NSW Police v JG

The respondent's argument 8The respondent takes no issue that the applicant is an authorised applicant within the meaning of s 26(1) of the Act. The respondent says on the face of the application it is an application under s 24 of the Act "for the issue of a final order authorising the carrying out of a forensic procedure" on the respondent. In so far as the type of forensic procedure or order that is sought under s 24, the purported application is silent. The application also makes an application under s 33 of the Act for an interim order which does not particularise the forensic procedure that is sought. There is also on the face of the application an application for orders under both sections 28 and 29 of the Act. The respondent submits that the orders sought are mutually exclusive. 9The respondent's primary submission was that the application fails to comply with the mandatory requirements of s 26(2) of the Act and in particular s 26(2)(c). Section 26(2) of the Act provides as follows: (2) An application for an order must: (a) be made in writing, and (b) be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24 (1), and (c) specify the type of forensic procedure sought to be carried out, and (d) be made in the presence of the suspect (subject to any contrary order made by the Magistrate). 10The respondent submits that the requirement of s 26(2)(c) is fundamental, relying upon the word "must" and the fact that the type of forensic procedure which is sought affects the test which the Court is to apply upon the hearing of the application. 11The respondent further submits that applying the principles set out by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the failure to specify the type of forensic procedure sought is fundamental, and results in the application being invalid and a nullity. 12The respondent also submits that the application is what engages the Court's jurisdiction. The jurisdiction that is sought to be engaged is one which potentially results in an order interfering with the fundamental rights of a citizen. While accepting that the application is not a document which commences criminal proceedings as such, the respondent argues that given the potential impact upon a citizen if an order is made, those cases which have considered that certain defects in an information or indictment create an invalidity are of relevance. He specifically relies upon John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 and R v Janceski (2005) 64 NSWLR 10.

The applicant's argument 13The applicant submitted that a proper construction of s 26 of the Act resulted in the affidavit in support of the application forming part of the application. If that is done, it was submitted, the fundamental defect alleged by the respondent in the application fell away. It was submitted that if the legislature had considered that it was fundamental that the application document itself, as distinct from the affidavit, specify the type of forensic procedure, it would immediately after the word "writing" have provided for that to be so, rather than including the requirement in sub-paragraph (c). It was also submitted on behalf of the applicant that as s 26(2) of the Act provides that the application must be made in the presence of the respondent, the term "application" must include not just the written application document, but also the evidence to be adduced on the application. 14It was further submitted that as another magistrate had apparently seen fit to direct the issue of a warrant under s 29 of the Act, it was apparent that the other magistrate had considered that the Court's jurisdiction had been properly engaged. It was further submitted that I was, therefore, estopped from considering the jurisdictional argument raised by the respondent. 15As the respondent has argued that the application is a nullity, it is appropriate that I address the nature of the Court's jurisdiction which the applicant has sought to enliven.

The nature of the jurisdiction sought to be enlivened by the applicant 16The jurisdiction of the Local Court which the applicant sought to engage was the special jurisdiction provided for in s 9(b) of the Local Court Act 2007. Proceedings under the Act are specifically excluded from the definition of "criminal proceedings" contained in s 3 of the Local Court Act, therefore an application under the Act does not engage the criminal jurisdiction of the Local Court. When regard is had to the provisions which confer civil jurisdiction on the Local Court, an application under the Act does not engage the civil jurisdiction of the Local Court. 17The Local Court Act regulates the exercise of its special jurisdiction in Part 4. Division 2 of Part 4 deals with the commencement of proceedings in the special jurisdiction of the Local Court. 18Section 45 of the Local Court Act provides that proceedings in the special jurisdiction are to be commenced by the issuing and filing of an application in accordance with Part 4 Division 2. Relevantly s 46 provides that if a police officer is authorised to commence application proceedings against a person, the officer may commence proceedings by issuing an application notice and filing it in accordance with the Division. 19Section 50 of the Local Court Act provides that "All proceedings are taken to have commenced on the date on which an application notice is filed". A failure to comply with the Local Court Act or rules does not make the application a nullity; see s 62. Section 63 of the Local Court Act provides that the Court may, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules. However, s 63 of the Local Court Act provides that "The power conferred by this section does not extend to any rule declared by the rules to be mandatory". 20Section 72 of the Local Court Act provides that the Chief Magistrate may approve forms of documents to be used in connection with application proceedings. The section also provides that copies of approved forms are to be made available for public inspection at each registry of the Local Court and on the Local Court's website. While no form for use in applications under the Act has been approved, the Chief Magistrate has approved a general form for applications which is available on the Local Court's website. 21I have taken the time to set out the above so it is clear how the special jurisdiction of this Court is to be engaged. The form of application that was used here was not the form approved by the Chief Magistrate; however, no submission was advanced that the failure to use the approved form resulted in the application being a nullity. No doubt that was because of the presence of sections 62 and 63 of the Local Court Act. 22I noted earlier that s 63 of the Local Court Act does provide that the power to dispense with or vary a requirement of a rule did not extend to any rule that was declared by the rules to be mandatory. There appear to be no such rules so declared in the Local Court Rules. 23I turn then to consider the parties' submissions 24At the outset I indicate I do not consider that there is any issue of estoppel arising out of the fact that another magistrate apparently directed that a warrant issue in relation to the application. There was no suggestion that the respondent was heard on the question of whether the warrant should issue, nor is there any suggestion that the magistrate ruled, or was asked to rule, on whether the application was a valid application.

What constitutes "an application" under s 26(2) of the Act? 25I referred earlier to the applicant's submission that the affidavit which the applicant seeks to rely upon forms part of an application under s 26 of the Act, and therefore forms part of the originating process which engages the jurisdiction of this Court. 26I do not accept that submission for the following reasons. 27One aspect of the applicant's submission relied upon the presence of s 26(2)(d) of the Act and the reference to the application being made in the presence of the suspect. I do not see any force in that submission. That subsection was not directed to the content of the application. I also note in passing that s 26(2)(d) was repealed on the day I heard the argument concerning the application; see the Crimes Legislation Amendment Act 2013 which commenced on 20 November 2013. 28Section 26(2) of the Act draws a distinction between the application and the evidence which is to support the application. The structure of s 26(2) clearly draws that distinction. The evidence on oath or affidavit is required to address the matters referred to in s 24(1) of the Act; the application is not. The application and the supporting evidence on oath or affidavit perform entirely different functions under the legislation. 29The application is the document which engages the special jurisdiction of the Court, and the jurisdiction of the Court under the Act, and is required to comply with s 26. The supporting evidence on oath or affidavit is required to address the matters to which a magistrate must be satisfied in section 24. 30In my opinion, for the reasons I have given, an application under s 26 for an order under s 24 does not include the evidence on oath or affidavit that supports the application.

Does the application comply with the requirements of s 26 of the Act? 31In my opinion the application does not comply with the requirements of s 26 of the Act. It does not comply with s 26(2)(c) of the Act as it does not specify the type of forensic procedure sought to be carried out. The application simply states that the applicant applies "under s.24 of the Crimes (Forensic Procedure) Act 2000 for the issue of a final order authorising the carrying out of a forensic procedure on" the respondent. Nowhere does it specify what the forensic procedure is which is sought to be carried out. 32The Act provides under s 24 for a magistrate to order the carrying out of an intimate forensic procedure or a non-intimate forensic procedure. Those terms are defined with precision in s 3 of the Act to mean particular types of procedure. The test to be applied by a magistrate under s 24 varies in terms of whether an intimate or non-intimate forensic procedure is the subject of the order which is sought. 33I also note that the application on its face purports to be an application under s 33 of the Act for an interim order authorising the carrying out of the forensic procedure pending determination of the final hearing of the application. An application under s 33 of the Act is not an application for a final order under s 24. The indiscriminate use of the pro forma application document has, in my view, made it difficult to ascertain from the application what it is an application for. (I note in passing, the problems associated with using pro forma documents under the Act, in the context of considering a supporting affidavit, were mentioned by Simpson J in Orban v Bayliss [2004] NSWSC 428 at [15] and [16].) An application for an interim order is likewise required to "specify the type of forensic procedure sought to be carried out"; see s 33(3)(b). Nowhere does the application here comply with that requirement. 34I am therefore satisfied that the application does not comply with the requirement of s 26(2(c) which requires it to specify the type of forensic procedure which it is sought to be carried out.

What is the consequence of the failure to comply with s 26(2)(c) of the Act? 35Where an issue arises whether failure to comply with a statutory requirement renders an act a nullity, the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 has relevantly said (footnotes omitted): 91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. ... 93. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". 36The test to be applied is to consider whether it was a purpose of the Act that an act done in breach of s 26(2)(c), that is the making of an application without complying with that sub-section's requirement, should be held to be invalid. The High Court has stated that in determining that question regard is to be had to "the language of the relevant provision and object of the whole statute". 37The object of the whole statute was described by Simpson J in Orban v Bayliss, ibid, at [30] and [31] in the following terms: 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. 38Her Honour's observations in that regard have been endorsed in Walker v Bugden [2005] NSWSC 898, where Hall J after referring to Her Honour's statements said, "Authorisation under the Act can only be granted strictly in accordance with its provisions": at [49]. See also KC v Sanger [2012] NSWSC 98 at [4]. 39What flows from Simpson J's observations is that the object of the Act involves impinging upon fundamental common law rights of the citizen. While not criminal proceedings, and an application under the Act cannot be equated with an indictment in such proceedings, where legislation impinges upon fundamental common law rights, the courts are more likely to require strict compliance with the conditions provided for in a legislative provision; see the discussion of that principle in R v Janceski (2005) 64 NSWLR 10. 40Section 26(2) of the Act contains the word "must". Although subject to the context where it appears, the use of the word "must" in a statute is taken, prima facie, to impose an obligation to comply with a requirement; see Pearce and Geddes, Statutory Interpretation in Australia (2011), 7th edition, and the discussion of Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655; 1 All ER 338 at 348-349. 41Section 26(2)(c) is directed to the contents of an application under the Act, which I have endeavoured to show is the document which engages the special jurisdiction of this Court and its jurisdiction under the Act. The type of forensic procedure which is specified in an application dictates the test that the Court is to apply in considering whether to make the order sought. The application is itself, in my opinion, a fundamental step in the engagement of this Court's jurisdiction. 42As the legislation has as its object an impingement of fundamental common law rights of a citizen, and the Parliament has used the word "must" in s 26(2)(c) of the Act in relation to what is to be contained in an application, and the application is a fundamental step in the engagement of this Court's jurisdiction under the Act, I am of the opinion that it is a purpose of the Act that an application that is made which does not comply with s 26(2)(c) of the Act is invalid. In my opinion it is a nullity. The appropriate course is that I mark the application "No jurisdiction." Magistrate M Buscombe Downing Centre Local Court 22 November 2013

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: 18 July 2014