Plaintiff v First Defendant

Supreme Court of Victoria|2017-03-02|Before: Ginnane J

JUDICIAL REVIEW - Plaintiff charged with murder - Magistrate's compulsory procedure order that plaintiff provide a DNA sample - Whether valid exercise of power or discretion - Alleged errors in exercise of power or discretion - Existing DNA sample as a result of order in 2005 -Whether valid exercise of power-Statutory obligation to reasons and state evidence relied on - Whether error on face of the record - Crimes Act 1958 s 464T(3), 464ZE(1)(a)

2 The plaintiff has been charged with the murder of Kadir Ors.

Final order for compulsory procedure granted.

Evidence: Evidence On oath

The Court is satisfied on the balance of probabilities that:

- the respondent is a relevant suspect; and

- there are reasonable grounds to believe that the respondent has committed the offence in respect of which the application is made; and

- there are reasonable grounds to believe that the conduct of the procedure on the respondent may tend to confirm or disprove his or her involvement in the commission of the offence; and

- the respondent has refused to give consent to a request under S 464R(1) or is incapable of giving informed consent by reasons of mental impairment; and

- in all circumstances, the making of the order is justified; and

Other reasons:

THERE ARE REASONABLE GROUNDS TO BELIEVE THAT THE CONDUCT OF THE PROCEDURE ON THE PERSON MAY TEND TO CONFIRM HIS INVOLVEMENT IN THE COMMISSION OF THE OFFENCE;

IN ALL THE CIRCUMSTANCES THE MAKING OF THE ORDER IS JUSTIFIED.

Details of compulsory procedures():

ORAL SWAB TO BE CONDUCTED TO BE TAKEN BY INFORMANT. THE TAKING OF THE SAMPLE IS STAYED FOR 28 DAYS TO ALLOW THE RESPONDENT TO REVIEW THE DECISION OF THIS COURT TO THE SUPREME COURT OF VICTORIA

4 Police had made a previous application for a compulsory DNA sample on 13 December 2016, but the Magistrate had requested a fresh application be made which outlined in more detail the facts and circumstances surrounding the accused's involvement in the offence.

5 The Plaintiff's grounds for his judicial review application are that:

The Magistrate took into account irrelevant considerations in making his decision to grant the compulsory procedure. That is, he took into account matters that were not supported by the evidence. That is:
1. That the Plaintiff's good character may be compromised if a jury was to become aware that his DNA was on the DNA data base for crime detection purposes;
2. That the defence may raise of admissibility of the DNA evidence based on contamination.
that the Magistrate failed to take into consideration that the compulsory procedure would duplicate evidence that was already in existence and therefore the compulsory procedure was unnecessary.

that in all the circumstances the Magistrate's decision was unreasonable and unsupported by the evidence in that, where the Plaintiff had previously provided a DNA sample, it was unreasonable and unnecessary to order the Plaintiff to undergo a further compulsory procedure pursuant to s 464T of the Act.

that where a previously taken sample of the Plaintiff's DNA was still in the possession of Victoria Police, had been used to support the opinion of the DNA expect whose statement was in the prosecution hand-up brief and there was no evidence that such sample was in any way compromised or otherwise unsatisfactory, the making of the order could not be justified pursuant to s 464T(3)(h) of the Act.

the Magistrate failed to comply with s 464T(7)(a) and (b) of the Act in that he failed to state the evidence on which he was satisfied of the matters referred to in s 464T(3).

6 In respect of ground 1, no submissions were made as to the basis on which this Court could grant judicial review of a Magistrate's Court order for errors that were not alleged to be jurisdictional errors. Authority is against the grant of judicial review for non-jurisdictional errors by an inferior court unless they are errors of law on the face of the record.[1] Rather argument proceeded, as I understood it, on the basis that the alleged errors that the plaintiff relied on were in substance errors in the Magistrate's finding of the existence of statutory preconditions to the exercise of the power to make a compulsory procedure order. Such errors, if established, would probably attract judicial review and I have approached ground 1 on that basis. The observations in this paragraph do not apply to ground 2.

7 Section 464T of the Crimes Act provides:

464T Court may order compulsory procedure

(1) If -

(a) a person refuses to undergo a forensic procedure after being requested to do so or is incapable of giving informed consent by reason of mental impairment; and

(b) the sample or examination sought may be obtained by a compulsory procedure; and

(c) the person is a relevant suspect ; and

(d) a police officer believes on reasonable grounds that the person has committed the offence in respect of which the procedure was requested -

the police officer may apply to the Magistrates' Court for an order directing the person to undergo the compulsory procedure.

(2) An application under subsection (1) -

(a) must be in writing supported by evidence on oath or by affidavit; and

(b) if the person is a detained or protected person, must state that fact and identify the place where the person is held or resides; and

(c) must specify the type of compulsory procedure sought to be conducted.

(3) The Court may make an order directing a person to undergo a compulsory procedure if the Court is satisfied on the balance of probabilities that -

(a) the person is a relevant suspect; and

(b) there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and

(c) in the case of an application for a sample other than one referred to in paragraph (d), any of the following applies -

(i) material reasonably believed to be from the body of a person who committed the offence has been found -

(A) at the scene of the offence; or

(B) on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or

(C) on an object or person reasonably believed to have been associated with the commission of the offence; or

(ii) there are reasonable grounds to believe that, because of the nature of the offence or injuries inflicted during the commission of the offence, material from the body or clothing of the victim is present -

(A) on the person who committed the offence or on anything reasonably believed to have been worn or carried by that person when the offence was committed; or

(B) on an object reasonably believed to have been associated with the commission of the offence; or

(iii) the victim of the offence has not been found, and there are reasonable grounds to believe that material reasonably believed to be from the body of the victim is present on a person suspected of having committed the offence; or

(iv) the offence in respect of which the application is made is an offence against a provision of Subdivision (8A), (8B) or (8C) of Division 1 of Part I and there are reasonable grounds to believe that the conduct of the procedure on the person may be relevant in determining the paternity of a child that has been conceived allegedly as a result of the offence; and

(d) in the case of an application to take a sample or washing from the skin to determine the presence of gunshot residue, a firearm was discharged during the commission of the offence; and

(e) in the case of an application to conduct a physical examination, the person who committed the offence had distinguishing marks or injuries, whether acquired during the commission of the offence or otherwise; and

(f) there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence; and

(g) the person has refused to give consent to a request under section 464R(1) or the person is incapable of giving informed consent by reason of mental impairment; and

(h) in all the circumstances, the making of the order is justified.

(4) Except on an application made in accordance with section 464V or 464W, the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person is present.

(5) A relevant suspect in respect of whom an application is made -

(a) is not a party to the application; and

(b) may not call or cross-examine any witnesses; and

(c) may not address the Court, other than in respect of any matter referred to in subsection (3)(a) to (h).

(6) In exercising the right of address under subsection (5)(c), a relevant suspect may be represented by a legal practitioner.

(7) If the Magistrates' Court makes an order under subsection (3), it must -

(a) give reasons for its decision; and

(b) state the evidence on which it is satisfied of the matters referred to in subsection (3); and

(c) cause a note of the reasons to be entered in the records of the Court; and

(d) inform the person ordered to undergo a compulsory procedure that a police officer may use reasonable force to enable the procedure to be conducted.

(8) A failure of the Court to comply with subsection (7) does not invalidate any order made by it but constitutes non-compliance for the purposes of section 464ZE(1)(a).

(9) If -

(a) a police officer proposes to make an application to the Magistrates' Court under subsection (1) in respect of a person; and

(b) the person is a detained or protected person -

the Court may, on the application of a police officer, issue a warrant directing the officer-in-charge of the place where the person is held to deliver the person into the custody of the applicant or another police officer for the purpose -

(c) of attending the hearing of the application under subsection (1); and

(d) if that application is granted, of conducting the procedure on the person.

(10) A police officer into whose custody the person is delivered under a warrant issued under subsection (9) must return the person to the officer-in-charge of the place where the person was held -

(a) forthwith after the hearing of the application under subsection (1); or

(b) if the application is granted, within such period after the hearing of the application as reasonably permits the conduct of the procedure on the person.

8 The evidence before the Magistrate was primarily in an affidavit of Detective Acting Sergeant J Salerno[2], the second defendant, which described the events and circumstances which led to the plaintiff being charged with the murder of Kadir Ors. Detective Salerno's affidavit described evidence that the investigators had assembled against the plaintiff. He stated that as a result of forensic examination of the crime scenes, a cardboard lid of an ammunition box items was located on the driver's seat of the vehicle allegedly driven by the plaintiff. A 'number of fired cartridge cases/bullet jackets/bullet cores' were located at the scene of the shooting. Detective Salerno stated that the Ballistics Unit identified the fired cartridge cases/bullet jackets as 9mm Seelir Bellot rounds, a rare type of ammunition, identified that the ammunition box lid was from a 9mm Seelir Bellot ammunition box. He stated that:

The Victoria Police Forensic Science Centre - Biology Unit - has analysed the cardboard lid of the ammunition box and a DNA profile had been obtained. Preliminary results indicate that the DNA profile is that of the accused's.

Investigators believe that the accused was the person that committed the offence of murder.

The accused is currently on remand and being held at Barwon Prison.

9 Detective Salerno's affidavit stated that investigators requested an order to obtain a forensic sample, being a saliva buccal swab (intimate sample), from the plaintiff. They believed that this procedure might tend to confirm or disprove his involvement in the commission of the offence.

10 Because of the legislative scheme, Mr Marrogi was not a party to the police application. The statutory scheme establishes a procedure which Ashley J described as one 'to which the suspect is not a party and in respect of which the party has no right of cross-examination, no right to call evidence and a very limited opportunity to be heard'.[3] Ashley J observed that it was very important that the court asked to make an order be fully appraised of the state of an investigation.[4] The plaintiff was represented by senior counsel at the Magistrates' Court hearing. Detective Salerno gave oral evidence about the circumstances of the offence and the evidence that had been compiled and read the affidavit. As mentioned, Mr Marrogi's senior counsel was unable under the statute to cross-examine Detective Salerno. The Detective's affidavit of 21 December 2016 was admitted into evidence.

11 Senior counsel for the plaintiff then submitted that the Magistrate could not have had reasonable grounds to believe that the conduct of the compulsory procedure might tend to confirm or disprove the plaintiff's involvement in the commission of the offence. He conceded on behalf of the plaintiff, for the purposes of the application, that the plaintiff was a relevant suspect and that there were reasonable grounds to believe that he had committed the offence in respect of which the application was made. However, he emphasised that the Magistrate was still obliged by s 464T to exercise the discretion whether to make the compulsory order.

12 Senior counsel submitted that the compulsory procedure requested would not have a tendency to prove or disprove the offence and would not confirm anything. It would be an unnecessary further encroachment upon the plaintiff's liberty. He based this submission especially on the extent of the evidence that the Police had already assembled the plaintiff's involvement in the offence and submitted that the compulsory procedure would not disprove his involvement. He referred to a previous Court order made under s 464T in August 2005 which had required the plaintiff to provide a DNA sample.

13 The Magistrate summarised his understanding of the plaintiff's case as follows:

...what you're saying ...is the prosecution has got a strong hand. They don't need it any further, but is that a reason for me not to grant the order?[5]

14 Senior counsel referred to a statement in the police brief by Maxwell Kevin Jones[6], a scientist employed as a Forensic Officer at the Victoria Police Forensic Services Centre. Mr Jones stated that he had made a comparison between the sample obtained by the plaintiff in 2005 and the piece of cardboard obtained by the current investigation coloured red and green on one side with the white label beginning with '9mm Luger' and a series of numbers printed on the reverse side. His conclusion was that there was a single source, one contributor, who was the plaintiff. The statistical weighting was that:

The DNA evidence is 100 billion times more likely if MARROGI is the source of the DNA detected on the piece of cardboard.[7]

15 Senior counsel for the plaintiff submitted that a person's DNA did not alter irrespective of how many years had lapsed since the sample was taken and 'adding a DNA to a DNA adds nothing'.[8]

16 The prosecutor submitted that the circumstances stipulated by s 464T(3) which justified the Court in the making of a compulsory procedure order were satisfied. The order was justified because the plaintiff might allege that he had previous good character or might argue that the 2005 sample had become contaminated or had deteriorated.

17 The Magistrate referred to the concessions that the plaintiff had made for the purposes of the application as to the existence of particular statutory preconditions. He also referred to the plaintiff's submission that no further evidence was needed. He also referred to the prosecutor's submissions about the justification for the order. The Magistrate's reasons were given ex tempore. In places the transcript of the Magistrate's reasons, which was apparently unrevised, appears not to state the likely words used or the intention of the Magistrate. On a few occasions, I have inserted in parenthesis and bolded the words that it would appear that the Magistrate used or intended. The transcript states:

... there was an (application) allocation under section (464)164C effectively for a DNA sample to be provided by the accused... in this particular case has been charged with murder. The application was adjourned part heard from last week. It's on a fresh application for continuation on the basis that the hand-up brief had not been served, and now it has been served and I left it open for the prosecution to provide further material, which they have done in an affidavit made by (Detective Salerno) Sol Solomons. On the basis of that affidavit, which is tendered - I'm not sure that I gave it an exhibit number. It should be exhibit B.

Mr Dane concedes... client certainly is a relevant suspect under section 464T. He concedes that the - on a number of points that the prosecution have some strong evidentiary points in this particular case that really places his client outside the scope of what this legislation of effectively of compulsory self-incrimination is, in one sense, that under (f), has said the prosecution can see his sample if A is a relevant suspect and all those criteria are met; if there are relevant grounds for leave that the conduct of the procedure... confirm his involvement in the commission of the offence. On the points outlined by Mr Dane, there are four and any additional... of the prior sample being ordered back in 2005.

So what the prosecution essentially - A has a DNA sample already... from 2005. The evidence, if it can be accepted in the particular case of the prosecution, taken as high as - they certainly don't need any further evidence to confirm that he's a suspect in relation to these particular matters, and really, when it comes down to it, is it really an investigatory tool that the prosecution want this for, or really an evidentiary matter potentially down the track.

The prosecution have argued that the (previous sample)... was relevant but also age is also relevant. In all circumstances are making the orders justified. On the basis of whether it's superfluous or not, they say, well, there may be an issue down the track of the - that if an old sample is relied upon issues of his prior good character or bad character, I suppose, could - may be elicited which may potentially... a jury and also potentially because the... is now 11 years old, there may be some deterioration or contamination argument in relation to it.

Mr Dane, in reply in relation to these matters said, well, as far as he was aware that they already have a statement from Max Jones who has been... for a number of years and who has made a statement in relation to DNA and he doesn't seem to make any mention or notation of any deterioration of the sample in relation to these matters. Further, he said, well, if a dispute be superfluous really is that an investigatory matter or an evidentiary matter. He said, really it's an evidentiary matter for a prosecutor - issues or arguments potentially for the trial to cut off the argument of such evidence being not put before a jury.

They're the issues as best I can. I haven't heard the argument for that the prosecution's case is so strong that they need it in relation to it. Nevertheless, the fact is that the person is a relevant suspect and the other criteria is met, in my view under f, that may tend to confirm that there is, in my view, no real cut-off point that I can see under the legislation. It may tend to confirm in this particular case on the material provided by the prosecution. In those circumstances, I propose to grant the application.[9]

18 The judicial review application in this Court was supported by an affidavit by the plaintiff's solicitor, Ms S Tricarico, which described the history of the police application and the hearing in the Magistrates' Court.

19 The plaintiff submitted that the scope and purpose of s 464T and the legislation of which it formed a part was to provide powers to the police to investigate crimes effectively and obtain evidence that the police would otherwise be unable to obtain without an order of a court.

20 The plaintiff submitted that the Magistrate did not have reasonable grounds to form the belief that was a precondition to making the order. He referred to the extent of the material that the prosecution had assembled against the plaintiff. Because of the 2005 sample obtained from the plaintiff, repetition of sampling from him would confirm nothing. Section 464T provided an investigative tool and in this case there were no unknowns about which to seek further information.

21 The plaintiff submitted that the police investigation was comprehensively effective at the time the application was made under s 464T as:

(a) all immediately potential evidence was obtained prior to the application as a brief of evidence had been served prior to the hearing;

(b) no evidence was identified that required an order of the Court;

(c) the very evidence sought in the application (DNA sample) was already in the police possession and utilized in the investigation.

22 The plaintiff submitted that paragraphs (f) and (h) of s464T(3) were linked and had to be considered together. Paragraph (h) was a safeguard in the legislative scheme and was intended to prevent unnecessary compulsory procedures.

23 The plaintiff also submitted that the Magistrate had not provided proper reasons as was required by s 464T (7)(a) and (b).

24 Senior counsel for Detective Salerno submitted that the Magistrate had correctly exercised the discretion conferred by s 464T(3) in circumstances where the criteria stipulated in paragraph (f) had been satisfied. That criterion was that there were reasonable grounds to believe that the conduct of the procedure may tend to confirm or disprove the plaintiff's involvement in the commission of the offence. It was self-evident that the further sample may have that tendency. The second defendant's submissions also referred to the history of the legislation and its purpose.

25 The matters raised by ground 1 are directed at the basis on which, and the manner in which, the Magistrate exercised the power or discretion conferred by s 464T. That section is contained in Part III of the Act, which is titled 'Procedure and punishment' and Division (30A) 'Custody and investigation'. The Magistrate had to be satisfied on the balance of probabilities of the statutory criteria which are the preconditions to the making of a compulsory procedure order. Also, as the statute required that the Magistrate have 'reasonable grounds to believe' the preconditions contained in s 464T(3)(f), facts must have existed which could have induced that state of mind in a reasonable person.[10]

26 The evidence before the Magistrate provided reasonable grounds for a belief that the taking of a further DNA sample from the plaintiff might tend to confirm or disprove his involvement in the commission of the offence. As Hansen J stated in Marks v Buick:

[I]t is important to note that it is sufficient that the conduct of the procedure may tend, not that it will, not that it must, not that it probably will, but merely that it may tend to confirm or disprove the involvement of the subject person in the commission of the offence. A positive or a negative might come out of the test. It does not matter. It is, as Mr McArdle correctly observed, in my view, an investigative tool, notwithstanding that in this case Marks has already been charged with murder. But the trial has not yet occurred.

...

The error, I think, at least in part, in the submission is in the attempt it makes to demonstrate a lack of utility in the test in terms of aiding the Crown case at trial. Admissibility, let alone a prognostication as to it, is not the decisive issue in my view. It is whether the test may tend to confirm or disprove.[11]

27 The plaintiff's submission that the further sample was unnecessary and not an investigative tool runs into Hansen J's observation that the clear terms of s 464T(3)(f) required the Magistrate to have reasonable grounds to believe that the compulsory procedure may tend to prove or disprove involvement in the commission of the offence, but no more.

28 An additional issue discussed in oral submissions, was whether the Magistrate had actually exercised any discretion conferred by s 464T, as distinct from acting on the basis that having been satisfied of the presence of the criteria in (a), (b), (c) and (g), he was obliged to order a compulsory procedure. Section 464T may be read either as conferring a discretion or as requiring the making of a compulsory procedure order when the statutory criteria are found to be present. The criterion contained in paragraph (h): 'in all the circumstances, the making of the order is justified', in itself requires the exercise of a discretionary judgment. In Ellis v Stevenson,[12] the Court of Appeal stated as to the question whether s 464T(3) conferred a discretion:

We observe that the existence of a general discretion to refuse an order is perhaps a question in itself, but for the sake of the argument we have been prepared to assume its existence in favour of the appellant, the more especially as Mr Hill was not disposed to argue to the contrary. The most recent analysis by the High Court in Mitchell raises the possibility that the term 'discretion' is not altogether apt in this situation and that subs (3) is to be read as doing no more than conferring a power upon the court and spelling out the conditions for its exercise, with the result that if there is any 'discretion' in the court it seems from the operation of the par (h) as a condition attached to the exercise of the power and, as the argument in this case tended on occasion to suggest, from the word 'may' in the conferring of the power.

29 It is clear enough from a consideration of the Magistrate's reasons that he did conclude in accordance with paragraph (h) that 'in all the circumstances, the making of the order [was] justified'. His Honour expressly used the words of paragraph (h) in deciding the application. He applied the necessary statutory criteria. The satisfaction of the criteria contained in s 464T(3) can be a substantial factor in favour of making a compulsory procedure order. His Honour took into account the arguments of the prosecutor as to why the order should be made and the contrary arguments advanced by the plaintiff. He considered the 'cut off point argument', but did not regard s 464T(3) as containing such a limitation. He thereby exercised the power or discretion conferred upon him.

30 My conclusion does not prevent a possible contention in a given case, for example when repeated applications for compulsory procedure orders for DNA samples were made over a short period of time and in respect of the same offence, that they are an abuse of process and should lead the court to refuse them.[13] Compulsory procedure orders involve a significant incursion on the common law rights of persons. However, the legislation makes clear enough that the obtaining of the evidentiary sample in accordance with a compulsory procedure order displaces the right or privilege against self-incrimination,[14]

31 Rather than repeated applications being made over a short period of time, in this case there was a considerable interval between 2005 and 2016, with the second application being made in 2016 in respect of the event occurring in that year.

32 I will next apply the reasons I have given above to the specific grounds relied on by the plaintiff.

33 Ground 1.1 This ground alleged that the Magistrate took irrelevant considerations into account that were not supported by the evidence. They were that the plaintiff's good character might be compromised if a jury was to become aware that his DNA was already on the DNA database for crime detection purposes and that the defence might raise issues of the admissibility of the DNA on the ground of contamination. The prosecutor mentioned these matters as possible issues that might arise at a trial.

34 The key section of the Magistrate's reasons are contained in the final paragraph of the transcript of reasons that I have set out above. It is clear enough, that his Honour based the compulsory procedure order on his conclusion that the statutory preconditions had been satisfied. I do not read the Magistrate's reasons as revealing that the irrelevant considerations on which the plaintiff relied played any significant part in his reasons.

35 Ground 1.2 The Magistrate appears to have noted that the compulsory procedure would duplicate evidence, but under s 463T(3)(h), he was required to determine whether the making of an order was in all the circumstances justified and he determined that it was. Duplication of evidence is one possible characterisation of the effect of the order, but it might also be described as an order enabling the taking of a DNA sample at a point reasonably proximate to the date of the offence in issue, thereby avoiding sole reliance on a sample taken 11 years previously.

36 Ground 1.3 which was a Wednesbury[15] unreasonableness ground was not established. It cannot be concluded that a compulsory procedure order that authorised the taking of a DNA sample 11 years after an earlier sample was ordered and taken was a decision or order that was so unreasonable that no reasonable judicial officer could have made it.

37 Ground 1.4. The fact that a previous sample existed and was not the subject of evidence of being compromised or unsatisfactory, did not by itself prevent a further compulsory procedure order being made. There is no 'cut off' point for such orders, and whether they should be made, depends inter alia on the circumstances of the case. The Magistrate considered that the circumstances justified the making of the order. Ground 1.4 is not established.

The reasons argument Ground 2.1 and the declaration

38 Section 464T(7) obliges the Magistrate to give reasons for his decision and to state the evidence on which he was satisfied of the matters referred to in sub-section (3).[16] Most of the matters required by sub-section (3) were conceded. The exceptions were paragraph (f) and (h). It is clear that the Magistrate considered that the sample would have the tendency required by paragraph (f). Detective Salerno's affidavit supported that conclusion. Section 464T(8) provides that any failure of the Court to comply with sub-section (7), does not invalidate any order made, but constitutes non-compliance for the purposes of s 464ZE(1)(a). That latter section provides that, subject to certain other provisions, evidence obtained as a result of a forensic procedure conducted on a person, or from a sample voluntarily given by a person, is inadmissible as part of the prosecution case if the specified requirements of s 464T have not been complied with. It is not appropriate for me to comment on the possible effect of s 464ZE(1)(a) in this instance or consider anything other than whether the required reasons were given.

39 I have taken into account that the Magistrate's reasons were delivered ex tempore. I consider that they were sufficient to satisfy the duties imposed by s 464T(7)(a) and (b). His Honour relied on the evidence contained in Detective Salerno's affidavit, which together with the Detective's oral evidence was the only evidence before him. The existence of the statutory criteria, other than the fact or assessment required by paragraphs (f) ad (h), was not in dispute. The Magistrate's reasons were substantially based on the fact that the statutory criteria were satisfied and that there were no 'cut-off point' under the Act limiting applications for the taking of samples. By that was meant that there was nothing in the Act to stop a second application being made. Support for that interpretation is found in the Interpretation of Legislations Act 1984.[17] As mentioned, the Magistrate in deciding the application, did apply paragraph (h) and concluded that in all the circumstances the making of the order was justified.

40 I consider that the Magistrate's reasons were adequate and satisfied the statutory requirements of s 464T(7) and stated the evidence on which he relied. The basis for the declaration sought by the plaintiff has not been established. No error of law or other relevant error on the face of the record has not been established.

[1] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 176-180 and Kirk v Industrial Court of New South Wales (2010) 531, 569-573[60]-[70].

[2] The second defendant's surname was misspelt in the originating motion and the amended originating motion.

[3] O'Sullivan v Freeman [2003] VSC 45 [19] (Ashley J).

[5] Transcript of Proceedings, Matter of George Marrogi, (Magistrates' Court of Victoria,(Matter No Z01138275, 22 December 2016, Reardon M), 8 ('T').

[6] The plaintiff questioned the timing of the disclosure of Mr Jones' statement, but the evidence did not support a conclusion that there was any relevant nondisclosure and the amended originating motion did not raise that argument.

[10] George v Rockett [1990] HCA 26; (1990) 170 CLR 104,112.

[11] Marks v Buick [2003] VSC 488 [12], [14].

[12] (1996) 86 A Crim R 368, 375 (Brooking, Phillips and Charles JJA) (citations omitted), see also Finance Facilities Pty Ltd v Federal Commissioner of Taxation ([1971] HCA 12; 1971) 127 CLR 106, 134-5 (Windeyer J) and D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths 8th ed 2014) 425-436 and _Interpretation of Legislation Ac_t 1984 s 45.

[13]. As to the Court's power to prevent abuses of process see _Jago v The District Court of New South Wale_s [1989] HCA 46; (1989) 168 CLR 23.

[14] Counsel for the second defendant referred to the expert reports which had led to the legislation and its amendment being the reports of the Consultative Committee on Police Powers of Investigation, September 1989, chaired by John Coldrey QC.

[15] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[16] It contains other requirements not presently relevant.

Interpretation of Legislations Act 1984

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