Local Court of New South Wales CITATION: Police v Prilja [2006] NSWLC 19 JURISDICTION: Criminal PARTIES: New South Wales Police Vlada Prilja FILE NUMBER: 17726/06/190 PLACE OF HEARING: Wagga Wagga Local Court DATE OF DECISION: 05/11/2006 MAGISTRATE: Magistrate P Dare CATCHWORDS: Defendant a suspect - "reasonable grounds to believe" that defendant committed a prescribed offence - "might ptoduce relevant evidence" - nature of evidence required in application - questions involved in determination - whether "issue estoppel" on second application for same procedure Crimes Act (Cth) 1914. S.85ZE LEGISLATION CITED: Crimes Act (NSW) 1900. S.562AB(1) Crimes (Forensic Procedures) Act 2000. Ss.3, 22, 23,24, 25 26(3), 31 Crimes (Local Courts Appeal and Review) Act 2001. S.56 Blair v Curran (1939) 62 CLR 464 Cockatoo Dockyard v Commonwealth of Australia (2004) NSWSC 841 George v Rockett (1990) 170 CLR 104 Kingston City Council v Monash City Counci & Ors. (2001) VSC 41 L v Lyons and Another; B and S v Lyons adn Another (2002)NSWLR 600 Mraz v The Queen No. 2 (1956) 96 CLR 62 CASES CITED: Orban v Bayliss (2004) NSWSC 428 Regina v Rondo (2001) 126A Crim R 522 Reichel (1889) 14 App Cases 668 Rogers v The Queen (1994) 181 CLR 251 The Queen v Storey (1978) 140 CLR 364 Walker v Budgen (2005) NSWSC 898 Walter v Gardiner (1993) CLR 378 REPRESENTATION: Sgt V Morgan - Police Mr S Groch ORDERS: In accordance with Section 31 of the Act I make the following order:- I authorise a buccal swab to be taken from the suspect; The suspect is to attend at Wagga Wagga Police Station or at a place directed by the authorised applicant for the carrying out of the forensic procedure by 4.00pm to-day, 11th May 2006. JUDGMENT. Before the Court is an application by an authorised applicant, Detective Sergeant Michael Handley, for an order pursuant to Section 24 of the Crimes (Forensic Procedures) Act, 2000. 1. Vlada Prilja is presently charged with two offences contrary to Section 85ZE (1)(a) of the Crimes Act, 1914, in the following terms:- "(For that he) between 10.05am and 10.10am on 18th November, 2003, at Wagga Wagga, did intentionally use a carriage service supplied by a carrier, to wit, Telstra Corporation Limited, with the result that L.A.H was harassed." "(For that he) between 8.30am and 8.35am on 5th December, 2003, at Wagga Wagga, did intentionally use a carriage service supplied by a carrier, to wit, Telstra Corporation Limited, with the result that L.A.H was harassed." 2. He is also charged with two offences contrary to Section 562AB (1) Crimes Act, 1900, in the following terms:- "(For that he) between 10.05am and 10.10am on 18th November, 2003, at Wagga Wagga, did intimidate L.A.H with the intention of causing her to fear physical or mental harm." "(For that he) between 8.30am and 8.35am on 5th December, 2003, at Wagga Wagga, did intimidate L.A.H with the intention of causing her to fear physical or mental harm." 3. All charges stood adjourned to Wagga Wagga Local Court on 11th May, 2006 to set a date for defended hearing. It is observed that a conviction for the summary offences under Section 85ZE (of the Commonwealth Act) attracts a statutory maximum penalty of imprisonment for 12 months and/or a fine of $6,600.00. The indictable offences under Section 562AB (1) (of the State Act) carry upon conviction before a Local Court a penalty of imprisonment of 2 years and/or a fine of $5,500.00. Leaving aside any question of possible cumulation, the potential penalties cannot be regarded as insignificant and the crimes themselves are, on any proper view, serious in nature. 4. In addition to the charge matters, the Police have made an application pursuant to the Crimes (Forensic Procedures) Act, 2000 ("the Act") which is resisted. It is the second such application. Mr Groch, Solicitor for the Defendant, submits that there is an issue estoppel in respect of this second application. As part of that submission he says that the application is an abuse of process because the proceedings have previously been disposed of. 5. It will be instructive at this time to look at some of the background of the matter. An Application ("the first Application") was, on an earlier date, before the Court seeking Orders authorising the taking of a buccal swab, alternatively, a hair sample. At the brief hearing of the first application, objection was taken by Mr Groch to the content of the Affidavit in Support of Detective Sergeant Michael James Handley. Mr Groch submitted that the Affidavit was based upon hearsay. It was asserted that on its face the Affidavit was deficient in that it failed to disclose reasonable grounds to believe that the suspect had committed the offence, or offences of the type, specified in Section 25 (d) (i), (ii) or (iii) and Section 25 (e) (i), (ii) or (iii). I agreed with that submission at the time and refused the Application. 6. I was not advised at the brief hearing of the first application that the additional information now annexed to the present Affidavit of Detective Sergeant Handley was already in the hands of the Defence as part of an order for the service of a brief. True, it was clearly available and known to the Defence, however, it had not been made part of the first Application which is why I agreed with Mr Groch's submission.. 7. Detective Sergeant Handley has filed another Application ("the second Application") and to his Affidavit in Support has annexed a number of statements. The provision of this additional information, the prosecution submits, conforms with the requirements of Section 26 (2)(b) of the Act and is now sufficient to justify the making of the further Application. 8. Section 26 (3) of the Act provides as follows:- "(3) If a Magistrate refuses an application for an order authorising the carrying out of a forensic procedure on a suspect, the authorised applicant (or any other person aware of the application) may not make a further application to carry out the same forensic procedure on the suspect unless he or she provides additional information that justifies the making of the further application." 9. The Court's task at this time is, therefore, to consider the "additional information" to see whether it "justifies the making of the further application". 10. I set out hereunder the "additional information" which was not before the Court at the time of making the first application. It takes the form of documents annexed to the Affidavit in Support of Detective Sergeant Michael James Handley: · Annexure "A" – statement of L.A.H dated 18th November, 2003; · Annexure "B" – statement of L.A.H dated 12th December, 2003; · Annexure "C" – statement of James Richard Tulk Hart, dated 12th December, 2003; · Annexure "D" – Criminal History Bail Report of Defendant; · Annexure "E" – Certificate of Analysis pursuant to Section 177 Evidence Act, 1995, of Jennifer Burger, Analyst, dated 9th November, 2005. 11. It is not necessary for present purposes to engage in an in-depth analysis of the evidence disclosed in the annexed documents. That will be a matter for a trial of the issue. What I need to consider is whether the additional information now provided to the Court in this second application justifies its making. In other words, does the present Application satisfy the criteria required in Section 25 (d) and (e). As was noted by Mr Justice Sully in L v Lyons and Another; B and S v Lyons and Another (2002) NSWLR 600 @ 612, statements obtained by the police officer seeking an order are admissible, not as hearsay evidence to prove the truth of their contents or that the defendant is guilty of an offence, but as evidence to establish those matters under Section 25 of the Act. 12. I set out my own summary of the evidence. In September, 2003, Ms H was residing in rented premises in Crampton Street, Wagga Wagga, with her boyfriend, James Hart. Between about 15th and 26th September, 2003, Ms H and Mr Hart were absent from their premises. Upon their return it was noted that her Panasonic video camera was missing along with a number of tapes. One of those tapes was said to contain footage of Ms H and her previous boyfriend engaged in an act of sexual intercourse. 13. On 18th November, 2003, Ms H was at home alone when she answered a telephone call from someone identifying himself as "Dick Tracey". The ensuing conversation is contained in paragraphs 7, 8 and 9 of Annexure "A". It needs be said at once that the content of those paragraphs provides evidence which, if accepted, clearly establishes the commission of a "prescribed offence" for the purposes of Section 25 of the Act by a person: see Section 3 of the Act. 14. On 5th December, 2003, Ms H was at home with Mr Hart when she answered a telephone call from someone identifying himself as "Richard Tracey". The ensuing conversation is set out in paragraphs 6 and 7 of Annexure "B". It seemed to Ms H that this caller displayed all the voice characteristics of the caller of 18th November, 2003. This, too, provides evidence which, if accepted, clearly establishes the commission of a "prescribed offence." 15. Mr Hart was alerted to this telephone call by Ms H. He ran from the premises and down to the pay phone at the corner of Crampton and Simmons Streets. As he approached the pay phone he noted a number of things:- · Two men were standing in close proximity to the pay phone; · The "younger' of the two men got into a white utility and drove away; · Mr Hart observed the registration number of this utility; · From such view as he had of the "younger" man who got into the utility, he described him as about 45-55 years old, large bushy moustache, "…like Merve Hughes", dark brown short hair, quite overweight build, fat. About "…five foot nine-ish…", wearing a blue chesty bond-type shirt. Such a description, though vague in terms and of a stranger to Mr Hart, is, to any reasonable observer, capable of some similarity to the Defendant; · The registration number of the utility driven by the "younger" man was registered to the Defendant's daughter. 16. The Police had the perspicacity to take swabs of the public telephone. Annexure "E", the Analyst Certificate of Jennifer Burger, and reveals that of a swab taken from the phone earpiece, the major component of DNA is from an unknown male. 17. Detective Sergeant Handley's Affidavit reports that the "older man" seen near the pay phone has been interviewed and, effectively, eliminated as a suspect. 18. I am given to understand from remarks passed on an earlier occasion that an entry on the Defendant's criminal history in Annexure "D" at the date 2nd November, 2005, is for an offence of "Goods in Custody" for which he received a Bond pursuant to Section 9 Crimes (Sentencing Procedure) Act. The property subject of that charge included some of that found to be missing from the premises shared by Ms H and Mr Hart during their absence between 15th and 26th September, 2003. I note that Annexure "D" was not one of the grounds of objection raised by Mr Groch in the tender of Exhibit "1" and I am content to assume that my earlier information was correct, or, certainly, not incorrect. Such a fact is both relevant and admissible in the hearing of the present application bearing upon the grounds for suspicion and also the reasonableness of those grounds. 19. In the hearing before me, the Application, Affidavit of Detective Sergeant Handley and the annexures "A" to "E" inclusive were tendered and, over objection, marked Exhibit "1". That comprised the evidence-in-chief of Detective Sergeant Handley. In cross-examination by Mr Groch he was taken to various parts of the Application. He was also referred to documents said to be statements made by a Jerry Pearce of 11th March, 2004 and 23rd November, 2005 respectively. It was pointed out to the Sergeant that Mr Pearce (who was the "older man" at the pay phone) ruled out the Defendant as the "younger man" at the pay phone. Sergeant Handley agreed that the omission of this Application could have a tendency to mislead the Court. This is true, however, absent any suggestion of mala fide on the part of the Sergeant (and none was made), I doubt that the inclusion of such material would have had any great bearing on the success or otherwise of the Application. 20. The Sergeant was also cross-examined as to what it was he was actually seeking and his attention was drawn to parts of the documents which, it was suggested, were confusing. For myself, and regardless of the form of the documents (which might be more happily phrased for the future) I have no such doubt or confusion as to what was meant nor what is required. 21. There was other cross-examination of Sergeant Handley as to the form and content of his documents, however, quite frankly, and with all due respect to Mr Groch, I did not find it helpful to the resolution of the task before me. 22. I now turn to the question raised by Mr Groch, namely, that there is an issue estoppel such that the Court cannot make an order for a forensic procedure. He submitted that, first, the hearing of an Application under the Act is not criminal proceeding but, rather, a civil one. He said that in dealing with the "first application" I had dismissed it (in fact, I had refused it, to use the correct parlance) and, as a consequence, what the prosecution should have done if aggrieved was to appeal to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act, 2001. He pointed out that they had not done so. As a further consequence, he submitted, the prosecution was estopped from making another application for the same procedure upon the same person. To hold otherwise, he submitted, would amount to an abuse of process and he cited the authorities of Reichel (1889) 14 App Cases at 668; Walton v Gardner (1993) 177 CLR 378 @ 395 per Mason CJ, Deane and Dawson JJ agreeing; and Rogers v The Queen (1994) 181 CLR 251 @ 256. By way of further assistance, Mr Groch referred me to a decision of the Victorian Supreme Court of Kingston City Council v Monash City Council & Others [2004] VSC 41, in particular from [59] to [118]. 23. The principle of issue estoppel was authoritatively stated by Dixon J in Blair v Curran (1939) 62 CLR 464 @ 531-32 as follows:- "A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot be afterwards be raised between the same parties or their privies." He went on to say: "The distinction between res judicata and issue estoppel is that in the first, the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, while in the second (i.e., issue estoppel), for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree of order." 24. His Honour emphasised that what was closed or precluded was only that which is "legally indispensable to the conclusion". Thus, where a claim depended on a number of ingredients or ultimate facts, so that if any one were absent then the claim would fail, "the estoppel covers only the actual ground upon which the existence of the right was negatived." 25. Nonetheless, his Honour said, the estoppel was not confined "to the final legal conclusion expressed in the judgment, decree or order"., The determination concludes not only the point actually decided but any matter which it was necessary to decide and which was actually decided as the basis of the decision. What his Honour called "matters cardinal" to the point at issue could not be re-litigated if to do so would necessarily assert that the former decision was erroneous. 26. As was pointed out by McDougall J., in Cockatoo Dockyard v Commonwealth of Australia [2004] NSWSC 841 (@ par 49): "Underlying all the decisions is the difficulty of application of the principle. That depends, as Dixon J said in Blair at 533, on distinguishing fundamental or cardinal matters from those that are not essential to the decision. His Honour said that there were two questions. The first is whether the ultimate decision necessarily involves the issue that was determined. As it is put in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (Butterworths, 3rd ed. 1966 at 105), is "the determination … so fundamental to the decision that the latter cannot stand without it? The second question is whether the determination of the issue is the immediate foundation of the decision, or collateral or subsidiary only? In other words, is it no more than part of the reasoning that supports the ultimate decision? 27. The application of issue estoppel to the criminal law was recognised in Mraz v The Queen (No. 2) (1956) 96 CLR 62. It later became, first, debatable in Storey v The Queen (1978) 140 CLR 364, then impermissible in Rogers v The Queen (1994) 181 CLR 251. It is submitted before me, and I accept, that applications under the Act are civil in nature. Indeed, Sully J in L v Lyons and Another (supra) acknowledges this to be the case. 28. I think it needs to be made perfectly clear what I actually did in fact in refusing the first application so that the law can be properly applied. The first application was dealt with somewhat peremptorily in a busy and lengthy list. It contained only the Affidavit in Support of Detective Sergeant Handley, the content of which was largely based upon hearsay. Mr Groch submitted, and I agreed, that the application supported by material in that form did not permit me to be satisfied of the matters required in Section 25 of the Act. It was the form and not the substance of the application which led to the refusal. 29. My decision to refuse the application for the reasons I did does not, in my view, permit the application of issue estoppel in the present case. Even if it could somehow be contrived that it was applicable, I need look no further than Section 26 (3) to see that the Act makes specific provision for a further application provided the authorised applicant provides "additional information that justifies the making of the further application" to carry out the same forensic procedure on the suspect. I have expressed my satisfaction as to this point earlier in this judgment. And that, I think, sufficiently disposes of issue estoppel in this case. In so doing, it also disposes of any alleged abuse of process about which I need say no more. 30. For present purposes I am satisfied that Detective Sergeant Michael Handley, the authorised applicant, has provided additional information that justifies the making of the further application: Section 26 (3) of the Act. 31. I turn now to the relevant provisions of the Act, the starting point of which is Part 5 dealing, as it does, with forensic procedures authorised by an order of a Local Court Magistrate. Section 22 provides for the making by a Magistrate of an order authorising, under Sections 24, 27 or 32, the carrying out of a forensic procedure on a suspect. The application seeks to obtain a buccal swab and/or a hair sample. I refer to Section 3 of the Act for the necessary statutory definitions. Forensic procedure means (a) an intimate forensic procedure; or (b) a non-intimate forensic procedure; or (c) the taking of a sample by buccal swab – but does not include (d) any intrusion into a person's body cavities except the mouth; of (e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken. Non-intimate forensic procedure means (relevantly for present purposes) the taking of a sample of hair other than public hair. Suspect means (relevantly for present purposes) the following (a) a person whom a police officer suspects on reasonable grounds has committed an offence; (b) a person charged with an offence. Prescribed offence means (a) an indictable offence, or (b) any other offence under a law of the State prescribed by the regulations for the purposes of this paragraph. 32. Section 24 says that a Magistrate may order the carrying out of a forensic procedure provided that Section 23 applies and he or she is satisfied as required by Section 25. 33. Insofar as Section 23 is concerned, I am satisfied to the requisite standard, first, that the Defendant is a "suspect" and, secondly, that the Defendant is a person charged with an offence. 34. I turn now to the requirements of Section 25 which, for the present application, call for a consideration of sub-paragraphs (a), (d), (e), (f) and (g) .So far as sub-paragraph (a) is concerned, it seems to me beyond doubt that the Defendant is a "suspect" and no issue could responsibly be taken on this ground. 35. I will consider the requirements for (d) and (e) together. I have to be satisfied that there are reasonable grounds to believe that the suspect committed, in each case, (i), or (ii), or (iii). This requires me to make my own individual assessment of the grounds upon which the Defendant was suspected, and the reasonableness of those grounds. It needs to be made quite clear that my assessment does not entail an in-depth analysis of the evidence and about which I must be satisfied beyond reasonable doubt . That is a matter for a trial of the substantive charges. 36. Indeed, quite conceivably, a Magistrate may be "satisfied" to the requisite standard of all matters leading to the making of an order under the Act, and yet, not be satisfied that the prosecution has proved the guilt of the Defendant beyond reasonable doubt on a hearing of the substantive charge. 37. The principal evidence comes from Mr Hart who, within minutes of a telephone call being received by Ms H, saw a man bearing more than a passing resemblance to the Defendant in close proximity to a pay phone. That man entered a vehicle registered to the Defendant's daughter. The Defendant was dealt with for being in possession of an item or items of property from Ms H's premises which I infer were taken at the same time as the camera and video went missing. 38. I am satisfied to the requisite degree that grounds exist for believing that the Defendant committed a prescribed offence, and further, that those grounds are reasonable. 39. The next question which arises is that posed by sub-paragraph (f). As I have earlier noted, the Police took swabs of the pay phone and the Analyst Certificate comprising Annexure "E" shows a major component of DNA being from an unknown male. Some things need to be said about this: First, I think I am entitled to infer that the swabs were taken at a time proximate to when the man (about whom it is reasonable to suspect was the Defendant) left the pay phone. Secondly, taken together with the other evidence, I am of the view that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence. 40. I am mindful of, and direct myself accordingly to, the remarks of Justice Hall in Walker v Budgen NSWSC 898 (at par 37) who noted the difference between belief, on the one hand, and suspicion, on the other applying George vRockett (1990) 170 CLR 104 and Regina v Rondo (2001) 126 A Crim R 552. 41. The next question is that posed by sub-paragraph (g). This calls for what Justice Simpson said in Orban v Bayliss [2004] NSWSC 428 (at par. 54) "…a balancing of, inter alia, the invasiveness of a compulsory forensic procedure, against the anticipated evidence to be obtained from it, and the requirements of the administration of justice in the most accurate solution of a particular crime." 42. It is a discretionary matter which must be exercised, to adopt the words of Justice Simpson, again in Orban v Bayliss (supra) (at par 32)as follows – "A forensic procedure (as defined in Section 3) necessarily involves, to a greater or lesser extent, some invasion of the personal privacy and personal bodily integrity of the person concerned. The degree to which that balance to which I have referred will warrant the making of an order that will have the consequence of causing some degree of invasion of personal privacy and personal bodily integrity is made to depend upon the interaction of two things – first, the seriousness of the crime of which the person is suspected, and secondly, the degree of invasion of personal privacy or integrity. 43. I have much earlier in this judgment (see paragraph 3) referred to the serious nature of the subject offences. The Application seeks orders for the obtaining of a buccal swab, alternatively, a hair sample. In neither case could it be said that the "degree of invasion" is in any way excessive or out of proportion to the seriousness of the offences. Indeed, when one looks at the type of forensic procedures provided for in the Act – both intimate and non-intimate – the degree of invasion in the procedures sought pales almost into insignificance. 44. In accordance with Section 31 of the Act I make the following order:- · I authorise a buccal swab to be taken from the suspect; · The suspect is to attend at Wagga Wagga Police Station or at a place directed by the authorised applicant for the carrying out of the forensic procedure by 4.00pm to-day, 11th May, 2006. 45. I make the above orders because I am of the view that there are reasonable grounds to believe that the suspect committed a prescribed offence and that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence. Further, I am of the view that the carrying out of the forensic procedure is justified in all the circumstances. 46. I am required by law to advise the suspect that reasonable force may be used to ensure that he complies with the order for the carrying out of the forensic procedure. Peter S. Dare SC 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.