Daley v Brown Pittman v Brown

The plaintiff Bradley Jason Pittman 11The defendant made an identical application in respect of the plaintiff Bradley Jason Pittman ("Pittman"). The affidavit in support of that application established that Pittman was convicted of aggravated robbery at Sydney District Court on 22 July 1999 and sentenced to a period of 2 years imprisonment, to be served by way of periodic detention. 12On 29 September 2011 a CAN was issued and served on Pittman, alleging the commission of an offence of common assault on 11 September 2011. Pittman's criminal history, which was annexed to the defendant's affidavit, established that this charge was determined at the Mt Druitt Local Court on 10 October 2011 when a fine of $2,000.00 was imposed. 13Accordingly, as was the case with Daley, there were no outstanding charges against Pittman at the time the application was made to the Magistrate. As was also the case with Daley, Pittman's DNA profile was not contained in the offenders index of the DNA data base system. 14On 31 August 2012, police spoke to Pittman. He declined to give consent to the carrying out of a forensic procedure.

THE PROCEEDINGS BEFORE THE MAGISTRATE 15The applications made by the defendant came before Magistrate Hiatt at the Mt Druitt Local Court on 23 January 2013. They were heard together and the Magistrate delivered an ex tempore judgment in which he granted each of them. 16I have set out the relevant parts of the Magistrate's judgment when considering the individual grounds of appeal below.

THE COURT'S JURISDICTION TO HEAR THE PRESENT APPEAL 17Section 115A of the Act is in the following terms: 115A Appeals from forensic procedure orders made by Magistrate (1) An appeal against an order made by a Magistrate under this Act authorising the carrying out of a forensic procedure on a person may be made to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 as if the order were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 . (2) An appeal against a Magistrate's refusal to make an order under this Act authorising the carrying out of a forensic procedure on a person may be made to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 as if the refusal were an order dismissing a matter under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 . (3) The Crimes (Local Courts Appeal and Review) Act 2001 applies to an appeal arising under this section with such modifications as are made by or in accordance with the regulations under that Act. 18The Crimes (Local Courts Appeal and Review Act) 2001 is now known as the Crimes (Appeal and Review) Act 2001. Part 5 makes provision for appeals from the Local Court of New South Wales to this Court. Section 52 governs appeals as of right and is in the following terms: 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court. 19Section 53 governs appeals which require a grant of leave and provides (inter alia) that leave will be required where there is a ground which involves a question of fact, or a question of mixed law and fact. 20It was submitted on behalf of the plaintiffs that each ground of appeal raised a question of law alone and no submission to the contrary was made on behalf of the defendant. I am satisfied that each plaintiff has a right of appeal pursuant to s. 52. THE APPLICATION TO EXTEND TIME 21As I have noted, the Magistrate delivered his judgment on 23 January 2013. Part 51B rule 6 of the Supreme Court Rules required that an appeal against that decision be instituted within 28 days after that date. On 6 February 2013 the Magistrate, pursuant to Part 51B rule 6(2)(b), made an order extending the time for institution of an appeal until 20 May 2013. He also made an order staying, until the determination of any appeal, the execution of the orders he had made on 23 January 2013. 22The summons in each case was filed on 27 May 2013, some seven days after the date of expiration of the Magistrate's order extending time. The circumstances in which that occurred are set out in the affidavits of Mr Styles. In short, and through no fault of any party, there was a delay occasioned in obtaining a transcript of the proceedings before the Magistrate. In these circumstances an order extending the time for filing of the summons in each case is appropriate.

THE RELEVANT LEGISLATIVE PROVISIONS 23I was taken to a number of the provisions of the Act in the course of submissions. These obviously included those within Part 7A but they also included other provisions, the operation of which, in the submission of counsel for the plaintiffs, assisted in resolving the principal issue. It is therefore necessary for me to set out those provisions in full.

Part 1 - Preliminary 24Contained within Part 1 of the Act is s. 3 which sets out (inter alia) the following definitions: "serious indictable offence" means: (a) an indictable offence under a law of the State or of a participating jurisdiction that is punishable by imprisonment for life or a maximum penalty of 5 or more years imprisonment, or (b) an indictable offence under a law of the State that is punishable by a maximum penalty of less than 5 years imprisonment, being an offence the elements constituting which (disregarding territorial considerations) are the same as an offence under a law of a participating jurisdiction that is punishable by a maximum of 5 or more years imprisonment. "serious indictable offender" means a person who has been convicted of a serious indictable offence. "suspect" means the following: (a) a person whom a police officer suspects on reasonable grounds has committed an offence, (b) a person charged with an offence, (c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person."

Part 5 - Forensic procedures on suspects by order of Magistrate or other authorised officer (ss. 22 - 43A) 25Part 5 of the Act makes provision for forensic procedures to be carried out on suspects pursuant to the order of a Magistrate or other authorised officer. Section 24 is in the following terms: 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. 26It will be noted that for an order to be made under s. 24 there must be reasonable grounds to believe: (a)that the suspect has committed (in the case of an application for an intimate forensic procedure) a prescribed offence or (in the case of an application for a non-intimate forensic procedure) has committed an offence; and (b)that the procedure for which an order is sought might produce evidence tending to confirm or disprove the commission of such offence. 27As I have set out below, the provisions of s. 24 assumed some focus in the oral submissions made by counsel for the plaintiffs.

Part 7 - Carrying out of certain forensic procedures after conviction of serious indictable offenders (ss. 61 - 75) 28Part 7 makes provision for the carrying out of forensic procedures following the conviction of a serious indictable offender. Section 61 is in the following terms: 61 Forensic procedures and offenders to which Part applies (1) Intimate forensic procedures to which Part applies This Part applies to the following intimate forensic procedures: (a) the taking of a sample of blood, (b) the carrying out of an other-administered buccal swab. (2) Non-intimate procedures to which Part applies This Part applies to the following non-intimate forensic procedures: (a) the taking of a sample of hair other than pubic hair, (b) the taking of a hand print, finger print, foot print or toe print, (c) the carrying out of a self-administered buccal swab. ... (4) A person is authorised to carry out a forensic procedure under this Part on a person who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention whether or not the offender was convicted of the offence before or after the commencement of this section. 29Section 62 is in the following terms: 62 Non-intimate forensic procedures authorised to be carried out on serious indictable offenders (1) A person is authorised to carry out a non-intimate forensic procedure to which this Part applies on a person (other than a child or an incapable person) who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention: (a) with the informed consent of the serious indictable offender, or (b) by order of a police officer under section 70, or (c) by order of a court under section 74. (2) A person is authorised to carry out a non-intimate forensic procedure to which this Part applies on a child, or an incapable person, who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention by order of a court under section 74. 30Section 63 is in the following terms: 63 Intimate forensic procedures authorised to be carried out on serious indictable offenders (1) A person is authorised to carry out an intimate forensic procedure to which this Part applies on a person (other than a child or an incapable person) who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention: (a) with the informed consent of the serious indictable offender, or (b) by order of a court under section 74. 31Section 66 limits the scope to carry out a forensic procedure under Part 7 by providing as follows: 66 Scope of authorisation (1) A person is not authorised to carry out a forensic procedure under this Part on a serious indictable offender if the serious indictable offender is a suspect or a volunteer. (2) A forensic procedure may be carried out on a serious indictable offender who is a suspect only if authorised by and in accordance with Parts 2-5. (3) A forensic procedure may be carried out on a serious indictable offender who is a volunteer only if authorised by and in accordance with Part 8.

Part 7A - Carrying out of certain forensic procedures on untested former offenders (ss. 75A - 75O) 32Part 7A of the Act was introduced by the Crimes (Forensic Procedures) Amendment Act 2006 ("the amendment Act") and became operative on 15 March 2007. 33Clause 9 (contained in Part 4 of schedule 2 to the Act) deals with the application of Part 7A and is in the following terms: 9 Application of Part 7A Part 7A applies to and in respect of any person who, after the commencement of this Part, is served with a court attendance notice referred to in s. 75A(3)(b), and so applies regardless of when the person served the sentence of imprisonment referred to in section 75A(3)(a). 34I interpolate that the solicitor for the defendant relied upon this provision in support of what he submitted was the proper construction of s. 75A(3)(b). In my view, the provision does not assist in the resolution of that issue. 35In the case of each plaintiff, the application was made, and the orders granted, pursuant to Part 7A. A number of provisions contained within that Part are relevant for present purposes. 36Section 75A is in the following terms: 75A Forensic procedures and offenders to which Part applies (1) Intimate forensic procedures to which Part applies This Part applies to the following intimate forensic procedures: (a) the taking of a sample of blood, (b) the carrying out of an other-administered buccal swab. (2) Non-intimate forensic procedures to which Part applies This Part applies to the following non-intimate forensic procedures: (a) the taking of a sample of hair other than pubic hair, (b) the carrying out of a self-administered buccal swab. (3) This Part applies to any person: (a) who has served a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention, and (b) who is served with a court attendance notice in respect of an indictable offence, if it appears that the person's DNA profile is not contained in the offenders index of the DNA database system (an "untested former offender"). 37As I have set out more fully below, the principal issue in the present case concerns the proper construction of the phrase "who is served with a court attendance notice" contained in s. 75A(3)(b). 38Section 75B of the Act is in the following terms: 75B Non-intimate forensic procedures authorised to be carried out on untested former offenders A person is authorised to carry out a non-intimate forensic procedure to which this Part applies on an untested former offender: (a) with the informed consent of the former offender, or (b) by order of a senior police officer under section 75I, or (c) by order of a court under section 75L. 39Section 75C contains a similar provision in respect of an authorisation to carry out an intimate (as opposed to a non-intimate) forensic procedure upon an untested former offender. The one difference is that a person can be so authorised with the informed consent of the former offender, or by order of a court, but not by order of a senior police officer under s. 75I. 40Section 75H sets out a number of matters of which an offender must be informed prior to giving his or her consent: 75H Matters that untested former offender must be informed of before giving consent (1) The police officer must (personally or in writing) inform the untested former offender of the following: (a) the purpose for which the forensic procedure is required, (b) if the police officer wants the forensic procedure carried out in relation to an offence-the offence concerned, (c) the way in which the forensic procedure is to be carried out, (d) that the forensic procedure may produce evidence against the former offender that might be used in a court of law, (e) that the forensic procedure will be carried out by a person who may carry out the procedure under Part 6 as applied by section 75E, (f) if the forensic procedure is the taking of a sample of blood-that the former offender may request that a medical officer be present while the blood is taken, (g) that the former offender may refuse consent to the carrying out of the forensic procedure, (h) the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable), (i) the effect of section 84 (if applicable), (j) that information obtained from the analysis of forensic material obtained from the carrying out of the forensic procedure may be placed on the DNA database system of this State, or become part of a national DNA matching scheme, or both, and, in particular, that the information may be compared with information from the DNA database systems of other participating jurisdictions. (2) Failure to consent to non-intimate forensic procedure The police officer must (personally or in writing) inform an untested former offender requested to undergo a non-intimate forensic procedure to which this Part applies that, if the former offender does not consent, a senior police officer may order the carrying out of the forensic procedure under section 75I. (3) Failure to consent to intimate forensic procedure The police officer must (personally or in writing) inform an untested former offender requested to undergo an intimate forensic procedure to which this Part applies that, if the former offender does not consent, an application may be made to a court for an order authorising the carrying out of the forensic procedure. 41Section 75L of the Act, under which the applications were made to the Magistrate, sets out the power of a court to order that a forensic procedure be carried out on an untested former offender: 75L Court order for carrying out forensic procedure on untested former offender (1) A police officer may apply to any court for an order for the carrying out of a forensic procedure to which this Part applies on an untested former offender. (2) A court may order the carrying out of a forensic procedure under this section if satisfied that the carrying out of the forensic procedure is justified in all the circumstances. 42It will be noted that s. 75L(2) confers a discretion upon a court to make an order that a forensic procedure be carried out. However, before making an order the court must be satisfied that the carrying out of the forensic procedure is justified in all the circumstances. 43Section 75M imposes a number of requirements upon the court in the event that an order is made under s. 75L: 75M Making of order (1) If a court makes an order for the carrying out of a forensic procedure on an untested former offender, the court must: (a) specify the forensic procedure authorised to be carried out, and (b) give reasons for making the order, and (c) ensure that a written record of the order is kept, and (d) order the former offender (if present) to attend for the carrying out of the forensic procedure, and (e) inform the former offender (if present) that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure. (2) The court may give directions as to the time and place at which the procedure is to be carried out.

Part 7B - Carrying out of certain forensic procedures on registrable persons (ss. 75P - 75ZD) 44Part 7B makes provision for the carrying out of certain forensic procedures on registrable persons. 45Section 75P is in the following terms: 75P Forensic procedures and persons to which Part applies (1) Intimate forensic procedures to which Part applies This Part applies to the carrying out of an other-administered buccal swab. (2) Non-intimate forensic procedures to which Part applies This Part applies to the following non-intimate forensic procedures: (a) the carrying out of a self-administered buccal swab, (b) the taking of a sample of hair other than pubic hair. (3) This Part applies to any person: (a) who is a registrable person under the Child Protection (Offenders Registration) Act 2000 , and (b) who is required to comply with the reporting obligations under that Act, if it appears that the person's DNA profile is not contained in the offenders index of the DNA database system (an "untested registrable person" ). 46Section 75Q is in the following terms: 75Q Non-intimate forensic procedures authorised to be carried out on untested registrable persons A person is authorised to carry out a non-intimate forensic procedure to which this Part applies on an untested registrable person: (a) with the informed consent of the registrable person, or (b) by order of a senior police officer under section 75Y, or (c) by order of a court under section 75ZC. 47Section 75R is in the following terms: 75R Intimate forensic procedures authorised to be carried out on untested registrable persons A person is authorised to carry out an intimate forensic procedure to which this Part applies on an untested registrable person: (a) with the informed consent of the registrable person, or (b) by order of a court under section 75ZC. 48As is the case with s. 66 (contained within Part 7) s. 75U (contained within in Part 7B) limits the authorisation to carry out a forensic procedure under Part 7B by providing as follows: 75U Scope of authorisation (1) A person is not authorised to carry out a forensic procedure under this Part on an untested registrable person if the untested registrable person is a suspect or a volunteer. (2) A forensic procedure may be carried out on an untested registrable person who is a suspect only if authorised by and in accordance with Parts 2-5. (3) A forensic procedure may be carried out on an untested registrable person who is a volunteer only if authorised by and in accordance with Part 8. THE OBJECT AND PURPOSE OF THE ACT 49Some guidance as to the object and purpose of the Act is found in the judgment of Simpson J in Orban v Bayliss [2004] NSWSC 428 where her Honour said (at [30]): "The Act conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties." 50In the course of submissions, both parties made reference to s. 34 of the Interpretation Act 1987 which places limits on the extent to which extrinsic material can be used as an aid in the interpretation of legislative instruments. Although the written submissions of each party cited passages from the Second Reading Speech delivered at the time of the enactment of Part 7A, each party submitted that consideration need not (and perhaps should not) be given to such extrinsic material to determine the meaning of s. 75A(3)(b) of the Act. However, it remains the case that extrinsic material may still be used to identify the purpose, as opposed to the meaning, of a legislative enactment. In Nominal Defendant v GLG Australia Pty Limited and Ors [2006] HCA 11; (2005) 228 CLR 529 Gleeson CJ said (at [22]; 539): "The nominal defendant's attempt, by close reference to the text of what the Attorney-General said in his second reading speech, to demonstrate that what happened was outside the definition of "injury" was of only limited success. That speech should not be employed beyond the function for which it was employed by this court in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd, namely, to demonstrate that a purpose of the Act was to narrow the law as laid down in pre-1995 cases (at 2005 221 CLR 588 and 592-593; [80] - [81]; 598; [101] per Gummow, Hayne and Heydon JJ)... The same is true of the explanatory note on which the Nominal Defendant relied. The words of the statute, not non-statutory words seeking to explain them, have paramount significance." 51Subsequently, in Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Mason P said (at [172]; 401): "I do not consider the Interpretation Act 1987 or the common law of statutory interpretation in Australia to permit resort to a minister's speech to guide the meaning of legislation beyond identifying its purpose (Nominal Defendant v GLG Australia Pty Ltd at 538[22] per Gleeson CJ, Gummow, Hayne and Heydon JJ). However broadly the notion of "purpose" or even "intent" is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the minister is giving or appear to be giving to it." 52The Second Reading Speech delivered at the time of the introduction into the Parliament of the Bill containing what is now Part 7A of the Act included the following passage: "The Bill provides a significant number of amendments to the Crimes (Forensic Procedures) Act 2000. Those amendments do three things: ... Second, enable DNA back capture, meaning that police can take a sample from a person who has previously served a jail sentence for a serious offence but is not yet on the DNA database, if the person is subsequently charged with another indictable offence; ..." 53That part of the Second Reading Speech indicates that part of the underlying purpose of the enactment of Part 7A was back capture of DNA from persons who: (i)had previously served a custodial sentence; (ii)were not yet included on the DNA database; and (iii)were subsequently charged with another indictable offence.

THE GROUNDS OF APPEAL 54The four grounds of appeal relied upon are the same in each case.

GROUND 1 - The Magistrate below erred in determining that the plaintiff was an "untested former offender" for the purposes of s. 75A(3) of the Crimes (Forensic Procedures) Act 2000.

The nature of the issue before the Magistrate 55There was no dispute before the Magistrate that: (a)each plaintiff had served a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention; and (b)it appeared that the DNA profile of each plaintiff was not contained in the offenders index of the DNA database system 56The issue before the Magistrate was whether or not the requirement in s. 75A(3)(b), namely that each plaintiff be a person "who is served with a court attendance notice in respect of an indictable offence" had been met. 57The Magistrate concluded that such requirement had been met and that Part 7A of the Act applied. Ground 1 asserts that this conclusion was erroneous. The Magistrate's reasons 58Having set out the nature of the applications, the Magistrate said the following (commencing at T8 L23): "I note the applications are opposed on behalf of each of the respondents and ultimately that opposition comes down (sic) an interpretation in regard to the provisions of s 75A and indeed what might be said to be a circumstance where in respect to fresh indictable or further indictable offences in respect to each of the defendants those matters were finalised by a court some time ago and ultimately insofar as the matter is concerned the timing of this particular application." 59The Magistrate then made lengthy references to the Second Reading Speech before continuing (commencing at T12 L1): "Quite clearly, when one looks at the regime of the Act, it is a circumstance where there is a cascading effect. Part 4 and Pt 5 relate to the taking of forensic procedures when carried out on persons who are suspects in regard to either serious criminal offences or other offences. Part 7 of the Act relates to persons who have been convicted of serious indictable offences and currently serving a custodial sentence. Part 7A was inserted in respect to persons who have been previously convicted in regard to serious indictable offences, have served those particular sentences and then subjected to further offending behaviour by way of being required to appear before the court like (sic) an issue on a Court Attendance Notice. I note when one looks at the outline of the legislation it is fairly clear insofar as the intent and the purpose of the Act itself is concerned, is to provide certain safeguards and measures in respect to persons who are likely to be subject to forensic procedure testing by way of the implementation in a number of sections in parts of the Act in relation to particular timeframes; for the taking, or the undertaking of certain processes, further safeguards in regard to representation before the court; further safeguards in regard to the manner in which certain types of testing can be carried out. It is the court's view insofar as the matter is concerned in respect to the insertion of Pt 7A that if it had been the intent of Parliament insofar as limiting the approach to be adopted by investigating authorities in respect to the taking of a forensic procedure on the basis of the service or of a further Court Attendance Notice, the Parliament would have clearly indicated that, having regard to the nature of the Act as it currently stood. That point in regard to other safeguards in respect to each of the other provisions quite clearly remain what (sic) - the provisions of s 75A itself. It is a circumstance where the section merely provides under part - s 75A(3). The last paragraph being para B (sic) was served with a Court Attendance Notice in respect of an indictable offence, would have been open to the Parliament had it been the Parliament's intention to insert a rider within that particular clause to make it either a provision that the application needed to be brought before the conclusion or finalisation of the matter for which the Court Attendance Notice had been served." 60The Magistrate then expressed his conclusion (commencing at T12 L36): "It is clear insofar as the wording of the Act is concerned, that wording is not there as a safeguard and indeed the court takes the view, having regard to the contents of the Reading Speech, the general tenor of the Act itself and the other safeguards provided within the Act, that it was not the intention of Parliament to limit the circumstances, save with the exception of what is contained in sub paras 3A (sic) and 3B (sic) in respect to the making of an application. Insofar as these particular applications are concerned, I am satisfied insofar as subs 3(a) is concerned that each of those particular circumstances have (sic) been satisfied by the prosecution and I am not satisfied that sufficient grounds have been raised by each of the respondents which would take the court to a different view in respect to the applications before the court. Under all the circumstances, I propose to grant each of the applications."

The submissions of the plaintiffs 61The submissions of each party concentrated upon the words "is served" as they appear in s. 75A(3)(b). Counsel for the plaintiffs submitted that a proper construction of those words required that the CAN be still "on foot" at the time of the making of the application. Put another way, counsel submitted that if the offence(s) alleged in the CAN had been determined by the time of making the application to the court under s. 75L (which was the case with each of the plaintiffs) s. 75A(3)(b) of the Act was not satisfied, and the person was not an "untested former offender" for the purposes of Part 7A. 62One of the underlying bases of counsel's submission was that the words "is served" as they appear in s. 75A(3)(b) were to be construed as referring to a present state of affairs. It was submitted that on their proper construction, those words required that at the time of the making of the application for an order, the further indictable offence alleged in the CAN be undetermined. Counsel submitted that it had been open to the Parliament to use a variety of other formulations if it wished to imply or impute a past tense to the verb "serve". He argued that the fact that such other formulation had not been used reflected a specific intention on the part of the Parliament to require that the state of having been served with a CAN be remain in existence at the time of making an application under s. 75L. 63In oral submissions, counsel for the plaintiffs addressed me carefully, and at some length, in relation to the overall scheme of the Act which, he submitted, supported the construction of s. 75A(3)(b) which he had advanced. 64In this regard, counsel commenced by taking me to the provisions of s. 24 and drew my attention, in particular, to ss. 24(2) and (3). In doing so, he pointed out that regardless of the type of procedure for which an order was sought pursuant to that section, the conditions set out at [26] above were required to be met before an order could be made under s. 24(1). He submitted that in this sense the provisions of sections 24(2) and (3) created a gateway through which an applicant for an order was required to pass before an order could be made. 65Counsel then pointed out that by virtue of the application of ss. 66 and 75U, the procedures for which provision was made in Parts 7 and 7B respectively could only be carried out in accordance with, and if authorised by, Parts 2 - 5. The effect of this, he submitted, was that the gateway imposed by s. 24 applied to applications made under each of Parts 7 and 7B. 66In developing this argument, counsel then drew attention to the fact that there was no provision in Part 7A which was equivalent to s. 66 or 75U which operated to limit the scope of the authorisation to carry out procedures under Parts 7 and 7B respectively. In this regard, he submitted that Part 7A was clearly distinct from Parts 5, 7 and 7B. 67Counsel submitted that the resultant effect of this statutory scheme was that by enacting Part 7A, the Parliament had introduced provisions which facilitated the carrying out of forensic procedures other than in accordance with s. 24. He submitted that this supported the narrow construction of s. 75A(3)(b) which he had advanced and put the matter in the following way (at T 4 L 42-48): "The relevance of that in our submission is that it supports this construction that when the words 'is served with a CAN' are used, what Parliament is doing is saying: Well, if they have served the period of imprisonment and if they are served with a CAN which is on foot, we won't require the police to go back through section 24. We will make it easier for the police to get a forensic sample simply by the fact that they have been charged with the fresh offence which is still outstanding".

The submissions of the defendant 68The solicitor for the defendant submitted that the phrase "is served with a Court Attendance Notice" in s. 75A(3)(b) was not reasonably capable of being construed in the manner for which counsel for the plaintiffs contended. He submitted that the suggested construction was at odds with the object and purpose of Part 7A, as well as being at odds with other provisions contained within that Part. He submitted that the suggested construction neither served, nor advanced, that part of the underlying purpose of Part 7A which related to DNA back capture. 69The solicitor for the defendants also pointed to the practical consequences of the construction advanced by the plaintiffs in an attempt to demonstrate that such construction was not reasonably open. In doing so, he postulated a hypothetical situation in which a person who had served a sentence of imprisonment for a serious indictable offence (s. 75A(3)(a)), and who was then served with a CAN, might plead guilty on the first occasion on which the CAN was returnable before a court. He pointed out that in those circumstances it may not be possible to make, let alone determine, an application pursuant to s. 75L before the charge set out in the CAN was finalised. He submitted that if the construction for which the plaintiffs argued were adopted, it would follow that the police would be precluded from making an application for an order under Part 7A in such a circumstance. He argued that such a consequence would be at odds with the underlying purpose of Part 7A, and was not one which the Parliament could possibly have intended. Consideration and conclusion in respect of Ground 1 70It is necessary to construe a statutory provision in a manner which is consistent with the language and the purpose of all of the provisions of the statute: see Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355. In a case which involves the interpretation of legislation affecting the personal liberty of a person, a court should not impute an intention to the legislature to curtail certain human rights unless such an intention is clearly manifested by unambiguous language: see Al-Kateb v Goodwin (2004) 219 CLR 562 at 577. 71Further, when construing a statutory provision it is necessary to begin with the ordinary and grammatical sense of the words used, having regard to the context in which those words are used, along with the overriding legislative purpose: see Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27. 72The essence of the submissions advanced on behalf of the plaintiffs was that the term "is served" as it is used in s. 75A(3)(b) should be construed as connoting or referring to an existing state of affairs, such that once the offence set out in the CAN has been dealt with (as was the case with each of the present plaintiffs) the provisions of Part 7A no longer have application. 73In the course of argument, I was referred to the decision of Young J (as his Honour then was) in Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403 where his Honour was called upon to consider the meaning of the word "is" as it appeared in s. 9A of the Land Tax Management Act 1956. His Honour said (at [12]): "The word "is" in its most common use indicates an immediately present situation: Public Trustee v McKay [1969] NZLR 995, 1001. However, as McCarthy J pointed out in that case at 1002, the use of the present tense does not necessarily focus on a point in time because it is quite customary to use the present tense as though the past, and indeed the future, were present such as "the steamer leaves every Tuesday in winter". The word "is" is also often used in a continuous sense, such as "where the court is satisfied" of something, referred to as the "continuous present" by Gee J in Penza v Penza [1998] FLC 91-949 at 76,858. Occasionally the word can have a past significance such as in Hargreaves v Hopper (1875) 1 CPD 195, where the Act gave the vote to a person who "is on the last day of July in any year" a person who possesses the prescribed qualifications. The word can mean "shall be" or "will be": Botts v Simpson 167 P (2d) 231, 233 (1946) (Cal); Jersey City v Flynn 70 A 497, 510 (1908) (NJ Chancery). Sometimes the word has no temporal significance at all: Pye v Minister for Lands NSW [1954] 1 WLR 1410, 1425. See generally Darkingung Local Aboriginal Land Council v Minister for Natural Resources (1985) 58 LGRA 298." 74Having highlighted the fact that that the word "is" can be used in different ways, his Honour said (at [13]): "In all cases it is a matter of looking at the word in context." 75I have already noted that part of the fundamental purpose of Part 7A of the Act is to facilitate the "back capture" of DNA from a person: (a)who has previously served a gaol sentence for a serious offence; (b)who is subsequently charged with a further indictable offence; and (c)whose DNA is not yet included on the relevant database. 76In my view, that purpose says nothing about the "life" of the CAN which alleges the further indictable offence, and does not require that the offence alleged in the CAN be undetermined at the time of making the application under s. 75L. It is not necessary, in order to achieve the purpose of DNA back capture, to impose the limitation advanced on behalf of the plaintiffs. Indeed in my view, for the further reasons set out below, to impose such a limitation would be inconsistent with at least one other provision within Part 7A. 77The mere fact that the word "is" has been used in s. 75A(3)(b) does not, of itself, indicate a present, or current, state of affairs. As Young J pointed out in Gaffey (supra) the use of the word can convey a number of different meanings depending on the particular context in which it is used, and the issue which it is intended to address. The purpose of Part 7A forms part of the relevant context in the present case. Having regard to that purpose, there is no warrant for construing the word "is" in the manner for which the plaintiffs contended. In my view, the phrase "any person who is served with a court attendance notice" should be construed as meaning "any person upon whom a court attendance notice has been served". 78Further in my view, there is nothing contained within Part 7A, nor is there any aspect of its purpose, which supports the proposition that the forensic procedure for which an order is sought must be in some way connected to the investigation of the further indictable offence set out in the CAN, such that once the matter has been dealt with the provisions of Part 7A no longer have application. Such a proposition runs contrary to the provisions of s. 75H(1)(b) (set out at [40] above). S. 75H(1)(b) clearly contemplates that in a case where an order is sought under s. 75L, the forensic procedure which is sought to be carried out need not have any connection with an offence at all. 79In my view, the Parliament's inclusion of s. 75H(1)(b) supports the construction advanced on behalf of the defendant. The section is completely consistent with the identified purpose of Part 7A, and tends to highlight that Part 7A is intended to address circumstances which are different to those addressed by Parts 5, 7 and 7B of the Act. Once those differing circumstances are accepted, there is, in my view, no justification for limiting the application of Part 7A in the manner argued by counsel for the plaintiff in the passage set out in [67] above. 80In developing his argument concerning the scheme of the Act, counsel for the plaintiffs submitted that the interpretation advanced by the defendant had the capacity to operate unfairly. He cited, by way of example, a situation where a person had served a sentence of imprisonment, was served with a CAN alleging the commission of a further indictable offence, and was then found not guilty of that offence. Counsel submitted that on the defendant's construction of s. 75A(3)(b), it would still remain open to the police in such circumstances to bring an application under s. 75L, perhaps years after the event. This, he submitted, would produce an unfair result which was at odds with the intention of the Parliament in enacting the legislation. 81I do not regard the hypothetical situation postulated by counsel as being inconsistent with the purpose of back capture of DNA. Moreover, it is not to be assumed that the making of an application will inevitably lead to the making of an order. It is necessary to bear in mind that a Magistrate must be satisfied that the making of an order pursuant to s. 75L(2) is justified in all the circumstances. The phrase "in all the circumstances" is necessarily wide and allows the Magistrate to have regard to a variety of factors. It may well be that in a particular case, a period of delay between an acquittal and the making of an application for an order would be a relevant factor for a Magistrate to consider in determining whether the making of an order was justified. By conferring a discretion in the terms set out in s. 75L(2), the Parliament has taken steps to ensure that in a case to which Part 7A applies, the appropriate balance between the rights of the citizen and the interests of the community to which Simpson J referred in Orban (supra) will be struck. 82For all of these reasons I am not satisfied that the Magistrate erred in concluding that the circumstances of each plaintiff were such that Part 7A applied. I therefore reject this ground.

GROUND 2 - The Magistrate erred in failing to determine whether the forensic procedure was "justified in all the circumstances" for the purposes of s. 75L(2) of the Act.

GROUND 3 - Further, or in the alternative to ground 2, the Magistrate erred by applying the wrong test in determining whether the forensic procedure was "justified in all the circumstances" for the purposes of s. 75L(2) of the Act.

GROUND 4 - The magistrate erred in failing to give reasons why the order for the forensic procedure was "justified in all the circumstances" for the purposes of s. 75L(2) of the Act. 83As I have set out below, the defendant effectively conceded that one or more of these grounds (the issues in which tend to overlap) were made out. This will necessitate the matter being remitted to the Magistrate. However it remains appropriate for me to deal with these grounds.

The Magistrate's reasons 84At the conclusion of his reasons the Magistrate said (commencing at T12 L43): "In so far as these particular applications are concerned, I am satisfied in so far as subs 3(a) is concerned that each of those particular circumstances have been satisfied by the prosecution and I am not satisfied that sufficient grounds have been raised by each of the respondents which would take the court to a different view in respect to the applications before the court. Under all the circumstances, I propose to grant each of the applications" (my emphasis).

The submissions of the parties 85Counsel for the plaintiffs made three primary submissions in support of these grounds. 86Firstly, he submitted that the Magistrate's reference to the fact that he was "not satisfied that sufficient grounds had been raised by each of the respondents" amounted to a reversal of the onus, and the imposition of an onus on the plaintiffs (as respondents to the applications) to satisfy the court that the forensic procedure was not justified. It was submitted that this amounted to a misconstruction of s. 75L(2) and constituted an error of law. 87Secondly, counsel submitted that this error led the Magistrate into a second error, namely that he failed to address the issue raised by s. 75L(2). 88Thirdly, it was submitted that the Magistrate's reasons were, in any event, inadequate. 89The defendant's solicitor candidly conceded that the Magistrate's reasons were capable of being construed in a way which supported at least one of the errors for which the plaintiff's contended.

Consideration and conclusion in respect of Grounds 2, 3 and 4 90Section 75L of the Act conferred a discretion upon the Magistrate to order that a forensic procedure be carried out. That discretion was not unfettered. It required the Magistrate to be satisfied that the carrying out of that procedure was justified in all the circumstances. 91In my view, it is evident from the Magistrate's reasons that he did not ask himself, and did not address, that question. Rather, the question he posed was whether or not he was satisfied that sufficient grounds had been advanced by the plaintiffs in order to satisfy the court that the order sought in each case should not be made. Not only was that not the question raised by s. 75L(2), it was one which incorrectly imposed an onus on the plaintiffs. It appears that the Magistrate took the view that once the defendant (as the applicant) satisfied the court that the requirements in s. 75A(3) had been met, the onus shifted to the plaintiffs (as the respondents to the applications) to advance reasons why the making of the order was not justified. That approach reflected error. The onus was on the defendant, as the applicant for the orders, to satisfy the Magistrate firstly, that the requirements of s. 75A(3) were met, and secondly, that all the circumstances justified the making of the orders sought. 92In approaching the matter in the way in which he did, the Magistrate asked himself the wrong question, identified the wrong issue and incorrectly reversed the onus. In each case, an error of law is made out (see Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]; 351). 93I therefore uphold grounds 2 and 3. 94As to ground 4, there is a long line of authority which recognises that care must be taken in approaching the task of reviewing ex tempore reasons for judgment of a Magistrate or Judge sitting in a busy court (see Munro v ACP [2012] NSWSC 100 at [21] per RA Hulme J and the authorities cited therein). At the same time, there are a number of minimum requirements which apply to the giving of reasons. In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449, Santow JA observed (at [41]): "It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings." 95In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA said (at 442): "A failure to provide sufficient reasons can, and often does, lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost." 96His Honour went on to observe (at 442 - 443) that whilst a statement of reasons need not necessarily be lengthy or elaborate, an adequate statement of reasons will: (i)refer to all relevant evidence; (ii)set out any material findings of fact and any conclusions reached; and (iii)provide reasons for making the relevant findings of fact, and reaching the relevant conclusions, as well as provide reasons in applying the law to the facts found. 97Similar observations were made in Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [56] and following (per McColl JA, Ipp JA and Bryson AJA agreeing) and were summarised by Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing) in Qushair v Raffoul [2009] NSWCA 329 at [52] and following. 98It is apparent from a reading of the transcript of the proceedings before the Magistrate that the submissions made by the representatives of the parties (who were not the representatives who appeared before me) concentrated exclusively on the issue of statutory construction. No consideration was given by either representative to the question of whether, in the event that the Magistrate found that Part 7A applied, the orders sought were justified in all the circumstances. Be that as it may, the Magistrate was required to determine that question and to give reasons for that determination. In my view, he failed to do so. It may be that his failure is partially explained by the errors I have found in respect of grounds 2 and 3. Whatever be the case, and although he made a passing reference to "all the circumstances" in the course of his reasons, the Magistrate did not identify the circumstances to which he was referring and his reasons were inadequate. That failure to provide proper reasons amounted to a further error of law (see Stoker (supra) at [41] and Beale (supra) at 444). 99Once he was satisfied that Part 7A applied to each of the plaintiffs, the Magistrate was required to consider whether he was satisfied, as required by s. 75L(2), that the carrying out of the forensic procedure was justified in all the circumstances. The authorities to which I have referred required the Magistrate to articulate his reasons for the conclusion he reached. A proper articulation of those reasons necessarily required, at a minimum, that the relevant circumstances be identified, and that an explanation be given of why those circumstances justified the making of an order. 100For all of these reasons, ground 4 is also made out.

ORDERS 101The submissions of the defendant noted that neither party seeks an order for costs. In these circumstances, and for the foregoing reasons, I make the following orders: (1)I extend the time for filing the summons in each matter until 27 May 2013. (2)I set aside the orders of Magistrate Hiatt made on 23 January 2013. (3)I remit both matters to the Magistrate to be dealt with according to law. (4)I make no order as to costs.

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: 05 March 2014