Munro v ACP

Grounds of appeal The plaintiff relied upon three grounds of appeal: "1. The learned magistrate erred in law when determining the construction of the term "additional information" as contained in s 26(3) of the Crimes (Forensic Procedures) Act 2000. 2. The learned magistrate erred in law in determining that the Plaintiff did not provide additional information in support of an application for an order authorising the carrying out of a forensic procedure on the Defendant, pursuant to s 26(3) of the Crimes (Forensic Procedures) Act 2000. 3. The learned magistrate erred in law in determining that s 26(3) of the Crimes (Forensic Procedures) Act 2000 prevented the Plaintiff from making an application for a final order authorising the carrying out of a non-forensic procedure on the respondent pursuant to s 24, namely the taking of measurements of the respondent's body and body parts."

Ground 2 30It is convenient to deal with the second ground first because it is determinative. 31The point advanced on behalf of the plaintiff was not so much that the magistrate decided that the material in the plaintiff's affidavit did not amount to "additional information that justifies the making of the further application" for the purposes of s 26(3). The submission was that "the proceedings below never reached the stage where the learned Magistrate came to consider whether the additional information justified the making of the subsequent application". 32For the defendant, it was submitted by senior counsel that it was implicit in the magistrate's reasons that he determined that the "additional information" requirement was not satisfied. This was said to arise from his Honour having made what was obviously a reference to the provisions of s 26(3). The "additional information" point was raised in the submissions that had been read by his Honour and the prosecutor had made oral submissions about it. In the defendant's submission, his Honour must have been mindful of this controversy and must be regarded as having decided it adversely to the plaintiff. 33The problem with this is that the magistrate did not say anything about the "additional information" point. He did not give any indication whether he accepted that there was "additional information". He did not indicate whether he preferred the construction advanced by either party. If his Honour did consider the point, it may be the case that he preferred the submissions for the defendant, but it also remains possible that he accepted the prosecutor's submission yet determined that it was not of a nature that justified the making of the further application. This, unfortunately, is a matter for speculation. 34I am satisfied that error of law has been established, probably through the failure to consider a matter necessary for decision and to make a determination of that matter. If not that, it was through the failure to give any reasons concerning the determination made. 35Whilst that is enough to determine the appeal it is appropriate to consider the other grounds as well, particularly in the light of the issues raised in the parties' submissions.

Ground 1 36The plaintiff submitted that the interpretation of a statutory provision begins with the ordinary and grammatical sense of the words used, having regard to their context and the legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [4] per French CJ. Reference should also be made to the judgment in the same case of Hayne, Heydon, Crennan and Kiefel JJ: [47] This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (footnotes omitted) 37For the "ordinary" meaning of the word "additional", reference was made to the definition in the Macquarie Dictionary 4th ed (2005) of "added, supplementary". So, it was submitted that the term meant information that added to, or was supplementary to, that which was put forward in the earlier application. Whether the applicant was in possession of that information at the time of the earlier application was said to be irrelevant. 38Other principles of statutory interpretation must be considered. There is the provision of s 33 of the Interpretation Act 1987 requiring preference to be given to a construction that would promote the purpose and object underlying the Act over one that would not promote that purpose or object. There is also the need to construe the provision in question so that it is consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ. 39Both parties referred to the fact that whilst the objectives of the Act are not explicitly stated, they have been the subject of judicial consideration. The judgment of Simpson J in Orban v Bayliss [2004] NSWSC 428 has often been referred to in other cases concerning the Act and both parties in the present matter relied upon the following passage: [30] 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. [31] The conditions that must be met before an order can be made demonstrate that the purpose of the legislation is not to enable investigating police (or other authorised persons) to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect. 40In the defendant's submissions, reference was also made to Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416, where (at [28]) Hall J observed that Burchett J in Parker v Churchill (1985) 9 FCR 316, in relation to search warrant legislation, had referred to a Justice of the Peace (a fortiori, a magistrate) standing "between the police and the citizen". Hall J referred (at [17]) to what had been said by Simpson J in Orban v Bayliss . Later (at [53]), after referring to her Honour's characterisation of a "delicate balance", his Honour concluded that "authorisation under the Act can only be granted strictly in accordance with its provisions". Later, Simpson J said in JW v Detective Sergeant Karol Blackley [2007] NSWSC 799 at [31] that the "provisions relevant to the making of a final order [are] rigid and demanding and very specific. No order may be made unless the requirements of s 25 are met". 41It was submitted for the defendant before the magistrate, and repeated in this Court, that "the purposes of the Act can only be achieved, and the necessary delicate balance maintained, by construing the words 'additional information' in the manner previously advanced", namely "additional to the party relying upon it as a ground for the making of a further application". In support of this it was submitted that whilst the words might be described as being of general application, because the statute impinges on fundamental rights recognised by the common law, they should be read down so as to protect those rights: see, for example, Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17. 42With respect, I do not accept that submission. Such a construction would give far greater emphasis to a matter on one side of the scales at the expense of the matter on the other side, and the "delicate balance" of which Simpson J spoke would be decidedly unbalanced. 43It was submitted for the defendant that without such a construction, the Act would give police officers "permission (and incentive)" to always withhold some information relevant to the determination of the application so as to provide them with an alternative avenue (aside from an appeal to this Court) of re-agitating proceedings in the event of refusal. It was also submitted that this would serve to penalise diligent officers and reward the less diligent. 44I prefer the plaintiff's submission in response to this. If magistrates were compelled to disallow applications where there was more information put forward but which had previously been available to the applicant, that would have a tendency to encourage police officers to burden magistrates with the entirety of what was available, perhaps even to the extent of providing entire briefs of evidence. In any event, it is inconceivable that the construction for which the plaintiff contends would encourage police officers to do anything less than put the most persuasive case forward in support of applications for the carrying out of forensic procedure. 45The effect of the submissions for the defendant was that s 26(3) should be construed so as to make no allowance whatsoever for inadvertent errors or misjudgements. That proposition is not an attractive one. 46Submissions were also made which invoked the "principle of finality" (reference was made, for example, to The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635) in support of the proposed narrow construction of "additional information" in s 26(3). I am not persuaded that it supports the contention at all. The provision contemplates that there can be second and subsequent applications for the carrying out of the same forensic procedures. Its effect is to limit the ability of an applicant to make repeated applications based on the same material. That is consistent with the notion of finality. There was no persuasive explanation why a subsequent application would offend the principle of finality if the additional information had previously been available to the applicant, but would not if that information had only become available after an earlier refusal. 47The formulation requiring "additional information that justifies the making of the further application" is not unique to the Crimes (Forensic Procedures) Act . My research has not been exhaustive but it was used in s 12C Search Warrants Act 1985 (repealed), s 356J (repealed) Crimes Act 1900, s 64 Law Enforcement (Powers and Responsibilities) Act 2002, and s 27M Terrorism (Police Powers) Act 2002. 48The provision was inserted in the Search Warrants Act by the Search Warrants (Amendment) Act 1991. In support of the bill for the amending act, the then Attorney General, Mr Collins, said: "The present Act allows unlimited applications for a warrant to any justice on the same information. Proposed new section 12C will ensure that this cannot occur. Generally only one application to an authorised justice will be allowed. If the application is refused, a new application will only be accepted if the applicant provides additional information." (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 1991 at 4424). 49Whilst the construction of a provision in legislation enacted in 2000 cannot be based upon what was said in a second reading speech in relation to different legislation enacted in 1991, I am prepared to accept that the explanation for the provision being inserted in the Search Warrants Act represents a reasonable view of the rationale for the legislature including the provision in s 26(3) in the Crimes (Forensic Procedures) Act . 50The construction of the words "additional information" is, in my view, straightforward. They should be given their ordinary meaning. They require that in a subsequent application for the same forensic procedure the applicant must provide more information than was provided in support of the earlier application(s). An applicant is not entitled to make an application based solely upon information that was the subject of an earlier unsuccessful application. 51There is nothing in such a construction which in any way detracts from the purpose or object underlying the Act and there is nothing that is inconsistent with the language and purpose of the Act as a whole. If a magistrate is satisfied that there is such additional information, then it will be necessary for the magistrate to then assess whether it is of such a nature, degree and quality that it justifies the making of the further application. 52The plaintiff's submissions in relation to Ground 1, to reiterate, were that the magistrate erred by adopting the construction of "additional information" in s 26(3) that had been advanced on behalf of the defendant. If his Honour had done that, it would have been erroneous for the reasons just given. As I am not persuaded that his Honour fell into that error because there was no engagement with the issue at all, I would not uphold this ground.

Ground 3 53The issue raised by this ground is whether the magistrate erred in not identifying that the third forensic procedure sought in the plaintiff's application (measurements of body parts) was not part of the earlier application. It was not "the same forensic procedure" and so was not caught by the provisions of s 26(3) at all. The second forensic procedure sought (photographs of "face/arm/legs") had also not been sought in the earlier application. 54The plaintiff's contention has merit. The taking of measurements was a different procedure to the taking of photographs. Both are within the definition of "non-intimate forensic procedure" with s 3(1) but are separately itemised: (h) the taking of a photograph of a part of a person's body, other than the person's private parts, and (j) the taking of a person's physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person's body, other than the person's private parts. 55It was submitted for the defendant before the magistrate, and repeated in this Court, that the forensic procedure sought in the first and second applications were the "same forensic procedures" for the purposes of s 26(3). "Forensic procedure" is defined in s 3(1) as meaning "an intimate forensic procedure" or "a non-intimate forensic procedure". The first application sought a forensic procedure by way of a non-intimate forensic procedure. The second application also sought a forensic procedure by way of a non-intimate forensic procedure. Therefore, it was submitted that both applications sought the "same forensic procedure". Accordingly, s 26(3) applied to both applications in their entirety. 56An alternative argument was put. The first of the three procedures sought in the present application was the same as that sought in the first application. So, s 26(3) applied at least to it. 57Senior counsel for the defendant in this Court also made submissions on issues such as whether "the definition of non-intimate forensic procedure is a single, indivisible class"; whether there existed "recognisable sub-classes of non-intimate forensic procedures"; and whether there could be "severability in relation to a magistrate's determination of identified component sub-classes of a single forensic procedure application". Reference was made to the Act which were said to confine a magistrate's power in determining an application. There are provisions that apply in the event the application is approved and provisions that apply in the event it is refused. There is nothing in the Act authorising a magistrate "to partially approve and partially refuse severable components of a single application". 58Simply because an application requests a number of different types of non-intimate forensic procedures (or intimate forensic procedures or a combination of the two), that cannot possibly mean they cannot each be dealt with on their merits. It is impracticable, inconceivable and would be inconsistent with any sensible construction of the provisions of the Act to hold that a magistrate only has power to grant all types of non-intimate forensic procedures sought in an application, or to refuse them all, and has no power to grant some and not others. 59It is difficult to see how different types of the same categories of non-intimate forensic procedures (or intimate forensic procedures) need all be considered the same. To illustrate with an example away from the facts of the present case, one type of non-intimate forensic procedure is "the taking from a person of the person's hand print, finger print, foot print or toe print". One of the requirements for granting an application is that the magistrate must be satisfied that there are "reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence": s 24(3)(b). There might be information before the magistrate that indicates an offender left a hand print at the crime scene but no suggestion of any foot prints. An application that sought both a hand print and a foot print would have merit in relation to the former but none in relation to the latter. In those circumstances, and assuming other requirements are satisfied, it would be appropriate for the taking of a hand print to be authorised but not for the taking of a foot print. 60In the present case, the first of the three procedures sought was the same procedure that had been sought in the first application. It required consideration of the matters in s 26(3). The other two procedures had not been sought in the first application. The application, insofar as it concerned those two procedures, should have been determined on its merits. 61I am satisfied that the magistrate failed to appreciate that the second and third procedures sought in the application were different forensic procedures than what had been sought in the first application. It was erroneous to decline to deal with the application in relation to those matters. Whilst the appeal succeeds in relation to Ground 2, Ground 3 should be upheld as well.

Orders

1. Appeal allowed.
2. The order made on 18 April 2011 refusing the application is set aside.
3. The proceedings are remitted to the Local Court to be heard according to law.
4. The first defendant is to pay the plaintiff's costs.
5. Liberty to apply within 7 days if any alternative order as to costs is sought.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2012