Dogan v Quayle

Judgment 1HIS HONOUR : On 18 November 2010 Magistrate McIntyre made an order pursuant to s 24 of the Crimes (Forensic Procedures) Act 2000 . That section is as follows: " 24 Final order for carrying out forensic procedure (1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities: (a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances. (2) In the case of an intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (3) In the case of a non-intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following: (a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, balancing of those interests." 2Magistrate McIntyre ordered that the plaintiff Mr Dogan attend upon City Central Police Station by 6.00pm on Friday 19 November 2010 to be photographed. That was a non-intimate forensic procedure contemplated by the Act. See generally Mullins v Lillyman [2007] NSWSC 407. Magistrate McIntyre was satisfied that such order should be made upon evidence that suggested that Mr Dogan had been involved in an assault on a named victim at the Docks Hotel at Darling Harbour on 4 October 2009. Mr Dogan was then working at the hotel as a security guard. 3Mr Dogan did not attend to be photographed. Instead, on 19 November 2010 he commenced these proceedings by summons seeking the following relief: "1. An order granting to appeal [ sic ], an order setting aside the order of Magistrate McIntyre 18 November 2010 authorising out of a non-intimate forensic procedure being photograph and costs." 4Section 115A of the Crimes (Forensic Procedures) Act provides that an appeal against an order made by a magistrate under that Act authorising the carrying out of a forensic procedure on a person is made to this Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 . Section 115A is as follows: " 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." 5Part 5 of the Crimes (Local Courts Appeal and Review) Act is for presently relevant purposes as follows: " 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. 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environm e ntal offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves: (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. (2) Any person who has been convicted or sentenced by the Local Court 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, and only by leave of the Supreme Court. (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court. 54 Determination of applications for leave to appeal (1) The Supreme Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application with respect to an environmental offence unless the Supreme Court is satisfied that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application. (3) If the Supreme Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the Supreme Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 55 Determination of appeals (1) The Supreme Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal. (2) The Supreme Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. (3) The Supreme Court may determine an appeal against an order referred to in section 53 (3) (a) or (b): (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal." 6Mr Dogan's appeal operated as a stay of the learned magistrate's order that he attend to be photographed. Section 63 of the Crimes (Appeal and Review) Act 2001 is in these relevant terms: " 63 Stay of execution of sentence pending determination of appeal (1) This section applies to: (a) any sentence, and (b) any penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege that arises under an Act as a consequence of a conviction, in respect of which an appeal or application for leave to appeal is made under this Act. (2) The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed: (a) except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or (b) in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or (c)..." 7Mr Dogan's summons was not supported by any affidavit evidence. It is not apparent from the summons what are said to be the grounds of appeal that he relies upon, or whether or not the appeal is one made as of right or one in respect of which leave is required. No leave is sought in the summons. 8As far as I am aware, Mr Dogan has not prosecuted the appeal with any enthusiasm. An order made by the Court on 17 December 2010, apparently in Mr Dogan's absence, that he file and serve an amended summons or statement setting out the grounds relied upon in support of the appeal no later than 28 January 2011 has not been complied with. Mr Dogan did not appear when the matter came before the Registrar on 4 February 2011 or 25 February 2011. An affidavit sworn on 24 February 2011 by the defendant indicates that Mr Dogan left Sydney on 24 January 2011 on a Cathay Pacific Airways flight destined for the Philippines. The evidence also suggests that Mr Dogan is to return to Australia on 8 April 2011. 9The defendant had the matter referred to me as Duty Judge from the Registrar's list on 25 February 2011. The defendant asked that I make orders varying Magistrate McIntyre's order made on 18 November 2010 so as to require Mr Dogan to attend for a non-intimate forensic examination by 6.00pm on 11 April 2011. That request was based upon the powers given to me by s 55(2)(b) of the 2001 Act. 10Section 30(1) of the Crimes (Forensic Procedure) Act provides as follows: " 30 Procedure at hearing of application for order (1) An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the Magistrate." 11I am informed by Mr McGorey, who appears for the defendant, that Mr Dogan has not been given any notice of the defendant's proposal to ask that I make an order varying Magistrate McIntyre's order. Whether or not I am constrained by the terms of that subsection, I would not in any event be prepared at present to make an order varying what the magistrate ordered unless I were satisfied that Mr Dogan had been given notice of the defendant's proposal to seek such a variation. 12The basis upon which the matter came before me was that the police proposed to use Mr Dogan's photograph in their investigation of the assault. He was a suspect as defined in the Act. If his photograph could not be obtained soon it was said that there was a risk, with the passage of time, that the recollections of witnesses to the assault may fade and that the chance that Mr Dogan's role, if any, in the criminal activity concerned might be ascertained would be lost or diminished. The matter was said in these circumstances to have some urgency. 13Section 55(2)(d) also empowers me to dismiss the appeal. I was not asked to do that and I would in any event be disinclined to do so for the same reason that Mr Dogan has been given no notice of that as a possible outcome. It may be that an application to dispose of the proceedings for want of due despatch, or for some other relief, might attract favourable consideration if made in due course. That remains to be seen. 14The defendant's complaint is essentially in two parts. First, for as long as the appeal operates as a stay of Magistrate McIntyre's order, Mr Dogan is not in breach and presumably no other similar order can be obtained before these proceedings are dealt with one way or another. Secondly, even if the present proceedings were somehow finally to be disposed of, the defendant is concerned that Mr Dogan might nevertheless have available to him an argument that as the time for compliance with the original order has passed, dismissal of the current proceedings could not revive the original order made against him. In those circumstances the defendant would have no alternative but to proceed to apply for another order pursuant to s 24. 15Unfortunately, that is as may be. When the matter came before me it was not in the context of any application for specified relief in the proceedings of which Mr Dogan had been given notice. I am unaware whether an order for substituted service upon him would succeed or whether his return to Australia in April can be assumed. These are matters that the defendant may in due course wish to consider. It is not appropriate for this Court to provide what is in effect legal advice to either party. 16In these circumstances I propose to make no order. In my opinion the proceedings should simply be placed in the Registrar's list at some convenient date for directions or for the disposition of any application that the defendant may care to make. In advance of that occasion the defendant can take such steps in the proceedings as she may be advised. I will hear the defendant on when that should be.