Shepherd v Nestoriadis

Supreme Court of NSW|2015-03-27|Before: Beech-Jones J, Bellew J, Simpson J

ex tempore Judgment

On 20 June 2014 an order was made under s 75L of the Crimes (Forensic Procedures) Act 2000 (the "Act") authorising the carrying out of a forensic procedure on the plaintiff, Kim Louise Shepherd. The defendant, Sergeant Marina Nestoriadis, had applied for the order.
The plaintiff now appeals this order. Section 115A of the Act enables an appeal to this Court against the making of such an order to be brought under Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001 (the "Review Act"). Subsection 52(1) of the Review Act confers on the plaintiff a right of appeal against the order but "only on a ground that involves a question of law alone". Subsection 53(1) enables an appeal on a question of fact or of mixed law and fact but only with the leave of the Court.
At the hearing of these proceedings an application was made for such leave in respect of one of the grounds but it was only expressed to be consequential on the success of the other grounds. I will return to address it.

The Act

The scheme for the undertaking of forensic testing on suspects and offenders created by the Act was reviewed by Bellew J in Daley v Brown; Pittman v Brown [2014] NSWSC 144 ("Daley"). This appeal is concerned with Pt 7A of the Act which authorises the carrying out of forensic procedures on so called "untested former offenders".

The application under Part 7A

The plaintiff is 42 years old. In 1997 she was convicted of stealing and fined $300. In 2003 she was convicted of larceny and goods in personal custody. She received non-custodial sentences. Between January 2005 and May 2008 the plaintiff was convicted of a number of offences of goods in custody and shoplifting, as well as some driving offences. For the last of these offences she received a suspended sentence.
On 14 August 2008 the plaintiff was convicted of shoplifting and received a sentence of imprisonment by way of periodic detention for two months. It was the conviction and penalty for this offence that meant that she satisfied s 75A(3)(a).
In September 2009 the plaintiff received two further convictions, both of which yielded non-custodial sentences. In June 2011 the plaintiff was charged with an offence of assault occasioning actual bodily harm as well as common assault. The charging of the plaintiff with those offences satisfied s 75A(3)(b). Thus by that time she then fell within the definition of "untested former offender". On 1 November 2011 those charges were dismissed.
On 14 March 2014 the plaintiff was served with a form requesting that she consent to a "non-intimate forensic procedure by way of a self-administered buccal swab".
The plaintiff's consent to the request was not forthcoming. In May 2014 the defendant applied for an order under s 75L(1) to the Local Court. The hearing of the application commenced on 16 April 2014 and was adjourned to 30 May 2014. Further submissions were made on that day and the presiding magistrate reserved her decision. Reasons were delivered on 20 June 2014. Her Honour ordered that there be a carrying out of a self-administered buccal swab within a specified period.
Even allowing for the fact that her Honour reserved her decision, her Honour's judgment is to be considered bearing in mind the heavy workload borne by the Local Court and the lack of opportunity that is generally afforded to magistrates to address infelicities of language and similar errors in the transcripts of oral judgments.
At the hearing of the application on 30 May 2014, the police prosecutor appearing for the defendant tendered to her Honour a copy of the plaintiff's criminal antecedents in the form of a bail report, referred her Honour to the decision in Daley and provided to her Honour a copy of the second reading speech concerning the introduction into the Act of Pt 7A. The police prosecutor also explained to her Honour the state of the backlog in the implementation of back-capture of DNA from untested former offenders.
In his submissions, counsel for the plaintiff made reference to the delay in bringing the application. Counsel also made reference to the plaintiff's acquittal on the charge that was laid in 2011, the absence of convictions during recent years, and also referred to what was contended to be the comparatively minor nature of the offence that satisfied s 75A(3)(a). Counsel also tendered a certificate from an educational institution concerning a course undertaken by the plaintiff.
In one part of his submissions, counsel for the plaintiff referred to an extract from the second reading speech in which the relevant minister had stated that the scheme for the back-capture of DNA worked in a "reasonable and proper way so that those who had finished their sentences, have been fully rehabilitated, and pose no further risk to society will not be affected".
Counsel then submitted to her Honour as follows: "I would say that Ms Shepherd is a person who has finished her sentence, has been fully rehabilitated and poses no further risk to society and that issue of risk is something which is the premise upon [which] these amendments to the Act were introduced."

Her Honour's Judgment

At the commencement of her Honour's judgment there was set out the relevant legislative provisions and the background to the application. Her Honour then summarised the submissions of the police prosecutor and counsel for the plaintiff. In relation to the latter, her Honour specifically noted the contention that the delay in bringing the application was excessive. Her Honour also noted the submission that the plaintiff had not committed any offences since September 2009, that the nature of the offending that satisfied s 75A(3) was relatively minor, as well the reference made by counsel for the plaintiff to the educational qualifications obtained by her and the efforts the plaintiff had made to rehabilitate herself.
In one part of her judgment, her Honour recounted the following as a submission made by counsel for the plaintiff: "It was submitted that she has done her sentence, that she is no further risk to society, that she has been rehabilitated. The defence referred to the second reading speech at the top of p2 of the document that was provided to the Court and submitted that where there was reference to the act as at that date only allowing for persons currently serving a sentence to be ordered to provide a sample, that that limitation created a gap which DNA back capture would fill once the legislation was passed and it was said in the second reading speech that: 'Reform works in a reasonable and proportionate way so that those who are finished their sentences have been fully rehabilitated and pose no further risk to society will not be affected.' It must be borne in mind however that that is the second reading speech from a Mr Paul McLeay on behalf of Mr Bob [Debus] and that that is not perhaps entirely consistent with the interpretation of various courts. So as I have said it was submitted from that second reading speech that she fell into the category of posing no further risk to society and so she should not be so affected." (emphasis added)
Her Honour then referred to various authorities that had been cited in argument including the above passage from Daley at [81]. Her Honour concluded the judgment as follows: "In looking at the material that is before the Court and the submissions that have been made by the prosecution and the defence and as has been argued the Court must be satisfied that the carrying out of the procedure is justified in all the circumstances. In looking at the period of delay between the assault occasioning actual bodily harm, common assault charges being dismissed on 1 November 2011 and the making of the application for an order in April 2014 being some two years and five months I do not see that delay as excessive. The appropriate balance between the rights of the citizen and the interests of the community are to be looked at and in that process the Court is mindful that New South Wales is participating in a national DNA database and that the defendant, if an order is to be made, would be required to provide evidence which may be used against her and which of course may also be used to exonerate her with respect to unsolved crimes that have been committed in other states and/or territories. It is my view that the carrying out of the procedure is justified in all the circumstances in this case because it is in the overall interests of the community and of justice in facilitating the investigation of crimes throughout Australia and the administration of justice throughout Australia in securing the conviction of the guilty and the non prosecution acquittal of the not guilty. The purpose of back capture of DNA means that the police can take a DNA sample from Ms Shepherd, a person who has served a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention, but who is not yet on the DNA database and use that DNA sample if she is or has been charged with another indictable offence. As has already been stated that evidence may be used against her or may be used to exonerate her and I form the view that WITH RESPECT TO THIS APPLICATION THE CARRYING OUT OF THE FORENSIC PROCEDURE AGAINST MS SHEPHERD IS JUSTIFIED IN ALL THE CIRCUMSTANCES FOR THOSE REASONS."

The Appeal

As noted, in so far as the plaintiff seeks to invoke the right of appeal by s 52(1) of the Review Act, her appeal is restricted to a ground that involves a question of law alone. In Williams v The Queen [1986] HCA 88; 166 CLR 278 at 287 Gibbs CJ stated: "There is a question of law alone, if the question of law can be stated and considered separately from the facts to which it may be connected in a given case."
Further in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] I stated, that if the task stated by Gibbs CJ in Williams is undertaken, then: "… the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome …"
Grounds one and two of the appeal were expressed as follows: "Ground 1 - That the Magistrate erred in law when determining the construction of the term 'justified in all the circumstances' as contained in s 75L(2) Crimes (Forensic Procedures) Act 2000. Ground 2 - Further, or in the alternative, the Magistrate erred by applying the wrong test in determining whether the forensic procedure was 'justified in all the circumstances'."
The submissions in support of those grounds made it clear that the gravamen of the plaintiff's complaint was the alleged failure of her Honour to address the plaintiff's individual circumstances as they were put to her Honour.
Senior counsel for the defendant, Ms Adams SC, took issue with those submissions at a number of levels, one of which was a contention that the proper construction of her Honour's reasons reveals her Honour did take those matters into account. I will return to address that contention.
It suffices to state at this point that insofar as complaint was made that her Honour failed to take into account the delay in making the application then it has no substance. Her Honour expressly addressed that matter and found that the delay was not excessive. Any complaint about that conclusion is an argument about the merits of her Honour's assessment. It does not involve or raise any question of law.
Otherwise, one difficulty with grounds one and two is identifying, as required by Gibbs CJ in Williams, an underlying question of law in abstract terms that the learned magistrate either answered or proceeded upon an assumption concerning any such answer. The case put on behalf of the plaintiff to her Honour was that the plaintiff had reformed to such an extent that she posed no real danger to society and that meant that her inclusion in the national database was not warranted. For my part, the underlying question of construction which arises from that contention is whether s 75L(2) of the Act permits, or even requires, the Court to consider whether the circumstances of a person's offending and subsequent rehabilitation is such as not to warrant their inclusion in the national DNA database.
In argument, Ms Adams SC accepted that the answer to a question of law phrased in those or similar terms was that the Court may consider that matter in its assessment of "all the circumstances" for the purposes of s 75L(2) but the Court was not required to consider it. Of course, Ms Adams SC further contended that in this case her Honour did consider those matters. To the extent that Ms Adams SC's answer contains a concession, it is, undoubtedly, well founded. Any submission to the contrary would, in my view, be inconsistent with Daley at [81].
The more difficult question is whether, in a case where the Court finds the relevant offences committed by the untested former offender that bring them within s 75A(3) are at the low end of the scheme of offences that might meet that test and that there is otherwise a strong case that they pose no appreciable risk to the community, the Court must take that into account under s 75L(2). For the reasons that follow, it is ultimately not necessary to resolve that issue.
Ground three of the appeal contends that her Honour failed to give proper reasons for finding that the forensic procedure was justified in all the circumstances. The parties did not dispute the proposition that her Honour had a duty to provide reasons for allowing the defendant's application much less the content of that duty. The relevant principles can be briefly stated, although at the outset it needs to be noted that they accommodate the circumstances applicable to magistrates noted earlier and, the fact that in some cases a determination of whether a judicial officer made a particular finding or accepted or rejected a particular submission may be implicit from either the structure of the judgment or its terms when viewed in light of what was truly in contest between the parties.
In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41] Santow JA observed: "It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings."
Similarly in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 Meagher JA said: "A failure to provide sufficient reasons can, and often does, lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost."
In Daley at [96] Bellew J distilled from the judgment of Meagher JA in Beale the proposition that while statements of reasons need not be lengthy or elaborate, an adequate statement must at least refer to all relevant evidence and set out any material findings of fact, any conclusions reached and provide reasons for making the relevant findings of fact and reaching the relevant conclusions as well as providing reasons for applying the law to the facts as found.
The observation of Meagher JA in Beale that the judicial officer must expose their reasoning in sufficient detail to enable a losing party to understand why they lost is significant. It must be distinguished from the circumstances in which a party vehemently disagrees with the reason(s) why they lost. Nevertheless, at its core, that requirement is one that obliges the judicial officer to engage with a case presented on behalf of a party so the reason(s) why that case was not successful can be ascertained.
I have already referred to the case put on behalf of the plaintiff to her Honour concerning the low risk of offending the plaintiff was said to pose and why that was said not to warrant her inclusion in the national DNA database. The first step in that argument was at a factual level in that it involved her demonstrating that the offending on her part that satisfied s 75A(3)(a) was at a relatively low level, that she was acquitted of the charge that gave rise to the court attendance notice that satisfied s 75A(3)(b), that she had not committed any offences in recent years and that she had achieved an educational qualification.
Assertions to this effect were recorded by her Honour but her Honour did not expressly state in the judgment whether they were accepted. Ms Adams SC contended that none of these matters were in any way disputed and that it can be readily inferred that her Honour accepted them. I accept that that is the case although this exposes the difficulty that arises when considering the next steps in the plaintiff's case.
The second step in the plaintiff's case was an evaluative one, namely, a consideration of the contention made by the plaintiff, as recorded by her Honour, that the plaintiff "fell into the category of posing no further risk to society and so she should not be so affected" by the making of an order (see [25]).
The third step in the plaintiff's argument was a legal contention, namely, that s 75L(2) required or at least permitted the Court to take that matter into account in determining whether to make an order.
The fourth and final step was effectively a conclusionary one, namely, that the plaintiff submitted that her Honour should determine whether that factor was such that it outweighed any factors that weighed in favour of granting the order sought by the defendant.
With respect to her Honour and even allowing for all of the constraints that I noted earlier, I cannot discern whether or not her Honour addressed the second, third, and fourth steps and much less determine why her Honour may or may not have determined each or all of them adversely to the plaintiff.
Ms Adams SC noted that her Honour set out at length the submissions of the plaintiff and then, at the critical point in her reasons extracted above, referred again to the "submissions that have been made by the prosecution and the defence" (see [26]). Based on that, Ms Adams SC submitted that the plaintiff's case was addressed and considered, and that her Honour reasoned that the matters raised on behalf of the plaintiff were not of sufficient weight to outweigh the interests identified by her Honour in favour of making the order.
However, the difficulty with that analysis is that it does not explain what her Honour made of the second step in the argument I have referred to above. Did her Honour make any assessment of the extent of the risk posed by the plaintiff? Did her Honour consider that the matter was as high as was submitted on her behalf, namely, that she posed "no further risk to society"? Did her Honour consider that some lesser assessment was warranted? It seems unlikely that her Honour accepted the full force of that submission but, nevertheless, it is simply not known to what extent her Honour may have accepted that submission at least in part or, indeed, whether her Honour rejected it in its entirety.
In relation to the third step in the argument, it is unclear whether her Honour did or did not regard the risk posed by the plaintiff or the absence of any such risk as a matter to be considered as one of the "circumstances" referred to in s 75L(2). As noted, her Honour made reference to that part of the second reading speech which stated "that persons who have finished their sentences and have been fully rehabilitated and pose no further risk to society will not be affected". Immediately after recounting that, her Honour doubted the accuracy of the second reading speech in light of the interpretation of the legislation by "various courts". It seems that this passage of the second reading speech was directed to the definition of untested former offender and was referring to a person who had served a term of imprisonment which satisfied s 75A(3)(a), but who had not received a court attendance notice as referred to in s 75A(3)(b). In that sense they were to be considered as having demonstrated that they were fully rehabilitated.
Be that as it may, one will search in vain in her Honour's judgment for any indication one way or another whether ultimately her Honour had regard to the point being made by the offender that the question of whether she posed or did not pose any risk to society was a matter that was to be considered under s 75L(2).
As I have stated, at a basic level, if reasons are to do nothing else, they must at least engage with the losing party's case. There were a number of bases on which the plaintiff could have lost but ultimately I am unable to discern which one or more were adopted. Did her Honour reject the proposition put on behalf of the plaintiff that she posed no further risk to society? Alternatively, did her Honour reject the implicit submission of law that was made on behalf of the plaintiff, namely that the fact that she did pose no further risk to society was a matter, perhaps a weighty matter, that warranted the rejection of the application? Further, even if her Honour did accept that, was it ultimately the case that her Honour considered the other factors in favour of the granting of the order outweighed that matter? In the end, I cannot distinguish or determine from her Honour's reasons which of those three possibilities or, indeed whether all of them, were the basis for the refusal of the application.
It follows that I will uphold ground three of the appeal. It also follows from that conclusion that grounds one and two of the appeal do not arise for consideration. Those grounds are predicated on a particular construction of her Honour's judgment which is not made out. In my view, and with the greatest respect to her Honour, her Honour's judgment suffers from an anterior defect which simply does not allow a determination of those grounds of appeal because the approach her Honour adopted to s 75L(2) is not apparent.
There remains to be considered ground four of the appeal. As noted, in oral argument the plaintiff sought leave to appeal under s 53(1) in respect of ground four if it achieved success on one of the other grounds. In my view, the plaintiff succeeds on ground three and that would ordinarily result in an order setting aside the magistrate's decision and remitting the matter to the Local Court to re-determine according to law (Review Act s 55(2)(c)).
In those circumstances, the only utility of granting leave under s 53 would be if for some reason it was thought appropriate that this Court should determine the substantive application. No such reason is apparent. On that basis leave will be refused.

Relief

At the hearing of the appeal, the Court was advised that it had been agreed between the parties that no costs orders would be sought by either party, irrespective of the result.
Accordingly, the Court orders that; 1. Leave to appeal under s 53(1) of the Crimes (Appeal and Review) Act 2001 is refused. 2. The appeal under s 52(1) of the Crimes (Appeal and Review) Act 2001 is allowed. 3. The order of the Local Court made on 20 June 2014 against the plaintiff, s 75L(2) of the Crimes (Forensic Procedures) Act 2000 is set aside. 4. There be remitted to the Local Court for redetermination the application by the defendant for an order under s 75L(2) of the Crimes (Forensic Procedures) Act 2000 against the plaintiff made on 27 March 2014. 5. There is no order as to costs.

I certify that the preceding fifty-six paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Beech-Jones. Date: 7 April 2015 Associate

Amendments 13 April 2015 - Name of Counsel for the Plaintiff corrected. 13 April 2015 - Name of Senior Counsel for the Plaintiff corrected. 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: 13 April 2015

At a glance

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Judgment (8 paragraphs)

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