Coffen v Goodhart

Judgment 1HER HONOUR: The plaintiff appeals under Part 5 of the Crimes (Appeal and Review) Act 2001 against a final order that issued from the Central Local Court on 1 December 2011 under s 24(1) of the Crimes (Forensic Procedures) Act 2000 ("the Act") authorising the taking of a measurement of the plaintiff's height. The terms of the order expressly provide that the Magistrate was satisfied that measuring the plaintiff's height was a non-intimate forensic procedure under s 24(3) of the Act and that the grounds upon which she was satisfied that the order should be made were as set out in the application brought by the defendant police officer. 2Both parties approached the appeal on the understanding that it was brought pursuant to s 115A of the Crimes (Forensic Procedure) Act. That section has the effect of conferring jurisdiction on this Court under s 52(1) of the Crimes (Appeal and Review) Act as if the order were a sentence imposed in the Local Court arising from an offence prosecuted under a Court Attendance Notice and dealt with under Part 2 of the Criminal Procedure Act 1986. Section 52(1) is limited to appeals as of right involving a question of law. 3The plaintiff submitted that the Magistrate erred in law in holding that as a matter of statutory interpretation the measurement of the height of a suspect qualifies as a "non-intimate forensic procedure" as defined in s 3(1) of the Act. Counsel also submitted that the application failed to meet the mandatory requirements provided for in s 26(2) of the Act in that there was no evidence of one aspect of the definition of a non-intimate forensic procedure, a matter about which it was necessary that the Magistrate was satisfied before an order for the carrying out of a forensic procedure could lawfully issue. 4Section 24 sets out the criteria that must be met before a Magistrate may order the carrying out of a 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... (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). ... 5For the purposes of the appeal the plaintiff conceded that the evidence before the Magistrate was capable of satisfying the test in s 24(3)(a) in that, on the balance of probabilities, there were reasonable grounds to believe that he had committed a prescribed offence, namely aggravated break, enter and steal of an ATM within the National Australia Bank at Kings Park on 20 October 2007. It is unnecessary to detail that evidence save as to note that after the plaintiff was arrested on 23 March 2011 an expert in photogrammetry was retained by investigating police to undertake an analysis of the heights of two people depicted in CCTV footage at the bank at the relevant time. He estimated the height of person one at 1.78 to 1.84 metres and 1.81 to 1.86 metres for person two. 6On the assumption that the compulsory taking of the plaintiff's height was a non-intimate forensic procedure authorised under the Act, it was also conceded that there were reasonable grounds to believe that carrying out that procedure might produce evidence tending to confirm or disprove that the plaintiff committed that offence as provided for in s 24(3)(b). According to the defendant, the expert's opinion is of no probative weight without the plaintiff's height being forensically measured against which the measurements of the two persons photographed can be compared. 7The only issue on the appeal was whether it was open to the Magistrate, as a matter of law, to be satisfied that the measurement of the height of the plaintiff was comprehended by the extended definition of a non-intimate forensic procedure in s 3(1) of the Act: (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. 8It was common ground that the measurement of the height of the plaintiff could not satisfy the definition of an intimate forensic procedure. It was also common ground that if the measurement of a suspect's height were to be caught by the definition of a non-intimate forensic procedure it could only be within subsection (a) above, that is "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". 9It is necessary to consider each part of that definition. The first and fundamental requirement is that taking the measurement of a suspect's height can be properly described as "an external examination of a part of a person's body". It is not entirely clear whether or not this was a matter the Magistrate was invited to separately determine before making the order, although she did appear to find that an external examination included the taking of a person's height. The argument before her Honour focused on whether the compulsory taking of the plaintiff's height required, in the sense of necessitated, that his body would be touched or his clothing removed. Before that question is considered it was necessary for her Honour to be satisfied that measuring the plaintiff's height involved an external examination of a part of his body. For my part, 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". Both logic and common sense dictate that measuring a person's height necessarily involves a measurement that incorporates the whole of the person's body. 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. I am fortified in that view by the inclusion of an express provision in subsection (j) of the definition of a non-intimate forensic procedure, namely 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". Since that definition is purposive, being required for biomechanical analysis, it was not open to the defendant to rely upon it at the time of the application and it was not relied upon by counsel on the appeal. 10I am satisfied that error has infected the making of the order under s 24(3) of the Act because the taking of the plaintiff's height did not involve an external examination of part of his body and the appeal should be allowed. That being the case, it is not strictly necessary for me to determine whether the measurement of a person's height requires that the person be touched or that their clothing be removed as provided for in the definition, or whether her Honour was in error in holding that it was sufficient if that exercise could require touching of the body in the absence of any evidence as to how it was proposed the plaintiff's height would be measured. That said, in my view it would do no damage to the definition of a non-intimate forensic procedure in subsection (a) of section 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 subsection (a) of section 3(1) assuming it was otherwise open, which in my view it is not. 11At the conclusion of proceedings, and for some time thereafter in the course of successive listings on the question of costs, the defendant asserted that there was no statutory basis for a costs order to be made in the plaintiff's favour (or at all) in these proceedings. On 11 May 2012, I vacated the costs order made in the plaintiff's favour on 4 May 2012 in order to permit the parties to address the question. The defendant has since revised its position and withdrawn its opposition to costs. 12I am satisfied that the plaintiff is entitled to recover his costs in accordance with the decision of Button J in Cunningham v Cunningham (No 2) [2012] NSWSC 954 and ACP v Munro [2012] NSWSC 1510 and so order.