Fantakis v NSW Commissioner of Police & Ors

Mr Fantakis in person unrepresented (Applicant) Mr Fraser (Respondent)

Ms L Turner (Respondent) File Number(s): 2013/85445

Judgment 1His Honour: On 13 March 2013, Quinn LCM made orders pursuant to s 24(3) Crimes (Forensic Procedure) Act 2000 (the Act) authorising the carrying out of non-intimate forensic searches being a buccal swab and fingerprint order on the plaintiff. 2The plaintiff, who was self-represented before the magistrate and this court, appeals against her Honour's decision. By way of summons the plaintiff seeks that the orders of 13 March 2013 be set aside and asks pursuant to s 69 Supreme Court Act 1970 the orders be quashed on the grounds of error of law. The plaintiff further states in the summons under Relief Claimed: "3. Plaintiff claims the defendant made the application for a forensic procedure in effect to act as 'cross-claim' to the plaintiff's lawful application to have previously seized goods returned to him. 4. Criminal charges were introduced by way of Future CAN on the plaintiff during his hearing in relation to his application to have his goods returned. 5. Such further or other order as the court deems fit to prevent this Abuse of Court process of the applicant in the name of justice." 3The Commissioner of Police, the Local Court of New South Wales, Detectives Roxane McGee and Paul Stamoulis have been joined as defendants. A submitting appearance has been filed on behalf of the Local Court. Background 4Before venturing further, it is convenient to recount the factual background detailed in paragraph 8 of the affidavit of Detective McGee dated 3 January 2013 that was before the magistrate when the detective made the application for the forensic procedures. 5On 11 August 2011 Sam Karmas went missing from Punchbowl under suspicious circumstances. Mr Karmas is believed to have been murdered. As a result, an investigation by the homicide squad was commenced and the plaintiff was identified as a suspect. 6On 13 August 2011 the plaintiff was stopped while driving his blue Ford Transit van. The van was seized under the provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 for forensic examination. A silver extendable baton was found in the rear compartment of the vehicle. Police allege that the baton is a prohibited weapon under the Weapons Prohibition Act 1998. 7A search warrant and crime scene warrant were executed at the plaintiff's home on 14 August 2011. Police found 2486.4 grams of cannabis and $5,000 in cash during the search. 8The plaintiff was charged on 10 December 2012 with one count of supply a prohibited drug (cannabis) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 and one count of possession of a prohibited weapon contrary to s 7(1) Weapons Prohibition Act. 9On 13 March 2013 Detective McGee made an application for an order authorising the carrying out of forensic procedures on the plaintiff pursuant to s 24 of the Act. The application sought the taking of a mouth buccal sample and fingerprints from the plaintiff. These are each non-intimate forensic procedures as defined in s 3 of the Act. The Appeal 10Section 115A of the Act relevantly provides: "Appeal 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. ... (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." 11The Crimes (Local Courts Appeal and Review) Act 2001 is now known as the Crimes (Appeal and Review) Act 2001 ("the CAR Act"). 12Section 52(1) CAR Act is as follows: "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." 13It is apposite to note that s 53 CAR Act allows for an appeal on a question of fact, or on a question of mixed law and fact but only with leave of the court. Leave was not sought by the plaintiff and the basis for the plaintiff's claim for relief is confined to an error of law, including jurisdictional error, such as a failure to accord procedural fairness or error on the face of the record: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163. 14It is not possible to discern from the summons a ground of appeal that identifies an error of law. The assertion in paragraph 2 of the Relief Claimed that the magistrate's orders constituted an error of law is a conclusion and requires identification of an asserted error. It appears from the summons that the plaintiff contends that the orders are an abuse of process. An abuse of process necessarily involves a question of fact which is outside the ambit of the present appeal. 15During oral submissions, the plaintiff referred to a denial of procedural fairness which raises a question of law. The plaintiff put to the court that before the magistrate he felt that "[he] wasn't permitted to investigate or ventilate certain issues which were relevant to why a forensic procedure would not bear any forensic purpose" (T26/07/13 T6 L50, T7 L1-2). 16The plaintiff said he attempted to show the magistrate that there was no forensic purpose to be gained by the procedures given that "that [he had] clearly indicated the items in situ that belonged to [his] twin brother before they were transported to [his] home, goods which [he] did handle with [his] hands, goods which were carried by the van in which the alleged prohibited weapon was found and [he] then addressed the main issue that it wouldn't bother [him], given the fact that [he] did carry the items and [his] prints would be on them" (T26/07/13 T8 L45-50). 17The plaintiff submitted that he was not allowed by the magistrate to cross-examine Detective McGee on any issue relating to the discovery of the drugs; to address on the pictures that he filed in court; to introduce the case of his twin brother; or, on the delay in the charges being proffered against him. He argued that "[he] was not allowed to demonstrate the circumstances and [his] concerns as to the danger of permitting such a forensic procedure" (T26/07/13 T18 L41-43). He contended that the police officer was "misusing the court process" and was "on a fishing expedition to see if [his] DNA or prints were associated with any other crime" (T26/07/13 T18 L18-20). He said that his greatest fear was the misconduct of police in not giving him a receipt for the items they had seized. 18The documents relied upon by the plaintiff in his appeal included, nine pages of written submissions, an affidavit sworn 20 March 2013 and a Statement of Issues. 19The plaintiff's written submissions essentially provide a background to the charges he faces and criticisms of the police investigations. He refers at page 5 to the danger of permitting "such a late request for a Forensic Procedure, intent to further the cause of malicious prosecution (staged crime scene)." 20In his affidavit, the plaintiff raises, inter alia, the following matters of fact: (i) The delay of 16 months between the seizure of the extendable baton and the cannabis by police and the plaintiff being charged. (ii) Alleged irregularities by police in relation to the conduct of the searches which led to the finding and seizure of the prohibited drugs and the extendable baton. (iii) The destruction of the prohibited drugs which has denied the plaintiff's right to question or examine the exhibits. (iv) A discrepancy between the amount of the prohibited drug described in the destruction order and the amount that was seized by police. (v) An alleged failure by police to provide lists of the items seized. 21It is convenient to mention that the plaintiff's complaint about the goods seized by police was considered in Fantakis v Commissioner of Police [2013] NSWSC 685. In that case, Adamson J dismissed his appeal against the decision of a magistrate refusing to return the seized goods. 22The plaintiff filed in court a Statement of Issues that included the contention that the non-intimate forensic procedures did not have relevance in confirming that he had committed the crimes of possession or use of a prohibited weapon (an extendable baton) and deemed supply of the indictable quantity of cannabis (2486.4 grams). 23The document further referred to, inter alia, "these items" having been handled by the plaintiff in their transportation that "included tools, plastic bags and the prohibited weapon" (Statement of Issues par 4(d)). These matters were stated to verify that the plaintiff's "fingerprints would be found on the property transported/located at the property" and the plaintiff's DNA would also be present (Statement of Issues par 5(a)). Further mention was made of both of the deceased Nicholas Fantakis and Ioannis Fantakis having criminal records in relation to the cultivation of cannabis and that the DNA of identical twins is identical. All of this is stated to clearly "[validate] that such a Forensic Procedure will not assist in verifying that the [plaintiff] has committed the offences, charges generated 17 months after the discovery of this questionable evidence" (Statement of Issues par 8). 24It appears from the plaintiff's oral submissions that these matters are related to a complaint of a denial of procedural fairness which is identified in paragraph 2 of the Statement of Issues as follows: "The written transcripts clearly detail that Magistrate Quinn prevented any questions to be asked in relation to the search warrants, this in turn denied the [plaintiff] of verifying that both these items belonged to his deceased brother, Mr Nicholas Fantakis; IDENTICAL TWIN". and further in paragraph 12: "In summary, the [plaintiff] was denied prejudicial [sic] and procedural fairness, with deliberate actions from both the defense [sic] counsel and the prosecution in order to pervert the course of justice." 25Mr Fraser, who appeared for the defendants, submitted that the plaintiff, had the opportunity of cross-examining Detective McGee before the magistrate and there was no denial of procedural fairness. 26As the plaintiff's complaint of procedural unfairness was raised in the Statement of Issues and argued before me, I grant leave to the plaintiff to amend the summons to include the ground that he was not accorded procedural fairness by the magistrate. This is the sole ground of appeal that raises a question of law and my consideration of the proceedings in the Local Court is confined to this question. The Local Court proceedings 27In the Local Court, the police prosecutor represented Detective McGee and the plaintiff represented himself. There is no dispute that Detective McGee was an "authorised applicant" within the meaning of s 3 of the Act and was entitled to apply to a magistrate for an order under s 24 of the Act authorising her to arrange the carrying out of a forensic procedure on a "suspect": s 26 of the Act. As the plaintiff had been charged with the offences of supply of a prohibited drug and possession of a prohibited weapon, he was a suspect as defined in s 3 of the Act. 28In conformity with s 26 of the Act, the application was in writing and was supported by Detective McGee's affidavit. 29Section 24(1) is as follows: "(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." 30As the application was for non-intimate forensic procedures s 24(3) applied. Section 24(3) is as follows: "(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)." 31In deciding whether to make the orders sought, the magistrate was obliged to have regard to s 24(4) of the Act which provides: "(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." 32The plaintiff told the magistrate that he opposed the making of the orders sought by the detective. He handed to the magistrate an affidavit and short minutes of order that he said addressed the major points in his affidavit. He cited ACP v Munro [2012] NSWSC 1510, a decision of Button J that principally considered whether the investigative processes sought by the police in that case fell within the definition of "non-intimate forensic procedure" in s 3 of the Act. No such issue arose in the present application, but Button J's exposition at [96] of the requirements of s 24 was helpful to her Honour. The plaintiff referred to the 16-month delay between the seizure of the extendable baton and the cannabis and the charges being laid, the destruction of the prohibited drugs, the failure by the police to provide a seizure notice and to comply with what he referred to as "standard operating procedures." These are topics that the plaintiff has repeated in his affidavit filed in this court: see [20] above. Her Honour carefully listened to the plaintiff's submissions and pointed out that his complaints might have relevance if the charges against him went to trial. However, her Honour directed his attention to the requirements of s 24 of the Act. Her Honour informed the plaintiff that he could cross-examine the applicant pursuant to s 30(6)(a) of the Act and for that purpose, Detective McGee was sworn to give evidence. 33When addressing the requirements of s 24(1)(a), Detective McGee stated at paragraph 9 of her affidavit: "The exhibits subject to this charge have been forensically examined and fingerprinted and it is reasonably suspected that a sample of the suspects DNA and fingerprints for comparison to these exhibits may produce evidence tending to confirm or disprove that the suspect has committed the aforementioned offences." 34As to s 24(1)(b), Detective McGee's affidavit referred to (at par 10): "(a) The gravity of the offences in which the [plaintiff] has been charged are serious and Indictable Offences in nature. (b) The exhibits subject to the relevant charges were located in the personal vehicle and at the home address of the [plaintiff] and the degree to which the [plaintiff] is alleged to have participated in the commission of the offence is as a principal offender. (c) The [plaintiff] is an adult and a capable person within the definition. (d) There are no other practicable or less intrusive ways of obtaining evidence as to whether or not the [plaintiff] committed the alleged offence." 35During the plaintiff's cross-examination of the detective, the magistrate ruled on objections as to the relevance of some of his questions. Some of the objections were rejected and others upheld. The topics that her Honour disallowed cross-examination upon included whether there was a video recording to prove continuity of evidence "on the second van that was seized in the homicide" (T13/03/13 T28 L3-4); the refusal by police to provide lists of personal items seized (T13/03/13 T28 L23-26); the receipt of two different documents providing different weights for the drugs (T13/03/13 T29 L19-21); whether the Director of Public Prosecutions had been informed that the drugs had been destroyed (T13/03/13 T30 L14-15); and whether the detective had knowingly charged the plaintiff for the drug offence with prior knowledge that the evidence had been destroyed (T13/03/13 T31 L37-39). 36The magistrate did not prevent the plaintiff from asking questions of the detective but ruled on objections as to relevance. The plaintiff's cross-examination of the detective concluded when he informed the magistrate that he had no further questions. Notwithstanding his complaint in this appeal, the plaintiff did not ask the detective questions about his deceased father and brother or the issue of identical DNA. Furthermore, the magistrate allowed the plaintiff's question as to why he had not been charged on the day of the police searches despite objections by the detective and police prosecutor (T13/03/13 T33 L1-39). 37On the completion of the detective's evidence, the plaintiff made a submission as to a difference between the facts in the charge sheet and the detective's affidavit. After further discussion with the police prosecutor and the plaintiff, the magistrate delivered an ex tempore judgment during which she distinguished ACP v Munro and considered the relevant provisions of s 24 of the Act. 38Section 55(1) of the Evidence Act 1995 provides that evidence "that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." The plaintiff's cross-examination that was disallowed was not relevant to the matters that her Honour was required to be satisfied of under s 24(1) of the Act. 39The obligation to afford procedural fairness does not mean that a judicial officer must allow an unrepresented litigant to conduct his or her case in a way that has no relevance to the issues to be determined. A judicial officer has the discretion to restrict cross-examination to questions that bear upon the issues. As King CJ observed in R v Kelly; Ex parte Hoang Van Duong (1981) 28 SASR 271 at 273: "A judge or magistrate has a wide discretionary power in any proceedings to contain cross-examination within proper limits and to disallow repetitious prolix or unnecessary questions". 40The magistrate did not deny procedural fairness to the plaintiff by rejecting questions that were irrelevant. In fulfilling her duty to an unrepresented, litigant, her Honour provided the plaintiff with all that was necessary for him to effectively exercise his rights during the application, which included an explanation of the central issues that the detective was required to establish on the balance of probabilities (see R v Zorad (1990) 19 NSWLR 91 at 99). 41I propose to dismiss the appeal. 42Although it is unnecessary for me to make this observation, there is nothing in the material before me that suggests that the application by police for the forensic procedures orders is an abuse of process. The plaintiff accepted in this court that his fingerprints and DNA would be found on the items that he had transported, which included tools, plastic bags and the prohibited weapon. As her Honour found, there are reasonable grounds to believe that a buccal swab and fingerprint order might produce evidence tending to confirm that the plaintiff has committed the offences of which he is charged. What might ultimately be made of this evidence is an issue that will undoubtedly be canvassed at the plaintiff's trial. Orders 43I make the following orders: