Mullins v Lillyman

6 It is common ground that the issue which is raised in this appeal involves a question of law. The original application 7 The first defendant, a police officer, applied to the second defendant, the Magistrate, pursuant to s 24 of the Act for orders relating to the taking of photographs of the plaintiff. 8 The Magistrate heard evidence from a police officer which revealed that a robbery had occurred between 1.30 am and 2.40 am on 4 February 2006 at 234 George Street. The incident was captured on a CCTV surveillance camera. Footage of the incident was in what is described as a "running sequence" and was later converted into still photographs. They revealed the offender walking into the store with his face obscured by what appears to be a T-shirt which was pulled up over his face. The offender then produced a knife and demanded money from the store clerk. He was provided with $20. The offender's upper body was exposed. A tattoo is apparent on the offender's left arm which extends from his shoulder down towards his elbow. 9 Later that same day the plaintiff was arrested in respect of unrelated offences. He was taken to Quakers Hill police station where he was charged. Photographs were taken of him during that process. Those photographs reveal that the plaintiff was wearing similar clothing to the clothing worn by the offender who committed the robbery offence upon the George Street premises. A photograph was also taken of the plaintiff's left arm by police. That photograph revealed that the plaintiff has a distinctive tattoo on his upper left arm which extends from his shoulder to above his elbow. The photographs depicting the tattoo on the plaintiff's left arm and the still photographs taken from the CCTV footage of the offender at the George Street premises were all before the Magistrate. There was other evidence led upon the application. It is unnecessary however to refer to that evidence because, as will become apparent, the issue that falls to me to determine is a narrow one. 10 The plaintiff has not been arrested in respect of this matter. However the Magistrate concluded, upon the evidence presented to the Court, that the plaintiff was a suspect within the meaning of the Act. Although that was a significant issue in the Local Court, the plaintiff does not challenge that decision in these proceedings. 11 In order to understand what the first defendant proposes doing in carrying the procedure ordered by the Magistrate it is necessary to refer to some of the evidence which he gave in the Local Court. Q In relation to the issue of whether this forensic procedure will provide evidence, can you tell the Court why it is that you wish to take firstly the photo in situ, by that I mean the one in George Street? A Sure. What we're looking to do is actually attend the scene with [the plaintiff] and have him pose in a similar pose to what's depicted in the footage without his shirt, so that we can clearly see the tattoo on his arm and placed in a similar situation as to what's depicted in the video footage in the hopes of a comparison between the two. Q I understand it's not your intention to use the evidence, if granted, in any identification procedure as such, is that right? A No, that's correct. Q Merely as a comparison? A As a comparison. … Q I understand you wish to obtain the most accurate angle as a comparison, is that correct? A That's correct. Q How would intend to do that? A With the - I've attended 234 George Street and the camera is actually mounted on the roof, so what we'd be looking at doing would be - with the officer that would be taking the photographs - would be to obviously attend the situation with a stepladder so that that officer can pretty much place herself at the same height and in the same situation if not right beside the actual CCTV footage and take the photographs that way. Q And the use to be made of the footage to be taken at the police centre? A That would be to show that [the plaintiff] does actually have a tattoo on his left arm with a lot more clarity so that it can be compared with the charge photo that -- 12 As to that matter the first defendant also said: The video footage that we received, it was slightly inconclusive. The footage wasn't exactly that clear, but it showed an outline of some sort of geometric pattern in black ink by the looks of things. 13 In cross-examination he was taken to the affidavit which he had sworn in support of the application. It contained the following passage: …Police request that [the plaintiff] submit to a forensic procedure comparison of a tattoo on his left upper arm, similar in nature to that of the suspect depicted in the surveillance footage. 14 He then gave the following evidence: Q Essentially you want this respondent in these proceedings to show his tattoo in a similar situation to that which the offender was showing on the night that that particular offence occurred? A Yes. Q And that was the 7-Eleven offence in George Street, was it? A That's the 7-Eleven in George Street, that's the situation which we'll be taking [the plaintiff] back to. … … Q And ask him - well are you asking him to enter the premises in the same way and approach the store assistant in the same way? A Not necessarily the store assistant. I don't know what his hours would be and I don't know whether or not he would be in a position to say, "Yes, I want to confront [the plaintiff]". Q … I mean approach the area where the offender approached? A Yes. Q On the opposite side of the counter of the store? A Come in through the front door and just act accordingly as to what was depicted in the video footage. Q So that you're anticipating that there will be a comparison of the two lots of footage? A Yes. … Q Going on to the next paragraph [of your affidavit] "Police are also looking to obtain similarities between the facial profiles, torso and physical build of [the plaintiff] and the suspect"? A Yes. Q Is that an additional reason for seeking the forensic procedure? A It's more to the point of showing similarities between the build of [the plaintiff] and the person that's depicted in that video footage? Q The build of the person? A The build being - I mean obviously with the video footage his face is covered up on one of the offences there, but in regards to the hairline, the facial features which we can see, which is pretty much just from the nose up, the build, the muscular build, the physical build itself of [the plaintiff] as opposed to the person that's depicted in that footage. ... Q …If you've already got a photograph taken by police of this respondent clearly showing the tattoo, why are you asking the Court to make an order for another one? A What we had intended on originally doing was actually taking [the plaintiff] up to the - on level 5 there's a photo lab up there and set up the situation in the same situation from the angle which was depicted in the video footage and setting up there, but then after reviewing the evidence we thought it might be better to take [the plaintiff] down in situ to the 7-Eleven store and it down there. That was one situation which we looked at doing it there, but then we also thought well the evidence there would be would be more beneficial for us to have him depicted up in the photo lab with the still of the actual shot of his tattoo on his arm. Q Well what, something different to this, so what's shown in exhibit 4? A There's a lot of angles in the video footage from the 7-Eleven store with his arm in different movements, so there's one where it's straight down, but in the actual footage where he's actually walking up to the counter, his arm is actually upheld like this and so it's on a different angle, so we're looking at the different angles of the actual tattoo itself. It's more than just the one photograph there of his arm in just a hanging motion, there's also like I mentioned in a different movement. 15 What seems tolerably clear from the evidence is that the plaintiff will be required to attend the scene of the crime and then take up various positions which correspond to those in which the offender was depicted in the video footage during the course of the incident. He will be photographed whilst doing so. The purpose of this requirement is to enable a comparison to be made between the plaintiff and the offender because, as the first defendant's evidence reveals, the material derived from the CCTV footage is not sufficiently clear to enable the comparison to be made. The comparison, it may be noted, will not be limited to the tattoos which the offender and the plaintiff display but will also include their facial features and their physiques.

The legislation 16 The Magistrate, in making the orders to which I have referred, authorised the conducting of a non-intimate forensic procedure (NIFP) upon the plaintiff. The Act provides that a "forensic procedure" may be either intimate or non-intimate. At the time of the proceedings in the Local Court, a NIFP was relevantly defined in s 3 of the Act in the following terms:

non-intimate forensic procedure means the following forensic procedures :

(a) an external examination of a part of the body … (b) the taking of a sample of hair other than pubic hair, (c) the taking of sample from a nail or under a nail, (d) the taking of a sample by swab or washing from any external part of the body … (e) the taking of a sample by vacuum suction by scraping or by lifting by tape from any external part of the body …: (f) the taking of a hand print, finger print, foot print or toe print, (g) the taking of a photograph of a part of the body … (h) the taking of an impression or cast of a wound from a part of the body … (i) the taking of physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the body … (emphasis added) 17 That definition section has now been amended but not in a manner which is material to the present proceedings. 18 Part 5 of the Act provides for the carrying out of a " forensic procedure" in circumstances in which the person does not consent to the procedure. The following provisions relevantly apply to the present application: 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. Division 2 Final orders 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 .

Discussion 19 It is common ground that the only basis upon which the Magistrate could have authorised the procedure was that it involved " the taking of a photograph of a part of the body" which, as is apparent, appears in sub-paragraph (g) of the definition of "non-intimate forensic procedure". This appeal turns upon the question of whether the Magistrate erred in reaching that conclusion. 20 Despite extensive searches, neither counsel was able to locate any authority which might assist in the resolution of the present case. It is common ground however that the procedure which the first defendant proposes to conduct would not have been permitted at common law: see generally The Queen v Ireland (1971-2) 126 CLR 321 at 333-4; R V G [2005] NSWCCA 291. It is also common ground that a legislative intention to abrogate such a fundamental right would need to be "clearly manifested by unmistakable and unambiguous language": see Coco v The Queen (1994) 179 CLR 427 at 437-8; cf R v Janceski (2005) 64 NSWLR 10 per Spigelman CJ at pars 61-9. It was submitted by the plaintiff that no such intention was manifested in the legislation presently under consideration. 21 The purpose of the legislation was described by Simpson J in Orban v Bayliss [2004] NSWSC 428 in the following terms: The Forensic Procedures 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. (par 30) 22 See also Walker v Budgen (2005) 155 A Crim R 416 at par 17; Maguire v Beaton (2005) 162 A Crim R 22 at par 20. 23 The plaintiff concedes, as Simpson J observed, that the Act conferred "new and unprecedented powers" to compel suspects to co-operate in the investigation of crimes of which they are suspected. It is submitted however that her Honour said nothing which could possibly suggest that the scope of the legislation was of sufficient width to enable the present procedure to be brought within its purview. 24 The language used by the legislature, namely that the NIFP involves "the taking of" a sample from, or in the present case "the taking of a photograph of a part of the body" of a suspect, suggests that the suspect is a mere passive participant in the conducting of the forensic procedure. A literal reading of the legislation provides no support for the proposition that the suspect is required to perform an active role. The legislation does not, for example, require a suspect to provide a sample of his or her voice by speaking. Such a requirement would mean that a suspect would be obliged to take an active role in the process. 25 Some support for the view which I have just expressed can be found in R v Kane (2004) 144 A Crim R 496 in which Sully J, with whom Studdert and Dunford JJ agreed, made the following observations about the scope and operation of the Act: The long title to the Act explains relevantly that the Act is intended: "to make provision with respect to the powers to carry out forensic procedures on certain persons ..." A careful examination of the s 3 definitions earlier herein quoted shows, in my opinion, that what is contemplated by the notion of a forensic procedure, whether intimate or non-intimate, is that it is a procedure actually carried out on the person of some specific individual. (pars 12-13). 26 The remarks made by the Minister for Police in his Second Reading Speech when introducing the legislation are to similar effect. The Minister said: The bill provides a comprehensive regime regulating the taking and use of forensic material for the purposes of criminal investigation. It involves striking a balance between the need to enable police to effectively investigate crime and the civil liberties of suspects. The bill confirms the Government's commitment to addressing crime and improving the operation of the criminal justice system in New South Wales. It will enable law enforcement agencies to identify or exclude suspects by comparing forensic material taken from them with material found at crime scenes . (Hansard, Legislative Assembly, 31 May 2000 at 6293) (emphasis added) 27 It follows from the discussion thus far, that I accept the plaintiff's submission that the vice contained in the Magistrate's order which is challenged, is that it requires the plaintiff to become an active participant in the investigation of the crime. Moreover it obliges the plaintiff to attend at the scene of the crime and participate in the partial recreation of the crime. The only semblance of any connection between that kind of procedure and the legislation is that the procedure itself will be photographed. 28 The difficulty with the proposed procedure is that, as I have said, it will require the suspect to be involved in the investigation of the crime itself. Support for the view that that is contrary to what the legislature intended can be gleaned from s 45 of the Act which is the following terms: (1) A forensic procedure must not be carried out while the suspect is being questioned. If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out. (2) In this section, a reference to questioning of a suspect is a reference to questioning the suspect, or carrying out an investigation (in which the suspect participates), to investigate the involvement (if any) of the suspect in any offence (including an offence for which the suspect is not under arrest). 29 That section makes it clear that the carrying out of the forensic procedure is to be kept quite separate from the interrogation process and/or the conduct of the investigation itself. 30 Analysed in this fashion, it becomes clear that what is contemplated goes well beyond the statutory requirement that there be "the taking of a photograph of a part of the body" of a person. 31 There is one further consideration which is of some significance. In the normal course of events, forensic procedures, and for that matter interrogation of suspects, take place at a police station. That is where the necessary resources upon which police rely are maintained. Furthermore, safeguards to protect the integrity of any such procedure and the interrogation process itself can be provided in such an environment. Concerns about issues of privacy can also be addressed at police stations. Indeed s 44 of the Act is designed to afford reasonable privacy for a suspect who is the subject of the forensic procedure. 32 Against that background the conducting of a forensic procedure at the scene of the crime would represent a radical departure from time-honoured practice. There is nothing apparent in the legislation itself which raises the possibility that such procedures could be conducted at the scene of the crime. Of course a suspect may voluntarily engage in such a procedure at the scene of the crime, or otherwise assist police by, for example, participating in a "run-around". However such a scenario is somewhat removed from the present situation in which the suspect is required to participate in the forensic procedure. 33 Section 47 of the Act provides that a person authorised to carry out a forensic procedure on a suspect, or a police officer, may use reasonable force to enable the forensic procedure to be carried out. That may have some practical significance in the present context when it is borne in mind that the order appears to require the plaintiff to move from one position to another at the scene of the crime. The existence of such a power also serves to highlight the need to ensure that the intrusion upon the rights of a citizen which the legislation envisages must only be permitted in circumstances that are clearly authorised by the legislation. 34 For the foregoing reasons, I am of the view that the Magistrate erred in making the order in question.

Orders 35 1 I declare that the Magistrate erred in law in making an order requiring the plaintiff to "attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm".

2 I order that that part of the order made by the Magistrate requiring the plaintiff to "attend at the 7-11 Store at 234 George Street, Sydney, by mutual agreement with Constable Lillyman within twenty-eight (28) days for the purpose of taking groups of forensic photographs of his left arm" be set aside.

3 I otherwise confirm the order made by the Magistrate which is referred to in paragraph 3 of these reasons. That order is to take place within 28 (twenty-eight) days of today's date.

4 I order that the first defendant pay the plaintiff's costs.

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