Reported Decision : 156 A Crim R 431 New South Wales Supreme Court CITATION : Fawcett v Nimmo & anor [2005] NSWSC 1047 HEARING DATE(S) : Thursday 14 July 2005 JUDGMENT DATE : 18 October 2005 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : ORDER QUASHED CATCHWORDS : CRIMINAL LAW AND PROCEDURE - COMPULSORY FORENSIC PROCEDURE - BUCCAL SWAB - SUFFICIENCY OF EVIDENCE BEFORE LOCAL COURT TO ORDER - STATUTORY OBLIGATION TO GIVE REASONS FOR MAKING ORDER - SUCH REASONS TO MANIFEST BASIS UPON WHICH ORDER MADE Crimes (Forensic Procedures) Act 2000 LEGISLATION CITED : Listening Devices Act 1974 PARTIES : Jamie Fawcett v Malcolm Nimmo and Lee Gilmour FILE NUMBER(S) : SC 11394/05 P.D. Rosser, QC (Plaintiff) COUNSEL : H.C. Bell, Solicitor (First Defendant) Submitting Appearance (Second Defendant) Intercept Law (Plaintiff) SOLICITORS : R.J. Redfern (First Defendant) I. Knight (Second Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : - LOWER COURT JUDICIAL OFFICER : Gilmour L.C.M. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Tuesday 18 October 2005 11394/05 - JAMIE FAWCETT v MALCOLM NIMMO and LEE GILMOUR JUDGMENT 1 HIS HONOUR: This is a claim for relief instituted by summons challenging an order by the second defendant (Local Court Magistrate) that the plaintiff be the subject of a forensic procedure, namely the taking of a sample by buccal swab, pursuant to s 31 of the Crimes (Forensic Procedures) Act 2000 (the Forensic Procedures Act). Appeal to this Court is authorized by s 115A of that Act, the terms of which by incorporating the Crimes (Local Courts Appeal and Review) Act 2001, effectively result in the appeal being limited to a question of law, unless by leave a question of fact or a question of mixed law and fact is permitted to be raised. 2 The application at the Local Court was supported by a lengthy affidavit of the first defendant, a senior constable of police. At the first instance hearing he was cross examined about some of the content and both parties invited reference to this material. 3 The learned magistrate gave reasons for making the order as she was required to do pursuant to s 31 of the Forensic Procedures Act and I will summarize some of the evidence upon which the making of the orders was based. 4 The plaintiff is a professional photographer who seeks to obtain photographs of persons of fame. The Sydney residence of a Ms Kidman, a celebrated actress, is located on land fronting a suburban public street. Private security staff, apparently employed by her, patrol the area outside the residence and the street and the area opposite it. A security person is present on a twenty four hours per day roster. A closed circuit television system (CCTV) is installed on the residence but it obviously surveys beyond the property and it records to some extent activity in the public street, as it is said to have photographed the plaintiff alighting from his vehicle which was parked in the street and later, as he was walking along a footpath. It is not suggested that the plaintiff entered the property at any time. 5 It might be mentioned that neither is it suggested by the defendants that it would be unlawful for the plaintiff to take a photograph of Ms Kidman (assuming that to have been his intention) nor is it suggested by the plaintiff that it would be unlawful for the CCTV to survey and record the passage of persons (including himself) going about their business and making passage along the public street. There is no issue about these matters which I am called upon to determine. 6 At about 6.20 am on Sunday 23 January 2005 the plaintiff was seen in and near his car, which was parked in the street about fifteen metres from the residence. He and his vehicle were well known to the security staff. It was thought that Ms Kidman would return to Australia on that day after an extended absence overseas. 7 At about 2.12 pm the duty security person left his post, described as being outside of the residence, for a very brief period. On his return he noticed an item sealed in "shrink wrap" which was partially submerged in water and foliage in a grassed area near a footpath on the opposite side of the road from the residence. This item was said to have been located within "metres" of his post. 8 He took possession of the item which was described as a small battery operated device connected to a microphone. He disconnected it and called police. They attended promptly. Viewing CCTV footage showed the plaintiff moving in the area of the public street as I have described, but he was said to have been "out of camera range" between 2:12:02 pm and 2:13:12 pm. 9 The device having been taken into custody, it was subjected to examination by technical branch police. Without objection Senior Constable Nimmo gave evidence by reference to a statement of a Sergeant McKeller. Constable Nimmo said that the device was capable of transmitting audible signals over a range of 250 to 300 metres which could be picked up by an ordinary AM/FM radio. He had no information as to the range within which the microphone was capable of picking sound or the audible strength requisite for it so to do. Nevertheless examination disclosed that the device had some capacity to pick up sound and then transmit it. The device was not tested in order to establish its capacity for operation (in particular the receiving of sound) in the condition (shrink wrapped) and location (semi submerged) in which it was found. 10 Senior counsel for the plaintiff argued that the evidence did not demonstrate that, in that condition, the device could be shown to be a "listening" device. That may, if some charge were preferred and heard, be germane to the determination of the charge. The issue pursuant to the Forensic Procedures Act focuses on suspicion and upon proof only to the extent that I will later indicate. 11 The second defendant's finding was expressed in these terms: "….. the device was subsequently analysed by police and found to be a device which is capable of receiving sounds and conversation within a radius of the device which we have heard today, whether it's the radius of the microphone or the device, it seems to be the transmitting range was 250-300 metres". 12 There was no more definite finding concerning the radius in which sounds could be picked up. 13 Forensic examination of the device also located DNA profiles of two persons on it. The purpose of the buccal swab which is desired to be taken is to demonstrate whether the plaintiff is one of the persons whose DNA is so located. 14 The Forensic Procedures Act recognizes that mandatory procedures have a potential to represent the antithesis of historic rights of citizens against self incrimination and the statute legislates requirements and limitations in order to strike a necessary balance between the appropriate use of available scientific means for investigating suspected crime and those rights. 15 Before exercising power to oblige a person to undergo any forensic procedure, a magistrate must be satisfied that the person on whom the procedure is proposed is "a suspect". In order for a person to be categorized as a "suspect" there must rationally be conceived by the person holding the suspicion an underlying offence of which the person is suspected. In the context of this case, although it is apparent that such an initial suspicion would first exist in the mind of the investigator, the statute explicitly requires the magistrate be satisfied, on the evidence before the Court, before an order can be made for the taking of a sample by buccal swab, that there are reasonable grounds for suspecting that the person committed a prescribed offence. All indictable offences are prescribed offences. 16 In this case the learned magistrate found that there were reasonable grounds to believe that the respondent had committed a prescribed offence, although in her formal finding did not specify what particular offence. She considered there were reasonable grounds for believing that the plaintiff had either committed an offence contrary to s 5 or contrary to s 9 of the Listening Devices Act 1974 or both. An offence against either of those sections is indictable and thus is a prescribed offence for the purposes of the Forensic Procedures Act. 17 It should be mentioned that there is a fetter on prosecution of offence contrary to the Listening Devices Act in that none may be brought without the written consent of the Attorney General: see s 28. Although it was said on behalf of the defendants that the matter was serious, the seriousness was not defined. Whilst I recognize that offence against the Listening Devices Act is postulated, at the highest it was speculated (reasonably) that the plaintiff's only aim was to take a photograph of Ms Kidman if she entered the area. The CCTV installed at her premises photographed him. I would readily infer that the former is likely to be more valuable and of interest to a wider cross section of the community, but it might be observed that those circumstances convey a discernible element of what might appear to be contre coup. 18 It is apparent that the factual suspicion is that the plaintiff placed a device in the position it was found near the post of the security employee. The presumed purpose was that he might thereby hear something said by the employee which would inform him, or enable him to deduce, that Ms Kidman was imminently approaching. 19 The Listening Devices Act is designed to protect private conversations. What appears to be suspected or speculated is that the plaintiff would hear the security employee say something into a telephone, radio or other communication apparatus, from which the plaintiff could glean the desired information. That he could, as a matter of practicality, only hear one end of any conversation, as the second defendant found, matters not. The Listening Devices Act defines private conversation: "Private conversation means any words spoken by one person to another person or to another persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only - (a) by themselves; or (b) by themselves and by some other person who has the consent, express or implied, of all those persons to do so". 20 The ultimate question in this appeal is whether on the evidence before the Court it was open to the magistrate to find that there were reasonable grounds for suspecting that the plaintiff had committed a prescribed offence. 21 As I have noted, although no finding was made in relation to a specific offence, she adverted to two possibilities. 22 The first was an offence contrary to s 5 of the Listening Devices Act. It provides: "5 (1) A person shall not use, or cause to be used, a listening device - (a) to record or listen to a private conversation to which the person is not a party; or (b) to record a private conversation to which the person is a party". 23 The second defendant noted the submission that the device was not used and dealt with the submission in these terms: "As to senior counsel's arguments in relation to s 5, that is a matter for legal argument in my view upon a substantive charge being initiated. In my view 'cause to be used' in particular being an arguable case". 24 There was no evidence before the Court that the device was ever used or caused to be used to record or listen to a conversation. That that must happen is an elemental ingredient of an offence of using a listening device or causing it to be used contrary to s 5. The absence of any evidence of use whatever means that it follows that there was no available basis for being satisfied on the evidence before the Court that there were reasonable grounds for suspecting that the plaintiff committed an offence contrary to s 5. 25 The alternative postulation related to s 9 of the Act. It provides relevantly: "9 (1) A person shall not - …… (c) possess, a listening device for use in contravention of section 5". 26 Given the context, "use" where it appears in the provision should be construed to mean "intended use". 27 The learned magistrate dealt with the issue in these terms: "As to the charge pursuant to s 9 there is a strong circumstantial case both as to his possession and intention for its use". 28 This is, of course, a mis-statement. There is no charge. What should have been focussed upon was whether the Court was satisfied on the evidence before it that there were reasonable grounds for believing that the plaintiff committed an offence contrary to s 9. 29 Although the learned magistrate had earlier recognized the issue in these terms, it does not appear that it was addressed as required. The evidence before the Court was that when the device was found it was not in the possession of the plaintiff but lying, wrapped and in water, on a public street. Assuming that it is desired to focus the relevant suspicion upon an inference of earlier possession, accompanied by an intention at that time to use the device to commit an offence contrary to s 5, there is no indication of what evidence before the Court was relied upon to reach the necessary satisfaction. 30 Alternatively, the suspicion might have focussed upon some concept of constructive possession at the time the device was lying partially submerged in the street. On either postulation, the statute required evidence before the Court and reasons before the plaintiff could be compelled to be subjected to forensic procedure. 31 The reasons for making the order which the magistrate was obliged to record pursuant to s 31 of the Forensic Procedures Act did not in their expressed terms support the making of order pursuant to s 20(5)(e) of that Act. At the least, the reasons need to disclose a basis upon which the making of an order is founded. 32 The plaintiff is entitled to relief sought. Orders are made in accordance with the prayers in the summons, namely: (1) The order under s 24 of the Crimes (Forensic Procedures) Act 2000 made by the second defendant on 6 April 2005, on the application of the first defendant is quashed; (2) The proceedings are remitted to the second defendant to be dealt with according to law; (3) The first defendant is ordered to pay the plaintiff's costs of the summons. If qualified, he is to have a certificate pursuant to the Suitors Fund Act in respect of those costs. ********** 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.