District Court New South Wales Medium Neutral Citation: Brendan James Smith v Constable James Atkinson, NSW Police Force [2018] NSWDC 129 Hearing dates: 15 May 2018 Date of orders: 23 May 2018 Decision date: 23 May 2018 Jurisdiction: Criminal Before: SCOTTING DCJ Decision: Appeal allowed. I set aside the order of the Magistrate. I order that any buccal swab taken as a result of the order of the Magistrate and any identification material obtained as a result of that sample be destroyed. No order as to costs. Catchwords: CRIME - APPEAL - forensic procedure - procedural fairness Legislation Cited: Crimes (Forensic Procedures) Act 2000; Crimes Act 1900; Crimes (Appeal and Review) Act 2001; Evidence Act 1995 Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137; Charara v R [2006] NSWCCA 244; Fox v Percy (2003) 214 CLR 118 at [23]; Dyason v Butterworth [2015] NSWCA 52 at [28]; AG v Director of Public Prosecutions [2015] NSWCA 218; Bandana v Director of Public Prosecutions [2016] NSWCA 140; Englebrecht v Director of Public Prosecutions [2016] NSWCA 290; Orban v Bayliss [2004] NSWSC 428; George v Rockett (1990) 170 CLR 104; Ruddock v Taylor (2005) 222 CLR 612; Bain v Police [2011] SASC 228; Azar v DPP [2014] NSWSC 132; L v Lyons (2000) 56 NSWLR 600; NW v George [2016] NSWSC 296; Category: Procedural and other rulings Parties: Brendan James Smith (appellant); Constable James Atkinson, NSW Police Force (respondent) Representation: Mr J Styles appeared for the applicant/defendant; Mr J Edwards appeared for the respondent/NSW Police Force File Number(s): 17/134051 Judgment 1. Brendan James Smith (the appellant) appeals against the order made by her Honour Magistrate Greenwood on 2 June 2017 at the Burwood Local Court, requiring him to provide a self-administered buccal swab pursuant to s 26 Crimes (Forensic Procedures) Act 2000. Senior Constable James Atkinson (the respondent) is the police officer who sought the order in the Local Court. 2. At about 11.04pm on Thursday, 8 September 2016, police observed a male carrying a shopping bag over his shoulder and wearing a black Nike cap on John Street in Burwood. When the police went to speak to the male, he ran from them. The police chased the man before losing sight of him. Police continued to canvas the area for the male. 3. Members of the public informed the respondent and Constable Congdon that the male who ran from them had dropped the shopping bag outside Club Burwood. Police located the bag that contained a small grey safe and a Nike jumper. Police viewed the CCTV footage from Club Burwood that depicted the male dropping the bag in the location that it was found. 4. A short time later, the police entered the Mongbar Internet Café on Clarendon Place and viewed the CCTV footage of inside the café. The respondent deposed that the CCTV footage depicted the male in the café about 4 minutes after the police lost sight of him. The manager described the male as acting suspiciously and as being unusual, because most of his customers were of Asian descent. The Mongbar footage showed the male take off his cap and tracksuit pants and secret them under a desk in the café. The male left a bent pair of scissors and a bent screwdriver on the desk. The respondent believed that the Mongbar footage depicted the male that he spoke to on John Street and had then run away from him. The respondent seized the black Nike cap and the implements from the Mongbar. A DNA profile was recovered from the cap. 5. Police arranged for a number of still photos to be produced from the Mongbar footage and the Club Burwood footage. The CCTV footage was not obtained from either place. 6. The DNA profile obtained from the cap was matched to the appellant. 7. In the respondent's affidavit in support of the application, he referred to the male as the appellant. It was not clear how that conclusion was reached because the respondent was not called to give evidence in the Local Court. It could have been that the respondent thought that the CCTV footage matched the appellant, or that the conclusion was drawn after the DNA evidence was available. 8. The appellant has been charged with one count of goods in custody contrary to section 527C Crimes Act 1900 (the safe) and one count of possess safe breaking implements contrary to section 114 Crimes Act 1900. 9. The appellant advanced three grounds of appeal. First, that the Magistrate erred in admitting the evidence. Second, that the Magistrate erred in finding that the appellant could be identified in the evidence or that an offence had been committed. Third, that the Magistrate erred in making the order because the police already held the appellant's DNA profile and could rely on a less intrusive way of obtaining the evidence. The relevant law 1. The applicable principles to be applied in determination of the appeal are as follows. 2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]. 3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. 4. Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara at [23]-[24]. 5. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 6. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]. 7. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]. 8. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA. 9. Section 24 Crimes (Forensic Procedures) Act 2000 (the Forensic Procedures Act) relevantly provides: (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. … (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. 1. The Forensic Procedures Act involves a consideration of the delicate balance between preserving the traditional rights of citizens to decline to cooperate with investigating authorities and the interests of the community in facilitating the investigation of crime and the conviction of the guilty. A person the subject of an order must already be a suspect. The granting of the order is to facilitate the procurement of evidence against a suspect. A forensic procedure involves some element of invasion of privacy and the justification of that invasion depends on the seriousness of the crime and the degree of invasion of personal privacy or integrity: Orban v Bayliss [2004] NSWSC 428 at [30]-[32]. 2. The expression "reasonable grounds to believe" imports the considerations that were considered by the High Court in George v Rockett (1990) 170 CLR 104 in the context of "reasonable grounds to suspect" at [14]: Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.'' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at p 303): "A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors." 1. What constitutes reasonable grounds for forming a suspicion or belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor (2005) 222 CLR 612 at [40] per Gleeson CJ, Gummow, Hayne and Heydon JJ; see also Bain v Police [2011] SASC 228 per White J at [26]. Accordingly, reasonable grounds for suspicion or belief may include information that the officer concerned has been told by another officer. It can include material of a hearsay nature: see, for example, Azar v Director of Public Prosecutions [2014] NSWSC 132. 2. An applicant for an order must prove on the balance of probabilities that the person to be the subject of the order was a suspect, suspected of committing an offence and not that the person was guilty of the offence they were suspected of committing. The applicant for an order is entitled to rely on a composite body of material collected in connection with the application and is entitled to argue on the basis of that composite material that the Magistrate should be satisfied of the matters required by section 24: L v Lyons (2000) 56 NSWLR 600 at [34]. Analysis of the Magistrate's reasons 1. The Magistrate was asked to rule on a number of objections to the evidence presented by the respondent. It appears from the decision that the Magistrate proceeded to give judgment on the application when the solicitor for the appellant believed that she would be given the opportunity to make submissions on the discretion, ie as to why the order should not be made. 2. The Magistrate did not permit the appellant's solicitor to put those arguments. The Magistrate did not rule on any of the appellant's objections leaving him in the position of not knowing what evidence would be considered in final submissions. Finally, the Magistrate did not allow the appellant to cross-examine any witness. 3. In those circumstances, I am satisfied that the appellant was denied procedural fairness and it is appropriate for me to consider the matter on the evidence presented. Consideration 1. The primary objection taken by the appellant was that the police officers who provided statements were not available for cross-examination. The statements of three police officers were admitted over that objection, on the prosecutor's assertion that two of them could be made available. However, it should be noted that no witnesses were called. It may have been enough for the purposes of the application for the respondent to rely on his affidavit annexing the statements of the other police officers, bearing in mind the decision of Sully J in Lyons, but in my view it was an essential requirement that the respondent be made available for cross-examination. The proceedings were civil proceedings for a final order and the rules of evidence applied, making the affidavit inadmissible over the objection taken by the appellant that he required the respondent for cross-examination. 2. The balance of the objections taken related to the visual identification of the appellant by the police officers and to the hearsay statements of members of the public. These objections were without merit, considering the nature of the test to be applied under s 24. The respondent had to establish on the balance of probabilities that there were reasonable grounds for believing that the appellant was a suspect and that he had committed a crime. The respondent was entitled to rely on a composite body of evidence to establish those propositions. None of the matters relied on had to be independently admissible as they would have to be to prove the commission of the offences to the criminal standard of proof. 3. The appellant also argued that the order should not have been made on discretionary grounds because the police already held his DNA profile and that the police could adduce evidence of that and thereby avoid the invasion of privacy associated with the forensic procedure. The respondent responded by arguing that leading the evidence in that way exposes the prosecution to the possibility that the evidence may be rejected pursuant to s 135 Evidence Act 1995. 4. I note that a similar argument to that of the appellant was dismissed by Fullerton J in NW v George [2016] NSWSC 296. I infer from that decision that the prosecution was entitled to have the evidence to avoid any chain of custody arguments that may have arisen on the facts of that case. It was not suggested that the same issues arise in the present case. This ground is not made out. Conclusion 1. The order was made without giving the appellant the opportunity to cross-examine the respondent. The Magistrate should have rejected the respondent's evidence in the absence of the respondent being made available for cross-examination on his affidavit. It is inappropriate to draw any conclusions on the basis of the evidence that was led in the Local Court, because the appellant was not given the opportunity to test it in cross-examination. 2. The orders I make are as follows: 1. Appeal allowed. 2. I set aside the order of the Magistrate. 3. I order that any buccal swab taken as a result of the order of the Magistrate and any identification material obtained as a result of that sample be destroyed. 4. No order as to 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: 23 May 2018