AP v Burrell - [2016] NSWSC 708 - NSWSC 2016 case summary — Zoe

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AP v Burrell

[2016] NSWSC 708

Supreme Court of NSW|2016-05-31|Before: Adamson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-05-31

Before

Adamson J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Solicitors: CDM Lawyers (Plaintiff) Crown Solicitor for New South Wales (Defendant) File Number(s): 2015/374517 Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Civil Date of Decision: 17 December 2015 Before: Skinner LCM File Number(s): 2015/183657

[2]

Introduction

By amended summons filed on 5 February 2016, AP, the plaintiff, appeals against an order made by Skinner LCM that he be required to submit to a buccal swab for the purpose of collecting a sample of his DNA. Detective Senior Constable James Burrell, the defendant, is the investigating police officer on whose application the Local Court made the order. The plaintiff's twin brother, John, is awaiting trial by jury in the District Court for three sex offences which are alleged to have been committed in 1994 against a 13-year old girl who is now deceased.
On 20 May 2014 Magistrate Curran, after a hearing on 28 April 2014 and 19 May 2014, refused to make an order authorising the taking of a buccal swab from the plaintiff. Subsequently, Detective Burrell made a further application, which was heard by Skinner LCM on 17 December 2015. At the conclusion of the hearing, her Honour made an order authorising the taking of a buccal swab from the plaintiff and gave ex tempore reasons for decision.
The plaintiff sought the following orders in this Court: 1 Leave to appeal pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001 by virtue of s 115A(1) of the Crimes (Forensic Procedures) Act 2000 as necessary in relation to questions of fact and/or mixed law and fact. 2 Appeal allowed. 3 An order pursuant to s 55(2)(a) and/or s 55(3)(a) of the Crimes (Appeal and Review) Act 2001, as the case may be, by virtue of s 115A(1) of the Crimes (Forensic Procedures) Act 2000, setting aside the Magistrate's order requiring the plaintiff to undergo the forensic procedure. 4 Alternatively, an order pursuant to s 55(2)(c) and/or s 55(3)(a) of the Crimes (Appeal and Review) Act 2001, as the case may be, by virtue of s 115A(1) of the Crimes (Forensic Procedures) Act 2000, remitting the matter to the Local Court to be dealt with according to law by a different Magistrate. 5 Costs.

[3]

The criminal trial in the District Court

On 20 November 1994 CF, a 13-year old girl, was alone in the city of Sydney. She was approached by a male, who identified himself as "John", who offered to show her around the city. It is alleged that John attacked and sexually assaulted her. CF reported the matter to police, gave a statement and underwent an examination at the Royal Alexandria Hospital for Children with the use of a Sexual Assault Investigation Kit (SAIK). The examination detected semen inside her vagina. The semen was retained and subjected to DNA testing.
On 15 July 2004, CF took her own life.
On 30 November 2004, John (the plaintiff's twin brother), who was in custody for an unrelated matter at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater, was subjected to inmate testing. The profile of his DNA was uploaded and compared with "cold cases". John's DNA was found to match the DNA of the semen sample recovered from CF.
On 19 December 2012 John was charged with aggravated sexual assault, aggravated indecent assault and assault occasioning actual bodily harm. On 12 April 2013 a second sample was obtained from John, which confirmed the results of the first test which had been performed in 2004.
On 29 October 2013 Detective Senior Constable Caitlin Hyde was informed by the Department of Public Prosecution that John had informed his Legal Aid solicitor that he had an identical twin brother. It was common ground that identical twins have, for relevant purposes, the same DNA profile.
As a consequence, on 5 December 2013 Detective Burrell conducted checks at Royal North Shore Hospital, where John was born in 1965, to ascertain whether he had a brother and, if so, whether his brother was a twin, and, if so, whether his twin brother was a fraternal or identical twin. Detective Burrell ascertained that the plaintiff and John were twin brothers. There was no reference in the documents he saw in December 2013 to whether the twins were identical apart from a single reference in the medical records that the doctor "thought" that John and the plaintiff were identical twins.
On 23 December 2013 Detective Burrell wrote to the plaintiff, in part in the following terms: On the 19th of December 2012 your twin brother John [surname included] was charged with a sexual assault which took place on Sunday 20th November 1994 between 3:00pm and 5:00pm in Sydney. I am making some inquiries into your whereabouts on Sunday the 20th of November 1994. The reason for this information is your identical twin brother John [surname included] is claiming he was not present at the time of the incident. As you are identical twins I am trying to establish your movements on that day. I have determined that you were in the country at the time of the incident. I am seeking to know if you remember what you did that day. You are not a suspect for this incident, just a possible witness. In relation to this, would you be willing to provide a written statement in relation to your whereabouts that day? If you have questions or require further information, please contact me on the details below.

[4]

The first application under the CFP Act

On 24 February 2014, Detective Burrell applied for an order pursuant to s 24 on the basis that the plaintiff was a suspect within the meaning of s 3. In the affidavit in support affirmed on 24 February 2014, Detective Burrell relevantly deposed: [The plaintiff] is a suspect within the meaning of section 3 of the Act, namely I have reasonable grounds to suspect that he committed the listed offences, based on the matching of a previous sample of his DNA to forensic material located as a result of a SAIK examination.
Detective Burrell deposed as to the matters set out above. He identified the following as constituting "grounds to believe that the forensic procedure(s) might produce evidence tending to confirm or disprove that the suspect has committed the offence(s)" (as required by s 24(1)(a)): Police require a sample of [the plaintiff's] DNA in order to conduct comparison test with the evidence gathered during the SAIK examination. This will either confirm the original result, being John [XXX]'s involvement or prove that they both have the same DNA (identical twin).
Detective Burrell's first application under the CFP Act was heard by Curran LCM on 28 April 2014. Mr Gorman, who appeared for the applicant (Detective Burrell), relied on the affidavit referred to above. Mr Hughes, who appeared for the plaintiff, relied on the letter dated 23 December 2013 set out above, in support of a submission that the plaintiff was not a suspect. At the conclusion of that day, Mr Gorman proposed that the applicant serve further evidence in support of the application. The Magistrate acceded to this proposal and stood the matter over for a second day of hearing to 19 May 2014. A further affidavit of Detective Burrell affirmed 8 May 2014 was relied upon on the adjourned day (19 May 2014). It relevantly added the following evidence to that which was contained in his earlier affidavit: 8. Investigators have obtained Expert Evidence in relation to the DNA profiles of identical twins. Dr David BRUCE has informed investigators that the DNA profiles of identical twins are an exact match and there are no tests available [that] can differentiate the two individuals. As such he is a suspect in the alleged offences as indicated by the DNA obtained from within the victim. [The plaintiff] was offered the opportunity to provide investigators with his whereabouts on the date of the incident. To this date, he has not provided any materials to police. He has contacted police on only one occasion since December 2013. This was soon after he was served with the first Affidavit in regard to the Forensic Procedure application (24/02/2014). Grounds to believe that the forensic procedure(s) might produce evidence tending to confirm or disprove that the suspect has committed the offence(s): s24(1)(a) of the Act 9. Investigations into [the plaintiff's] whereabouts indicate that he was in Australia on the date of the alleged offences. [The plaintiff] arrived back in Australia on 13/05/1994 on a Qantas Flight and departed Australia on 28/12/1996 on an Air Pacific flight. Travel records indicate he was in Australia during this whole period, which includes the incident date of 20/11/1994. Both of these travel movements were through Sydney. 10. Investigators have obtained a DNA sample from the victim, which was located on a high vaginal swab within the victim. [The plaintiff] has been nominated as an identical twin of the male whose DNA was found inside the victim. As such if he is an identical twin the forensic procedure would tend to prove his participation in the offence; however if fraternal this would disprove his involvement in the offence.
Mr Warren (who appeared for the applicant on 19 May 2014) also tendered a statement under s 177 of the Evidence Act of Dr Bruce, a Senior Forensic Biologist, who relevantly stated: 5. It is expected that identical twins will have the same DNA profile in the PowerPlexR 21 system. 6. It is expected that non-identical twins will have different DNA profiles in the PowerPlexR 21 system. 7. Therefore, it is expected that the PowerPlexR21 system will only discriminate between the DNA profiles of non-identical twins.
The submissions recorded in the transcript for 19 May 2014 reveal that the principal issues were: whether the plaintiff was a suspect within the meaning of s 3; and, if so, whether there were reasonable grounds to believe that he had committed an offence, as required by s 24(3)(a). Mr Warren told Curran LCM that the plaintiff had provided a letter to police accounting for his whereabouts on 20 November 1994, although, as set out below, no such letter is revealed by the evidence.
The Magistrate reserved his decision and gave oral reasons for decision on 20 May 2014, which were recorded on transcript.
The transcript recorded that, after reciting the evidence and outlining the applicable provisions, his Honour identified the principal issue in the proceedings as whether the plaintiff was a suspect. His Honour referred to the letter from Detective Burrell dated 23 December 2013 set out above and noted the sentence, "You are not a suspect for this incident, just a possible witness." His Honour continued: Obviously, since that particular letter was written, certain further matters have been attended to and they appear to be in the nature of obtaining the document from Mr Bruce but also, perhaps more relevantly, the investigation or further reinvestigation of what transpired back at the Royal North Shore Hospital in 1965. However, all that that further investigation established is that the two are twins. There is no evidence before me to suggest they are identical twins or, alternatively, that they are non-identical twins, in which case the evidence would not be of terribly much assistance at all, given the DNA match would not be appropriate, probably and almost likely, as far as [the plaintiff] is concerned. However, it seems to me that the court has to have a lot more evidence before it to establish on, and I stress, reasonable grounds that [the plaintiff] is a suspect. All that I know in relation to this is that his brother has asserted that he has a twin. There is nothing before the court, for instance, by way of photographic evidence, evidence suggesting that there is a similarity in appearance between [the plaintiff] and the person who carried out the assault back in November 1994. I do not know whether [the plaintiff] bears any similarity in appearance at all to [John]. The only evidence, as I have said, that I have got is that there is an assertion by [John] that he has a twin brother and that is confirmed by the investigations of the hospital. Beyond that, there is nothing by way of investigations that would allow me to have any other grounds to refer to or base my opinion upon to establish whether or not they were reasonable or not to implicate [the plaintiff] in the commission of this offence. … If I do not have reasonable grounds before me to establish that he, indeed, is a suspect, then it is my view that I DO NOT HAVE POWER UNDER THE ACT TO MAKE THE ORDERS SOUGHT. I do not believe that the present time that I have any such grounds or information before the court to allow me to form a view and to analyse the grounds to confirm whether or not they are reasonable to implicate him as being a suspect before I make the orders that are being sought. I, THEREFORE, DECLINE TO MAKE THE ORDES THAT ARE SOUGHT.
The decision of Curran LCM was not the subject of appeal.

[5]

The first vacated trial in the District Court

John's trial was listed for trial by jury before Blackmore AJ in the District Court to commence on 22 June 2015. The plaintiff was subpoenaed to give evidence at the trial as a Crown witness. John pleaded not guilty to all three charges. The question of DNA testing was raised as a pre-trial issue. Mr Todd, who appeared on behalf of the accused (John), confirmed that "identification will become a critical issue". His Honour obtained confirmation from Mr Todd that John's instructions were that he was not there at the time of the offences and that, although identification was an issue, consent was not.
In the course of the pre-trial hearing, the following exchanges ensued: HIS HONOUR: So the only question is whether or not the sample was taken from her vaginal swab which matches your client, apparently, is the only possible source of that DNA. TODD: Yes. . . . CROWN PROSECUTOR: The magistrate [Curran LCM] refused the application on the basis that [the plaintiff] was not a suspect. HIS HONOUR: I can review that. If you make the application here I can make the decision right here and now. CROWN PROSECUTOR: As my friend has pointed out, once the issue of identical twins was raised that led to the application before the Local Court on the basis that the identical twin could have the same DNA and he therefore became a suspect. HIS HONOUR: I should withdraw that, I may not be able to solve that. It may be a matter that has to go to the Supreme Court, but I would have thought it is a crucial issue here, it is better now if it is placed on the record formally that the instructions are that I didn't do it, i.e., this is not a consent case, therefore you go to the Supreme Court and say - so the issue is identical, two potential people could be involved in the offence.
Following the luncheon adjournment the Crown applied for the trial date to be vacated in order to permit a further application to be made in the Local Court for an order under the CFP Act that the plaintiff have a buccal swab taken for the purposes of ascertaining his DNA profile.

[6]

The second application under the CFP Act

On 9 July 2015 Detective Burrell filed a second application for an order under the CFP Act to require the plaintiff to undertake a buccal swab and relied on a further affidavit affirmed on 29 June 2015 in support of the application. In addition to the evidence contained in his earlier affidavits referred to above (which was replicated in the affidavit of 29 June 2015), Detective Burrell deposed as follows: 11. On Monday 22nd June 2015, when this matter was scheduled for trial, the defence have conceded that the issue is identification only. John [surname inserted] has gone onto the court record as pleading not guilty to the charges. He also went on record in the District Court as saying "I wasn't there / I didn't do it". On this basis, [the plaintiff] is the only other person who could have committed these offences. As he is confirmed as being the twin of [John], [the plaintiff] is the only other person able to be a suspect in this investigation. This new material on record from [John], by necessary implication makes [the plaintiff] a suspect. 12 Magistrate BLACKMORE has ruled that a new application be made to the local court to obtain [the plaintiff's] DNA. This application will have the court transcript with Magistrate BLACKMORE's ruling along with the crown (O'SULLIVAN) and defence (Legal Aid) comments attached.
The applicant in the Local Court also relied on an affidavit of Detective Burrell affirmed 23 October 2015, which contained the following additional evidence: 1. Evidence of images compiled from descriptions given by CF shortly after the alleged offence, as well as evidence from the police officer who compiled the images that CF had told him that the man told her that his name was John. 2. The transcript of the pre-trial hearing before Blackmore AJ on 22 June 2015 (referred to above) in which Mr Todd indicated that John's defence to the Crown case was that he was not there. 3. Hospital records obtained by Detective Burrell from the Royal North Shore Hospital, which described John and the plaintiff as twins, and which contain the following notations: "Dr Collins thinks the twins are uniovular [one egg, i.e. identical twins]." [From a histopathology report dated 9 December 1965 relating to the mother of John and the plaintiff] "This is a large placenta. There are two umbilical cords arising from opposite edges. It would appear that the twins are uni-ovular." [From an admission summary sheet] "Pregnancy delivered twins uniovular prematurely" 1. The results of further investigations conducted as to the physical appearance of John and the plaintiff at different times, including: a charge photograph of John dated 14 November 1994; the plaintiff's passport applications dated 24 October 1990 and 8 December 2014; and Roads and Traffic Authority (RTA) photographs: one of the plaintiff dated 20 November 2012 and one of John dated 21 February 2012. 2. Travel movement records which indicated that the plaintiff's address as at 20 November 1994 (the date of the alleged offence) was a residence in Collaroy Plateau, which is in reasonable proximity to Sydney City at the time of the offences. 3. The fact that, notwithstanding the representation made by Mr Warren (who appeared for the plaintiff before Curran LCM) that the plaintiff had provided a letter to police accounting for his whereabouts on 20 November 1994, Detective Burrell had not been able to locate that letter or find any record of its having been received. 4. Detective Burrell explained that, at the time he wrote the letter of 23 December 2012 in which he told the plaintiff that he was not a suspect, he was in error, since the plaintiff was a suspect at that time.
Detective Burrell deposed as to his belief and the grounds for his belief that the plaintiff is a suspect as follows: 36. The primary basis for my belief is my knowledge that the DNA sample from the victim's vaginal swab matches the DNA sample from John, and that there is evidence that [the plaintiff] is John's twin and may be his identical twin. Dr Bruce has provided an opinion to the effect that the DNA profiles of identical twins are identical. . . . [reference was made to the hospital records set out above] 39. On the basis of the medical records I believe that [the plaintiff] and John are twins and that they may be identical twins. It is therefore possible that the DNA sample from the victim's vaginal swab may match that of [the plaintiff], to the same degree that it matched John's DNA, if they are identical twins. … [reference was made to the photographic evidence described above] 41. Having compared the photographs, it is my view that it is not possible from the photographs to say whether [the plaintiff] and John are identical or fraternal twins. However, it is my belief that both of them match the description of the male offender provider by [CF]. … 44. The statements made by John's counsel at the trial have strengthened my suspicion that [the plaintiff] may have committed the offences. Mr Todd stated on the record that he is instructed that John was not present at the time of the alleged assault. He conceded that DNA matching John's DNA was matched against the DNA taken from the vaginal swab of the victim and that John has a twin brother. Mr Todd confirmed that the only question will be whether or not John is the only possible source of the DNA. The only other possible source of this DNA is an identical twin brother, and the only person this could be is [the plaintiff]. 45. I believe that it is possible to have more than one suspect (in this case, two suspects) to an offence. On the basis of the information outlined above, [the plaintiff] is the only person, other than John, who could have committed the offences and therefore he is a suspect in this investigation. Intended use of the buccal swab sample 46. If the Court authorises the carrying out of a self-administered buccal swab by [the plaintiff], I intend to request that the buccal swab sample be compared against one or both of the samples taken from [CF] by way of the SAIK examination. I may also request that [the plaintiff's] buccal swab sample be compared against John's DNA sample. If [the plaintiff's] buccal swab sample does not match any of the other samples, I believe that would tend to disprove that [the plaintiff] committed the offences. However, if [the plaintiff's] buccal swab sample matches any of the other samples, I believe that would tend to prove that [the plaintiff] committed the offences.
Detective Burrell also deposed to technology available in Germany which is said to be able to differentiate between the DNA profiles of identical twins (who, on less sophisticated testing, are regarded as having identical DNA). He deposed that if the forensic procedure was ordered and it revealed that the plaintiff has the same DNA profile as John, he would request that consideration be given to further testing in Germany (at significant financial cost).
Written submissions were relied on by both the applicant and the plaintiff (who was the respondent) at the hearing before Skinner LCM on 17 December 2015. Mr McGorey appeared on behalf of the applicant. Mr McMahon appeared on behalf of the plaintiff. The affidavit of Detective Burrell affirmed 23 October 2015 was relied on in support of the application, as well as other documentary evidence, including the expert certificate of Dr Bruce, referred to above, and the plaintiff's address history with the RTA. Detective Burrell was cross-examined.
The Magistrate heard submissions (which will be addressed in more detail below by reference to particular grounds) and delivered ex tempore reasons at the conclusion of the hearing on 17 December 2015.

[7]

The reasons of Skinner LCM

Her Honour addressed the requirements in s 26(3) that there be additional information that justifies the making of a further application. Her Honour referred to Munro v ACP [2012] NSWSC 100 and ACP v Munro [2012] NSWSC 1510; 227 A Crim R 317, to which reference had been made in the parties' submissions. Her Honour identified the following "additional information" that was relied upon in support of the second application as follows: the hospital records; the transcript of the pre-trial hearing before Blackmore AJ on 23 June 2015 in which John's counsel indicated that identification was a significant issue and that his client had instructed him that he was not there; the photographic evidence referred to above; and the information as to the plaintiff's whereabouts (living in Collaroy Plateau) at the time of the commission of the alleged offences.
Her Honour said of the photographic evidence: Since the application before Magistrate Curran, the applicant has had the opportunity to recover various photographs of both [the plaintiff] and [John] taken at different times and we have also got the Identikit that was made with respect to the offender. In my view, this is less significant regarding what happened at the time but is significant in looking at their features now in that there is an indication from similarities in their physical features that it is consistent with an assertion that they may be identical twins. Although there are dissimilarities, they are not so stark as to exclude any prospect that they might be identical twins.
Her Honour then recorded her satisfaction that the threshold in s 26(3) had been met by the additional information referred to "because the additional information gets closer to grounding a reasonable belief or proof of the fact that there may be two identical DNA samples and that those DNA samples are consistent with the DNA that was found in swabs taken from the victim."
Her Honour proceeded to address the requirements of s 24. Her Honour specifically addressed the argument put on behalf of the plaintiff that the application was, in effect, a means of preventing John from raising the possibility that his twin brother was guilty of the offence, by deciding that she had to look at the objective facts, to determine whether the plaintiff was a suspect. Her Honour noted the parties' concession that identical twins have the same DNA.
Her Honour referred to the requirement of the definition of "suspect" in s 3 as follows: "I need to determine that the officer who swore the affidavit in support of the application has reasonable grounds to believe that the plaintiff has committed an offence."
Her Honour found that there were reasonable grounds to believe that the plaintiff had committed the relevant offences (as required by s 24(3)(a)) and that there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence (as required by s 24(3)(b)). Magistrate Skinner then addressed those matters in s 24(4) in respect of which submissions had been made in the context of what her Honour described as the "balancing act" required to be performed by that subsection.

[8]

Relevant statutory provisions: the nature of the application for a forensic procedure

The relevant provisions of the CFP Act that govern the application in the Local Court are set out below.
Part 5 of the CFP Act provides for the carrying out of forensic procedures on "suspects" by order of a Magistrate. A "suspect" is defined as including a person whom a police officer suspects on reasonable grounds has committed an offence: s 3. Forensic procedures are either "intimate" or "non-intimate". A self-administered buccal swab is defined as a non-intimate forensic procedure.
Division 2 of Part 5 of the CFP Act relevantly provides: 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 . . . (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances. . . . (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. . . . 26 Application for order (1) An authorised applicant (but no other person) may apply to a Magistrate for an order under section 24 authorising him or her to arrange the carrying out of a forensic procedure on a suspect. (2) An application for an order must: . . . (b) be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24 (1), . . . . (3) 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.
As set out above, s 26 relevantly provides that an application for an order must be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in s 24(1). Section 24 relevantly provides that, in the case of non-intimate forensic procedures, there must be reasonable grounds to believe that: (1) the suspect has committed a prescribed offence, and (2) the procedure might produce evidence tending to confirm or disprove that the suspect has committed the prescribed offence. Section 24(1) also requires the Magistrate to be satisfied on the balance of probabilities that the carrying out of the procedure is justified in all the circumstances, as to which s 24(4) provides for the matters which are to be taken into account by the Magistrate.
Section 30 relevantly provides for the procedure that applies at the hearing of such applications 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.
Section 31 required the Magistrate to specify the forensic procedure to be carried out and give reasons for making the order.
The applicant for a forensic procedure has the onus of proving any necessary belief or suspicion on the balance of probabilities: s 103. The Evidence Act 1995 (NSW) applies in terms to applications for a forensic procedure. The proceedings in the Local Court, although related to the suspected commission of an offence, are civil, not criminal, since they do not amount to the prosecution of a person for an offence or for committal, sentence or bail (see the definition of "criminal proceedings" in the Dictionary to the Evidence Act). Not being criminal proceedings, they are necessarily "civil proceedings" since the Evidence Act defines "civil proceeding" as a proceeding other than a criminal proceeding.
The applicable provisions of the Evidence Act must be read together with the CFP Act, including s 30, which provides that persons other than the applicant may only be cross-examined with leave of the Magistrate.
Before making an order for a forensic procedure, the Magistrate is required to be satisfied of the following: 1. that the officer who swore the affidavit in support of the application suspects on reasonable grounds that the plaintiff has committed an offence; 2. that there were reasonable grounds to believe that the plaintiff had committed the offence; 3. that there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence; and 4. that the carrying out of the procedure is justified in all the circumstances.
Before making such an order on a second application, the Magistrate is first required to be satisfied of the matters in s 26(3).

[10]

Ground 1: the Magistrate erred in law by admitting into evidence the opinion contained in the hospital records and the assertions made on behalf of John that suggested that he and the plaintiff were identical twins

The defendant does not oppose leave to appeal in relation to this ground, notwithstanding that it involves a mixed question of fact and law. There are two aspects to this ground: first, that the Magistrate erred in addressing the requirements of s 135(1)(a); and secondly, that the Magistrate erred in admitting opinion evidence.
The transcript of the hearing before Skinner LCM records that Mr McMahon objected to the admission of the histopathology report and the evidence that John's lawyer had passed on his instructions that John and the plaintiff were identical twins. The objection was made on the basis of s 135(1)(a) of the Evidence Act, namely that the probative value of the evidence was substantially outweighed by the danger that it might be unfairly prejudicial to the plaintiff.
Following the objection there was an exchange between the Magistrate and Mr McMahon in the course of which Mr McMahon accepted that the evidence was relevant to whether there were grounds for suspicion (or belief) and the reasonableness of the grounds. Mr McMahon then indicated that, in light of the Magistrate's observations, he would "resort" to his "fall-back position in terms of weight". The transcript records the following ruling by her Honour: HER HONOUR: Yes, I'm trying to make the distinction between where an opinion is presented to the court to prove a fact and that opinion is lacking foundation that obviously then the evidentiary rules are of greater significance because of the conclusion that needs to be drawn based on that information but here I am secondary to the conclusion that's drawn based on that information, the decision that I come to comes via another person through those documents so I think that's very reasonable if we can deal with it as a matter of weight and recognising those documents, I'll treat them as admitted appropriately in the applicant's case. MCMAHON: Yes. MCGOREY: Thank your Honour. HER HONOUR: I just thought that was all that we need to resolve now because the rest of it is more complicated.
The plaintiff submitted that the objection was based on the proposition that, because there was no statement setting out the facts and assumptions on which the opinion (that John and the plaintiff were identical twins), the weight to be attached to the opinion could not be assessed and its prejudicial effect would therefore outweigh its probative value.
In my view, her Honour correctly identified the relevance of the evidence objected to: as tending to prove the basis for a state of mind; and for the dual purpose of assessing the reasonableness of the grounds of Detective Burrell's suspicion that the plaintiff had committed the offences (for the purposes of the definition of "suspect" in s 3, as well as assessing whether the Magistrate was herself satisfied that there were reasonable grounds to believe that the plaintiff had committed the offences (for the purposes of s 24(3)(a)).
The probative value of what John said about his brother is significant, in that it was capable of leading, and did in fact lead, to a chain of inquiry which provided grounds for a suspicion or belief. What John told his lawyer, which was then communicated to the prosecutor, was not of itself of any particular significance unless it was true. If it was true then it was of great significance since it had the potential to leave open a hypothesis consistent with innocence: namely that John's identical twin brother (who would, on that scenario, have the same DNA as had been found on CF) had committed the offence. John's assertion led to further investigation, and to the location of the histopathology report. The histopathology report was a business record of the hospital and therefore attracted the considerations that apply to such records in terms of accuracy and expertise: see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548-549 per Hope JA. The report was capable of providing a basis for a suspicion or belief that John's identical twin brother (the plaintiff) had committed the offences. That was its probative value.
The material that may provide reasonable grounds for suspicion or belief need not be (and frequently is not) in the form of evidence that would be admissible to prove the fact the subject of the suspicion or belief. For example, reasonable grounds for suspicion or belief may include information that the investigating officer concerned has been told by another police officer. It can include material of a hearsay nature: see, for example, Azar v DPP [2014] NSWSC 1323.
In these circumstances it is not to the point that the author of the histopathology report was not called as a witness. Even if the author was a witness, he or she could only have been cross-examined with leave of the Magistrate, because of the constraints imposed by s 30. Neither of these matters posed any impediment to the admissibility of the report, having regard to the purpose of its tender.
In these circumstances, it is difficult to see what the relevant prejudicial effect was, except in the relevant (and appropriate) sense of providing reasonable grounds to suspect the plaintiff. In my view, a fair reading of the transcript indicates that Mr McMahon accepted her Honour's ruling to that effect. Moreover, the transcript ought be taken as indicating that her Honour ruled the evidence admissible over objection. It is not necessary to give reasons for every evidentiary ruling in a judgment, particularly where a debate between bar and bench has culminated (as, in my view, occurred in the present case) in an acceptance of the judge's ruling and the basis for the ruling has already been exposed in the exchange.
No error has been shown. The first ground has not been made out.

[11]

Ground 2: The Magistrate erred in law by excluding from consideration a relevant matter, namely the applicant's reason for bringing the application; and Ground 2A: The Magistrate erred in law in her approach to the requirements of s 24(3)(a) of the CFP Act

As the parties made submissions with respect to grounds 2 and 2A together I propose to address them in the same global way, although some separate consideration can be given to ground 2 first.
The matter specifically raised in ground 2 was whether Detective Burrell's motivation in applying for the forensic procedure was relevant, and if so, what that motivation was. The plaintiff's contention (before Skinner LCM and in this Court) was that Detective Burrell brought the application under the CFP Act only so as to deprive John of a defence to the charges and that, accordingly, the plaintiff was not, in fact, a suspect.
The first point is that there may be more than one suspect for any criminal offence. This is particularly, if not inevitably, so where, as in the present case, the principal issue in the criminal trial is the identification of the offender. The threshold for someone to be a suspect is low: all that is required is that a police officer suspects on reasonable grounds that the person has committed an offence: s 3. The police officer need not believe that the person has committed the offence (belief requiring greater basis than suspicion: George v Rockett [1990] HCA 26; 170 CLR 104), much less be satisfied that the person ought be charged with the offence.
Since John had actually been charged with the three offences, he must be regarded as the prime suspect. However, the fact of his being charged does not disqualify the plaintiff from being a suspect. What makes the plaintiff a suspect is the material (including John's assertion, the physical resemblance in the photographs and the hospital records) which tends to suggest that he and John are identical twins.
I reject the plaintiff's argument that Detective Burrell's reason for making the application (to exclude a hypothesis consistent with John's innocence) was a matter which the Magistrate was required to take into account. The CFP Act does not expressly provide that it is a consideration; nor can such an implication be made from its subject-matter, scope or purpose. In these circumstances it cannot be an error of law to fail to take it into account, even if it could be said that her Honour did fail to have regard to it: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 per Mason J.
In any event, the plaintiff's submission contains a false dichotomy. Where the identity of the offender is in issue, the process of criminal investigation necessarily involves the identification of suspects and the exclusion, by process of elimination, of all suspects other than the accused person. John is a suspect because he has the same DNA profile as that recovered from the victim. The plaintiff is a suspect because there is material to suggest that he is John's identical twin brother and therefore has the same DNA profile as John and as the sample recovered from the victim. The forensic procedure has the potential to exonerate the plaintiff if it establishes that, notwithstanding John's assertion and the hospital notes, he does not have the same DNA since he is not John's identical twin. It has the potential to further implicate the plaintiff if it establishes that he is John's identical twin and therefore has the same DNA profile as was recovered from the victim.
In my view, the Magistrate correctly recognised that the fact that the forensic procedure is of utility to the prosecution in John's criminal trial neither affects the legality or propriety of the application nor undermines the plaintiff's status as a suspect. So much is clear from her Honour's statement in the reasons that she had to "put that to one side".
The plaintiff submitted that the Magistrate's decision did not comply with the CFP Act because her Honour engaged in circular reasoning. Mr James QC, who appeared with Mr McMahon on behalf of the plaintiff, submitted that it was erroneous to order a forensic procedure to determine whether a person was a suspect when the jurisdiction to make such an order depended on the person being a suspect at the time of the application. He submitted that he was not a suspect unless and until a DNA test was administered to make him a suspect and that, at the time of the application, all that was available was surmise and John's assertion that he and John were identical twins.
Mr James submitted that: "The only real evidence suggesting a possible connection to the plaintiff, is the largely unexplained assertion that the two might be identical twins and the mere suggestions that the plaintiff might have been living in the greater Sydney area as at the time of the offences."
In my view, this submission does not take adequate account of the cumulative effect of the investigations conducted by Detective Burrell.
I am not persuaded that her Honour misapprehended the statutory requirements, except in one respect, which was immaterial.
The provisions of the CFP Act required her Honour to determine, first, whether the respondent (plaintiff) was a "suspect". This in turn required her Honour to be satisfied that, relevantly, the plaintiff was a person whom Detective Burrell suspected on reasonable grounds has committed an offence. Her Honour misstated the requirement, in that her Honour said that she was required to determine whether Detective Burrell "has reasonable grounds to believe" that the plaintiff has committed an offence. The reason this error is immaterial is that "believe" imposes a higher standard than "suspect". Accordingly if the officer has reasonable grounds to believe that the plaintiff has committed an offence, the officer necessarily has reasonable grounds to suspect that matter.
This hierarchy of grounds to warrant particular states of mind was considered by the High Court in George v Rockett in the context of "reasonable grounds to suspect" for the purposes of a search warrant. As appears from the following passage, more is required for "belief" than "suspicion". Their Honours said at 115-116: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at p 303): A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."
What amounts to reasonable grounds for forming a suspicion or belief must be assessed by reference to "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ; see also Bain v Police [2011] SASC 228 per White J at [26].
Having heard and seen Detective Burrell give evidence, her Honour was entitled to accept his evidence that he suspected that the plaintiff had committed an offence. As to whether the grounds for Detective Burrell's belief (or suspicion) were reasonable, her Honour accepted that there were reasonable grounds to believe that the plaintiff had the same DNA profile as the sample recovered from the victim. It was accepted that, if the plaintiff and John were identical twins, they would have the same DNA profile; and that John's DNA profile matched that of the victim. Although her Honour did not expressly find that the plaintiff was a suspect, it was apparent from the reasons that she accepted that he was a person whom Detective Burrell suspected on reasonable grounds had committed an offence, which necessarily made him a suspect, because it brought him within the definition of suspect in s 3.
Her Honour specifically found that there were reasonable grounds to believe that the plaintiff had committed the offences. This finding was open to her Honour and involved either a question of fact or a mixed question of fact and law. Her Honour's finding fulfilled the requirement of s 24(1)(a). It also, incidentally, fulfilled the requirement in s 3 that Detective Burrell's suspicion that the plaintiff had committed an offence was based on reasonable grounds since the grounds for Detective Burrell's suspicion were the same grounds as those which her Honour found to be reasonable grounds for belief: see KC v Sanger [2012] NSWSC 98 at [71]-[72] per Hulme RA.
I note for completeness the plaintiff's submission that the question of whether or not a person is a suspect requires consideration of whether or not a police officer actually suspects that the person in question committed an offence. It therefore contains a subjective element in addition to the subsequent objective assessment as to whether that suspicion is based on reasonable grounds. The plaintiff referred to R v Hill [2012] ACTSC 17; 218 A Crim R 301, in which was said at [90] per Refshauge J: "The question, though, is whether the belief was actually held, not whether it could, justifiably, have been held."
Detective Burrell deposed that he actually suspected the plaintiff. Her Honour accepted that evidence. The finding was a pure question of fact. There is no basis in these proceedings to challenge her Honour's finding that Detective Burrell actually suspected that the plaintiff had committed the offences.
Neither ground 2, nor ground 2A has been made out.

[12]

Ground 3: The Magistrate erred in law by failing to provide adequate reasons for her decision

There are two aspects to this ground: the first concerns the requirements of s 24 and the second concerns the requirements of s 26(3). I propose to address the s 24 aspect first and the s 26(3) aspect later in these reasons when I address the grounds relevant to s 26(3).
The plaintiff submitted that the Magistrate erred in law by failing to provide adequate reasons for her decision regarding the requirements of s 24(3)(a) or for her decision regarding the evidence implicating John. As to the first matter, I am satisfied, for the reasons given above, that her Honour's reasons were sufficient regarding the requirements of s 24(3)(a). Her Honour addressed Detective Burrell's state of mind (which was relevant to the question whether the plaintiff was a suspect within the meaning of s 3) and found that the requisite state of mind was made out. Her Honour also addressed whether there were reasonable grounds to believe that the plaintiff had committed the offence and made a specific finding that there were (thereby fulfilling the requirements of reasonable grounds in ss 3 and 24(3)(a)).
There was no particular complexity about the chain of reasoning. The plaintiff was a suspect because there was information to indicate that he was John's identical twin and would therefore have the same DNA profile of both John and the sample recovered from the victim. Her Honour's reasons were ample to expose "the actual path of reasoning" which led her Honour to find that the requirements of s 24(a) had been met: Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 at [48].
The plaintiff's complaint about the reasons associated with the evidence implicating John has not been made out. Her Honour referred to the evidence implicating John and specifically recognised that John was "certainly on the material the strongest or the primary suspect". That John was the prime suspect (and, indeed, had been charged and was awaiting trial) did not make the plaintiff any less a suspect unless and until he was excluded as such. The most powerful piece of evidence against John was that his DNA profile matched that of the sample recovered from CF. The prospect that the plaintiff had the very same DNA profile because he was John's identical twin (which was grounded in the medical evidence and the physical similarity, as well as John's assertion) because he was John's identical twin was what made him a suspect too.
I accept the submission of Ms Davidson, who appeared on behalf of the defendant, that it is artificial to consider each fact individually and argue that there are explanations that are inconsistent with the belief (or suspicion) that the plaintiff committed the offence. The "facts" must be considered as a whole. That other inferences might arguably arise from the facts or that the available inference might fall short of proof, or conviction, does not of itself prevent a finding being made that reasonable grounds exists to suspect or believe that the plaintiff committed the offence: Kapral v Bunting [2009] NSWSC 749 at [44]- [46] per Howie J.
Ground 3 has not been made out.

[13]

Ground 4: The Magistrate erred in finding that the applicant suspected on reasonable grounds that the respondent had committed the subject offences and Ground 5: The Magistrate erred in finding that there were reasonable grounds to believe that the respondent had committed the subject offences

Ground 4 involves a question of fact (whether Detective Burrell suspected that the respondent had committed the subject offences) and a question of mixed fact and law (whether there were reasonable grounds for his suspicion). Leave was opposed.
Mr James sought to enlarge the ground at the hearing of the appeal by contending that it was not open as a matter of law to the Magistrate to make the finding that Detective Burrell suspected on reasonable grounds that the plaintiff had committed the subject offences. Mr James' submission was based on the proposition, which I reject for the reasons given above, that the plaintiff was not a suspect unless and until the DNA test established that he was John's identical twin. The submission disregarded the medical evidence, the photographic evidence and John's assertion, which are to be taken in aggregate.
Mr James put the further submission that the evidence was insufficient to support the Magistrate's finding that Detective Burrell suspected on reasonable grounds that the plaintiff had committed the subject offences. He submitted that sufficiency of evidence was as much a matter of law as a "no evidence" ground. I reject this submission. Whether evidence is sufficient to amount to reasonable grounds is not a question of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356. Parliament has vested the power to make such an assessment in the Local Court. It is not appropriate for leave to be granted to permit this ground to be agitated: Kapral v Bunting at [48] per Howie J.
Ground 5 also involves a mixed question of fact and law. Leave was opposed. For the same reasons as apply with respect to ground 4, I am not persuaded that leave ought be granted to permit this ground to be agitated.
In any event, in my view it was plainly open to the Magistrate to find both that there were reasonable grounds for Detective Burrell's suspicion that the plaintiff had committed the subject offences and that there were reasonable grounds to believe that the plaintiff had committed the offences, since there was evidence before her Honour which was capable of amounting to reasonable grounds.

[15]

Ground 2B: The Magistrate erred in law in her approach to the requirements of s 26(3) of the CFP Act

This ground, together with grounds 3 (as to the reasons for the s 26(3) determination) and 6, concern the conditions required to be met under s 26 before a second application pursuant to s 24 can be entertained.
Ground 2B raises a question of law. In order to make out this ground, the plaintiff must establish that her Honour misapprehended the statutory wording or misdirected herself as to the applicable principles.
Her Honour's reasons demonstrated an appreciation that the requirements of s 26(3) had to be met before the second application could be entertained. Her Honour referred to the parties' written submissions and to the two decisions cited (Munro v ACP and ACP v Munro). Her Honour correctly paraphrased the effect of s 26(3) by saying that "the law enables a second application in certain circumstances, and then it is necessary for the magistrate to assess whether the additional information is of such a nature, degree and quality that it justifies the making of a further application".
The plaintiff submitted that her Honour was in error in failing to take into account "the extent to which the plaintiff had been 'vexed' by the prior application" and had excluded from consideration "the surrounding circumstances of the previous application". In support of this submission the plaintiff relied on the following passage in ACP v Munro at [73] where Button J said at [73] Furthermore, 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 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, or 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. [Emphasis added.]
His Honour's remarks were made in circumstances where a number of orders for forensic procedures had been made in respect of ACP. ACP argued that the principle of double jeopardy applied and that another application could not be made for the same forensic procedure that had earlier been the subject of an unsuccessful application. His Honour rejected that argument on the basis that it was inconsistent with the wording of s 26(3). The words highlighted, when read without regard to their context or the facts of that case, could provide an indication that the extent to which the plaintiff had been 'vexed' by earlier applications was a mandatory relevant consideration. However, a fair reading of his Honour's reasons provides no support for any such proposition.
The wording of s 26(3) makes it clear that the focus is on whether the "additional information" is such as would warrant the making of the further application. Whether or not the plaintiff has been "vexed" by an earlier application is irrelevant; all that is relevant for the purposes of s 26(3) is that there has been an earlier application, the making of which can be assumed to have interfered with the respondent's rights, at least to some extent: Orban v Bayliss [2004] NSWSC 428 at [30] per Simpson J. A consideration of the information in support of the earlier application is obviously required, in order to determine, and assess, the information said to be "additional" on any subsequent application.
In any event, I note that the Magistrate specifically referred in her reasons to the following and therefore can be taken as having had regard to it (to the extent, if at all, relevant): [The plaintiff] comes without any significant record if any at all, and that he has now had to fact [sic, face] two separate sets of proceedings in relation to the application for a forensic procedure order.
No error in the identification or application of the relevant legal principle has been established. Ground 2B has not been made out.

[16]

Ground 3: The Magistrate erred in law by failing to provide adequate reasons for her decision (as regards the requirements of s 26(3))

Her Honour identified and addressed the "additional information" that had been provided in support of the second application and which had not been available to Curran LCM when the first application was made. Her Honour found that the additional information comprised: medical evidence to support John's assertion that the plaintiff was his identical twin brother; the representations made to Blackmore AJ by John's trial counsel that identity would be a crucial issue in the criminal trial; photographic evidence of the physical appearance of John and the plaintiff at various times; and the RTA evidence which recorded that the plaintiff's residential address was in the Collaroy area at the time of the alleged offending (whereas the evidence before Curran LCM was limited to the plaintiff's presence in Australia, as established by Department of Immigration movement records).
Her Honour addressed each category of additional information referred to above and assessed its forensic effect. Her Honour noted the contemporaneous medical records which recorded a medical opinion that John and the plaintiff were uniovular (identical) twins. Her Honour examined the photographs and determined that the similarities between John and the plaintiff were consistent with their being identical twins and the dissimilarities as being "not so stark as to exclude the prospect" of their being identical twins. Her Honour referred to the RTA records which placed the plaintiff much closer to the scene of the alleged offending than the information before Curran LCM had done. Her Honour said in the reasons that the additional information that tended to establish that John and the plaintiff were identical twins was a "significant factor".
I regard the Magistrate's reasons for determining that the additional information was such as to justify a second application as sufficient. Her Honour addressed every category of additional information and compared it with that which was available when the first application was made. As is apparent from the narrative set out in the part of these reasons before the grounds of appeal are specifically addressed, there was significant material located and put before the Local Court in support of the second application which had not been put before Curran LCM, including evidence, such as the photographic evidence, the absence of which had been the subject of comment by Curran LCM in his Honour's reasons for refusing the first application.