Jawansher v Johnson LCM

Supreme Court of NSW|2004-09-13|Before: Barr J

CITATION : Jawansher v Johnson LCM [2004] NSWSC 872 HEARING DATE(S) : 13 September 2004 JUDGMENT DATE : 23 September 2004

JUDGMENT OF : Barr J at 1 DECISION : Summons dismissed. Plaintiff to pay the defendants costs.

PARTIES : Ahmad JAWANSHER v Johnson LCM & Anor FILE NUMBER(S) : SC 12413/04 COUNSEL : Plaintiff: G Brady Defendant 2: P Singleton SOLICITORS : Plaintiff: Nyman Gibson Stewart Defendant 2: M.N. Holmes

JUDGMENT 1 HIS HONOUR: In his summons filed on 30 July 2004 the plaintiff seeks the following orders - 1. A Declaration that the First Defendant erred in law in making an order providing for the taking of non-intimate photographs of the Plaintiff pursuant to Section 24 of the Crimes (Forensic Procedures) Act. 2. An order setting aside the order of the First Defendant providing for the taking of non-intimate photographs of the Plaintiff pursuant to section 24 of the Crimes (Forensic Procedures) Act. 3. A declaration that insufficient evidence exists to allow for the making of an order pursuant to Section 24 of the Crimes (Forensic Procedures) Act against the Plaintiff. 4. I the alternative to paragraph 3, an order remitting the matter First Defendant for redetermination according to law. 5. An order that the Second Defendant pay the Plaintiffs costs. 2 The second defendant, a police officer, applied to the first defendant, a Local Court magistrate ("the magistrate"), under s 24 Crimes (Forensic Procedures) Act 2000 ("the Act") for an order for the taking of non-intimate photographs of the plaintiff. The magistrate made the order and the plaintiff says that in doing so he erred in law. 3 As they apply to this case ss 22-25 of the Act are as follows - 22 Forensic procedure may be carried out by order of Magistrate or other authorised justice A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised justice under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise. 23 Circumstances in which Magistrate or other authorised justice may order forensic procedure An order may be made by a Magistrate under section 24, or by an authorised justice under section 32, for the carrying out of a forensic procedure on a suspect if: (a) the suspect is not under arrest and has not consented to the forensic procedure, or (b) the suspect is under arrest and has not consented to the forensic procedure, or (c) under section 8, the suspect cannot consent to the forensic procedure. 24 Final order for carrying out of forensic procedure A Magistrate may order the carrying out of a forensic procedure on a suspect if: (a) section 23 applies, and (b) the Magistrate is satisfied as required by section 25.

25 Matters to be considered by Magistrate before ordering forensic procedure The Magistrate must be satisfied that: (a) the person on whom the procedure is proposed to be carried out is a suspect, and … (c) if the forensic procedure concerned is a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed: (i) an indictable or a summary offence, or (ii) another indictable or summary offence arising out of the same circumstances as that offence, or (iii) another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and … (f) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence, and (g) the carrying out of the forensic procedure is justified in all the circumstances. 4 "Non-intimate forensic procedure" is defined in s 3 of the Act as including the taking of a photograph. "Suspect" is defined as including a person suspected by a police officer, on reasonable grounds, of having committed an offence.

Facts 5 The complainant, whom I shall call "A", told the police in February 2003 that she had been kidnapped and sexually assaulted by two men on 26 October 2002. She told them that she had met one of the men before. His name was Mohammed. The name of the other was Ahmad. In March and April 2003 she helped the police provide "com-fits" of the two men. A "com-fit" is a computer-generated likeness produced by a computer operator according to the description and at the direction of an identifying person. When the com-fits were complete A's sister, whom I shall call "E", looked at them for a few minutes. In April 2003 E told the police that she had been to a certain nightclub where the plaintiff worked. She recognised him, she said, from the com-fit. She did not claim to have seen him before. She asked the plaintiff whether he had a friend called Mohammed and he said that he had. In June 2003 the second defendant obtained from the Roads and Traffic Authority a photograph of the plaintiff's face. At some time the second defendant invited the plaintiff to take part in an identification parade and the plaintiff declined. The second defendant wanted a photograph to show to A together with photographs of other men to ascertain whether she could identify her attacker. In March 2004 the second defendant filed his application.

The appeal 6 Under s 115A(1) of the Act an appeal against an order under s 24 lies to this Court under Pt 5 Crimes (Local Courts Appeal and Review) Act 2001 as if the order were a sentence arising from a court attendance notice dealt with under the relevant Act. By s 52(1) of the Crimes (Local Courts Appeal and Review) Act a person who has been convicted and sentenced by a Local Court may appeal to this Court on a ground that involves a question of law alone. By s 53 an appeal lies on a question of fact or a question of mixed law and fact only by leave of this Court. The plaintiff asserts that all the questions that arise are questions of law. No leave is sought under s 53. 7 The effect of the several sections of the Act that I have mentioned is that before he could properly make the order appealed from the magistrate had to be satisfied that -

(ii) the second defendant suspected on reasonable grounds that the plaintiff had committed an offence;

(iii) there were reasonable grounds to suspect that the plaintiff had committed an indictable offence;

(iv) there were reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff had committed the offence; and

(v) the carrying out of the forensic procedure was justified in all the circumstances. 8 Only the second and third of those conclusions were attacked on appeal.

The hearing before the magistrate 9 Evidence was put before the magistrate. The second defendant's affidavit was read, setting out the history of the investigation. The second defendant was cross-examined. The com-fit relied on by the second defendant was tendered, as was the photograph obtained from the Roads and Traffic Authority. 10 The evidence tendered to prove the reasonableness of the second defendant's suspicion and that there were reasonable grounds to believe that the plaintiff had committed an offence was the same, namely a photograph of the plaintiff, a com-fit image of her attacker, the facts that the attackers were named Mohammed and Ahmad respectively, that the plaintiff's name was Ahmad and that he had a friend called Mohammed. The second defendant relied on what was asserted to be the similarity between the photograph and the com-fit. The magistrate considered that submission together with submissions on behalf of the plaintiff that the two images were dissimilar. Counsel pointed to differences in hair style, length and colour and the differences between A's estimate of the height of her attacker and the height of the plaintiff. A had told the police that her attacker had a scar over an eye but could not say which, so a scar was arbitrarily assigned to the left eyebrow in the com-fit. The photograph, it seems, showed a scar over the right eye. Counsel attacked that difference as well. 11 The magistrate found, as was obvious, that the second defendant suspected that the plaintiff had committed an indictable offence. He went on to consider the evidence and to come to the conclusions now attacked.

The grounds of appeal 12 The plaintiff relied on an amended statement of grounds as follows - The First Defendant erred in making an order providing for the taking of non-intimate photographs of the Plaintiff, in that he:

a) Determined, contrary to Section 25(c) of the Crimes (Forensic Procedures) Act, that the admissibility and weight of identification evidence presented by the prosecution was not to be taken into account in the exercise of his discretion.

b) Erred in law in failing to give any, or any sufficient weight to the lack of any evidence against the Plaintiff other than a purported similarity of the Plaintiff to the Comfit and a similarity in first names of the offenders.

c) Erred in law in failing to give any, or any sufficient weight to differences in the description of the offender and the description of the Plaintiff.

d) Erred in law in failing to consider, or properly consider, whether the Comfit depicted the Plaintiff.

e) Erred in law in concluding that there were reasonable grounds for the 2nd Defendant to suspect that the Plaintiff committed the offence.

f) Erred in law in concluding that there were reasonable grounds to believe that the plaintiff had committed the offence. 13 Before dealing with the submissions, it is necessary to observe how narrow appeals are to this Court when confined to questions of law. In dealing with an appeal on a question of law Kirby P said in Haines v Leves (1987) 8 NSWLR 442 at 469 - It is important [in this case] to note again that the jurisdiction of the Court is limited to hearing appeals 'on a question of law' …. It is not for us to substitute our views on the interpretation of the facts….[T]he stringency of the limitation in the entitlement of this Court [of appeal] to examine factual determinations was recently stressed by the Court in … Azzopardi v Tasman UEB Breweries Industries Ltd (1985) 4 NSWLR 139 [in which] the majority (Glass JA, with whom Samuels JA agreed) stressed that in appeals such as the present, the legislation does not allow the Court to correct errors of fact. It does not permit the Court to review even a finding of fact which is said to be perverse or contrary to the overwhelming weight of evidence or even against the evidence and the weight of the evidence. Nor may the Court review findings on the facts which are alleged to ignore the probative force of the evidence which is all one way, even if no reasonable person could have reached the decision made and even if the reasoning by which the Court arrived at its finding was demonstrably unsound. In all such circumstances, the Court concluded, no error of law would be shown to attract the jurisdiction of this Court. The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of facts necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law. In Azzopardi I suggested that perversity and illogical reasoning could attract the jurisdiction of the Court. But this was a minority view. The majority opinion is the binding rule. 14 The first ground of appeal depends upon a construction of words spoken by the magistrate when considering the third of the questions he had to answer. His Honour said this - I am not determining the admissibility of weight of identification evidence. I am determining whether there is a reasonable belief that the respondent has committed an offence. What we have as to identification is this. 15 His Honour went on the summarise the evidence of identification and pronounced himself satisfied that there were reasonable grounds for a belief that the plaintiff had committed the offence. 16 It was submitted on appeal that what the magistrate was saying was that he did not have to weigh the evidence. There is no substance in this submission. In my opinion the magistrate was referring to the tests ordinarily made under the Evidence Act when determining the admissibility of evidence and whether evidence found admissible ought to be admitted. His Honour cannot have meant that he was not determining the admissibility of the evidence in the application before him, for he had already admitted it. His Honour cannot have meant that he did not have to weigh the evidence, for that is what he went on and did. Immediately after the words cited, his Honour enumerated the several pieces of evidence of identification, drew attention to their weaknesses and came to the conclusion now under attack. He concluded with the following words - Whilst there might be problems in the chain of identifying the defendant from the evidence of the sister what is important is a similarity found in the photos of the respondent with the comfit photos. I believe that there are reasonable grounds to believe that the defendant committed an indictable offence. 17 The remaining grounds may be dealt with together. They all depend on the quality of the evidence put before the magistrate. So long as there was evidence to prove the conclusions contended for by the second defendant, the evaluation of it was for the magistrate. It is not for this Court to reassess its quality. The plaintiff can show an error of law only if the magistrate came to his conclusions without evidence. He did not. These grounds of appeal fail. 18 The summons is dismissed. The plaintiff to pay the defendants costs. ************

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