ACP v Munro

Supreme Court of NSW|2012-07-25|Before: Button J

The application under appeal 24In order to understand the orders sought by the defendant, it is necessary for me to give a little more detail about the proceedings before her Honour. 25It will be recalled that an order authorising the first procedure had been sought by the prosecutor twice before. That called for consideration by her Honour of the test in s 26(3) of the Act. That section is as follows: "If a Magistrate refuses an application for an order authorising the carrying out of a forensic procedure on a suspect, the authorised applicant (or any other person aware of the application) may not make a further application to carry out the same forensic procedure on the suspect unless he or she provides additional information that justifies the making of the further application." 26With regard to the first procedure, the defendant submitted in the Local Court that that test had not been made out. The Magistrate rejected that submission. That rejection founds the first challenge to the first procedure. 27With regard to the second and third procedures, as I have indicated, the prosecutor relied upon a report of a Professor Fryer of 27 March 2012. To summarise its contents with great succinctness, the Professor expressed the opinion that measurements and photographs of the defendant could usefully be compared with stills of the offender derived from the CCTV footage. 28In the Local Court, the defendant applied to cross-examine Professor Fryer. That application was made pursuant to ss 30(6) and 30(7) of the Act. Those provisions are as follows: "(6) The suspect or his or her representative: (a) may cross-examine the applicant for the order, and (b) may, with the leave of the Magistrate, call or cross-examine any other witness, and (c) may address the Magistrate. (7) A Magistrate must not give leave under subsection (6) (b) unless the Magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined." 29The Magistrate rejected that application, and that rejection founds the first challenge to the second and third procedures. 30In response to the evidence of Professor Fryer, the defendant sought to tender a report of 15 April 2012 from Dr Kemp. Again, to summarise its effect with great succinctness, the defendant sought thereby to reduce the probative value of the contents of the report of Professor Fryer. The operative statutory provisions were those that I have referred to above. 31The Magistrate rejected that application, and that rejection constitutes the second challenge to the second and third procedures. 32Having determined those questions with regard to the three procedures, her Honour turned to the test in s 24 of the Act. That section in its entirety is as follows: "24 Final order for carrying out forensic procedure (1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities: (a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances. (2) In the case of an intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (3) In the case of a non-intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following: (a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, (i) such other matters as the Magistrate considers relevant to the balancing of those interests." 33Her Honour rejected the submission of the defendant that the test had not been made out. That rejection founds a challenge to all three procedures. 34Finally, the defendant made a submission in this Court that had not been made to her Honour. He submitted that the third procedure does not fit within the definition of a non-intimate forensic procedure contained in the Act. That definition is as follows: "3 Interpretation (1) Definitions In this Act: ... non-intimate forensic procedure means any of the following: (a) an external examination of a part of a person's body, other than the person's private parts, that requires touching of the body or removal of clothing, (b) the carrying out on a person of a self-administered buccal swab, (c) the taking from a person of a sample of the person's hair, other than pubic hair, (d) the taking from a person of a sample (such as a nail clipping) of the person's nails or of matter from under the person's nails, (e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person's body, other than the person's private parts, (f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person's body, other than the person's private parts, (g) the taking from a person of the person's hand print, finger print, foot print or toe print, (h) the taking of a photograph of a part of a person's body, other than the person's private parts, (i) the taking from a person of an impression or cast of a wound from a part of the person's body, other than the person's private parts, (j) the taking of a person's physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person's body, other than the person's private parts. ..." 35If that is the case, he submits, then the third procedure cannot stand. Because the second procedure is merely one that permits the taking of photographs of the third procedure, he submits that the second procedure cannot stand either. That constitutes a further challenge to the second and third procedures. 36Although that submission was not made to her Honour, that was because the defendant was unaware of a very recent decision of this Court with regard to the topic. In the circumstances, the prosecutor did not submit that I should not consider that ground. 37To summarise, the defendant impugns the order authorising the three procedures in a number of ways. He impugns the first procedure on the basis that her Honour applied a wrong test in permitting a further application, pursuant to s 26(3) of the Act. He impugns the second and third procedures on the basis that her Honour applied a wrong test in refusing to grant leave to the defendant to cross-examine Professor Fryer, pursuant to ss 30(6) and 30(7) of the Act. The second and third procedures are also impugned on the basis that her Honour applied a wrong test in refusing the defendant leave to call Dr Kemp, pursuant to the same provisions. He impugns all three procedures on the basis that her Honour applied a wrong test in determining whether to make final orders, pursuant to s 24 of the Act. Finally, he impugns the second and third procedures on the basis that, in truth, the Act does not permit such procedures because they do not fall within the definition of a non-intimate forensic procedure contained in s 3 of the Act. 38It is convenient to deal with the last issue first.

Submissions 39There was no dispute between the parties that none of the procedures ordered were intimate forensic procedures as defined by the Act. If they were anything, they were non-intimate forensic procedures. 40The submission of the defendant was a simple one. He submitted that the taking of measurements of his height and of parts of his body, as described in the third procedure, did not fit within the definition of a non-intimate forensic procedure contained in s 3 of the Act. He submitted that the only paragraphs of that definition within which those procedures could conceivably fit are (a) and (j). 41As for (j), he submitted that there was no evidence that the measurements were undertaken "for biomechanical analysis". He submitted that the report of Professor Fryer demonstrated that what was proposed to be undertaken was a comparison of still photographs of the defendant with still photographs of the offender derived from the CCTV footage. He submitted that because biomechanics is "the study of mechanical movements of biological organisms" (to quote from the Macquarie Dictionary), what was proposed does not fall within (j). 42Turning to (a), the defendant submitted that taking measurements of the body of a person is not "an external examination of a part of person's body". He referred to the recent decision of Fullerton J in Coffen v Goodhart [2013] NSWSC 1018. He also submitted that none of the measurements proposed in the third order would require "the touching of the body or removal of clothing" of the defendant. Accordingly, he submitted that the second and the third procedure did not fall within (a) either. 43He submitted that the second and third procedures did not fall within any other paragraph under the definition of non-intimate forensic procedure. Accordingly, he submitted that they were not non-intimate forensic procedures. Nor were they intimate forensic procedures as defined. Therefore, he submitted, the Magistrate had no power to order them, and they should be quashed. 44When I queried during submissions whether such a result could be anomalous, the defendant pointed to the nature of the Act as a whole. Constituting as it does an invasion of the person of citizens, the defendant submitted that it must be construed strictly, in accordance with well-established principles of statutory construction. 45The defendant dealt with the degree to which the decision of Fullerton J binds me. He submitted that single judges of this Court constitute an intermediate appellate court from decisions of magistrates with regard to orders for forensic procedures. He submitted that not only was I bound by the usual principles of comity, but also by the principles that would attach to the consideration by an intermediate appellate court of its previous decisions. He relied upon the discussion by Heydon J in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462. 46In short, the defendant submitted that I should follow the decision of Fullerton J unless convinced that it is clearly wrong; that the reasoning in that judgment demonstrates that what is proposed here does not fall within any paragraph of the definition of a non-intimate forensic procedure; that the Magistrate had no power to make the order with regard to the second and third procedures; and that therefore the parts of the order authorising the second and third procedures should be quashed. 47The prosecutor accepted that the second and third procedures did not fall within the definition of an intimate forensic procedure. However, it was submitted that they did fall within the definition of a non-intimate forensic procedure. 48With regard to (j), it was accepted that there was no evidence before the Local Court that the measurements were to be undertaken for the purpose of biomechanical analysis. It was also accepted that that kind of analysis must involve some consideration of movement. 49However, the prosecutor submitted that the second and third procedures fall within (a). It was submitted that the facts of Coffen v Goodhart could be distinguished. In that case, it was submitted, what was proposed was merely to measure the height of the defendant. Here, of course, what is proposed is to measure not only the height, but also a number of distances between aspects of parts of the body of the defendant. The prosecutor submitted that, in truth, what was being proposed in the second and third procedures was an external examination of a part of a person's body. It was submitted that the taking of a number of measurements, considered as a whole, could constitute "an external examination". The prosecutor submitted that such a process fell within (a). 50Reliance was also placed upon the judgment of Bell J in Dickson v Commissioner of Police [1999] NSWSC 1100; (1999) 48 NSWLR 156. I will turn to a detailed analysis of the judgment in that case in my determination. 51The prosecutor also submitted that I should follow the obiter dicta of Fullerton J and "read into the requirement that the examination under consideration involves touching of the body or removal of clothing, the words 'if necessary'." 52In short, the prosecutor submitted that the decision of Fullerton J could be distinguished on the facts, at least with regard to particulars (b) - (f) of the third procedure; that the proposed procedures were an "external examination of part of a person's body"; that removal of "clothes" was not essential; that therefore the vast bulk of the third procedure fell within the definition in (a); and that therefore, except for so much of the order as authorises particular (a) of the third procedure, the order should not be quashed.

Determination 53It is convenient to consider first what was decided in Coffen v Goodhart. The proceedings were an appeal against an order of a magistrate authorising the taking of a measurement of the height of a defendant. The issue was whether such a procedure fell within the definition of a non-forensic intimate procedure. Fullerton J said at [9]: "I am unable to see how the measurement of a person's height (from the heel of the foot to the crown of the head) can be sensibly understood as involving 'an ... examination of a part of a person's body". (original emphasis) 54Furthermore, her Honour said at [9]: "I also consider that it impermissibly strains the language of the section for the measurement of a person's height to be characterised as an 'external examination'. The Macquarie dictionary defines 'examination' to include an inquiry, inspection or investigation. The taking of a measurement is not an examination of the body in either of these senses but an assessment or a calculation against a metric standard." 55In remarks that were obiter dicta, her Honour said at [10]: "[I]n my view it would do no damage to the definition of a non-intimate forensic procedure in (a) of s 3(1) to read into the requirement that the examination under consideration involves touching of the body or removal of clothing, the words 'if necessary'. Self-evidently, if a person presented for a compulsory height measurement barefoot (and without a hat or perhaps a hooded sweater) there would be no need for clothing to be removed for a height measurement to be taken. Simply because a person may present barefoot and bare headed at a police station under compulsion of an order under the Act that their height be measured would not deprive a magistrate of reliance on (a) of s 3(1) assuming it was otherwise open, which in my view it is not." 56The first step is to determine the degree to which I am bound by those decisions of her Honour. I accept the submission of the defendant about the binding nature of the decision of Fullerton J upon me. Quite apart from considerations of comity between single judges of the same Court, I agree that it would be very undesirable for the determination of appeals from orders of magistrates authorising forensic procedures to depend upon the capricious question of which judge of this Court happens to have the matter listed before him or her. I consider that I should follow the two determinative remarks that Fullerton J made in Coffen v Goodhart, unless I am affirmatively satisfied that either of them is clearly wrong. As for the obiter dicta of her Honour, I consider that I should give those great weight as well, in the circumstances. 57Applying the first determination of her Honour to the facts of this matter, it follows that particular (a) of the third procedure cannot stand. I respectfully agree with her Honour that it is impossible to construe a measurement of the overall height of the defendant, whether with or without shoes, as "an external examination of a part of a person's body". The height of a person is an attribute of the person, not a part of his or her body. 58As for the rest of the third procedure, I am respectfully unsure whether I agree with the entirety of the portion of the judgment of Fullerton J that I have quoted from [9]. In particular, to the extent that the last two sentences appear to be speaking of measurements in general and not merely the measurement of the height of a person, I consider that alternative views could be held. It could be said that, at least in some circumstances, a measurement of a part of the body of a person could be an external examination of a part of the body of that person. For example, the measurement by a doctor of the width of a possibly pre-cancerous mole on a person's skin could perhaps be characterised as an "external examination" of a part of the body of that person. 59However, I am not satisfied that the reasoning of her Honour is clearly wrong. It follows that I should apply the second proposition that I have extracted to this case. 60Each of the particulars of the third order other than (a) envisages a measurement of a part of the body of the defendant. They do not envisage, for example, 15 measurements of the left hand of the defendant that could, in their combined effect, be said to constitute "an external examination of a part" of the body of the defendant. What is proposed is, rather, a single measurement of a number of individual parts of the body of the defendant. It follows that I reject the submission of the prosecutor that the various measurements compendiously add up to an external examination of a part of the body of the defendant. 61Applying the second binding proposition of Fullerton J, what is encompassed by the third order in paragraphs (b) - (f) are not external examinations. They are measurements of parts of the body of the defendant, and not external examinations of those parts of his body. It follows that, subject to any illumination of the question provided by the decision in Dickson v Commissioner of Police, the appeal with regard to the second procedure and the third procedure should be allowed. 62In Dickson v Commissioner of Police, Bell J was called upon to construe s 353A(2) of the Crimes Act 1900 as it then was. The subsection has been substantively, but not identically, reproduced in s 138 of LEPRA. In that case, Bell J determined that an examination for the purposes of the subsection was not limited to being a medical examination. Her Honour also applied New South Wales authority, as opposed to contrary South Australian authority, to the effect that such an examination should be limited to an examination "by eye and touch". Her Honour therefore rejected the proposition that such an examination could include that taking of a blood sample. Finally, her Honour was of the opinion that the subsection did not permit the placing of ink dots on the person of a defendant in order to assist with a biomechanical analysis. 63The decision in Dickson v Commissioner of Police was an exercise in statutory construction with regard to a different section in a different piece of legislation. Although it was helpful to have been referred to it, I do not find it determinative in this matter. 64It follows that the appeal against the part of the order authorising the second and third procedures will be upheld. 65Although it is not necessary to determine the question in these proceedings, I also find the obiter dicta of Fullerton J persuasive. In other words, even accepting the strictness with which one should interpret a provision of the kind under consideration, I consider that it is appropriate to import into the very end of (a) of the definition, the phrase "if necessary". Not to do so would permit any defendant to defeat an application for such a procedure (that does not require touching of the body) by informing the magistrate that he or she proposes to attend for any such procedure completely naked. It is one thing to interpret such a provision strictly; it is another to interpret it in such a way as to give rise to absurdity: see Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337 at 371. 66It might be thought that the result that I consider appropriate is anomalous, in that only precisely defined examinations or measurements of the bodies of defendants will be permitted, pursuant to (a) and (j) of the definition of a non-intimate forensic procedure. For example, it is an odd result that (j) permits the taking of measurements for the purpose of biomechanical analysis but not for other purposes, even though the latter may produce relevant evidence, perhaps more probative than any produced by biomechanical analysis. But so much flows from the decision of Parliament to define with precision the kinds of procedures that will fall within the definition of a non-intimate forensic procedure. It may be the case that, after 12 years of the operation of the Act, Parliament should reconsider whether the definitions of non-intimate forensic procedures remain appropriate. 67Because of my disposition of this challenge to the second and third procedures, it is not strictly necessary for me to deal with the other challenges to the order insofar as it authorises those procedures. However, as against the possibility that I am wrong with regard to the challenge currently under consideration, I shall deal with all of the submissions of the defendant in this Court. I shall consider them not in the order in which they were dealt with in the Local Court, but rather in an order that assists their logical disposition by me.

Further application justified? 68I turn to consider the challenge made to the first procedure alone that is founded upon s 26(3) of the Act. 69It is convenient to set out the ex tempore judgment of the Magistrate in full at this stage: "Yes, unfortunately, that may not be the end of the it [sic] whatever I do, however, there are indeed prior proceedings and there was in fact a series of errors on the part of the prosecution in making the initial application and in the procedures that were undertaken prior to that and it is against that background obviously that these matters have to be considered and also they were very relevant to the fate initially of this second application I think and the question of whether there was in fact substantial additional information which could be the basis of a subsequent application in relation at least to the first aspect of this application. I have considered very carefully the material that is set out largely in the prosecutor's submissions and I am satisfied on the basis of the evidence that has been put before the Court and the material that I am not precluded from considering a further application notwithstanding those errors which occurred and that it is obviously a balancing exercise which involves not only a consideration of those errors and whether the Crown should be precluded from moving forward because of that conduct and legally that is not absolutely the case but as a matter of discretion it is something which needs to be taken into account very carefully when a person's rights particularly those long held rights against self incrimination are to be disturbed. I am satisfied that there has been substantial additional information contained in this application and that notwithstanding the fact that at least part of it was available at the time of the first application that should not be a bar and that in the interests generally of properly discharging this application I should allow the application to come forward. That substantial additional information in relation to the first part I think is available. I don't propose to go through all of the details of it but it has been set out in the list in the submission from the prosecution and I will be happy for that to remain on the court papers as part of this determination. I THEREFORE FIND THAT THE PROSECUTION HAS DISCHARGED THE ONUS IN RELATION TO 26(3)."

Submissions 70The defendant submitted that the Magistrate had applied a wrong test. In particular, he submitted that, in determining whether or not there was additional information that justified the making of the further application, her Honour had not taken into account the fact that the defendant was being "vexed twice" (or rather, thrice). It was submitted that the Magistrate should have given explicit consideration to concepts that could very broadly be described as "double jeopardy". Accordingly, it was submitted, the order, insofar as it authorises the first procedure, should be quashed. 71The prosecutor submitted that the statutory test is simply what appears in the subsection. It is not to be glossed or elaborated by concepts such as double jeopardy developed in other contexts. The prosecutor submitted that the only judicial consideration of that test is to be found in the judgment of Munro v ACP. She submitted that nothing said by the Magistrate was inconsistent with what R A Hulme J had said in that decision of this Court. The ancillary position of the prosecutor was that, even if double jeopardy and related concepts did require explicit consideration, the fact is that they indeed appear in the judgment. Therefore, it was submitted, the proposition that the Magistrate applied a wrong test should be rejected.

Determination 72It is not disputed between the parties that the decision of the Magistrate with regard to this threshold question was preceded by very detailed and competent oral and written submissions by both the solicitor then appearing for the prosecutor and the solicitor then appearing for the defendant. To my mind, it is inconceivable that the Magistrate was unaware of the statutory test that fell for consideration pursuant to s 26(3). 73Furthermore, I am not persuaded that considerations of double jeopardy fall for separate consideration under the subsection. The structure of the subsection is that a further application may not be made (let alone granted) unless a particular precondition is made out. That precondition is a satisfaction on the part of the Magistrate that the additional information provided by a prosecutor justifies the making of the application. The word "justifies" connotes a concept of the balancing of competing considerations, in light of the fact that the primary definition given in the Macquarie Dictionary of the word "justify" is "to show (an act, claim, statement, etc.) to be just, right, or warranted". It is true that that process should include a consideration of the number of previous applications and their surrounding circumstances, in determining whether the test has been made out. To that extent, I agree that the subsection calls for reflection on the degree to which a defendant has been "vexed". But nothing in the subsection, nor in the judgment of R A Hulme J, calls for an explicit, detailed discussion of the principle compendiously known as double jeopardy. It follows that I reject the primary submission of the defendant. 74Even if I am wrong about that proposition, I consider that a fair reading of the reasons of her Honour demonstrates that the fact that there had been repeated applications that were the subject of repeated appellate review was indeed taken into account by her Honour. I refer in particular to the first paragraph of the judgment extracted above. 75This was an interlocutory threshold ruling that did not determine guilt, made by a Magistrate in oral ex tempore reasons. If this Court trawled through such reasons with a fine-tooth comb, the criminal justice system would grind to a halt. One can imagine the effect it would have on that system if, for example, every time a judicial officer made a determination as to bail, he or she was required to state the regime of presumptions being applied pursuant to ss 9 to 9D of the Bail Act 1978, or the multitude of mandatory criteria being applied to the question pursuant to s 32 of the same Act. 76There are very many cases to the effect that such judgments have to be approached in a practical way: see, for example, Maviglia v Maviglia [1999] NSWCA 188 at [1]; Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402 at [15]; Munro v ACP [2012] NSWSC 100 at [21]; and Director of Public Prosecutions v Smith [2012] NSWSC 281 at [18]. Adopting such an approach, I consider that the judgment, especially considered in light of the ample submissions that preceded it, does not demonstrate that the Magistrate applied a wrong test to this question. 77I perceive no error of law. Therefore, I do not propose to quash the first procedure on this basis, whether by way of appeal or prerogative relief.

Cross-examination of a prosecution witness? 78I turn next to the interlocutory question determined by her Honour as to whether the prosecution witness Professor Fryer should have been made available for cross-examination by the defendant as part of the determination of the application for the second procedure and the third procedure. As can be seen from the extract of s 30 of the Act that I have provided, it was incumbent upon the Magistrate not to grant leave to the defendant to undertake such cross-examination unless her Honour was affirmatively satisfied by the defendant that there were "substantial reasons why in the interests of justice" that should be done. 79I set out the judgment of her Honour: "HER HONOUR: ... I have looked very carefully at what is purported to be said in the claims by Emeritus Professor Fryer and what is indicated he would undertake. It is a fairly narrowly defined process using photogrammetry and using that for the purpose of analysing in a mathematical methodology the information which might be derived from the available CCTV and then subsequently compared with the information which might be provided then by virtue of this application. It does seem to me that on the face of it, what he is suggesting he would be doing is somewhat mechanical activity and I do not think that it is something which would be illuminated a lot more by cross examination in any event. It is obviously something which if the outcome of his measurements were to be established in the way that he says could be of some usefulness in the process, I would not however think that it would assist the Court greatly were he to be cross examined. The matters which have been raised and I refer to the evidence of Dr Kemp which is not the subject of these proceedings but which I was obliged to read in any event, clearly indicates what might be issues which the defence might have wished to challenge him on if he eventually ever does the report he is proposing and it would be well for him and the prosecution to bear in mind those potential criticisms when he purports to either give the analysis or to draw any conclusions from it. But I think that that is something which is fairly obvious and which is not necessarily deficiency [sic] in the material which is put before the Court now, and I DO NOT PROPOSE TO ALLOW FURTHER TIME FOR THIS MATTER TO BE EXPANDED BY HIM BEING CROSS EXAMINED."

Submissions 80The defendant submitted that the Magistrate had failed to apply the correct test. It was submitted that it was noteworthy that at no stage of the judgment do the precise words of the subsection, or indeed an approximation of them, appear. It was submitted that, to the extent that the judgment speaks of whether the evidence of Professor Fryer would be "illuminated" or whether there was "deficiency", the Magistrate had not considered whether there were substantial reasons why, in the interests of justice, the witness should be cross-examined. It was also submitted that the discursive discussion at the end of the judgment about how weaknesses in the evidence of Professor Fryer should be approached in future demonstrated that the Magistrate was applying a wrong test. 81The prosecutor submitted that the judgment of her Honour was preceded by lengthy and detailed oral and written submissions of both parties that invited her Honour to the correct test with great clarity. There was no dispute in the Local Court about the correct test to be applied. It was submitted that I am permitted to take the context of the judgment into account, and am not restricted to considering merely the words of the judgment itself in determining whether a wrong test has been applied. Reliance was placed upon Condor Asset Management Pty Ltd v Primestone Developments Pty Ltd [2007] NSWSC 708 at [60] - [62]; Sunter v District Court of New South Wales [2008] NSWCA 313 at [35]; Director of Public Prosecutions v Smith [2012] NSWSC 281 at [18] and O'Brien v Hutchinson [2012] NSWSC 429 at [14] in support of that proposition. The submissions of the prosecutor noted that the ground was not failure to supply adequate reasons, but rather the application of a wrong test. The prosecutor submitted that the defendant had not demonstrated in this Court that the Magistrate had applied a wrong test.

Determination 82A number of factors argue against the submission of the defendant. First, the test to be applied by the Magistrate was a simple one, calling for consideration as it did of only two separate concepts. Secondly, the test has been a commonplace and well-known part of the criminal justice system since 1997, when it was adopted as a test that determined whether the bulk of prosecution witnesses should be required for cross-examination in committal proceedings. Thirdly, it is undeniable that the correct test was repeatedly brought to the attention of her Honour by both parties before her Honour delivered the judgment. 83The proposition that I am permitted to consider the whole of the transcript of the matter, including the interchanges between the Bench and the Bar table and the written submissions received from both parties, is of significance in my determination. 84It is true that the judgment does not explicitly reflect the statutory test. But in light of the simplicity of the test; its important and longstanding role in the criminal justice system; and the repeated references to it by the parties, I consider it inconceivable that the Magistrate was not aware of the test that her Honour was required to apply to the question. My remarks with regard to the challenge to the first procedure founded upon s 26(3) are apposite here as well. 85Nor do I consider that the discussions by her Honour in the judgment as to perceived limitations in the evidence of Professor Fryer, and the approaches that may need to be taken to it at some future stage of the proceedings, demonstrate that the Magistrate has applied a wrong test. 86I am not persuaded that the Magistrate applied a wrong test. Accordingly, I do not propose to grant relief, whether by way of appeal or prerogative relief, with regard to the determination about whether Professor Fryer should be called as a witness.

Receive evidence of a defence witness? 87As can be seen from the extract from s 30, the Magistrate was required to apply the same test with regard to the question of whether the defendant should be permitted to call Dr Kemp. The relevant judgment is as follows: "No. Well I do not think it is necessary. I do not propose to allow it for a number of reasons but principally I have read the entirety of Morgan's case. I am satisfied that the issues that are sought to be raised in relation to Professor Kemp's evidence are not dissimilar to what his evidence might have been in that case but I do perceive there to some significant differences in the nature of the evidence that is proposed to be given by Professor Fryer as against that which was given by Henneburg in the Morgan case and I do not think that necessarily, retraversing the information which was before the Court there is going to be of a great deal of assistance to me. I certainly do agree that there are issues raised by the defence as to the possible usefulness and reliability of the evidence which is proposed to be provided by Professor Fryer if the application is successful and I think that anything to do with that can be the subject of submissions. I do not think it is necessary for you to go beyond making submissions on that basis. And I do not think I need any further evidence from Professor Kemp on those aspects of what or may not be useful or reliable or helpful. So I do not propose to allow him to be called."

Submissions 88Again, the defendant submitted that a wrong test had been applied. He emphasised the reference to questions of necessity at the beginning and end of the judgment, and submitted that it was not incumbent upon the defendant to make out that it was necessary to receive the evidence of the defence witness. Similarly, he submitted that whether or not the evidence would be of "a great deal of assistance" to her Honour was not the appropriate test. 89The prosecutor repeated the submissions about the correct approach to be taken to ex tempore oral judgments of magistrates with regard to interlocutory matters. Again, it was submitted that the parties in the Local Court were in complete agreement about the applicable test, and had repeatedly drawn it to the attention of her Honour, including very shortly before the delivery of the judgment.

Determination 90For the general reasons given by me above with regard to the question of calling Professor Fryer, I do not accept that the Magistrate applied a wrong test. I consider that, in light of the simplicity of the test, the fact that is well known, and the correct submissions of the parties, the Magistrate delivered the judgment founded on the assumption of the test, and sought to explain in that judgment why that test had not been made out. 91It follows that I do not propose to provide relief of any kind founded upon this submission.

Wrong test with regard to final order? 92At the end of the proceedings, the Magistrate was required to determine whether the test in s 24 had been made out by the prosecutor with regard to all three procedures. As can be seen from the structure of the section, that required a consideration of a number of subsidiary factors. The judgment of her Honour with regard to this question is as follows: "In relation to each of the parts of the application then, I am satisfied that there is in the proposed work to be undertaken by Professor Fryer a work which is related directly to the material which has been provided in the evidence so far and that the evidence which has been available so far goes directly to the question of identification of the defendant and that this evidence, if allowed, would be likely to either induce a reasonable belief that he committed the offence or that he did not do so and I am satisfied accordingly that it goes to the heart of the evidence which is required. The evidence which is proposed to be adduced is said to be directly dependant upon measurements and the evidence so far in the statement of Professor Fryer is that he would be using well documented methodology and photogrammetry to establish physical sizes and relationships which can then be compared with the information which would be provided in relation to the defendant by the forensic procedures. I am satisfied that the evidence in the statement sufficiently indicates that this would be a useful exercise either for the purpose of indicating the impossibility of the defendant in fact being the person of interest or, alternatively, the possibilities one somewhat remote that it could be established conclusively that he was or, more likely, that it could be established that the evidence shows that his identification through this means would be consistent with other evidence of a nature that is at this stage circumstantial. In those circumstances and given the possibility that it could exonerate him but also the possibility that it could at least indicate the possibility of consistency with other police evidence, I am of the view that this evidence certainly is of the sort of usefulness provided it is subject to the constraints which have been discussed in these proceedings as to the manner in which the work by professor fryer [sic] is carried out that would have the usefulness which is set out in his report as to the provision of comparative dimensional evidence in relation to the person depicted on the CCTV and the defendant himself. I am mindful of the extremely serious nature of the alleged offence and of the need to protect the interest of the defendant which are rights which should not be easily set aside but AT THIS STAGE I AM SATISFIED THAT THE REQUIREMENTS HAVE BEEN MET AND THAT I SHOULD ALLOW THE PROCEDURE TO BE UNDERTAKEN." 93In the proceedings before the Magistrate, the establishment of the contents of s 24(3)(a) were effectively conceded by the defendant. In other words, there was no real dispute that there were reasonable grounds to believe that the defendant had committed an offence. The dispute was about s 24(1)(b) and s 24(3)(b).

Submissions 94The defendant submitted that the various tests required by the section had not been applied. It was submitted that the first part of the judgment did not explicitly refer to the concept of "reasonable grounds to believe" contained in s 24(3)(b). Again, it was submitted that the discursive discussion of possible "constraints" is suggestive of error. He also submitted that the discussion of the question of justification in all the circumstances, pursuant to s 24(1)(b), and as informed by the balancing test in the opening words of s 24(4) and the paragraphs that follow it, was so meagre as to lead to the conclusion that the proper test had not been applied. 95The prosecutor submitted, as before, that the examination of the judgment of the Magistrate in these circumstances should not be unduly onerous or pernickety. Again it was submitted that the parties had correctly and repeatedly made submissions to her Honour founded upon the test that required consideration. The prosecutor submitted that the concluding words of the judgment demonstrated that there had been an explicit mention in the judgment of, at the least, ss 24(4)(a) and (c). It was submitted that the flavour of the last part of the judgment was consistent with a balancing test of the kind contained in s 24(4).

Determination 96It can be seen that, pursuant to s 24 of the Act, the Magistrate had to be satisfied on the balance of probabilities of three things before making any order for a non-intimate forensic procedure against the defendant. The first was that there were reasonable grounds to believe that the defendant had committed an offence, pursuant to s 24(3)(a). The second was that there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the defendant had committed that offence, pursuant to s 24(3)(b). The third was that the carrying out of the procedure was justified in all the circumstances, pursuant to s 24(1)(b). In determining the last question, the Magistrate was required to balance the public interest in obtaining evidence as to whether or not the defendant committed the alleged offence, as against the public interest in upholding his physical integrity. That was required pursuant to the chapeau of s 24(4). In undertaking that balancing exercise, the Magistrate was required to have regard to all of the factors enumerated in ss 24(4)(a)-(i). 97As noted above, the question of whether or not there were reasonable grounds to believe that the defendant had committed an offence was not an issue before her Honour. Therefore no explicit consideration of s 24(3)(a) was required. 98A fair reading of the first three paragraphs of the judgment demonstrates to my mind that the Magistrate was engaging with the test contained in s 24(3)(b). 99The fact that the Magistrate spoke of the future "constraints which have been discussed in these proceedings" does not persuade me that the Magistrate was applying a wrong test in that regard. 100It is true that the discussion of the contents of s 24(1)(b) and the balancing test and mandatory factors in s 24(4) is concise indeed. That attribute of the judgment has caused me concern. However, upon consideration, and again looking at the context of the voluminous and correct submissions as to the test to be applied, I am not persuaded that the Magistrate has applied a wrong test in this regard. Rather, I consider that the Magistrate has applied the correct test; but, because it was not the subject of dispute between the parties, has not enunciated it in the judgment. 101It follows that I do not propose to provide any kind of relief on this basis.

Proposed relief 102In short, for the reasons founded upon statutory interpretation, I propose to uphold the appeal with regard to the second procedure and the third procedure. I shall do so by "setting aside" the order insofar as it authorises them, to use the language of s 54(2)(a) of the Crimes (Appeal and Review) Act. 103I discern no legal error that could found an appeal or prerogative relief with regard to the first procedure. I shall simply dismiss the rest of the orders sought in the second further amended summons of the defendant. 104As for costs, the defendant has succeeded with regard to a proportion of the order of the Local Court under attack. 105I received detailed written submissions from the parties as to whether or not I have a power to order costs when an appeal pursuant to Part 5 of the Crimes (Appeal and Review) Act is upheld. The defendant submitted that, on various bases, I do. The prosecutor submitted that, in light of the absence of an explicit power in the Crimes (Appeal and Review) Act, I do not, as a matter of statutory construction. It cannot be disputed that, although powers to order costs are provided with regard to other appeals in the Crimes (Appeal and Review) Act, there is no such power created by statute with regard to the kind of appeal before me. 106I considered this question in Cunningham v Cunningham (No 2) [2012] NSWSC 954. In that judgment I discussed the decision of White J in ASIC v Sigalla (No. 6) [2012] NSWSC 83, and came to the view that I do have a power to order costs in these circumstances. I shall not revisit everything I said in that judgment, except to say that it may be that the question of possible lacunae in the costs powers contained in the Crimes (Appeal and Review) Act deserves the consideration by Parliament. I maintain the opinion I expressed in Cunningham v Cunningham (No 2) that I have a power to order costs in an appeal such as this, despite the absence of an explicit statutory power to do so. 107In light of his partial success in this Court, I propose to order that the defendant have 50 per cent of his costs in this Court.

Consideration of general issue 108I have upheld a ground of appeal based upon a question of statutory construction that was, for good reasons, not brought to the attention of the learned Magistrate. I also do not propose to grant any relief with regard to those aspects of the proceedings that were, in truth, founded upon alleged deficiencies in the ex tempore oral judgments of her Honour. 109With regard to the latter, I am aware from my own experience of the enormous volume of matters that are required to be dealt with in the Local Court, and the pace with which proceedings are conducted in that jurisdiction. I am also acutely aware of the fact that one should not, at leisure, criticise things done by other persons in imposed haste. 110Having said that, a large proportion of these proceedings would have simply fallen away if the learned Magistrate at each stage of the inquiry that her Honour was conducting had referred explicitly, even if only in the briefest of terms, to the statutory tests that her Honour was required to consider. Despite their interlocutory nature, and the fact that they are not determinations of guilt or otherwise, I respectfully suggest that it would not be inappropriate for magistrates dealing with applications for forensic procedures to refer in their judgments, even if only very briefly, to the applicable statutory tests being applied.

Orders (1)Appeal allowed in part. (2)The order made by the Magistrate on 20 April 2012, insofar as it authorises the second procedure, is set aside. (3)The order made by the Magistrate on 20 April 2012, insofar as it authorises the third procedure, is set aside. (4)Otherwise the summons is dismissed. (5)The first defendant to pay half the costs of the plaintiff.

Amendments 04 September 2013 - Citation reissued to Coffen v Goodhart. Citation in judgment altered from [2012] NSWSC 425 to [2013] NSWSC 1018 accordingly. Amended paragraphs: Coversheet and [42] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2013

Chronological background 5On 29 July 2010, a girl complained that she had been indecently assaulted on a train station. 6On 30 July 2010, two other girls complained that they had also been indecently assaulted on a second train station that was near the first. 7The police obtained CCTV footage of the commission of two of the offences. 8On 2 August 2010, the police showed the CCTV footage to the manager of a shop. She identified the person depicted in the footage as being the defendant. 9There was also some circumstantial evidence that supported the proposition that the defendant was the offender. 10The defendant was charged with three offences of indecent assault on 2 August 2010. He was not photographed pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") at that stage, seemingly by oversight. 11On 24 September 2010, Stapleton LCM, sitting in the Local Court at Hornsby, made an order for a forensic procedure. That order permitted the taking of a photograph of the face of the defendant from the front and sides. At that stage the evidence from the manager was not placed before the Court. The only evidence upon which the prosecutor relied in support of the application was an affidavit sworn by the prosecutor on 10 September 2010, which set out the grounds upon which the prosecutor believed the defendant was the offender without any reference to corroborative material. 12The defendant appealed to this Court against that order. On 27 January 2011, Pembroke J allowed that appeal with the consent of the prosecutor. 13The matter returned to the Local Court. On 18 April 2011, George LCM refused to permit an application for an identical order to proceed. At that stage, the prosecutor relied upon evidence that had not previously been placed before the Court. That evidence was significantly more detailed and comprised of a six page affidavit sworn by the prosecutor on 4 February 2011. Attached to that affidavit were 29 annexures. It is unnecessary to detail the precise contents of that affidavit and its annexures; it is sufficient to note that the annexures contained statements from civilians including the shopkeeper and complainants, and a number of still photographs extracted from the CCTV footage. 14The prosecutor appealed to this Court against that refusal. On 22 February 2012, R A Hulme J upheld that appeal: see Munro v ACP [2012] NSWSC 100. 15The matter returned to the Local Court again. On 20 April 2012, the prosecution sought an order for three forensic procedures. The first was identical to the procedure sought previously, and described by me above. The second and third procedures were new. With regard to the application for the second and third procedures, the prosecution relied on new evidence. That evidence was a further affidavit sworn by the prosecutor on 27 March 2012 and also a statement of Professor Fryer of 27 March 2012. The affidavit also went to whether the prosecutor should be permitted to make a further application for the first procedure. 16On 20 April 2012, Kok LCM granted the application and made the order sought by the prosecutor in the application. The application that was granted by her Honour was as follows: "A final order authorising the carrying out of a forensic procedure(s) on the [defendant] pursuant to section 24 of the Crimes (Forensic Procedures) Act 2000. The type of forensic procedure sought in relation this application [sic] is as follows:

The taking of a photograph of the [defendant's] face (front and sides)
The taking of a number of non intimate photographs of the [defendant's] body and body parts (Face / arms / legs)
The taking of measurements of the [defendant's body] and body parts (Entire body / arms / legs / torso)". 17The application provided the following particulars with regard to the second and third procedures: "With respect to the third procedure, the [prosecutor] seeks a final order authorising the taking of bodily measurements of the [defendant's] body and body parts, specifically:
Overall height (with and without shoes)
Length of each arm (top of shoulders to wrist and arm pit [sic] to wrist).
Length of each leg. (hip to ankle, knee to ankle)
Length of each hand (wrist to fingertip on middle finger)
Length of each foot (with and without shoes)
Width of shoulders (between top of shoulders) With respect to the second procedure, the [prosecutor] seeks a final order authorising the taking of a number of non-intimate photographs of the [defendant's] body and body parts for the purposes of recording each bodily measurement sought as part of the third procedure." 18It is worth repeating that the first procedure was the one that was originally sought, and the subject of two appeals to this Court by the time it came before her Honour on 20 April 2012. The second and third procedures were fresh applications. 19In short, the first procedure that was authorised was the taking of photographs of the face of the defendant. The second procedure that was authorised was the photographing of the third procedure. The third procedure that was authorised was the taking of various measurements of the defendant.

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