Supreme Court New South Wales Medium Neutral Citation: Plassas v Person [2016] NSWSC 1445 Hearing dates: 30 August 2016 Date of orders: 17 October 2016 Decision date: 17 October 2016 Jurisdiction: Common Law Before: Bellew J Decision: 1. The proceedings are dismissed. 2. The parties should provide any submissions as to costs within (7) days, such submissions not to exceed one page in length. Catchwords: CRIMINAL LAW – Appeal from Magistrate – Where Magistrate made an order for the carrying out of a non-intimate forensic procedure – Where a previous DNA sample of the accused had been taken 14 years ago – Whether there was a public interest in making the order – Whether Magistrate erred in making the order – Proceedings dismissed WORDS AND PHRASES – "evidence as to whether or not the suspect committed the alleged offence" Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Forensic Procedures) Act 2000 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Bimson, Roads Maritime Services v Damorange Pty Limited [2014] NSWSC 734 Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 Brough v Director of Public Prosecutions [2014] NSWSC 1396 KC v Sanger [2012] NSWSC 98 Orban v Bayliss [2004] NSWSC 428 R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 Saad v Jeffcoat [2013] NSWSC 1585 Category: Principal judgment Parties: Con Plassas – Plaintiff Detective Senior Constable Christophe Person – Defendant Representation: Counsel: P Lange – Plaintiff C McGorey – Defendant Solicitors: Aquila Lawyers – Plaintiff Crown Solicitor for New South Wales – Defendant File Number(s): 2015/363196 Publication restriction: Nil Judgment 1. By an amended summons filed on 8 March 2016, Con Plassas ("the plaintiff") seeks orders in the following terms: 1. to the extent that leave is required, an order that leave be granted to appeal against the decision of Magistrate Andrews of 4 December 2015, permitting the defendant to carry out a forensic procedure, namely a buccal swab, on the plaintiff; 2. an order that the decision of Magistrate Andrews of 4 December 2015 be quashed; 3. an order dismissing the defendant's application for a forensic procedure; and 4. an order that any forensic material obtained in consequence of the order of Magistrate Andrews on 4 December 2015 be destroyed. 1. In the event that the relief sought is granted, the plaintiff also seeks an order for costs of the proceedings. 2. The orders sought by the plaintiff are opposed by the defendant. 3. The summons was supported an affidavit of Omar Juweinat, solicitor of 29 July 2016, which was read without objection. THE factual background 1. On 22 October 2015 the defendant, who is a police officer, made an application to the Local Court for an order under s. 24 of the Crimes (Forensic Procedures) Act 2000 (NSW) ("the Act") in the following terms: A final order authorising the carrying out of a forensic procedure(s) on (the plaintiff) pursuant to s. 24 of the Crimes (Forensic Procedures) Act 2000. The type of forensic procedure sought in relation to this application is as follows: 1. the taking of a sample of (the plaintiff's) DNA (a self-administered Buccal Swab), being a non- intimate procedure. 1. The grounds for the application were expressed in the following terms: 1. The applicant is an authorised applicant within the meaning of s. 3 of the Crimes (Forensic Procedures) Act 2000. 2. The respondent is a suspect within the meaning of s. 3 of the Crimes (Forensic Procedures) Act 2000. 3. The further grounds for the application are set out in the attached affidavit, pursuant to s. 26(2)(b) of the Crimes (Forensic Procedures) Act 2000. 1. In the affidavit which was filed in support of the application, the defendant expressed a suspicion that the plaintiff had committed an offence of supplying a prohibited drug in an amount greater than the commercial quantity contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the offence"). Having set out the grounds for that suspicion, the defendant stated that it was sought to have the plaintiff undergo a non-intimate forensic procedure, namely a self-administered DNA buccal swab. The affidavit also set out the grounds which led the defendant to believe that such forensic procedure might produce evidence tending to confirm or disprove that the plaintiff had committed the offence. THE PROCEEDINGS BEFORE THE MAGISTRATE 1. The application came before Magistrate Andrews in the Local Court on 4 December 2015, at which time the defendant gave evidence. In answer to questions put by the prosecutor (commencing at T2 L20) the defendant confirmed that tests had been carried out on a number of items seized in connection with the plaintiff's alleged commission of the offence, and that such tests were conducted by reference to a DNA sample which had been obtained from the plaintiff in 2002 ("the 2002 sample") following his arrest in respect of another matter. 2. When cross-examined by counsel for the plaintiff, the defendant agreed (T3 L15-18) that there was DNA evidence linking the plaintiff with a particular item recovered from the scene of the alleged offence. He also agreed (T3 L24-26) that depending upon the circumstances, there can be considerable delay in obtaining the results of DNA analysis. However, he maintained that any analysis of a fresh DNA sample provided by the plaintiff would be able to be undertaken before his trial for the offence. In this regard, it should be noted that the trial is presently listed to take place in the District Court in late November of this year. I was informed that in the event that the present proceedings were dismissed, it would take approximately two weeks for any buccal swab provided by the plaintiff to be tested and analysed. 3. At the conclusion of the evidence before the Magistrate, counsel for the plaintiff submitted that the order sought should not be made because: 1. the 2002 sample was already in the defendant's possession and that accordingly, the provision of a further sample was not justified in all of the circumstances; 2. a period of 8 months had elapsed between the plaintiff's arrest and the bringing of the defendant's application, and that such delay was entirely unexplained; 3. the making of the order sought would result in an undue waste of resources, in circumstances where the 2002 sample was already in existence; 4. the public interest was met by the existence of the 2002 sample; and 5. the Act was to be assessed in the context of "values of traditional civil liberties". 1. The prosecutor submitted that in the absence of a fresh DNA sample being provided, there was an obvious risk that a jury may become aware of the existence of the 2002 sample, speculate as to the circumstances in which it had been provided, and draw an inference which was adverse to the plaintiff. The prosecutor also relied on the fact that there was presently no evidence as to who, or in what circumstances, the 2002 sample had been obtained, such that in the absence of a fresh sample being provided, the Crown may have difficulty in proving this aspect of its case at trial. 2. Finally, the prosecutor submitted that the question of whether or not an order should be made involved a balancing of interests, in circumstances where there was nothing in the Act which precluded an order for the provision of a fresh sample, even though the 2002 sample was in existence. THE MAGISTRATE'S REASONS 1. The Magistrate delivered ex tempore reasons which should be set out in full: "Mr Laing (sic) argues that as the evidence indicates that the prosecution already have a DNA match there is no need for a further order. The prosecution say that there is prejudice likely to flow to the defence if a new sample is not taken as the jury would be informed of the age of the former sample. Mr Laing (sic) says that that is not necessarily so. I am of the view that it is appropriate that the Court makes an order, given that I am satisfied from the affidavit of Officer Person that there are reasonable grounds to believe that the respondent has committed an offence, and further, as per the legislation there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence as referred to. When I carry out the exercise of balancing the public interest in obtaining evidence as to whether or not the suspect has committed the offence I have to balance against that the public interest in upholding the suspect's physical integrity. When I carry out that exercise and (sic) I have to have regard to various factors under (a) through to (i) in relation to (a), (b) and (c) being factors, and a (sic) little argument was put contrary to this that when I have regard to the gravity of the alleged offence, the seriousness of the circumstances in which it is alleged that it has been committed, and the degree to which the suspect is alleged to have participated in the commission of the offence, each of those factors in my view, which (sic) warrant the making of the order. And I look to the other matters which are relevant, (f) other practical ways of obtaining evidence as to whether the suspect committed the alleged offence are less intrusive, and I look at the nature of the buccal swab it could not be regarded in my view as being overly intrusive, perhaps one of the least intrusive means available to obtain forensic material, it obviously being a non-intimate procedure. In relation (g), whilst the submission has been put that a sample already exists I note the legislation gives a right to obtain such a sample, and I am satisfied and I have regard to (h) in relation to any issue in relation to delay, that the evidence Officer Person indicates that in his opinion no delay to the trial date of 11 April 2016 is likely to flow if the order is made today, and that the procedures will be carried out for the results to be available for the trial. When I asked the parties in relation to give reasons as to why the existing sample may not be available as evidence or not able to be proven if the 2002 is put in issue, they remain potential and no real indications were forthcoming in my view. It is a matter that if there is some issue put in relation to (the) 2002 sample, then and when I combine that reason, being one of potential difficulty in relation to the trial proceeding, when I compare that to the nature of the proceeding I am of the view that it is justified in all the circumstances after I do balance that public interest against the need to uphold the respondent's physical integrity, and I dare say having regard to the nature of the order that is sought and any potential issues that might flow in relation to the potential prejudice, although I note Mr Laing (sic) said that it was not necessarily made known as to the history of a matter, in my view any such issues should not be left in any doubt and that is appropriate in my view to make the order." THE RELEVANT LEGISLATION 1. Section 24 of the Act is in the following terms: (1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities: (a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances. (2) In the case of an intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (3) In the case of a non-intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following: (a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, (i) such other matters as the Magistrate considers relevant to the balancing of those interests. PRINCIPLES RELATING TO APPELLATE REVIEW 1. The principles relating to appellate review of this kind were helpfully set out in the written submissions filed on behalf of the defendant. Such principles may be conveniently summarised as follows. 2. An appeal against the making of the order by the Magistrate may be made to this court pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Review Act"). Importantly: 1. pursuant to s. 52 of the Review Act, an appeal brought against the making of a forensic procedure order on the basis of a question of law alone may be brought as of right (Review Act s. 52); 2. leave must be sought to bring an appeal on the basis of a question of fact, or a question of mixed law and fact (Review Act s. 53). 1. An appeal brought pursuant to the Review Act does not constitute a re-hearing, or a general review, of the Magistrate's decision. Whether or not an appellate court would have determined the issues differently is not the question: Saad v Jeffcoat [2013] NSWSC 1585 at [65]. Where an appellant relies on a question of law alone, it is necessary to isolate the question or legal principle adopted or assumed by the Magistrate, demonstrate that it was wrong, and demonstrate that it was material to the outcome of the case: Bimson, Roads Maritime Services v Damorange Pty Limited [2014] NSWSC 734 at [39]-[53]. 2. The proposition that a Magistrate has misdirected himself or herself as to the application of correct legal principle raises a question of law alone: Brough v Director of Public Prosecutions [2014] NSWSC 1396 at [49]. 3. If a Magistrate correctly states the applicable principles but incorrectly applies them, this will raise a question of mixed fact and law as opposed to a question of law: R v PL (2009) 199 A Crim R 1999; [2009] NSWCCA 256 at [26] cited in Brough (supra) at [49]. An argument that is directed to the question of the sufficiency of evidence involves a question of mixed fact and law and requires leave: KC v Sanger [2012] NSWSC 98 at [83]. THE GROUNDS OF APPEAL GROUND 1 – His Honour erred in finding that the factors set out in s. 24(4)(a), (b) and (c) of the Act weighed in favour of making the order Submissions of the plaintiff 1. Counsel for the plaintiff argued that this ground raised a question of law and that accordingly leave to appeal was not required. In the alternative, he submitted that the matter raised a question of mixed law and fact, and that a grant of leave was appropriate. 2. Fundamental to this ground was the plaintiff's submission that the word "evidence" as it appears in s. 24(4) of the Act is to be construed as being restricted to the result of any comparison undertaken as a consequence of the forensic procedure (in this case, the buccal swab) being carried out. Counsel submitted that having regard to the use of the 2002 sample, the "evidence" was already in existence, there was no further evidence to obtain, and that accordingly, there was no relevant public interest for the purposes of s. 24(4). 3. Counsel submitted that in these circumstances the Magistrate had erred in considering any of the factors set out in s. 24(4), particularly those in s. 24(4)(a)-(c). In short, it was submitted that if it was accepted that there was no public interest in obtaining the evidence, it followed that there was no weight to be given to such factors, and that the Magistrate erred in doing so. Counsel for the plaintiff submitted that the Magistrate had failed to have regard to the context in which the factors in subs. 24(4) appeared in the Act. Counsel submitted that the Magistrate had erred by assessing those factors effectively in isolation, rather than considering how they bore upon the balancing exercise generally, and upon the public interest in obtaining the evidence in particular. Submissions of the defendant 1. Counsel for the defendant took issue with the fact that ground 1 raised a question of law in the sense suggested by counsel for the plaintiff. However, he accepted, as I understood it, that this ground raised a question of mixed law and fact, and that in those circumstances he would not oppose a grant of leave. 2. Counsel for the defendant submitted that on its proper construction, the meaning of the term "evidence" as it appears in s. 24(4) should not be restricted in the manner submitted by counsel for the plaintiff. It was submitted that the plaintiff's contended construction was not consistent with the ordinary and grammatical sense in which the word was used, having regard to its context, and to the underlying legislative purpose. 3. Counsel for the defendant further submitted that the Magistrate had, on more than one occasion, expressly referred to the balancing exercise that he was required to carry out, and had clearly considered the factors in subs. 24(4) in their proper context. It was submitted that there was nothing to indicate that the Magistrate had given any undue weight to the matters in s. 24(4)(a)-(c) relative to the other specified considerations in subs. (4). It was further submitted that in any event, it was a matter for the Magistrate to determine the weight to be given to such matters. Consideration 1. I am satisfied, given the way in which this ground was approached, that it raises at least an issue of mixed law and fact and I consider that it is appropriate to grant leave. 2. In the context of the present case, s. 24 of the Act conferred a discretionary power on the Magistrate to order the carrying out of a forensic procedure if the Magistrate was satisfied that: 1. there were reasonable grounds to believe that the plaintiff had committed a prescribed offence; 2. there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the plaintiff had committed such offence; and 3. the carrying out of the procedure was justified in all of the circumstances. 1. Before the Magistrate, there was no issue about the matters in (i) and (ii). The question for the Magistrate was whether the carrying out of the forensic procedure was justified in all of the circumstances. In determining that question, the Magistrate was required to balance the public interest "in obtaining evidence as to whether or not the plaintiff committed the alleged offence" against the public interest "in upholding the plaintiff's physical integrity". That balancing exercise fell to be carried out having regard to the matters set out in s. 24(4)(a)-(i). 2. The task of statutory construction begins and ends with a consideration of the text. Understanding the context in which a word or phrase is used in a statute has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Context also includes the general purpose and policy of a provision: Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 at [39]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]. Applying these principles I am unable to accept the submissions of counsel for the plaintiff for a number of reasons. 3. Firstly, there is nothing in the text of s. 24(4) which supports the restricted interpretation which was advanced by counsel for the plaintiff. Evidence of whether the plaintiff committed the offence can obviously include the results of analysis of the buccal swab provided pursuant to an order made under s. 24(4). 4. Secondly, the restricted interpretation advanced by counsel for the plaintiff would be at odds with the provisions of s. 24(3) of the Act, which makes reference to the forensic procedure producing "evidence tending to confirm or disprove" the commission of the offence. 5. Thirdly, the construction advanced by the plaintiff is inconsistent with the relevant context, as well as the object and purpose of the Act. Clearly, one of the objects of the Act is to facilitate, in the interests of the community, the investigation of crime and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of those who are not guilty: Orban v Bayliss [2004] NSWSC 428 at [30]. The restrictive interpretation advanced on behalf of the plaintiff is, in my view, inconsistent with those objects. 6. Further, I should also say that in my view there is nothing within the Magistrate's reasons which indicates that his approach to the exercise that he was required to undertake was in any way erroneous. It is clear that his Honour was mindful of the balancing exercise that he was required to undertake, and the factors that he was required to take into account in doing so. Further, and although the Magistrate made extensive references to the factors set out in s. 24(4)(a)-(c), any suggestion that he considered those factors in isolation, or considered them without reference to other relevant factors, is untenable in light of the fact that he expressly referred to other provisions in his judgment. 7. For all of these reasons, ground 1 is not made out. GROUND 2 – His Honour erred in finding that there "was a potential difficulty in relation to the trial proceedings" in the absence of any evidence GROUND 4 – His Honour erred by not applying the appropriate standard and burden of proof required by s. 24(1) of the Act, when concluding that any such issues should not be left in any doubt. 1. It was agreed by the parties that these grounds could appropriately be dealt with together. Importantly, it was also conceded by counsel for the plaintiff that his submissions as to the proper construction of s. 24(4) were fundamental to each ground of appeal. For the reasons I have expressed I am unable to accept those submissions. As a consequence, the remaining grounds must also fail. However, to the extent that other submissions were made in support of those grounds I should address them. Submissions of the plaintiff 1. Counsel for the plaintiff submitted that the Magistrate's conclusion that there was "prejudice likely to flow …. if a new sample is not taken as the jury would be informed of the age of the former sample" was unsupported by the evidence. 2. Counsel further submitted that the Magistrate's concluding observation that "such issues should not be left in any doubt" amounted to a reversal of the onus of proof. Submissions of the defendant 1. Counsel for the defendant submitted that it was open to the Magistrate, pursuant to s. 24(4)(i) to take into account "such other matters" as he considered relevant in the balancing exercise. This, he submitted, allowed the Magistrate to have regard to any prejudice which was likely to flow in the absence of a fresh sample being provided. 2. Counsel for the defendant further submitted that on a fair reading of the Magistrate's reasons, there was no reversal of the onus, and that the passage relied upon by the plaintiff as constituting error was nothing more than a reference to an earlier submission which had been advanced on the plaintiff's behalf. Consideration 1. Before this court, counsel for the plaintiff conceded that questions surrounding the admissibility of the evidence of the 2002 sample would be a factor falling within s. 24(4)(i). In referring to the potential prejudice, the Magistrate obviously had in mind the possibility that leading evidence, at trial, of the taking of the 2002 sample had the capacity to be prejudicial to the plaintiff. That was an inference which was clearly open on the evidence before him. 2. Further, it is inappropriate to take an overly critical approach to reasons contained in ex tempore judgments which are made immediately following a hearing. When viewed as a whole, the Magistrate's reasons do not exhibit any reversal of the onus of proof. On the contrary, the Magistrate's express reference to being "satisfied from the affidavit of Officer Person" that an order should be made makes it clear that he was cognisant of the fact that an applicant for an order under s. 24 bears the onus. 3. For these additional reasons, grounds 2 and 3 are not made out. GROUND 4 – His Honour erred in concluding that the carrying out of the forensic procedure was justified in all the circumstances, notwithstanding the fact that the defendant had available to him the evidence, which might otherwise be obtained than by the obtaining of the forensic sample Submissions of the plaintiff 1. In oral argument, counsel for the plaintiff described ground 4 as "in one sense" an amplification of ground 1 (which, for the reasons I have given, has not been made out). 2. In pressing ground 4, counsel for the plaintiff submitted that there was no evidence which supported a conclusion that there was any public interest in obtaining the evidence. That, in effect, was a repeat of the submission advanced in support of ground 1. Counsel submitted that such a submission was supported by the provisions of s. 27 of the Act. Submissions of the defendant 1. Counsel for the defendant submitted that s. 27 did not preclude subsequent applications being made under s. 24 of the Act. He further submitted that the making of the order was a matter which called for the exercise of the Magistrate's discretion, and that nothing in the Act precluded the Magistrate from coming to the conclusion that he did. Consideration 1. Having regard to the conclusion I have reached in respect of ground 1, ground 4 must also fail. 2. In addition however, it should be observed that no submission was ever put to the Magistrate in relation to the operation of s. 27 of the Act. The attempt to do so before this court contravened the general principle that a party should be bound by the manner in which proceedings have been conducted at first instance. ORDERS 1. For the foregoing reasons I make the following orders: 1. The proceedings are dismissed. 2. The parties should provide any submissions as to costs within (7) days, such submissions not to exceed one page in length. ********** 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: 17 October 2016