Yousha Sleiman v Jason Murray
[2010] ACTCA 2
•23 February 2010
HUMAN RIGHTS ACT
YOUSHA SLEIMAN v JASON MURRAY
[2010] ACTCA 2 (23 February 2010)
APPEAL – appeal from an order of a judge dismissing an application for judicial review of a decision of a magistrate – appeal dismissed
CRIMINAL LAW AND PROCEDURE – forensic procedure – taking of buccal swab for DNA analysis
ADMINISTRATIVE LAW – persona dignata – magistrate’s decision of an administrative character – amenable to judicial review
APPEAL – error of law – balance required under Crimes (Forensic Procedures) Act 2000 (ACT) – procedure justified in all the circumstances – no error of law – decision based on an irrelevant consideration – admissibility of other evidence – can be relevant – discretionary decision – decision failed to take into account a relevant consideration – the public interest in upholding the physical integrity of the suspect – unable to conclude that consideration overlooked – magnitude of intrusion relatively low
Crimes Act 1900 (ACT), s 92
Crimes (Forensic Procedures) Act 2000 (ACT), ss 32, 33, 34,39
Administrative Decisions (Judicial Review) Act 1989 (ACT), s5
Human Rights Act 2004 (ACT), ss 12, 28
Crimes Act 1958 (Vic), s 464M
Police and Criminal Evidence Act 1984 (UK)
European Convention on Human Rights, s 28
Sleiman v Murray [2009] ACTSC 82
Kelly v Apps (2000) 98 FCR 101
Hilton v Wells (1985) 157 CLR 57
Love v Attorney-General (NSW) (1990) 169 CLR 307
House v The King (1936) 55 CLR 499
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Hilton v Wells (1985) 157 CLR 57
Grollo & Anor v Bates & Ors (1994) 53 FCR 218
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Case of S. and Marper v The United Kingdom (2008) 158 NLJ 1755; [2009] Crim LR 3
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 19 of 2009
No. SC 592 of 2009
Judges: Higgins CJ, Gray P and Ryan J
Court of Appeal of the Australian Capital Territory
Date: 23 February 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 19 of 2009
) No. SC 592 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:YOUSHA SLEIMAN
Appellant
AND:JASON MURRAY
Respondent
ORDER
Judges: HIGGINS CJ, GRAY P and RYAN J
Date: 23 February 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 19 of 2009
) No. SC 592 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:YOUSHA SLEIMAN
Appellant
AND:JASON MURRAY
Respondent
Judges: HIGGINS CJ, GRAY P and RYAN J
Date: 23 February 2010
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Background
The appeal now before the Court is from an order of a Judge of the Court dismissing an application for judicial review of a decision of a Magistrate. For his Honour’s reasons for that order see Sleiman v Murray [2009] ACTSC 82. Like his Honour, we find it unnecessary to set out in full the background facts. It is sufficient, for present purposes, to appreciate the circumstances underlying the application to adopt the summary furnished by the learned primary Judge.
The allegation is that at about 2.00 pm on 21 August 2002 two men entered a jeweller’s shop in Manuka. One was carrying a “jemmy bar” about 45 centimetres’ length. That person, it is alleged, used it to smash a glass cabinet, from which he then took some items of jewellery. As the two men made to leave, without the “jemmy bar”, the owner of the shop threw it at one of the men, hitting him in the lower back. The bar was recovered by the police and later subjected to a forensic analysis. They obtained a DNA profile from it.
Later, the police recovered a vehicle and found in it a mask similar in description to that which one of the men had been said by a witness to have been wearing at the time of the robbery. The mask was also subjected to a forensic analysis and yielded a DNA profile identical to that taken from the “jemmy bar”.
In October 2007, police received information from the National Criminal Investigation DNA Database (“the NCIDD”) that a match to the DNA profile taken from the jemmy bar and the mask had been identified on the New South Wales portion of the database; the matching profile was that of Mr Sleiman.
On 28 January 2009 Mr Sleiman was charged by summons under s 92 of the Crimes Act 1900 (ACT), as it stood in August 2002, with armed robbery. The summons was returnable before the Magistrates Court on 20 March 2009.
On 3 April 2009, in circumstances which have been fully set out by the primary Judge, Constable Murray made an application under s 32 of the Crimes (Forensic Procedures) Act 2000 (ACT) (“the Act”) that:
“pursuant to Section 32 of the Crimes (Forensic Procedures) Act 2000 that you be ordered to undergo a forensic procedure, namely a buccal swab”
The application was heard by Magistrate Doogan on 17 June 2009. Her Honour granted the application. The reasons for that decision were delivered orally, and were set out by the primary Judge. As they will assume some significance, it is convenient to reproduce them again:
“… [w]ell, it’s quite clear that a number of the criteria in section 34 are met. I’m certainly satisfied on the balance of probabilities that – and there’s no issue, as I take it, in relation to most of the criteria under section 34. There’s no issue that the person, being the respondent or the applicant in this application, the respondent to the application, or the defendant for short terms is a suspect. That the offence is a serious offence.
I do have concerns, and I have sympathy with the position taken by the prosecution in this, and the concern is that if they were to introduce this evidence that there could be some potential prejudice to the defendant, and that it is highly likely that based on that potential prejudice, being that he is known in another jurisdiction. Therefore, that in the mind of a jury, if it were to go to a jury, or even a judge alone trial, could raise some potential prejudice to him, and on that basis it could be that the DNA evidence taken in another jurisdiction could very well be excluded.
And on the basis of that – and I don’t know, because I haven’t been told, I’m not privy to what other information or what other evidence there is, I don’t know how strong the case is without that forensic material. There’s nothing much here, the only application or the only information in the application in the affidavit gives a brief description of the suspects and, as I say, there’s no information before me as to the strength of the prosecution case. But having said that, it could well be that the DNA evidence, if it indeed does confirm that the defendant was the person at the scene and the person who committed this offence, it could well supplement any other information and any other evidence that the prosecution may have. It certainly has taken a long time to get the brief of evidence together.
So I have to consider then the balancing interests as are contained in subsection (3) of section 34, and there is nothing in those provisions which would give me any difficulty in finding that it’s quite appropriate, in my view, for the forensic procedure to be undertaken, having regard to the criteria, as I must, the seriousness of the circumstances surrounding the offence. Armed robbery is a most serious crime in this Territory, and indeed in every other jurisdiction: it carries the maximum sentence of 25 years imprisonment. The degree of the suspect’s alleged participation in the offence, again from the information that has been provided to me and the evidence given by Constable Murray, it would appear that if indeed the mask and the jemmy that was used in the commission of the offence did contain the defendant’s DNA, then his participation is, to a great degree, the other criteria in my view don’t apply. So I am satisfied under the provisions that I need to be satisfied that the forensic procedure should be undertaken of the defendant, and I intend to grant the application.”
On 24 June 2009, the learned primary Judge heard an application for review of the Magistrate’s decision. Mr Sleiman’s amended application put the matter in one of two ways: that his Honour had power to set aside the learned Magistrate’s decision under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (“the AD(JR) Act”); alternatively, that his Honour was empowered to do so under the principle enunciated in Kelly v Apps (2000) 98 FCR 101. We note that no argument of the latter type was advanced before this Court.
The primary Judge’s reasoning
His Honour’s conclusion that the application should be dismissed involved two steps. First, his Honour held that the Magistrate’s decisions was one “of an administrative character” – and thus amenable to review under s 5 of the AD(JR) Act: see at [18]-[31]. On that premise his Honour held that the Magistrate had sufficiently, in the language of s 34 of the Act, satisfied herself on the balance of probabilities that “the carrying out of the forensic procedure [was] justified in all the circumstances”. Each of those steps requires further analysis.
Before concluding that the Magistrate’s decision was one “of an administrative character”, the learned primary Judge referred extensively to the concept of persona designata – that is, the principal that a function may be conferred by a statute on a person, a member of a court, though it could not lawfully be conferred on the court itself; see his Honour’s reasons at [18]-[24]; Hilton v Wells (1985) 157 CLR 57; Love v Attorney-General (NSW) (1990) 169 CLR 307; Grollo v Palmer (1995) 184 CLR 348.
Although his Honour expressed some reservations in the light of provisions of the Human Rights Act 2004 (ACT) (“HRA”), and some common law immunities, he was “by no means convinced” that Einfeld J had erred in Grollo & Anor v Bates & Ors (1994) 53 FCR 218 in characterising an analogous provision, s 464M of the Crimes Act 1958 (Vic), as involving a decision “of an administrative character” for the purposes of the Commonwealth equivalent of the AD(JR) Act.
His Honour also adverted to the fact that the Act had been the result of the enactment of a model law, the relevant provisions of which “were intended to permit Commonwealth laws to confer non-judicial functions and powers on judges and magistrates in criminal matters”. As the primary Judge then pointed out, at [29], the constitutional issues which influenced the drafting of the Model Law do not exist in this Territory.
His Honour was nevertheless satisfied, in the light of the considerations which he had canvassed, that the power exercised by the Magistrate, was administrative in nature and that her decision was therefore amenable to review under the AD(JR) Act.
The next task for the primary Judge was to consider whether the Magistrate had, in applying s 34 of the Act, made one of the types of error contemplated by s 5 of the AD(JR) Act. Section 34 provides:
“Matters to be considered by magistrate before ordering forensic procedure
(1)The magistrate must be satisfied on the balance of probabilities that—
(a)the person on whom the forensic procedure is proposed to be carried out is a suspect; and
(b)if the forensic procedure is a procedure other than the taking of a handprint, fingerprint, footprint or toeprint—the offence for which the person is a suspect is a serious offence and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed—
(i)that offence; or
(ii)another serious offence arising out of the same circumstances as that offence; or
(iii)another serious offence for which the evidence likely to be obtained because of carrying out the procedure on the suspect is likely to have probative value; and
(c)if the forensic procedure is the taking of a handprint, fingerprint, footprint or toeprint—the offence for which the person is a suspect is an offence other than an offence that may be dealt with by way of infringement notice and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed—
(i)that offence; or
(ii)another offence (other than an offence that may be dealt with by way of infringement notice) arising out of the same circumstances as that offence; or
(iii)another offence (other than an offence that may be dealt with by way of infringement notice) for which the handprints, fingerprints, footprints or toeprints are likely to have probative value; and
(d)the carrying out of the forensic procedure is justified in all the circumstances.
(2)In deciding whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)In balancing those interests, the magistrate must have regard to the following matters:
(a)the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;
(b)the degree of the suspect's alleged participation in the commission of the offence;
(c)the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the magistrate;
(d)if the suspect is a child or incapable person—the best interests of the suspect;
(e)whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;
(f)if the suspect gives any reasons for refusing to consent—the reasons;
(g)if the suspect is in custody and the investigation period when the suspect may lawfully be held has not expired—
(i)the period for which the suspect has already been detained; and
(ii)the reasons for any delay in proposing the carrying out of the forensic procedure;
(h)any other matter considered relevant to balancing those interests.”
The relevant part of the Magistrate’s reasons for decision has already been reproduced at [6] above. As the primary Judge noted at [49] of his reasons, the Magistrate’s decision had ultimately been challenged before him on the grounds that the Magistrate had committed an error of law [AD(JR) Act, s 5(1)(f)], that the Magistrate had reached a conclusion for which there was no evidence [AD(JR) Act, s 5(1)(h)], and that the Magistrate’s decision had involved an improper exercise of power, in that she had taken into account an irrelevant consideration [AD(JR) Act, ss 5(1)(e) and 5(2)(a)]. Although he noted at [68] of his reasons that he was not undertaking a review of the merits of the Magistrate’s decision, the primary Judge considered that if he had been engaged on an appeal in the wider sense he would have been required to apply the approach mandated by House v The King (1936) 55 CLR 499 to a review of a discretionary judgment.
The primary Judge observed at [50] of his reasons that the appellant’s submissions as to error of law were not “easy to understand”. As restated by his Honour, the submission appears to have been that the Magistrate had erred in allowing the collection of evidence which might later be ruled inadmissible at any trial of the appellant for the crime for which he had been indicted. The primary Judge adopted the identification by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 156, of the three stages of the determinative process at which a judicial officer might make a legal error. The first stage, determining the facts by way of primary findings and inferences did not, in his Honour’s view, afford the appellant any arguable basis for attacking the Magistrate’s decision as the facts were “not really in dispute”: see at [72]-[74]. As to the Magistrate’s direction of herself as to the relevant law, it appeared to his Honour that she had been “clearly aware” of it, in that she had;
“… referred to the need for a balancing exercise and was aware of the terms of s 34 of the [Act] to which she adverted. While her Honour’s statement of reasons were, perhaps, not perfect, I have to recall that a busy Magistrates Court list does not permit as detailed a consideration of the terms of a judgment as in, for example, this court …”
Moreover, his Honour noted, at [76], that there had been “no real challenge” to the Magistrate’s findings of the law. Rather, his Honour considered, the appellant’s challenge appeared to be targeted on the third stage of the determinative process, the application of the relevant law to the facts as found. As analysed by the primary Judge, that challenge was premised on the proposition that the balancing of the public interest required by s 34(2) of the Act was not required where the evidence which might be derived from carrying out the forensic procedure would only further “confirm or disprove” evidence already available from other sources.
In his Honour’s view, there was “nothing in the legislation which requires such an interpretation”. The words “confirm or disprove”, his Honour said, were to be given their ordinary, dictionary meaning, and that meaning did not entail any narrowing of the scope of s 34 (as had been suggested by Counsel for the appellant) to avoid a repetition of evidence gathering which had already occurred. Nor, the primary Judge thought, did the Magistrate’s application of s 34 render s 34(2) otiose or devoid of meaning.
The learned primary Judge considered that the error of law imputed to the Magistrate by the appellant overlapped to a large degree with the “no evidence” ground of review which was directed to the Magistrate’s finding as to the likelihood that evidence of the NCIDD might be ruled inadmissible at a trial of the appellant. His Honour considered that the existence of a risk of such a ruling was an inference available from the undisputed facts.
Finally, the appellant argued that, by taking into account the possibility that the material and DNA profile obtained from the NCIDD might be excluded because of its possible prejudice to the appellant, the Magistrate had given weight to an irrelevant consideration. The primary Judge rejected this argument because he considered that the admissibility of other evidence available to the prosecution was clearly relevant to the exercise of the discretion conferred by s 34 of the Act.
Thus, in the result, the primary Judge dismissed the application for review, and ordered that the appellant attend at the Canberra City Police Station to furnish the proposed buccal swab.
Appeal to the Court of Appeal
On 31 July 2009, the appellant filed a notice of appeal seeking that each of the orders of the primary Judge and the Magistrate be set aside. The grounds of his appeal are;
“1)His Honour erred in finding that the decision of the Learned Magistrate did not involve an error of law.
2)His Honour erred in finding that the decision of the Learned Magistrate was not based on an irrelevant consideration.
3)His Honour erred in finding that the decision of the Learned Magistrate did not involve an improper use of power.”
It will be apparent that the grounds of appeal have been framed to allow the grounds of review relied on at first instance to be agitated again on appeal. It is convenient to consider each in turn. Before doing so, however, we shall revisit shortly the threshold issue of whether the decision of the learned Magistrate was “of an administrative character”.
Persona Designata
Each of the grounds of appeal put before this Court presupposes that the Magistrate’s decision was amenable to judicial review, in the sense that it was “of an administrative character”: see s 5 of the AD(JR) Act, read with the “Dictionary” to that Act. We accept, as did the primary Judge did at [26]-[28] of his reasons, that the relevant provisions of the Act were enacted in the Territory pursuant to a model law, which, in one aspect, was drafted with an eye to avoiding certain constitutional problems which can attend from the conferral on a judicial body of a non-judicial, or administrative, function.
Whether a given statutory provision is concerned with a judicial function which can be reposed unexceptionably in a Chapter III court, or an administrative function which can be entrusted only on a member of a court in his or her personal capacity is a question essentially of characterisation. As Gibbs CJ, Wilson and Dawson JJ said in Hilton v Wells (1985) 157 CLR 57, at 72-3;
“Where the power is conferred on a court, there will ordinarily be a strong presumption that the court as such is intended. Where the power is conferred on a judge, rather than on a court, it will be a question whether the distinction was deliberate, and whether the reference to "judge" rather than to "court" indicates that the power was intended to be invested in the judge as an individual who, because he is a judge, possesses the necessary qualifications to exercise it. Even if it were to be assumed that the fact that the power conferred by s. 20 is conferred on "a Judge" gives rise to a prima facie presumption that it is conferred on the judge as such, and that he will determine it as a member of the court to which he belongs, we consider that there are sufficient indications in the statute to rebut that presumption.”
See also per Mason and Deane JJ, at 81-2.
As already noted, the learned primary Judge referred in the course of his reasons to some observations of Einfeld J in Grollo & Anor v Bates & Ors (1994) 53 FCR 218. He seems to have perceived the differences between the section there at issue and the relevant section of the Act, which meant that Grollo v Bates is not completely analogous. That led his Honour to say, at [20], that he was “not entirely convinced” that Einfeld J’s analysis would tend to the same conclusion given the existence now of the HRA, and a common law immunity against compulsory forensic procedures or medical examinations identified at [21] by his Honour. Ultimately, however, the primary Judge expressed himself as “by no means convinced that [Einfeld J] was in error in the characterisation of the power”, and so, despite his doubts, was prepared to say that “[t]here are strong indications in the [Act] that it is an administrative power being exercised”, and to proceed on the basis that the power conferred by s 34 is of that character.
The primary justification for his Honour’s approach appears to us to be found in the language of Division 2.5.2 of the Act, which provides, for example, by s 33, that “a magistrate may order the carrying out of a forensic procedure…”, by s 34(1) that “the magistrate must be satisfied on the balance of probabilities…”, and by s 34(2) that “the magistrate must balance the public interest…” (emphasis added). Each occurrence of the word which we have emphasised, as the primary Judge’s reasoning suggests, supports the view that the statutory function in s 34 is conferred upon a magistrate and not upon the court of which he or she is a member. The concept of persona designata is seen by some authorities as involving excessive formulary (see, eg, per Mason and Deane JJ in Hilton v Wells (supra), which may be exemplified by the formulation in Div 2.5.2. However, we accept that, on the authorities as they now stand, the primary Judge was correct to conclude that s 34 confers a statutory function on a magistrate personally, and not on the Magistrates’ Court as an institution. It may be questioned whether this analysis is necessary when examining a power arguably conferred on the Magistrates’ Court of this Territory. However, no submissions were directed to that question and it is therefore sufficient to indicate our acceptance that the concept of persona designata requires the function performed by the Magistrate to be characterised as an administrative one, the exercise of which was amenable to review by a Judge of this Court under the AD(JR) Act.
We turn next to consider in turn each of the grounds on which the appellant seeks to impugn the Magistrate’s decision.
Error of Law
As mentioned, the first ground of appeal relied on by the appellant in this Court is that the learned Magistrate committed an error of law in rendering her decision. In this connexion, counsel for the appellant emphasised the requirements of s 39 of the Act, which provides:
“Action to be taken on making of orders
(1) If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must—
(a) give reasons for making the order; and
(b) ensure that a written record of the order is kept; and
(c) if the suspect is present or represented by a lawyer—inform the suspect or lawyer that reasonable force may be used to enable the forensic procedure to be carried out; and
(d) if the suspect is a child or incapable person—inform the suspect's interview friend or lawyer that reasonable force may be used to enable the forensic procedure to be carried out.
(2) The magistrate may give directions about the date, time, place where, or how a forensic procedure is to be carried out.”
The appellant, in support of this ground, contended that the primary Judge’s account, at [76] of his reasons – that “no real challenge was made to her Honour’s finding of the law” – does not “fairly represent the challenge made to [the Magistrate’s] treatment of the relevant legal test”. In the course of submissions, it became clear that the substance of the appellant’s argument on this issue was essentially the same as that advanced before the primary Judge: that the Magistrate had not properly struck – i.e., according to law – the balance required by s 34 of the Act.
Counsel for the appellant referred, extensively in this context, to the inter-relation between s 34(2) and (3). Sub-section (2), it will be recalled, requires the Magistrate to consider the public interest in obtaining the evidence sought with the public interest in upholding the “physical integrity of the suspect”, so as to come to a conclusion about whether the forensic procedure sought by the moving party is “justified in all the circumstances”. Sub-section (3) then directs attention in the performance of the task ordained by sub-s (2) by mandating various matters to be taken into account in reaching a conclusion.
Counsel for the appellant contended that, in failing to make explicit reference to s 34(2), the learned Magistrate revealed a misunderstanding of the task in which she was engaged.
We are not persuaded to interpret her Honour’s reasons in that way. It is appropriate, as the primary Judge observed in the course of his reasons, to keep in mind the volume of business in the Magistrates’ Court and the urgency with which the Magistrate required to determine Mr Sleiman’s last-minute application. We consider, as well, that the decision, being an administrative one as we have held it to be, attracts the principle that the High Court considered in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, to be “well settled”, that the reasons of an administrative decision-maker are not to be read “minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280, at 287.
The Magistrate’s reasons are reproduced at [6] above. It is true that they contained no explicit reference to s 34(2). However, reading the reasons as a whole with the benevolence enjoined by Wu Shan Liang, we consider that they reveal that the balancing exercised required by s 34(2) was kept steadily in mind. It is noted in the first paragraph of the extract that the offence of which Mr Sleiman was accused is a “serious offence”. This is amplified in the fourth paragraph of the extract, where the learned Magistrate speaks of armed robbery being “a most serious crime in this Territory, and indeed in every other jurisdiction”. Read in the context of all that was said in the course of the hearing of the application, it is tolerably clear that the Magistrate’s mind was properly and correctly directed to the task imposed by the Act notwithstanding the absence from her reasons of any specific reference to consideration of the public interest in the “physical integrity of the suspect”.
This conclusion is reinforced, in our view, by the manner in which s 34 has been drafted. As we have already observed, sub-s (2) ordains a balancing exercise and sub-s (3) then instructs the decision-maker by directing his or her attention to various mandatory criteria as to how that exercise is to be carried out. It is a necessary inference, therefore, that when she made detailed references to the criteria in sub-s (3) the learned Magistrate understood that those criteria were to be applied in carrying out the balancing exercise described in sub-s (2).
For these reasons, this Court is not persuaded that the Magistrate committed the error of law for which the applicant contends and ground 1 of the appellant’s grounds of appeal accordingly fails.
Irrelevant Consideration or Improper Use of Power
In his written submissions, Mr Archer of Counsel, who appeared for Mr Sleiman in this Court, acknowledged the shortcomings of the appellant’s notice of appeal, part of which is set out above at [21]. It is convenient to address the contentions implicit in the notice of appeal in the way in which Mr Archer refined them in his oral submissions. As we understood them, these contentions were advanced in support of grounds 2 and 3:
· The Magistrate took into account an irrelevant consideration, namely that one factor justifying the ordering of a forensic procedure was the possibility evidence available as a result of a “match” of Mr Sleiman’s DNA with the NSW sample might be ruled inadmissible in a future trial. Admissibility, it was said, was “a distinct and separate question” from what the considerations made relevant by s 34(2) required; and
· The Magistrate failed to take account of a relevant consideration, the “countervailing public interest” – that is, the public interest in the “physical integrity of the suspect” identified in s 34(2) of the Act.
The appellant’s complaint, then, is that the Magistrate took into account an irrelevant consideration, and failed to take into account a relevant one. We shall examine these contentions separately and in turn.
Admissibility
As already indicated, the error imputed to the Magistrate under this head was that questions of admissibility of evidence obtained otherwise than by the carrying out of the proposed forensic procedure were outside what was made relevant by s 34(2). Additionally, the observations, or “findings”, made by the learned the Magistrate were said to be unsupported by any evidence.
It is true, as the extract reproduced above at [6] reveals, that considerations of admissibility were at the forefront of the Magistrate’s mind during her hearing and determination of the application before her. However, the appellant’s contention on this point may be disposed of shortly. In the first place, we are not persuaded that the admissibility of evidence available otherwise than from carrying out the proposed forensic procedure can never be relevant to the balancing exercise ordained by s 34(2). As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39-40:
“(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject matter, scope and purposes of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. [citations omitted]”
We regard the discretionary balancing exercise which s 34 requires as unconfined in the sense used in that passage. That is particularly so when it is borne in mind that s 34(3) compels regard to be had to, amongst others,
“(h) any other matter considered relevant to balancing those interests.”
In any event, the fact that one of the matters to be weighed in the balance is “the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned” raises the clear implication that the prospective admissibility of the other evidence having the requisite tendency can be a relevant consideration.
Moreover, immediately after the passage from Peko-Wallsend which we have just cited, Mason J observed;
“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision… A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision.” (emphasis added; citations omitted)
We cannot accept that, upon a fair reading of the Magistrate’s decision, the question of admissibility assumed such an importance in her mind that she overlooked the statutory criteria to which she was bound to have regard. The Magistrate’s treatment of the question of admissibility, clearly because of the concentration on it by counsel before her, we are led to think, is therefore insignificant in the sense contemplated by Mason J in the passage last cited.
For these reasons we remain unpersuaded that, by canvassing the matters outlined in the second paragraph of her reasons, the Magistrate took into account an irrelevant consideration.
The Physical Integrity of the Suspect
It will readily be appreciated that the appellant’s next contention, that the Magistrate failed to take into account a relevant consideration, being the public interest in upholding his physical integrity, overlaps to a considerable extent with the attempt to impute to the Magistrate an error of law which we have discussed at [28]-[35] of these reasons.
In support of this contention, Mr Archer referred to s 12 of the HRA, which provides:
“Privacy and reputation
Everyone has the right—
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) or not to have his or her reputation unlawfully attacked.
He referred also to s 28, which is in these terms:
Human rights may be limited
(1)Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.
(2)In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d)the relationship between the limitation and its purpose;
(e)any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.”
Mr Archer then referred to the analogue of s 28 in the European Convention on Human Rights, article 8, which provides:
“ARTICLE 8
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Among the authorities which have discussed that article, Mr Archer referred to the decision of the European Court of Human Rights, Case of S. and Marper v The United Kingdom (2008) 158 NLJ 1755; [2009] Crim LR 3. The Grand Chamber of that Court was there concerned with the scheme established by the Police and Criminal Evidence Act 1984 (UK). The Grand Chamber, in finding that the scheme contravened the guarantee embodied in article 8, reasoned as follows:
“118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.
119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
120. The Court acknowledges that the level of interference with the applicants' right to private life may be different for each of the three different categories of personal data retained. The retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein. However, such an indiscriminate and open-ended retention regime as the one in issue calls for careful scrutiny regardless of these differences.
121. The Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion. The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 67 above).
122. Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal (see Asan Rushiti v. Austria, no. 28389/95, § 31, 21 March 2000, with further references). It is true that the retention of the applicants' private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.
123. The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future. The Court, however, finds this argument difficult to reconcile with the obligation imposed by section 64(3) of the PACE to destroy the fingerprints and samples of volunteers at their request, despite the similar value of the material in increasing the size and utility of the database. Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people.
124. The Court further considers that the retention of the unconvicted persons' data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. The Court has already emphasised, drawing on the provisions of Article 40 of the UN Convention on the Rights of the Child of 1989, the special position of minors in the criminal-justice sphere and has noted in particular the need for the protection of their privacy at criminal trials (see T. v. the United Kingdom [GC], no. 24724/94, ss 75 and 85, 16 December 1999). In the same way, the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council as to the impact on young persons of the indefinite retention of their DNA material and notes the Council's concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities, who have not been convicted of any crime (see paragraphs 38-40 above).
125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.
126. Accordingly, there has been a violation of Article 8 of the Convention in the present case.”
On that basis, Mr Archer submitted that:
“It is not…consistent with the tenor of 12 or the limitation in section 28 of the HRA to give judicial encouragement to a process of repeated applications for DNA samples in cases where there are viable and readily accessible DNA samples already in existence.”
Whatever may be the broader implications of the jurisprudence to which Mr Archer has referred, the Court is here concerned solely with whether the Magistrate failed to take account of the physical integrity of the appellant in coming to her decision. As we already observed at [32]-[35], we are unable to conclude that she overlooked that consideration. It was apparently common ground at the hearing before the Magistrate that the taking of a buccal swab involves some intrusion on the physical integrity of a suspect. However, the magnitude of that intrusion is relatively low by the scale afforded by the full range of available forensic procedures to the issue. It is therefore understandable that express reference to this consideration was not made by the learned Magistrate in her reasons.
Conclusion
As we have endeavoured to explain, none of the appellant’s contentions as refined in the course of the oral hearing of the appeal has been sustained. It follows that the learned primary Judge did not err in refusing the application for review of the Magistrate’s decision. It was for these reasons that we dismissed the appeal.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 23 February 2010
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Porters Lawyers
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 9 February 2010
Date of judgment: 9 February 2010
Date of reasons: 23 February 2010.
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