POLICE v BECK No. SCCIV-01-378 [2001] SASC 81

2 On 24 November 2000 the respondent was charged with three counts of non-aggravated serious criminal trespass and one count of illegal use of a motor vehicle. On 6 December 2000 bail was refused by a Magistrate in respect of those charges. On 19 December 2000, in very blunt terms the respondent refused to consent to a forensic procedure. By application dated 25 January 2001, supported by an affidavit dated 5 January 2001, the investigating officer sought an order authorising the performance of a forensic procedure pursuant to the Act. The Magistrate refused that application on 25 January 2001 and gave the following reasons for that refusal:

"The refusal is on the basis that it is my view that there are no reasonable grounds to suspect that the respondent has committed the offence. Therefore, the public interest in obtaining the evidence to prove or disprove his guilt is not outweighed by the public interest in ensuring that private individuals are protected from unwanted and invasive procedures."

3 The affidavit of the investigating officer established that a supermarket premises in Mount Gambier was broken into at about 11.15 pm on Thursday, 23 November 2000. Forty cartons of cigarettes, a cigarette display unit and a cash register were stolen. Approximately 15 minutes later, a stolen Commodore sedan used in the commission of the offence was located in the driveway of 48 Telford Street, Mount Gambier. The cash register was found in the boot of the vehicle. A subsequent examination revealed traces of blood on the cash register.

4 The Magistrate was informed by the prosecutor that two cartons of cigarettes believed stolen from the supermarket were found on the back verandah of the premises where the stolen Commodore was located. Police spoke to three occupants of the premises who denied involvement. One of those persons gave information to the investigating officers concerning the respondent. The affidavit of the investigating officer stated that "information from an informant led police to suspect that Beck was involved" in the offence under investigation.

5 The prosecutor said that when police attended at the home of the respondent they could not rouse any person. At about 7 am on 24 November 2000 they located the respondent on Lake Terrace East at Mount Gambier where he was arrested. The affidavit stated that a carton of cigarettes found in the respondent's motor vehicle at the time of his arrest was identified as having come from the supermarket. The prosecutor informed the Magistrate that a full carton of cigarettes of the type stolen from the supermarket was located in the console of the respondent's car.

6 The prosecutor informed his Honour that surveillance photos of the offender were obtained from the supermarket. The offender was depicted as wearing a parka, track pants and a balaclava. The affidavit of the investigating officer stated that clothing seized from the respondent's home was identical to the clothing worn by the offender and visible on the store video surveillance tape. The prosecutor stated that police had located a parka and track pants identical to those depicted in the surveillance photographs.

7 Through the affidavit of the investigating officer, the Magistrate was also informed that the stolen Commodore sedan was linked to an attempted breaking at the premises of Cheap As Chips in Helen Street, Mount Gambier. Pieces of tail light lens found at the premises appeared to have come from the stolen Commodore.

8 Against that background, in his affidavit the investigating officer put forward the following reasons for making the application for a forensic procedure:

* it is alleged that the defendant has committed these offences and he has been arrested and charged with them.

* the forensic procedure, by way of DNA comparison to the blood found on the cash register, may afford further evidence to support the allegations."

9 Section 19 of the Act authorises an investigating officer who has a person under suspicion to make an application for an order authorising a forensic procedure. The formal requirements of an application are set out in s 20 and the affidavit of the investigating officer complied with those requirements. The power of the Magistrate to make an order for carrying out a forensic procedure is set out in s 26(1) of the Act:

"Making of final order for carrying out forensic procedure

26. (1) An appropriate authority may make a final order for carrying out a forensic procedure on a respondent if satisfied that -

(a) there are reasonable grounds to suspect that the respondent has committed a criminal offence; and

(b) there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence; and

(c) the public interest in obtaining evidence tending to prove or disprove the respondent's guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference."

10 Sub-section (2) of s 26 requires the court to have regard to the following factors in weighing the issues identified in s 26(1)(c):-

(b) the extent to which the procedure is necessary for the proper investigation of the suspected offence; and

(c) any likely effects of the procedure on the welfare of the respondent (so far as they can be reasonably anticipated) given the respondent's age, physical and mental health, and cultural and ethnic background; and

(d) whether there is a less intrusive but reasonably practicable way of obtaining evidence of the same or similar probative value to confirm or disprove that the respondent committed the suspected offence; and

(e) if the respondent gives any reason for refusing consent - those reasons; and

11 Counsel for the respondent submitted that this Court did not have jurisdiction to entertain an appeal from the decision of the Magistrate. By virtue of s 18(3), the Magistrate was sitting in the Criminal Division of the Magistrates Court. Appeals from the Criminal Division of the Court are governed by s 42 of the Magistrates Court Act 1991. Section 42(1a) precludes an appeal against an interlocutory judgment given in summary proceedings. Counsel for the respondent argued that the judgment against which the appellant seeks to appeal was an interlocutory judgment for the purposes of s 42.

12 The High Court considered the distinction between an interlocutory and a final order for the purposes of s 35(1)(a) of the Judiciary Act 1903 (Cth) in Licul v Corney [1976] HCA 6; (1976) 180 CLR 213. Barwick CJ said (pp 219-220):

"To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action."

13 Gibbs J, with whom Mason J agreed, rejected the suggestion that the test depends on the nature of the application made to the Court. His Honour said (p 225):

"The other view which, since Hall v Nominal Defendant [(1966) [1966] HCA 36; 117 CLR 423], should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?"

14 Counsel for the respondent submitted that the refusal of the Magistrate to make the order did not finally dispose of the rights of the parties. A further application could be made. Counsel referred to Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 where the High Court held that an order refusing to set aside a default judgment did not, as a matter of law, finally dispose of the rights of the parties because it was open to the disappointed party to apply again to have the judgment set aside. In response to the submission that the right to make a further application was purely theoretical as such an application must necessarily fail, Gibbs CJ said (p 248):

"In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present."

15 Mason J identified the issue as being whether the refusal of the application to set aside the default judgment finally disposed of the action. His Honour reached the same view as Gibbs CJ.

16 It is necessary first to identify the "action" between the parties. Counsel for the respondent submitted that the action is an investigation and prosecution. Viewed in this way, the decision of the Magistrate did not finally dispose of the rights of the parties as the investigation and prosecution can still proceed.

17 In my opinion the action should not be defined in the manner suggested by counsel for the respondent. Although a charge has been laid, the application seeking an order in favour of a forensic procedure is not part of those criminal proceedings. The application is not concerned with any issue affecting the course of those proceedings or the admissibility of evidence in those proceedings. While the criminal proceedings may move to the District or Supreme Court, applications pursuant to the Act relating to forensic procedures remain in the Magistrates Court. In addition, if the respondent's proposition is correct, an accused person would not have a right of appeal against a decision to grant an application for a forensic procedure. If the action is the investigation and prosecution, the accused's rights in that action to defend the prosecution would not be finally determined by an order in favour of a forensic procedure. In my view, bearing in mind the impact of an order for a forensic procedure upon the common law rights of a suspect or an accused person, in the absence of a specific prohibition in the Act, it is highly unlikely that Parliament would have intended to deprive a suspect or an accused of the right to appeal against such an order.

18 The scheme of the Act must be considered. It came into operation on 25 July 1999. One of the express purposes of the Act is to provide for the carrying out of forensic procedures to obtain evidence relevant to the investigation of criminal offences. In furtherance of that purpose, the Act provides for the authorisation of the performance of forensic procedures during the course of investigations and prior to conviction. An application for an order in respect of a person under suspicion may be made by a police officer in charge of a police station or the Director of Public Prosecutions or a police officer in charge of an investigation who has a person under suspicion. For the purposes of the Act, a person is under suspicion if the police officer suspects the person, on reasonable grounds, of having committed a criminal offence. It is not necessary therefore, that the person under suspicion be charged with a criminal offence. The Court is given the power to issue a warrant for the arrest of the suspected person in order to ensure attendance at the hearing of an application or if the arrest is necessary to prevent the destruction of evidence that might be obtained by means of a forensic procedure. A person arrested may apply for release on bail pending the hearing of the application. It is only upon the making of an application for an order authorising a forensic procedure that the power to issue a warrant to arrest the suspected person and to subsequently grant bail is enlivened. Once an application is refused, therefore, there is no basis under the Act upon which the suspected person can be held in custody.

19 The procedure at a hearing of an application and the provision of evidence to the Court by the parties is governed by s 25. If an order is made for the carrying out of a forensic procedure, the authority granting the order must make a written record of the order and the reasons for it. In limited circumstances, a senior police officer may grant an application for the performance of a forensic procedure. Generally speaking, however, a Magistrate sitting in the Criminal Division of the Magistrates Court is the appropriate authority vested with the powers to make such orders. As mentioned, the power to make orders is governed by s 26.

20 There is a second category of persons from whom the taking of forensic material may be authorised pursuant to the Act. This category consists of persons who have been convicted or found guilty of an indictable offence (or who have been declared liable to supervision): ss 29 and 30. The relevant criminal court may make an order authorising the taking of fingerprints from such a person. If the offender has been dealt with for a "major offence", the taking of material for the purpose of obtaining a DNA profile can be authorised. A major offence is defined as an indictable offence for which the maximum penalty is, or includes, imprisonment for five years or more or for an indefinite term. The Act envisages storage on a database of DNA profiles obtained in this manner for future use in connection with on-going and future investigations and for admission in evidence in criminal courts: Stefanopoulos v Police (2000) 207 LSJS 296.

21 The Act contains detailed provisions concerning informed consent for the conduct of forensic procedures. Special provision is made for children and for persons who are physically or mentally incapable of giving informed consent. The Act identifies the duties of those carrying out the procedures. Specific provisions govern the admissibility of the results of forensic procedures and provide for the confidentiality of information gained through the conduct of the procedures.

22 Subject to identified exceptions such as the taking of fingerprints and the taking of samples of breath or blood pursuant to the Road Traffic Act 1961, the Act is a code governing the performance of forensic procedures upon persons suspected of having committed a criminal offence and those convicted of criminal offences. In a practical sense, an application in respect of a suspected person is part of an investigation of a criminal offence. As previously discussed, however, proceedings under the Act are not part of the criminal proceedings that follow after a person has been charged with a criminal offence.

23 In my opinion, when the Act is viewed in its entirety, for the purposes of determining whether an order pursuant to the Act is final or interlocutory, the action is the proceeding instituted pursuant to the Act. In the matter under consideration, that action is an application for an order authorising the performance of a forensic procedure upon the respondent, namely, the taking of a buccal swab. When the Magistrate dismissed the application, his judgment finally disposed of that action. His Honour's order finally disposed of the rights of the parties in that action. In my opinion, it is not to the point that the appellant could make a further application pursuant to the Act. A second application would amount to a separate action for these purposes. It would not be a second application in the existing proceedings or action as was possible in Carr v Finance Corporation of Australia.

24 For these reasons, in my opinion the order of the Magistrate was a final order and not an interlocutory order for the purposes of s 42 of the Magistrates Court Act. This Court has jurisdiction to hear and determine the appeal.

25 Before turning to the merits of the application before the Magistrate, it is convenient to deal with a submission by the respondent concerning the burden of proof. Section 26(1) of the Act provides that the court may make an order if "satisfied" of the matters identified in s 26(1)(a)-(c). Counsel for the respondent submitted that the court was required to be satisfied of those matters beyond reasonable doubt.

26 I was not referred to any authorities and I have not had the benefit of full argument. In addition, strictly speaking it is unnecessary for me to decide this issue because it was never suggested that his Honour should not be satisfied, on any standard, of the existence of the underlying facts which are identified later in these reasons. From my own review of the evidence presented to the Magistrate, I am satisfied beyond reasonable doubt of the existence of the underlying facts which are later identified. However, as the issue has been raised, I will indicate my views.

27 Proof beyond reasonable doubt is the particular burden of proof imposed upon the prosecution in proof of guilt of criminal offences. That burden extends to proof of an intermediate fact which is an indispensable basis for an inference of guilt: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573. In Wigmore on Evidence (Chadbourn Revision 1981), the following summary is given (s 2497):

"In criminal cases a rule has grown up that the persuasion must be beyond a reasonable doubt. This precise distinction seems to have had its origin no earlier than the end of the 1700s, and to have been applied at first only in capital cases, and by no means in a fixed phrase, but in various tentative forms. "A clear impression," "upon clear grounds," "satisfied," are the earlier phrases; and then "rational doubt," "rational and well-grounded doubt," "beyond the probability of doubt," and "reasonable doubt," come into use. Then, in Starkie's classical treatise, "moral certainty, to the exclusion of all reasonable doubt," is given vogue." (footnotes omitted)

28 The classical treatise to which the learned author referred was cited by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 360. His Honour observed that while the distinction between the criminal and civil standards of proof existed long before the publication, the form of the higher standard of persuasion is said to have been influenced by passages in that work. Included in the passage quoted by Dixon J is the following observation:

"The distinction between foolproof and mere preponderance of evidence is in its application very important. In all criminal cases whatsoever, it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt."

29 The criminal standard of proof developed as to standard applicable before a "verdict of condemnation" could be returned. However, that standard has not been applied in the civil law where alleged criminal conduct forms the basis of the cause of action: Briginshaw v Briginshaw; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 and Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517. Generally speaking, in the absence of specific legislative direction, the criminal standard is not applied to other circumstances. For example, the prosecution is required to prove that admissions by accused persons were made voluntarily, but the standard of proof is proof on the balance of probabilities. I acknowledge that the procedures under the Act are connected with criminal investigations and prosecutions. However, those procedures are not immediately connected in the relevant sense with proof of guilt or indispensable facts. They are concerned with the obtaining of evidence relevant to the guilt or innocence of suspected persons. Significantly, they are also concerned with the gathering of material from which DNA profiles and a database of those profiles can be established as an aid in ongoing and future investigations.

30 As Latham CJ observed in Briginshaw v Briginshaw (p 346), the legislature is assumed to be aware of the difference between the civil standard of proof and the criminal standard of proof. By way of example, in its original form, s 99 of the Summary Procedure Act 1921 empowered a court to make a restraining order if "satisfied on the balance of probabilities" of specified matters. Those matters included acts by a defendant that could amount to criminal offences. Section 99 and other provisions related to summary protection orders were repealed by the Summary Procedure (Restraining Orders) Amendment Act 1994 and a new division was inserted in the Summary Procedure Act. The new s 99 enables the court to make a restraining order if there is a reasonable apprehension that the defendant may, unless restrained, behave in a specified way and if the court is "satisfied" that the making of the order is appropriate in the circumstances. In my opinion, by omitting the words "on the balance of probabilities" the legislature did not intend to elevate the required standard of proof to the criminal standard.

31 In my view, unless the legislature specifically states that satisfaction beyond reasonable doubt is required, in circumstances such as those under consideration the legislature is not to be taken to have intended that the court should apply the criminal standard of proof.

32 There is an added difficulty in applying a particular standard of proof to the criteria in s 26(1)(a)-(c). In Tepper v Kelly (1988) 47 SASR 271, the Full Court was concerned with a charge of unlawful possession that required proof of the possession of property which was "reasonably suspected of having been stolen or obtained by unlawful means". On appeal from a Magistrate who held that the prosecution was required to prove beyond reasonable doubt that the suspicion was reasonably based, Cox J held that it was not appropriate to speak of the reasonableness of the suspicion being established beyond reasonable doubt. His Honour held that the factual elements, particularly the possession and the suspicion, had to be established beyond reasonable doubt and it was then for the court to form a judgment as to whether any suspicion, duly proved, should be properly characterised as a reasonable suspicion. His Honour held that the court's judgment or opinion in that respect, as distinct from proof of the underlying grounds or reasons, could not be graded by reference to standards of proof applicable in different jurisdictions to contested facts. His Honour observed that "a suspicion is either reasonable or not reasonable". The Full Court agreed. White J observed (p 273):

"It is incongruous, even tautologous, in my opinion, to speak of "proof" beyond reasonable doubt of the reasonableness of a suspicion because reasonableness is a matter of opinion or judgment, not proof."

33 In this context the observations of Vincent J in Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351 at 357 which are cited later in these reasons are also pertinent. His Honour observed that the questions to be determined by the Magistrate are not to be resolved by the application of a test related to the balance of probabilities.

34 While it might be said that the prosecution should be required to prove the underlying facts beyond reasonable doubt because the proceedings are in the Criminal Division of the Magistrates Court, unlike the situation in Tepper v Kelly, the underlying facts are not directed to proof of guilt of an offence. They are directed to satisfying the criteria laid down by the legislature as a pre-condition for the granting of an order authorising a forensic procedure. In these circumstances, in my opinion it is inappropriate to apply the criminal standard to proof of the underlying facts. Once the underlying facts have been proved on the balance of probabilities, in accordance with the reasoning in Tepper v Kelly it is a matter for the court to decide whether those underlying facts amount to reasonable grounds to suspect that the person under suspicion has committed a criminal offence.

35 As to the merits of the application before the Magistrate, his Honour found that there were no reasonable grounds to suspect that the respondent had committed the offence. It is difficult to understand how his Honour could have arrived at that conclusion. His Honour had before him the following underlying facts:

* Within 15 minutes of the commission of the offence, the vehicle used in the offence was found at 48 Telford Street, Mount Gambier. The stolen cash register was in the boot. One of the persons at those premises gave information to the police concerning the respondent.

* As a consequence of that information, the police suspected that the respondent was involved in the commission of the offence.

* Early the following morning, the police located in the respondent's motor vehicle a carton of cigarettes identical to those stolen.

* Police located at the respondent's home clothing identical to that worn by the offender.

* Traces of blood were found on the cash register.

36 Section 26(1) of the Act did not require that the Magistrate form a personal belief or suspicion that the respondent had committed the offence. The test is whether the Magistrate was satisfied that there existed reasonable grounds to suspect that the respondent had committed the offence. The relevant test was identified by the High Court in George v Rockett [1990] HCA 26; (1990) 93 ALR 483 at 488:

"When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person."

37 The decision for the Magistrate was, therefore, whether facts existed which were sufficient to induce in the mind of a reasonable person a suspicion that the respondent had committed a criminal offence. Put another way, the Magistrate was required to decide whether reasonable grounds existed to create in the mind of a reasonable person an apprehension that the respondent might possibly have committed an offence: R v Heaney [1992] VicRp 85; [1992] 2 VR 531 at 547-548.

38 A suspicion is different from a belief. The nature of a suspicion was identified by the High Court in George v Rockett (pp 490-491):

"Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1969] UKPC 26; [1970] AC 942 at 948, "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, "was unable to pay [its] debts as they became due" as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at 303):

"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence' as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."

39 In determining whether reasonable grounds existed, the Magistrate was not bound by the rules of evidence. I agree with the following observations of Vincent J in Walsh v Loughnan (357):

"The questions to be determined by the learned magistrate were not to be resolved by reference to the rules of evidence or by the application of a test related to the balance of probabilities. In the process of investigation it is by no means uncommon for information to be obtained which would not be admissible in a court of law, or for well-founded suspicions and beliefs to be developed on the basis of a variety of pieces and types of information, including evidence of consistency or inconsistency of conduct, which could not be advanced as proof of the facts outlined or suspected to exist."

40 In my opinion, if the Magistrate had applied the correct test, he could not reasonably have arrived at the view that reasonable grounds did not exist to suspect that the respondent had committed an offence. The facts before his Honour were sufficient to induce in the mind of a reasonable person a suspicion that the respondent had committed a criminal offence. In my view the error is such that the exercise of the discretion miscarried.

41 There is a further aspect of the reasoning of the Magistrate that discloses a misunderstanding as to the operation of s 26. Having found that there were no reasonable grounds to suspect that the respondent had committed an offence, his Honour concluded that, for that reason, the public interest in obtaining the evidence did not outweigh the public interest in ensuring that private individuals are protected from unwanted interference. Such a process of reasoning is not envisaged by s 26. If the court is not satisfied that there are reasonable grounds to suspect that the respondent has committed a criminal offence, the court does not have the power to make a final order authorising a forensic procedure. Similarly, if the court is not satisfied that there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence, there is no jurisdiction to make the order. In those circumstances the question of weighing the two aspects of the public interest identified in s 26(1)(c) does not arise. That weighing exercise only occurs if the court is satisfied of the existence of both conditions identified in s 26(1)(a) and (b).

42 I am required to exercise the discretion afresh. First, I am satisfied that there are reasonable grounds to suspect that the respondent has committed a criminal offence. Secondly, in view of the presence of blood on the stolen cash register, I am satisfied that there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of that offence.

43 The criteria in s 26(1)(a) and (b) having been satisfied, I am then required to determine whether I am satisfied that the public interest in obtaining evidence tending to prove or disprove the respondent's guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference. In weighing those competing interests, I am directed by s 26(2) to have regard to the criteria identified in s 26(2)(a)-(f). In my opinion, the criteria identified in s 26(2) strongly favour the granting of the application. I am satisfied that the public interest in obtaining the evidence outweighs the public interest in ensuring that the respondent is protected from unwanted interference.

44 The appeal is allowed. The order of the Magistrate is set aside. The application dated 25 January 2001 is granted. I make a final order authorising the carrying out of a forensic procedure on the respondent by way of the taking of a buccal swab.