Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Prott v Munro [2013] NSWCA 241 Hearing dates: 23 July 2013 Decision date: 26 July 2013 Before: Macfarlan JA at [1]; Meagher JA at [2]; Ward JA at [3] Decision: Summons seeking leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL AND NEW TRIAL - application for leave to appeal - whether an error of principle resulting in substantial injustice is identified Legislation Cited: Crimes (Forensic Procedures) Act 2000 Supreme Court Act 1970 Cases Cited: ACP v Munro [2012] NSWSC 1510 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 Munro v ACP [2012] NSWSC 100 Niemann v Electronic Industries Ltd [1978] VR 431 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v A [2008] EWCA Crim 2908; [2009] 1 WLR 1947 Category: Principal judgment Parties: Adrian Curtis Prott (Applicant) Detective Sergeant Siobhan Munro (First Respondent) The Local Court of NSW (Second Respondent) (submitting appearance) Representation: Counsel: H Dhanji SC with D Randle (Applicant) Ms N Adams SC with Ms J Davidson (First Respondent) Solicitors: Armstrong Legal (Applicant) I V Knight, Crown Solicitor (First Respondent) File Number(s): CA 2013/078260 Decision under appeal Jurisdiction: 9111 Citation: ACP v Munro [2012] NSWSC 1510 Date of Decision: 2012-12-07 00:00:00 Before: Button J File Number(s): SC 2012/126666 Judgment 1MACFARLAN JA: I agree with Ward JA. 2MEAGHER JA: I agree with Ward JA. 3WARD JA: By Summons dated 28 February 2013, application is made by Mr Prott for leave to appeal to this Court from that part of the decision of Button J in ACP v Munro [2012] NSWSC 1510 in which his Honour dismissed Mr Prott's appeal from an order by Kok LCM in the Local Court authorising a non-intimate forensic procedure under the Crimes (Forensic Procedures) Act 2000 (NSW), namely the taking of a photograph of Mr Prott's face. The application for leave to appeal was listed to be heard concurrently with the appeal. 4The grounds of appeal in the Draft Notice of Appeal are that his Honour erred in failing to find that Kok LCM: (i) did not properly construe the requirements of s 26(3) of the Crimes (Forensic Procedures) Act 2000 (NSW); and (ii) failed to consider whether such additional information as was placed before the Court by the first respondent justified the making of a further application for a forensic procedure to be carried out on Mr Prott, within the meaning of the said sub-section of the Act. 5In essence, both grounds of appeal are predicated on the contention that, properly construed, s 26(3) requires consideration of the principles of finality of litigation or double jeopardy when considering whether the additional information relied upon for a subsequent application under the Act "justifies" that further application. 6At the outset, I note that Button J anonymised references to Mr Prott in his reasons and made orders restricting publication of the reasons to the extent that they would identify Mr Prott. His Honour did so because the parties agreed that s 43 of the Act applied to the proceedings. Section 43 imposes restrictions on the report of a proceeding under the Act, including publication of the name of the suspect on whom a forensic procedure is or is proposed to be carried out "in relation to an offence", unless the suspect has been charged with "the offence". 7It is not disputed that Mr Prott has been charged with two offences in relation to which the order was sought. Counsel for the first respondent (Ms Adams SC) informed this Court that the basis on which the first respondent had agreed to the restrictions on publication no longer applied since the matter had now been listed for summary hearing of the criminal charges and the police have advised that the photograph will not be used for investigation in relation to other offences. Section 43 of the Act does not require the making of a non-publication order and no application for such an order under other legislation was made. Accordingly, no such order has been made in relation to these proceedings. Background 8On 2 August 2010, Mr Prott was charged with two offences of indecent assault. The first respondent is the police officer who is the informant with respect to those charges. By oversight, no photograph of Mr Prott was taken by the police while he was in custody pending release on bail. 9An application was made on 4 February 2011 by the first respondent, pursuant to the Crimes (Forensic Procedures) Act, for the taking of a photograph (front and sides) of Mr Prott's face. That application was granted by Stapleton LCM, whose decision was later quashed by Pembroke J. The first respondent conceded that the initial order could not be sustained and consent orders were made substituting an order that the application was refused. 10A second application for such an order was subsequently heard by A George LCM, who refused the application on the basis that the "additional information" relied upon by the first respondent had been available at the time of the hearing of the first application. That decision was the subject of a successful appeal by the first respondent (Munro v ACP [2012] NSWSC 100), the matter being remitted to the Local Court for re-hearing. 11The hearing before Kok LCM was therefore to determine the first respondent's second application for an order permitting the procedure in question but was the third time that there had been a hearing in the Local Court in respect of such an application. 12Kok LCM made orders requiring Mr Prott to undergo three procedures, only one of which is the subject of the present application. Orders in respect of the other two procedures were set aside by Button J. However, his Honour dismissed the appeal from the decision by Kok LCM to authorise the taking of the photograph. This was referred to in his Honour's reasons as the "first procedure". Non-intimate forensic procedures 13The circumstances in which a forensic procedure, as defined under the Act, may be carried out are set out in Part 5 of the Crimes (Forensic Procedures) Act. Section 24 of the Act empowers a Magistrate to make final orders for the carrying out of a non-intimate forensic procedure (which is what the first procedure in this case is) where the Magistrate is satisfied on the balance of probabilities that there are reasonable grounds to believe, first, that the suspect has committed an offence (s 24(3)(a)) and, second, that the procedure might produce evidence tending to confirm or disprove that the suspect has committed that offence (s 24(3)(b)) and the Magistrate is also so satisfied that the carrying out of the procedure is justified in all the circumstances (s 24(1)). 14Section 26(3) deals with the situation where a Magistrate refuses an application for such an order. It provides: (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. 15It was accepted by Senior Counsel appearing for Mr Prott on this appeal (Mr Dhanji SC) that the requirement in s 26(3) that there be "additional information" for the purposes of the second application in this case was satisfied. Further, it was accepted that although s 26(3) is a threshold requirement, the satisfaction of which leads to a consideration of the factors contained in s 24 of the Act, the matter had proceeded before Kok LCM on the basis that the only issue between the parties was whether that threshold requirement had been satisfied. It was not contended that the "additional information" did not satisfy s 24(3)(a) or (b) of the Act. Ultimately, the only answer put against the making of an order for the first procedure on the second application was that s 26(3) of the Act, on its proper construction, was not satisfied. Leave 16Pursuant to s 101(2)(h) of the Supreme Court Act 1970 (NSW) an appeal to this Court from the decision of Button J can be maintained only with the leave of this Court. 17While there are not exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170), it is accepted that leave should be granted only where there are there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564) such as where there is an error of principle which results in substantial injustice (Minogue v Williams [2000] FCA 125; (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401). 18For Mr Prott it is contended that leave should be granted as the matter raises important issues with respect to the proper construction of s 26(3) of the Act and as to the content of reasons required to be given where conflicting views are expressed on an issue in submissions made by the parties. As to the latter, there is no ground of appeal that challenges the adequacy of Kok LCM's reasons and Mr Dhanji disavowed any appeal on such a ground. It was, however, submitted that the absence of reasons for the rejection of submissions put to the Magistrate in relation to the principles of finality and double jeopardy permitted an inference that those principles had not been taken into consideration. 19The issue of construction said to warrant the grant of leave is as to whether, and to what extent, s 26(3) requires regard to be made to the principle of finality of litigation or the "double jeopardy" maxim (nemo debet bis vexari pro una et eadem causa). 20It is contended by Mr Dhanji that the phrase "additional information that justifies the making of the further application", properly construed, requires a balancing exercise that includes consideration of the common law background in which s 26(3) was enacted (including the principles of finality of litigation and double jeopardy). Mr Dhanji nevertheless conceded (correctly) that the double jeopardy maxim was not directly applicable. 21Mr Dhanji submits that what was required by Kok LCM was more than an acknowledgment of the history of the respective applications that had been made for the first procedure but, rather, an acknowledgment of the significance of that history, namely that it was "no small thing", in the sense of more than simply an inconvenience, for someone to be brought back before the Court when that person had previously successfully resisted the same application. Mr Dhanji did not submit that the history of the prior applications should have been given more weight than it was; rather the complaint made was that that the significance of the history of prior applications was not addressed by the Magistrate and hence that history was not given any weight at all. Although Kok LCM took into account the reasons for the further application and noted the history of the respective applications, it is submitted that her Honour did not take into account the burden of that litigation on the applicant in the context of the ordinary expectation of the finality of litigation. 22It is not necessary here to set out the reasons given by Kok LCM for the conclusion that the test required to be applied by s 26(3) was satisfied. Those are set out in the reasons given by Button J. Nor is it necessary to consider the ambit of the operation of the double jeopardy maxim or the exceptions to the principle of finality of litigation. In a different context, in R v A [2008] EWCA Crim 2908; [2009] 1 WLR 1947, where the relevant statutory provision required consideration of whether it was in the interests of justice for an order (for the re-trial of an acquitted defendant) to be made, there had been discussion as to whether any of the considerations advanced in opposition to the abolition of the double jeopardy rule and, in particular, the desirability of finality to litigation would provide a relevant consideration bearing on the interests of justice. It was concluded that, as a matter of principle, it did not ([41]) and that the double jeopardy principle could not be resuscitated under the guise of the interests of justice. 23The application for leave to appeal should be refused. As explained by Macfarlan JA in Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 (at [50]), in appeals on questions of law, no relevant error of the type considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 and Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 arises unless it is at least shown that the decision maker failed to take into account a matter that the statute required him or her to take into account. 24There is no express or implied statutory requirement imposed on a Magistrate considering a further application for a forensic procedure, after the refusal of an earlier such application, to take into account the common law background to the enactment of s 26(3) or, as was submitted to the Magistrate in the present case, whether the grant of such an application would undermine the fundamental principle of finality of litigation. 25Kok LCM, in her ex tempore reasons for judgment, noted that there had been prior proceedings; that there had been a series of errors on the part of the prosecution in making the initial application and in the procedures that were undertaken prior to that; that it was against that background that the application had to be considered; and that there was a balancing exercise to be carried out having regard to the effect of such an order on a person's rights "particularly those long held rights against self incrimination". Button J accepted that the section called for reflection on the degree to which a defendant had been vexed by the making of the subsequent application but considered that a fair reading of Kok LCM's reasons demonstrated that this had been taken into account. 26There was no challenge by Mr Dhanji to the finding by Button J (at [71]) that it was inconceivable that the Magistrate was unaware of the statutory test that fell for consideration pursuant to s 26(3). The reference to rights against self-incrimination is explicable by reference to the content of the lengthy submissions put before Kok LCM. Mr Dhanji's submission that the lack of reference to the principle of finality (and the lack of specific reasons as to why the submissions for Mr Prott in relation to that principle did not prevail) led to an inference that Kok LCM did not act upon a proper construction of the test proceeds on an assumption that this was required by s 26(3). Such an assumption is inconsistent with Lo. 27In those circumstances, Mr Prott would not succeed on appeal if leave were granted. As no error of principle resulting in substantial injustice has been identified, leave to appeal should be refused with costs. Orders 28Accordingly, the order that should be made is that the summons seeking leave to appeal be dismissed with 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. Decision last updated: 26 July 2013