compulsory procedure if a person refused to give consent to a request for a ‘forensic procedure’ and that in s 464T(3)(g) a Magistrates’ Court may order a compulsory procedure if a person refused to give consent to a request ‘under s 464R(1)’. This, said the plaintiff, showed that the section pertains only to a forensic procedure, as defined, and not a DNA profile sample. The informed consent or incapacity to consent in that subsection must refer to a forensic procedure.

For the reasons I have set out earlier and below in dealing with a submission made by the second defendant, I reject the submission that the plain and natural meaning of the text of s 464T is as the plaintiff contended. There is nothing in the context or purpose of the section or the Act more widely considered that supports the plaintiff’s submission. Section 464T(3) provides that the court may make an order directing a person to undergo a compulsory procedure if the court is satisfied on the balance of probabilities that various requirements have been met, including ‘the person is incapable of giving informed consent by reason of mental impairment’. The plaintiff’s submission necessarily reads s 464(1)(a) and (3)(g) by adding the italicised words – ‘informed consent to a forensic procedure by reason of mental impairment’. Neither the plain and natural meaning of the text nor the context or purpose of the section or the Act dictate that words be read into the phrase just quoted to define and limit the type of procedure to which the suspect is incapable of giving consent.

The plaintiff submitted that his construction must be correct because consent is a relational concept. A person could have the capacity to consent to one procedure and not another. It does not make sense to refer to a person as being incapable of giving informed consent in general. It must refer to some procedure in particular,[18] and that must be a reference back to the first part of the sentence – a forensic procedure. That is the natural grammatical meaning of the provision.
[18]PBU v Mental Health Tribunal [2018] VSC 564, [148].

I reject this submission for three reasons. First, I have rejected the submission that the natural meaning of a disjunctive conjunction as a grammatical structure can be as the plaintiff puts it. That construction cannot be found in the disjunctive provision as it appears in that subsection. Picking up on one of the plaintiff’s submissions, this is not to say that incapacity in the Crimes Act is not a relational concept. The reference to this court’s decision in PBU v Mental Health Tribunal[19] does not advance the plaintiff’s contentions, particularly as it is concerned with the context of the Mental Health Act2014 (Vic). The notion in this part of the Crimes Act of capacity to consent is ‘issue-specific’ (or sample/procedure-specific) and is not in conflict with the notion that a person may be perfectly capable of taking some decisions but not others. The section answers the question – consent to what? The evidence was that the plaintiff had no capacity to participate in the investigation.
[19]Ibid.

Secondly, the plaintiff noted that in Taylor v The Owners – Strata Plan No 11564,[20] the High Court held that whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. The court can readily add or omit words in the case of simple, grammatical, drafting errors, which if uncorrected would defeat the object of the provision. However, the judgment should not be exercised where the proposed construction fills gaps disclosed in the legislation or makes an insertion too big or too much at variance with the language in fact used by the legislature.[21] The plaintiff submitted that the magistrate’s interpretation of s 464T was an example of the latter case and should be set aside.
[20](2014) 253 CLR 531.
[21]Ibid 548 [38].

I disagree. It is the plaintiff’s interpretation that, by failing to properly construe the disjunctive ‘or’ that logically and naturally operates within the context of the provisions, requires words to be read into the sub-sections in a manner that does not fit within the test articulated by the High Court in that case, which was that the task always remains the construction of the words the legislature has enacted.

Thirdly, for the reasons already given, in the case of a suspect who is incapable of giving informed consent to any procedure by reason of mental impairment, the only process available to obtain a sample or an examination under the Act is a compulsory process. It is clear from the second defendant’s conduct that she understood this to be the case.

Second defendant’s submissions

I largely accepted the second defendant’s submissions.

The second defendant submitted that all the incongruities and inconsistencies that the plaintiff claimed arose out of the 2019 amendments to the definition of ‘forensic procedure’ could be avoided. The plaintiff’s misconceptions began with the notion that the 2019 amendments carved out from the definition of ‘forensic procedure’ the taking of any DNA samples of the kind listed under the definition of DNA profile sample (blood, hair, saliva, mouth scraping).

The second defendant submitted that it is possible to take a DNA sample from a person under the Act in two ways.

(a) One method is to take a DNA sample from a DNA person, as contemplated in s 464SC. This is a novel process introduced under the 2019 amendments to ensure an additional mechanism for police to take DNA samples without having to apply to a magistrate if the accused refused to consent. Prior to the introduction of this provision, the police could take DNA samples as part of the forensic procedure process, but had no power to override a refusal to consent. This mechanism was introduced to add an additional process in certain circumstances that was not dependent on a court application, not to take away the court’s powers to order a compulsory procedure in respect of a person who did not have the capacity to consent by reason of mental impairment.

(b) Another method is to use for DNA analysis forensic material[22] sampled from a person by a forensic procedure. This does not engage the police powers to take a DNA profile sample under ss 464SC or 464SE. The second defendant submitted that for this reason the legislature, when defining when a person gives informed consent to a forensic procedure, provided in s 464S(1)(ea):
[22]This is also a defined term. See s 464(2).

(1) A person gives informed consent to a request to undergo a forensic procedure if he or she consents to the request after the police officer informs the person in language likely to be understood by the person―
…
(ea)that information obtained from analysis of forensic material obtained by the procedure will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this Subdivision or under a corresponding law of a participating jurisdiction;

The second defendant submitted that the fact that this provision was not changed by the 2019 amendments, meant that the legislature intended for DNA profiles to be gathered under forensic procedures, albeit that the definition of forensic procedure was amended to exclude ‘taking of … a DNA profile sample’. Properly construed, the text, context and purpose of this Part of the Act excludes from the operation of the definition, the special mechanism introduced to give police broader powers to take DNA profile samples without recourse to the courts.

The second defendant noted s 464R(2) of the Act, which provides that a forensic procedure, other than a DNA profile sample, may be conducted on a suspect with informed consent, or under compulsion by an order under s 464T(3), or by senior police officer authorisation under s 464SA (which only pertains to non-intimate samples). If DNA profile sample remained in the definition of forensic procedure, the police would not need the power under s 464SC of the Act.

DNA profile sampling is dealt with separately because the legislature has defined different circumstances in which such a sample may be taken (s 464SC(3)). The exclusion was not intended to, and on its language does not, exclude taking forensic samples that may be used to analyse DNA. The reference to a ‘DNA profile sample’ is a legislative definition of a particular procedure. It is a legal process, not a physical or scientific concept. That s 464R(2) provides that a forensic procedure may be conducted on a suspect in one of three circumstances, while s 464SC(3) provides that a DNA profile sample may be taken from a DNA person who is an adult in one of two circumstances (excluding a compulsory procedure by court order under s 464T) is not inconsistent with this interpretation.

The second defendant submitted that the absence from s 464SC of a compulsory procedure by court order is logical because that section only contemplates a DNA profile sample, a special mechanism under the Act. If the police engage that provision, there is no recourse if the person is unable to give informed consent by reason of mental impairment. However, the police can apply to court under s 464T for an order for a compulsory procedure in the form of a procedure such as a buccal swab that will ultimately be used to take DNA evidence. That is an intimate sample, taken by compulsory procedure, which s 464T expressly authorises.

The second defendant reiterated the facts of the application. What she sought was an intimate sample. While it could have fallen within the definition of DNA profile sample, the swab was not obtained by that process. If ‘intimate sample’ could not include samples used for DNA, the concept of intimate sample would be meaningless; those samples are generally taken for the purposes of collecting DNA. Forensic samples and compulsory procedures include intimate and non-intimate samples.

Consistently, the second defendant noted s 464SE, which provides:

(1)A senior police officer must not give an authorisation for the taking of a DNA profile sample from a DNA person if―
(a)an application to a court for an order under s 464T, 464U or 464V in respect of that person has been made in relation to the same matter and on the same grounds but has been refused;

…
(4)Nothing in subsection (2) prevents a later application for an order under section 464T, 464U or 464V or an authorisation under this section on different or further grounds.

By s 464SE, the Act contemplates a sample being taken by a compulsory procedure under s 464T of a kind that falls under the type of samples listed under the definition of a DNA profile sample (eg, a cheek swab taken for the purposes of deriving a DNA profile). Otherwise, an application under s 464T would not be made ‘in relation to the same matter [as the DNA profile sample sought] and on the same grounds’.

Although I consider the construction of s 464T to be clear without recourse to extrinsic materials, I note the second defendant’s submission that the extrinsic material relevant to the 2019 amendments supported its interpretation that the introduction of the police powers to conduct DNA profile samples without recourse to the court was not intended to, and did not, remove any powers from the court to continue to determine cases where suspects did not have the capacity to consent to providing a sample, that would ultimately be used for DNA purposes.

(a) The Parliamentary debates explained:

1. Police DNA powers
Streamlining and explaining police powers to collect DNA evidence has the potential to significantly enhance Victoria Police’s ability to keep the community safe.
… It will also reduce the administrative burden on police and courts.
The Bill achieves these changes by introducing a new class of procedure called a ‘DNA profile sample’.
… These changes mean that police will no longer need to seek a court order and demonstrate to the court that taking the sample is justified in all the circumstances. This recognises that there are no excuses when it comes to serious crimes, and highlights that Victoria Police will be provided with the power they need to deal with offenders.
…
A court order will still be required under the existing DNA powers in the Crimes Act 1958, which will continue to operate alongside the new powers in specific circumstances.
… This provides an additional safeguard that applies to all forensic procedures, not just when taking DNA profile samples, and regardless of how the procedure was authorised.[23]
[23]Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2019, 229 (Lisa Neville, Minister for Water, Minister for Police and Emergency Services).

(b) Parliament’s intention can also be discerned from the explanatory memorandum to the 2019 Bill:

If this threshold [for s 464SE(1) or s 464SF(5)] is not met, a court order for a compulsory procedure would need to be sought under the existing provisions because a senior police officer could not make an authorisation. This is another safeguard to ensure that court oversight remains in the circumstances involving vulnerable persons.

It is not necessary for my reasoning but I accept the second defendant’s submission that while the legislation defines a DNA profile sample by a plain meaning – a sample taken for the purposes of deriving a DNA profile – that does not require that every time a sample is taken for the purposes of deriving a DNA profile, the sample is a ‘DNA profile sample’ in the defined sense. A DNA profile sample is the special term used in the Act for the sample that is the subject of the new DNA profile sample process, just as DNA person is the suspect who is subject to that process.

This interpretation is the interpretation required by the text of the legislation. It accords with the overall context, purpose and structure of the relevant part of the Act in which s 464T is found. It also accords with the extrinsic material.

Properly construed, ‘DNA profile sample’ means the type of sample that is subject to the compulsory powers given to police under ss 464SC and 464SE. DNA samples taken using this process are excluded from the definition of forensic procedure. However, samples may still be taken outside of this process by other processes, and used for the purposes of obtaining and retaining a DNA sample. These remain forensic procedures. Section 464T(3) empowers the magistrate to make orders for compulsory procedures to obtain such samples if the other requirements of the sub-section are met. That includes circumstances where the police do not have the power to make a compulsory order for a DNA profile sample, because the suspect is incapable of giving informed consent by reason of mental impairment or because the sample is an intimate or non-intimate sample that doesn’t fall into the types of samples that may be taken as a DNA profile sample.

The second defendant put an alternative submission to interpret the Act but I was not assisted by that submission and say no more about it.

For these reasons, ground 1 fails.

Ground 2 - Charter rights
Ground 2(a)

Ground 2 was put in two ways. First, by what I will call ground 2(a), the plaintiff submitted that his interpretation of s 464T complied with s 32(1) of the Charter, which requires the court to interpret legislation compatibly with human rights,[24] so far as it is possible to do so consistently with its purpose.
[24]32 Interpretation
(1)So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2)International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
(3)This section does not affect the validity of―
(a)an Act or provision of an Act that is incompatible with a human right; or
(b)a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

Section 32(1) of the Charter requires that, where the text of a statutory provision admits of ‘shades of meaning and nuance’, the court should explore all ‘possible interpretations of the provision(s) in question and [adopt] that interpretation which least infringes Charter rights’.[25] If the words are clear, the court must give them that meaning; if they are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question.
[25]Taha v Broadmeadows Magistrates’ Court [2011] VSC 642, [59], approved on appeal in Victoria Toll Enforcement v Taha (2013) 49 VR 1, 12-13 [24]-[27].

In Slaveski v Smith, the Court of Appeal said:

Consequently, if the words of a statue are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment.[26]

[26](2012) 34 VR 206, 215 [24].

I have found the meaning of s 464T to be clear; it does not admit ‘shades of meaning and nuance’, which necessarily constitutes a rejection of the premise on which the plaintiff put his s 32(1) Charter arguments. In these circumstances it is unnecessary to rule on the plaintiff’s submissions on ground 2(a).

Ground 2(b)

The second way in which the Charter arguments were put (Ground 2(b)) was that the magistrate, acting administratively, was a public authority within the meaning of that term in the Charter. By reason of non-compliance with s 38(1) of the Charter, the decision to order the plaintiff to undergo a compulsory procedure, by means of a buccal swab, was unlawful. This ground is not dependent on the view I have taken of the proper construction of s 464T.

Section 38(1) of the Charter has two limbs: a procedural limb and a substantive limb. The procedural limb requires public authorities, when making a decision, to give proper consideration to a relevant human right, whereas the substantive limb requires public authorities to act in a way that is compatible with a human right. The procedural limb applies to the making of a decision, whereas the substantive limb applies to an act.[27] The plaintiff submitted that the magistrate contravened both limbs in that, first, he failed to give proper consideration to the plaintiff’s rights under ss 10(c), 13(a) and s 25(2)(k) of the Charter and, secondly, he contravened s 38(1) of the Charter by acting incompatibly with the plaintiff’s rights under those sections.
[27]Thompson v Minogue [2021] VSCA 358, [79] (‘Thompson’).

The rights that the plaintiff contended were engaged were―

(a) Section 10(c): a person must not be subjected to medical or scientific experimentation or treatment without their full, free and informed consent;

(b) Section 13(1): the right not to have privacy unlawfully or arbitrarily limited; and

(c) Section 25(2)(k): the right to silence.

Section 38(1) of the Charter provides:

Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

A public authority does not include a court or tribunal except when acting in an administrative capacity. A court acts in a judicial, as opposed to administrative, capacity where there is a dispute between defined persons that requires a legally binding resolution and whether it will determine for the future in a binding manner the existing rights or obligations of the defined persons and this results in a legally enforceable order inter partes; or where the exercise of the power involves the making of findings of fact and law and the application of the law to the facts.[28]
[28]DPP v De Bono [2012] VSC 350, [62].

Compulsory orders made under s 464T(3) do not determine any existing rights or obligations but rather create new rights and obligations as part of the evidence gathering process for a suspected crime. It is directly analogous to the issuing of warrants (contemplated by the notes in the legislation to be an example of an administrative decision). Both require the court to consider whether the existing evidence against a suspect justifies a significant incursion on their right to be free from state interference. Similar functions have been given to police officers under the Act. Accordingly, the magistrate is acting as a public authority when exercising power under s 464T. The second defendant’s concession on this point was appropriate.

The plaintiff submitted that the obligation imposed on a public authority by s 38(1) required the magistrate to:

(a) understand in general terms which human rights were relevant to the exercise of the discretion in s 464T(3) and whether, and if so how, those rights would be interfered with by an order for a compulsory procedure;

(b) seriously turn their mind to the possible impact of the decision on human rights and the implications for the plaintiff;

(c) identify countervailing interests or obligations in a practical and common sense way; and

(d) balance competing private and public interests as part of the exercise of the justification.

The transcript shows the magistrate did not undertake this process; failure to do so means the decision under review is unlawful.

In addition, section 7(2) of the Charter provides that any limitation on Charter rights must be under law. The limitation on the plaintiff’s rights (ss 10(c), 13(1) and 25(2)(k)) is incompatible with the law purporting to authorise it (s 464T). Section 38(1) provides that this incompatible action was unlawful.

The second defendant submitted that the magistrate, acting in an administrative capacity, satisfied the obligation as a ‘public authority’ obliged to give proper consideration to human rights when making the order under s 464T(3). This was evident from the magistrate’s stated finding, addressing the requirement s 464T(3)(h), that he was satisfied that in all the circumstances the making of the order was justified.

The second defendant contended that the requirement in s 38 of the Charter to balance competing private and public interests does not import the justification exercise set out in s 7(2) and does not make the factors listed in that section mandatory relevant considerations.[29]
[29]Thompson [2021] VSCA 358, [87]-[89].

The second defendant submitted that the four factors a public authority needs to take into account do not require a sophisticated legal exercise and is not a formula.[30] The step identifying which Charter rights may be affected does not require a public authority to identify with precision the human rights that were engaged or limited.[31] Victorian courts have not specifically addressed how a public authority who is a judicial officer must demonstrate they have given proper consideration to human rights, but generally proper consideration can be given in a variety of ways as suits the particular circumstances.[32] For other administrative decision makers, proper consideration must entail more than a mere recitation of the Charter principles or the simple review of evidence.[33]
[30]Ibid [83]-[89].
[31]Ibid [88].
[32]PJB v Melbourne Health (2011) 39 VR 373, 442 [311] (‘PJB’).
[33]Castles v Secretary to the Department of Justice (2010) 28 VR 141, 184 [185]-[187]; Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129, 199 [221], 200 [224], 224-6 [293]-[298] (‘Bare’).

The present context was that DNA evidence was sought to further an investigation into a serious offence and I should be satisfied that in the course of the statutory interpretation analysis the magistrate recognised the countervailing interests.

The plaintiff is only entitled to seek a relief or remedy in relation to the compulsory procedure order that would otherwise have been available on an application for judicial review.[34] A breach of s 38(1) of the Charter is not a jurisdictional error that would result in the invalidity of the decision. Other remedies such as a declaration of unlawfulness may be available, but the court’s power to grant those remedies remains discretionary, just as it is on judicial review.[35]
[34]Charter s 39(1).
[35]Bare (2015) 48 VR 129, 180 [150]; Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, 498 [178].

Analysis

Assuming, without deciding, that the human rights identified by the plaintiff are engaged in the magistrate’s decision under s 464T(3), s 38(1) is inapplicable by the operation of s 38(2), which states:

Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
Example
Where the public authority is acting to give effect to a statutory provision that is incompatible with a human right.

The magistrate could not have come to a different decision.

The legislature has substantially codified how a magistrate gives proper consideration when determining whether to make an order under s 464T. On the proper construction of s 464T, all of the statutory criteria were satisfied. The plaintiff did not identify that there was any relevant material that was not considered by the magistrate or that the material in the application and affidavit on which the magistrate did rely was irrelevant to the power under the section.

The legislature in s 464T(3) and more generally in this Part of the Crimes Act struck a balance between the suspect’s right to silence and the public’s interest in the effective investigation of a serious crime. It did so by requiring the magistrate to first be satisfied, on a balance of probabilities, of the matters specified in s 464T(3), set out above. The relevant suspect may address the court in respect of these matters and may be represented by a legal practitioner.[36] The court must give reasons for its decision, state the evidence on which it is satisfied of the matters in subsection (3), and cause a note of the reasons to be entered into the records of the court, and inform the person that a police officer may use reasonable force to enable the procedure to be conducted.
[36]Crimes Act s 464T(5)(c), (6).

Section 464J provides:

Right to remain silent etc. not affected
Nothing in this subdivision affects―
(a)the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or
(b)the onus on the prosecution to establish the voluntariness of an admission or confession made by a person suspected of having committed an offence; or
(ba)the onus on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c)the discretion of a court to exclude unfairly obtained evidence; or
(d)the discretion of a court to exclude illegally or improperly obtained evidence.

In the present case, the magistrate granted the order based on the second defendant’s affidavit, stating that he was satisfied on a balance of probabilities of the factors set out in s 464T(3), including that ‘in all the circumstances the making of the order is justified’.

The magistrate took into account the seriousness of the offence and the manner in which the procedure would be conducted; the fact that the evidence before the court indicated that there was likelihood the plaintiff committed the offence; that taking the evidence would likely confirm of disprove his involvement in the offence; and the magistrate explained to the plaintiff the manner in which the sample would be taken.

On its proper construction, s 464T does not permit the magistrate to take into account whether, and if so how, his decision would interfere with the plaintiff’s rights of the kind defined in the Charter. The limits that define and confine the magistrate’s power are not extended by a different construction of the statutory provision to oblige the magistrate to redefine the task that the legislature has set.

I conclude that, for these reasons, s 38(2) of the Charter operates and as a result of the statutory provision (s 464T) as properly construed, the magistrate could not reasonably have acted differently or made a different decision.[37]
[37]See, eg, DPP v Kaba (2014) 44 VR 526, 644 [447], 647 [468].

A very similar issue was considered by Niall JA in Grooters.[38] In that case, the court was concerned with post-conviction DNA sampling under s 464ZFAC of the Act ,which empowers a senior police officer to authorise the taking of a DNA profile sample from adult persons who have been convicted of an indictable offence. Mr Grooters, who suffered from a cognitive impairment, contended that the senior police officer had a discretion under s 464ZFAC to take into account the circumstances of the offending, and that his cognitive impairment would make taking the sample distressing and something that he was not capable of understanding. For this reason, he contended that the authorisation was unlawful and in breach of his Charter rights. Niall JA concluded that those circumstances were either already considered, by reference to the statutory criteria, or were irrelevant.
[38]Grooters v Chief Commissioner of Police (Vic) (2021) 289 A Crim R 529, 545-6 [87]-[93].

By the same reasoning, which I respectfully adopt, even if it were relevant to consider whether the magistrate’s order was incompatible with the plaintiff’s human rights under the Charter, the order was clearly justified under s 7(2) of the Charter. The ‘proper’ consideration which s 38(1) requires is one which was reasonable under s 7(2) of the Charter.[39]
[39]PJB (2011) 39 VR 373, 423 [230].

I cannot conclude that the decision was unlawful for failure to take into account relevant Charter rights.

In any event, even if this were not the case, this would not be a ground for setting aside the decision as invalid. In Bare v IBAC, Warren CJ recited the trial court’s reasoning:[40]

… the Court should not take Parliament to have intended that a breach of the s 38(1) procedural obligation would necessarily involve jurisdictional error. It did not state expressly that a relevant human right must be considered, choosing rather to characterise both the failure to give a relevant right proper consideration and the breach of the obligation to act incompatibly with it, as ‘unlawful’.
The obligations to act compatibly with human rights and to give them proper consideration under s 38(1) lack the ‘rule-like quality’, easily identified and applied, thought indicative of requirements for validity.

Warren CJ then held:
In my view, the trial judge applied the appropriate test in finding that a breach of s 38(1) did not amount to jurisdictional error. There is no indication that it was the intention of the legislature in drafting the Charter, and specifically in drafting s 38(1), that a decision by a public authority that did not properly consider a Charter right, or that breached a Charter right would be invalid.[41]
[40]Bare (2015) 48 VR 129, 152 [53], 176 [139].
[41]Ibid 176 [139].

Ground 3 - Jurisdictional error

The plaintiff claimed that the magistrate exercised power under s 464T(3) without being satisfied of all of the jurisdictional facts required by the provision.[42] Section 464T(3)(g), as the plaintiff would interpret it, required the magistrate to be satisfied on the balance of probabilities that the plaintiff is incapable of giving informed consent to a forensic procedure by reason of mental impairment. The plaintiff submitted that the transcript showed the magistrate did not form any state of satisfaction with respect to any inability to consent to such a procedure. This was because the magistrate accepted that a DNA procedure could not be a forensic procedure as it was defined in a manner that removed DNA sampling procedures.
[42]Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120, 139 [43] (‘Gedeon’).

The second defendant submitted that matters which are obvious need not be stated in reasons for a decision.[43] The evidence before the magistrate was that the plaintiff was assessed by Dr Brook from the Victorian Institute of Forensic Medicine at the Melton Police Station. Her opinion was reported by the second defendant in her affidavit. She opined that the plaintiff was unfit for interview by reason of mental impairment, having no grasp of the gravity of the alleged offending and not having capacity to give informed consent to any police request that he undertake a forensic procedure. Dr Brooks assessment has not been challenged, either before the magistrate or in this court.
[43]Hunter v Transport Accident Commission (2005) 43 MVR 130, 37 [22].

The plaintiff’s written outline of submissions before the magistrate stated that the plaintiff appeared unable to consent by reason of mental impairment. The transcript makes it plain that the application proceeded on the basis that the plaintiff was a person who is incapable of giving informed consent. The plaintiff’s counsel at trial, who also appeared on this application, stated to the magistrate, ‘Mr Yarran is unable to give informed consent. I think everybody agrees with that’. No submission was, or could be, advanced that the evidence admitted before the magistrate was not capable of giving rise to such a finding.

Unsurprisingly, the plaintiff did not develop an oral submission on this ground. His written submission noted the applicable legal principle,[44] and footnoted a page of the transcript.
[44]Citing Gedeon (2008) 236 CLR 120, [43].

As noted earlier, the certified extract of the magistrate’s order recited the requirements of s 464T(3) as the matters about which the magistrate was satisfied. The magistrate’s reasons as a whole indicate the magistrate considered the application, the affidavit of the second defendant, written submissions and the factual matrix and was satisfied that the requirements specified in s 464T had been met. The magistrate’s reasoning about the interpretation of s 464T clearly indicates that the magistrate considered the court was dealing with a compulsory procedure over a person who was incapable of giving informed consent by reason of mental impairment. The magistrate expressly noted Dr Brook’s evidence. I need not note every reference to incapacity. The magistrate announced a finding that, based on the materials set out primarily in the affidavit of the second defendant, he was satisfied on the balance of probabilities that the plaintiff ‘is incapable of giving informed consent by reason of a – reason of mental impairment’.

There is no merit to this ground of review. The fact that the magistrate was satisfied that the plaintiff did not have the capacity to consent to the procedure due to mental impairment was express, unchallenged and a finding plainly open on the material before the magistrate.

Conclusion

The proceeding will be dismissed.

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