Supreme Court New South Wales

• Medium Neutral Citation: TS v Constable Courtney James [2014] NSWSC 984
• Hearing dates: 17 July 2014
• Decision date: 17 July 2014
• Jurisdiction: Common Law
• Before: Adamson J

Decision

1. A pseudonym order such that the plaintiff be referred to as TS.

2. Order that the order of the Magistrate on 15 November 2013 that a buccal swab be taken from the plaintiff be set aside and that the matter be remitted to the Children's Court to be determined according to law.

3. Note that there is an agreement that there be no order as to costs.

• Catchwords: APPEAL - whether magistrate erred in admitting evidence of intercepted telephone calls - whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply; EVIDENCE - Evidence Act 1995 (NSW) applies to applications for a forensic procedure - Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act - laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of - meaning of reasonable grounds for suspicion or belief
• Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 51; Crimes (Forensic Procedure) Act 2000 (NSW), s 3, s 24, s 26, s 30, s 103, s 115A; Evidence Act 1995 (NSW), s 4, s 8, s 9; Telecommunications (Interception and Access) Act 1979 (Cth), s 63, s 74
• Cases Cited: Azar v DPP [2014] NSWSC 132; Bain v Police [2011] SASC 228; Council of the City of Lake Macquarie v Morris [2005] NSWSC 387; 63 NSWLR 263; Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1; George v Rockett [1990] HCA 26; 170 CLR 104; L v Lyons (2002) 56 NSWLR 600; LK v Commissioner of Police [2011] NSWSC 458; Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
• Category: Principal judgment
• Parties: "TS" (Plaintiff); Constable Courtney James (Defendant)
• Representation: Counsel: C Smith (Plaintiff); N Adams SC/C McGorey (Defendant); Solicitors: Aboriginal Legal Service (Plaintiff); Crown Solicitors (Defendant)
• File Number(s): 2013/374312
• Publication restriction: Nil

Judgment

Introduction

1 The plaintiff is a young person suspect of having committed offence of aggravated break and enter and take and drive conveyance between 16 and 17 June 2013. The defendant is the police officer who applied to the Children's Court for an order that the plaintiff undergo a self-administered buccal swab.

2 On 15 November 2013 Magistrate Ellis at Bidura Children's Court made an order which authorised the taking of a buccal swab from the plaintiff.

3 TS appealed against the order on two bases:

(1) The Magistrate found, incorrectly, that the Evidence Act 1995 (NSW) did not apply; and

(2) The Magistrate admitted evidence of intercepted telephone calls which were inadmissible under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA).

4 By reason of s 115A(1) of the Crimes (Forensic Procedure) Act 2000 (NSW) (the CFP Act), the appeal is to be determined as if it were an appeal against sentence under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act). Each of the grounds involves a question of law alone. Accordingly an appeal lies to this Court by right: s 52 of CAR Act.

5 The second of the two bases for challenge was raised by the defendant in his submissions in response and was adopted by TS in reply. TS filed a Supplementary Notice to amend the summons to include this ground of challenge. The defendant accepted that the order for the buccal swab should be set aside on the basis of the second ground.

The second ground: admission of evidence not admissible under the TIA Act

6 Evidence of recorded conversations taken in the course of telephone intercepts was tendered by the defendant at the hearing in the Court below and admitted as evidence.

7 The TIA relevantly provides, by s 63(1):

"No dealing in intercepted information or interception warrant information

(1) Subject to this Part, a person shall not, after the commencement of this Part:

...

(b) give in evidence in a proceeding;

lawfully intercepted information ... "

8 Section 74(1) of the TIA provides that a person may give lawfully intercepted information in evidence in an exempt proceeding. Section 5B of the TIA defines "exempt proceedings" by a list. Application for forensic procedures are not on the list. Accordingly admission of the evidence was prohibited by s 63 of TIA. Although the plaintiff objected to the evidence in the Court below, he did not object on the basis of the statutory prohibition in TIA.

9 There are circumstances where the fact that evidence has not been objected to on a basis later replied upon at the time of its tender means that its admission cannot later be challeged on that basis: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 (Dhanhoa) Gleeson CJ and Hayne J at [20]. However, it appears to have been accepted on appeal that the evidence in the present case was not of the variety referred to in Dhanhoa.

10 Because the Magistrate took into account the telephone intercept evidence, and that evidence ought not to have been admitted, the order should be set aside and the matter remitted to the Local Court: Council of the City of Lake Macquarie v Morris [2005] NSWSC 387; 63 NSWLR 263 at [65] per Johnson J.

11 In light of my conclusion that the matter ought be remitted by reason of the second ground, it is not necessary that I determine the first ground. However, I understand from counsel appearing for the parties that there is some uncertainty in the Local Court about the application of the Evidence Act to applications for forensic procedures and that it is appropriate not only to record the parties' agreement that the Evidence Act applies to such applications but also to outline the settled law that governs such applications.

The first ground: the application of the Evidence Act

12 Objections under the Evidence Act were taken on behalf of the plaintiff in the proceedings in the Court below. Although there is some ambiguity in the transcript it was common ground before me that the Magistrate decided, incorrectly, that the Evidence Act did not apply to the defendant's application for a buccal swab to be taken from the plaintiff.

Relevant statutory provisions: the nature of the application for a forensic procedure

13 The relevant provisions of the CFP Act that govern the application in the Children's Court are set out below.

14 Part 5 of the CFP Act provides for the carrying out of forensic procedures on "suspects" by order of a Magistrate under s 24, including, as here, where the suspect is a "child" (defined as a person who is at least ten years of age and under eighteen: s 3). A "suspect" is defined as a person whom a police officer suspects on reasonable grounds has committed an offence: s 3. Forensic procedures are either "intimate" or "non-intimate". A self-administered buccal swab is defined as a non-intimate forensic procedure.

15 Section 26 of the CFP Act relevantly provides that an application for an order must be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in s 24(1). Section 24 of the CFP Act relevantly provides that, in the case of a non-intimate forensic procedures, there must be reasonable grounds to believe that:

(1) the suspect has committed a prescribed offence, and

(2) the procedure might produce evidence tending to confirm or disprove that the suspect has committed the prescribed offence.

16 Section 24(1) of the CFP Act also requires the Magistrate to be satisfied on the balance of probabilities that the carrying out of the procedure is justified in all the circumstances, as to which s 24(4) provides for the matters which are to be taken into account by the Magistrate.

17 Section 30 of the CFP Act relevantly provides for the procedure that applies at the hearing of such applications as follows:

"(6) The suspect or his or her representative:

(a) may cross-examine the applicant for the order, and

(b) may, with the leave of the Magistrate, call or cross-examine any other witness, and

(c) may address the Magistrate.

(7) A Magistrate must not give leave under subsection (6) (b) unless the Magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined."

18 The applicant for a forensic procedure has the onus of proving any necessary belief or suspicion on the balance of probabilities: s 103 of the CFP Act.

Whether the Evidence Act applies in terms to applications for a forensic procedure

19 Section 4(1) of the Evidence Act provides:

"(1) This Act applies to all proceedings in a NSW court, including proceedings that:

(a) relate to bail, subject to Division 4 of Part 3 of the Bail Act 2013, or

(b) are interlocutory proceedings or proceedings of a similar kind, or

(c) are heard in chambers, or

(d) subject to subsection (2), relate to sentencing."

20 The expression "NSW court" is defined to mean this Court or "any other court created by Paliament": Dictionary to the Evidence Act. The Children's Court is a court created by Parliament: see s 4 of the Children's Court Act 1987. Accordingly the Evidence Act applies to these proceedings as does the common law of evidence to the extent to which it has not been overriden by the Act: s 9(1) of the Evidence Act. To the extent to which the Court below read either L v Lyons (2002) 56 NSWLR 600 (Lyons) or LK v Commissioner of Police [2011] NSWSC 458 (LK) as indicating that it does not apply, her Honour was in error, as appears from Lyons at [27]-[28] per Sully J and LK at [26] per Fullerton J.

21 The conclusion that the Evidence Act applies requires a further determination of the identification and construction of applicable provisions. For example, the proceedings, although related to the suspected commission of an offence, are civil, not criminal, since they do not amount to the prosecution of a person for an offence or for committal, sentence or bail (see the definition of "criminal proceedings" in the Dictionary) to the Evidence Act. Not being criminal proceedings, they are necessarily "civil proceedings" since the Evidence Act defines "civil proceeding" as a proceeding other than a criminal proceeding.

Other relevant principles relevant to evidence adduced in support of applications for forensic procedures

22 The CFP Act applies, as does any other applicable Act: s 8 of the Evidence Act. Accordingly the applicable provisions of the Evidence Act must be read together with the CFP Act, including s 30, which contains the right to cross-examine a deponent of an affidavit other than the applicant, except by leave.

23 How the laws of evidence apply to applications for forensic procedures is affected by the matters of which the Magistrate is required to be satisfied, namely:

(1) that the officer who swore the affidavit in support of the application had reasonable grounds to believe that the plaintiff has committed an offence;

(2) that there were reasonable grounds to believe that the plaintiff had committed the offence;

(3) that there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence; and

(4) that the carrying out of the procedure is justified in all the circumstances.

24 The expression "reasonable grounds to believe" imports the considerations that were considered by the High Court in George v Rockett [1990] HCA 26; 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."

25 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] HCA 48; (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 DPP [2014] NSWSC 132.

Conclusion

26 The Magistrate's ruling that the Evidence Act did not apply had the consequence that the admissibility of evidence sought to be adduced by the defendant in the Court below was not fully argued by reference to the Evidence Act. Because the matter is to be remitted to the Children's Court to be determined in accordance with the law, including the Evidence Act, it is not appropriate that I express a view on the admissibility of the evidence that was led before the Court below.

Orders

27 The orders I made at the conclusion of the hearing in this matter on 17 July 2014 were:

1. A pseudonym order such that the plaintiff be referred to as TS.

2. Order that the order of the Magistrate on 15 November 2013 that a buccal swab be taken from the plaintiff be set aside and that the matter be remitted to the Children's Court to be determined according to law.

3. Note that there is an agreement that there be no order as to costs.

**********

Amendments

30 July 2014 - Evidence Act 1995 (Cth) changed to Evidence Act 1995 (NSW)
Amended paragraphs: coversheet

04 August 2014 - relevant sections to Telecommunications (Interception and Access) Act 1979 (Cth) changed
Amended paragraphs: coversheet

04 August 2014 - relevant sections to Telecommunications (Interception and Access) Act 1979 (Cth) changed
Amended paragraphs: [7] and [8]

Decision last updated: 04 August 2014