L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199

Reported Decision : (2002) 56 NSWLR 600 137 A Crim R 93

New South Wales Supreme Court

CITATION : L v Lyons & anor; B and S v Lyons & anor [2002] NSWSC 1199 FILE NUMBER(S) : SC 10625/02; 10640/02 HEARING DATE(S) : 20 November 2002 JUDGMENT DATE : 13 December 2002

PARTIES : L v Lyons & anor. B and S v Lyons & anor. JUDGMENT OF : Sully J at 1

LOWER COURT JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT C. M. Haskett - Children's Court Magistrate JUDICIAL OFFICER :

H. Cox - Plaintiffs B and S COUNSEL : A. Cook - Plaintiff J P. Singleton - 1st Defendant Christine Bourke - Plaintiffs B and S SOLICITORS : Robertson Saxton Primrose Dunn - Plaintiff J Michael North Holmes - 1st Defendant I. V. Knight, Crown Solicitor - 2nd Defendant submitting Justices Act 1902 (NSW) LEGISLATION CITED : Crimes (Forensic Procedures) Act 2000 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW) DECISION : In each of proceedings 10625/02 and 10640/02 the appeal is dismissed; the orders of the Local Court are confirmed; and the originating summons is dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

Friday 13 December 2002

10625/02 – L v LYONS & ANOR. 10640/02 – B and S v LYONS & ANOR.

JUDGMENT

INTRODUCTION 1 SULLY J: Before the Court are two sets of proceedings, each commenced by Summons. The two sets of proceedings are, in substance, appeals to this Court pursuant to Part 5 of the Justices Act 1902 (NSW), ("the Justices Act"). In the proceedings numbered 10625/02 there is one plaintiff. In the proceedings numbered 10640/02 there are two co-plaintiffs. Each of the three plaintiffs was at all material times a young man aged less than 18 years. It is, therefore, appropriate to refer to each plaintiff by a pseudonym. To that end, orders have been made that the plaintiff in the proceedings numbered 10625/02 is to be referred to by the pseudonym:J; and that the two co-plaintiffs in the proceedings numbered 10640/02 are to be known, respectively, by the pseudonyms: B and S. Each plaintiff proceeds by way of a tutor; but it is both inappropriate and unnecessary to say anything apt to identify the respective tutors. 2 Each summons cites two defendants. In each case the first defendant is one Julie Lyons. Miss/Mrs Lyons was at all material times a constable of police. As such, she made the original application which issued, eventually, in the making against each of the present plaintiffs of a Local Court order against which each plaintiff now seeks to appeal. Constable Lyons appeared by counsel at the hearing of the present summonses, and contested the plaintiffs' various claims to relief. The second defendant in each case is the Local Court Magistrate who made, at first instance, the orders against which the present appeals have been brought. Her Worship entered, prior to the hearing before this Court, an appearance submitting to the orders of this Court, save only as to costs. 3 The power of this Court to entertain the present claims for relief depends upon, in particular, section 104(6) of the Justices Act. That sub-section provides: "(6) An appeal under this division on a ground that involves a question of law alone may be made to the Supreme Court: (a) against an order ………….. made by a magistrate under the Crimes (Forensic Procedures) Act 2000 authorising the carrying out of a forensic procedure on a person, or (b) against the refusal of a Magistrate to make such an order" 4 The powers of this Court in determining, relevantly, a section 104(6) appeal are delineated in section 109 of the Justices Act. That section provides: "109 The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following: (a) Confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) Increasing or reducing the sentence appealed against, (c) Making such other orders as it thinks just, (d) Remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal." 5 All of the present proceedings are governed by SCR Part 51B. SCR Part 51B Rules 7 and 8 provide: "7. Subject to Rule 5, an appeal to the Court shall be instituted by filing a summons that (a) states an appointment for hearing in accordance with Part 5 rule 4A; and (b) claims the decision which the party instituting the appeal seeks in place of the decision of the tribunal below. 8. The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement: (a) of the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law; and (b) as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below." 6 In the proceedings 10625/02 the original summons has undergone a number of transformations by amendment. In its form as finally amended, that summons seeks the following relief: "1. Pursuant to s.104(6) Justices Act 1902, to appeal the Order of the Second Defendant providing for the taking of non-intimate photographs of the Plaintiff pursuant to s.24 Crimes (Forensic Procedure) Act. 2. A Declaration pursuant to s.75 Supreme Court Act, that insufficient evidence exists to allow for the making of an Order pursuant to s.24 Crimes (Forensic Procedure) Act against the Plaintiff. In the alternative, 3. An order pursuant to s.65 Supreme Court Act that the Second Defendant re-hear the application of the First Defendant under the Crimes (Forensic Procedure) Act, and 4. A Declaration pursuant to s.75 Supreme Court Act, that at the rehearing of the application of the First Defendant under the Crimes (Forensic Procedure) Act, the Second Defendant apply s.13 Children (Criminal Procedure) Act to the evidence of young persons in the application of the First Defendant, and 5. Declarations pursuant to s.75 Supreme Court Act that the (i) evidence of admissions made by the young person …(B)…be excluded totally; or in the alternative (ii) evidence of admissions made by the young person …(B)… only be used against …(B)… and not the plaintiff; and (iii) evidence of a record of interview conducted with the Plaintiff be excluded; or in the alternative; and (iv) a voir dire into the admissibility of the record of interview, particularly into the inducements offered; and (v) (a) A Declaration that the Second Defendant apply s.75 Evidence Act to exclude hearsay evidence of alleged victims of robberies. In the alternative, (b) The evidence of the alleged victims be presented in affidavit form as provided for by s.26(2)(a) Crimes (Forensic Procedure) Act. 6. A declaration that the learned Magistrate erred in law in that she failed to properly consider s.25(f) and s.25(g) Crimes (Forensic Procedures) Act in her consideration of the Application in the matter. 7. A declaration that the learned Magistrate did not discharge her duties properly according to law in that she failed to properly give the reasons for her decision to grant the Application in the matter. 8. Such other order as the Court deems fit. 9. Costs." 7 In this set of proceedings only one statement, purporting to comply with SCR Part 51B Rule 8 has been filed. It contains the following material: "1. Background (i) On 23 November 2001 at Bidura Children's Court the First Defendant provided information on oath to a Magistrate and a summons was issued to the Plaintiff and two other young persons joined as suspects in these proceedings, …(B)… and …(S)… , pursuant to Section 29(3) Crimes (Forensic Procedures) Act 2000 requiring the Plaintiff and …(B)… and …(S)…(referred to in these proceedings before a Magistrate as "suspects") to appear at Bidura Children's Court for a hearing of the application pursuant to Part V of the Crimes (Forensic Procedures) Act 2000. (ii) The First Defendant sought orders from the Court for a non intimate forensic procedure to be carried out, specifically a photograph of the head and face of the Plaintiff for placement in a photographic line-up for the purposes of identification pursuant to Part V of the Crimes (Forensic Procedures) Act 2000. (iii) On 11 January 2002 the hearing of the proceedings commenced before the Second Defendant at Bidura Children's Court. (iv) The First Defendant gave evidence in the proceedings before the Second Defendant setting forth the grounds upon which the Plaintiff and other young persons, …(B)… and …(S)…were suspects in a number of robberies. (v) On 4 March 2002 the Second Defendant found that the hearing was not a criminal proceeding and held that Section 13 of the Children (Criminal Proceedings) Act 1987 did not prohibit her from receiving into evidence unsigned verbal admissions made to the First Defendant by the young person …(B)…, a young person then aged 15 years and made in the absence of a responsible adult. (vi) During the proceedings the Second Defendant ruled that Section 59 Evidence Act did not apply and allowed into evidence as against the Plaintiff the admissions made by the young person …(B)… (as set forth in paragraph (v) ). (vii) During the proceedings the Second Defendant refused to hear submissions or allow a voir dire on the admissibility of the contents of the record of interview conducted by a police officer despite allegations of the interview having been obtained by way of inducement, to wit suggestions by the First Defendant to the Plaintiff, a young person then aged 15 years, and his mother, that he should give an interview to the First Defendant and he would simply be cautioned as it would be a first offence. (viii) On 4 march 2002 the Second Defendant allowed as evidence against the Plaintiff the finding of a replica pistol, similar to one alleged to have been used in a number of robberies, at the home of the young person …(B) … . (ix) During the proceedings, the Second Defendant allowed as evidence against the Plaintiff, evidence tending to establish that a mobile phone stolen during a robbery on 26 September was later used with a SIM card registered in the name of…(the mother of) …(B)…, a young person. (x) during the proceedings the Second Defendant allowed into evidence against the Plaintiff information tending to establish that a mobile phone stolen during a robbery on 21 September 2001 was later used with a SIM card registered in the name of …(the mother of the Plaintiff). 2. On the appeal of the Second Defendant's determination it will be contended that the Second Defendant erred in law by finding the proceedings were not criminal proceedings and that Section 13 of the Children (Criminal Proceedings) Act 1987 did not apply to prohibit her from allowing into evidence the admissions by the Plaintiff without first embarking upon a voir dire to establish the provenance and reliability of the alleged admissions made in a record of interview with Police. 3. It will further be argued the Second Defendant erred in law as to the application of Section 59 of the Evidence Act to the proceedings and allowing hearsay evidence, as set forth in paragraphs (v), (vi), (vii) above. 4. It will be further argued that the Second Defendant erred in law in the admission of the evidence as set forth in paragraphs (viii) and (ix) above." 8 In the proceedings numbered 10640/02, also, the summons as originally filed has been transformed somewhat by subsequent amendment. This summons, in its finally settled form, claims the following relief: "3.1 An order pursuant to Section 109(a) of the Justice's Act 1902 quashing the order of Ms C. Haskett, Magistrate, that the Plaintiffs attend at 3.00 p.m on Friday the 8th March 2002 for the Non Intimate forensic procedure namely obtaining a photograph of the plaintiffs' heads and faces. 3.2 A declaration that the Magistrate erred in law in finding that the proceedings before her did not amount to criminal proceedings and that section 13 of the Children (Criminal Proceedings) Act 1987 did not prohibit her from allowing into evidence the admission made by the First Plaintiff. 3.3 A declaration that the Magistrate erred in law in allowing hearsay evidence from the Defendant without considering the application of the Evidence Act 1995. 3.4 A declaration that the Magistrate erred in law as the application of the Evidence Act 1995 to the proceedings in allowing into evidence as against the Second Plaintiff the admission of the First Plaintiff. 3.5 A declaration that the Magistrate erred in law as to the application of the Evidence Act 1995 to the proceedings in allowing into evidence as against the First and Second Plaintiff the admissions by (…J…), another young person joined as a "suspect" in the application before the Magistrate. 3.6 A declaration that the Magistrate erred in law in allowing as evidence against the Second Plaintiff the finding of a replica pistol at the home of the First Plaintiff. 3.7 A declaration that the Magistrate erred in law in allowing as evidence against the Second Plaintiff information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of "…(the mother of the First Plaintiff). 3.8 A declaration that the Magistrate erred in law in allowing as evidence against the First and Second Plaintiffs information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of … (the mother of another young person joined as a "suspect" in these proceedings). 3.9 An order that the matter be remitted to the Magistrate to be dealt with according to law. 3.10 Costs." 9 The statement furnished in compliance with SCR Part 51B Rule 8 states the following grounds: "1. BACKGROUND (i) On the 23rd November 2001 at Bidura Children's Court the Defendant provided information on oath to a Magistrate and a summons was issued to each Plaintiff and another young person joined as a suspect in these proceedings, …(J)…, pursuant to section 29(3) of the Crimes (Forensic Procedures) Act 2000 requiring each plaintiff and (…J…) (referred to in the proceedings before the Magistrate as "suspects") to appear at Bidura Children's Court for a hearing of the application pursuant to Part V of the Crimes (Forensic Procedures) Act 2000. (ii) the defendant sought orders from the Court for a non intimate forensic procedure to be carried out, specifically a photograph of the head and face of each Plaintiff for placement in a photographic line-up for the purposes of identification pursuant to Part V of the Crimes (Forensic Procedures) Act 2000. (iii) On the 11th January 2002 the hearing of the proceedings commenced before Ms C. Haskett, Magistrate at Bidura Children's Court. (iv) The defendant gave evidence in the proceedings before the Magistrate setting forth the grounds upon which police believed the Plaintiffs and another young person, (…J…), were suspects in a number of robberies. (v) On 4th March 2002, the Magistrate found that the hearing was not a criminal proceeding and held that section 13 of the Children (Criminal Proceedings) Act 1987 did not prohibit her from receiving into evidence, unsigned verbal admissions made to the police by the First Plaintiff, a young person then aged 15 and made in the absence of a responsible adult. (vi) During the proceedings the Magistrate allowed into evidence as against the Second Plaintiff the admissions made by the First Plaintiff (as set forth in paragraph (v) ). (vii) During proceedings the Magistrate allowed into evidence as against the First and Second Plaintiffs the admissions made by the young person …(J)… . (viii) During the proceedings the Magistrate allowed the Defendant to give hearsay evidence as to the contents of witnesses statements and COPS entries without considering the provisions of the Evidence Act 1995. (ix) On the 4th March 2002 the Magistrate allowed as evidence against the Second Plaintiff evidence of the finding of a replica pistol similar to one used in a number of robberies at the First Plaintiff's residence. (x) During the proceedings, the Magistrate allowed as evidence against the Second Plaintiff, evidence tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of … (the mother of the First Plaintiff). (xi) During the proceedings the Magistrate allowed into evidence against the First and Second Plaintiffs information tending to establish that a mobile phone stolen during a robbery was later used with a SIM card registered in the name of … (the mother of another young person joined as a "suspect" in these proceedings). 2. On the hearing of the summons it will be contended that the Magistrate erred in law by finding that the proceedings were not criminal proceedings and that section 13 of the Children (Criminal Proceedings) Act 1987 did not apply to prohibit her from allowing into evidence the admission made by the First Plaintiff. 3. It will further be argued that the Magistrate erred in law as to the application of the Evidence Act 1995 to the proceedings and allowing hearsay evidence, as set forth in paragraphs (vi), (vii), (viii) above. 4. It will be further argued that the Magistrate erred in law in the admission of the evidence as set forth in paragraphs (ix), (x) and (xi) above."