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.