Lednar v Magistrates' Court [2000] VSC 549

Lednar v Magistrates' Court [2000] VSC 549 - VSC 2000 case summary — Zoe

[117]

"(1) In this section - 'child' means a child aged 10 years or more but under 17 years; 'forensic sample offence' means any offence specified in Schedule 8. (2) If at any time on or after the commencement of section 25 of the Crimes (Amendment) Act 1997 a court finds a person guilty of - (a) a forensic sample offence; or (b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence - a member of the police force, at any time following that finding but not later than 6 months after the expiration of any appeal period or the final determination of an appeal (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly. (3) If - (a) at any time before the commencement of section 25 of the Crimes (Amendment) Act 1997, a person has been found guilty by a court of a forensic sample offence; and (b) at any time on or after that commencement, that person is serving a term of imprisonment or a period of detention in a prison, police gaol or youth training centre or as a security patient in an approved mental health service for any offence, whether or not a forensic sample offence - a member of the police force may apply to the Magistrates' Court or the Children's Court (as the case may be) for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly. (4) In any application to a court under sub-section (2) or (3), the member of the police force must specify the type of sample (whether intimate or non-intimate) sought to be taken in the forensic procedure. (5) If an application made under sub-section (3) is in respect of a forensic procedure to be conducted on a person who is a child, notice of the application must be served on the child and a parent or guardian of the child. (6) An order made by a court under sub-section (2) or (3) before the appeal period in relation to the forensic sample offence has expired or an appeal (if any) has been finally determined (whichever is the later), must not be executed unless - (a) that appeal period expires; or (b) an appeal (if any) is finally determined and the conviction for the forensic sample offence is upheld - which is the later. (7) If on appeal a conviction for the forensic sample offence is quashed, an order made by a court under sub-section (2) or (3) ceases to have effect. (8) A court hearing an application under sub-section (2) or (3) - (a) must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order under sub-section (2) or (3); and (b) must be satisfied that, in all the circumstances, the making of the order is justified; and (c) may make such inquiries on oath or otherwise as it considers desirable. (9) If a court makes an order under sub-section (2) or (3), it must - (a) give reasons for its decision and cause a copy of the order and reasons to be served - (i) if the order directs a person (other than a child) to undergo the forensic procedure, on the person; or (ii) if the order directs a child to undergo the forensic procedure, on the child and a parent or guardian of the child, and (b) inform the person ordered to undergo the forensic procedure that a member of the police force may use reasonable force to enable the procedure to be conducted. (10) A failure of a court to comply with sub-section (9) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a). (11) If a forensic procedure has been conducted on a person in accordance with this section, a copy of every forensic report must be given or sent by registered post as soon as practicable but not more than 7 days after the procedure was conducted - (a) if the person is not a child, to that person; or (b) if the person is a child, to that child and a parent or guardian of that child." (Emphasis added).

[196]

"Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation), it is proper to discern a legislative intent that the donee of governmental execute power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g. Jackson, Natural Justice, 2nd ed. (1979), p.100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England, 4th ed. (1989), vol. (1), para. 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances."

[248]

(i) There was no provision in s.464ZF or any other section of subdivision 30A which required notification to be given to the person affected by the order;

(ii) there was no requirement in the section or subdivision that the person subject to the order be present;

(iii) there was no provision in the section or subdivision 30A which entitled the person the subject of the order to call evidence or to cross-examine or attack the evidence in support of the application;

(iv) sub-section (5) of s.464ZF requires notice of the application to be given where the subject of the order is a child, either to the child and a parent or guardian of the child but no such requirement of giving notice to an adult;

(v) sub-section (9) required the court to give reasons for its decision and "cause a copy of the order and reasons to be served" on the person the subject of the order and if a child on the child and the parent or guardian leading to the conclusion that the legislature contemplated that the person would not be present and needed to be apprised of the order and the reasons;

(vi) the provisions of sub-s.(8)(c) gave power to the court to make enquiries on oath or otherwise as it considered desirable showing that the role was inquisitorial and when taken with the other provisions of sub-s.(8) clearly indicates that it was a matter for the court to ascertain the information and make a decision;

(vii) a comparison with the provisions of s.464T sub-ss.(4) and (5) which expressly state that the Magistrates' Court must not make an order directing a suspect to undergo a compulsory procedure unless the person is present and which goes on to provide that the person is not a party, may not call or cross-examine any witnesses and has a limited right of addressing the court;

(viii) the provisions of s.464ZF must also be compared with s.464U which is concerned with, inter alia, a forensic procedure on a child and if application is made to the Children's Court notice must be given to the parent or guardian of the child and in certain circumstances the child; and sub-s.(11) which deals with the fact that the court cannot make the order unless the child is present and sub-s.(12) which provides that the child is not a party, may not call or cross-examine witnesses and may address the court in a very limited way.

(ix) the provisions of s.464ZF must also be compared with provisions of s.464M which are concerned with the Children's Court ordering fingerprinting and again notice is to be given to the parent, guardian and the child, sub-ss.(7) and (8) deal with the fact that the child is not a party to the proceeding, may not call or cross-examine any witness and has a limited right of address.

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