Sleiman v Murray [2009] ACTSC 82 (15 July 2009)

Last Updated: 14 August 2009

HUMAN RIGHTS ACT

YOUSHA SLEIMAN v JASON MURRAY
[2009] ACTSC 82 (15 July 2009)

CRIMINAL LAW AND PROCEDURE – forensic procedure – taking of buccal swab for DNA analysis – magistrate permitted to order procedure on a suspect – whether an order should be made permitting a procedure – Crimes (Forensic Procedures) Act 2000 (ACT) s 34 – balancing the public interests of obtaining evidence and the physical integrity of suspects.
ADMINISTRATIVE LAW – judicial review of administrative decision – magistrate’s order that forensic procedure be carried out – whether decision of an administrative character subject to review – Administrative Decisions (Judicial Review) Act 1989 (ACT), s 3A(1).
ADMINISTRATIVE LAW – judicial review of administrative decisions – error of law – no evidence – taking into account irrelevant considerations – Administrative Decisions (Judicial Review) Act 1989 (ACT) s 5 – no issue of principle.
Crimes Act 1900 (ACT), ss 92, 230
Crimes (Forensic Procedures) Act 2000 (ACT), Pts 2.3, 2.4, 2.5, Div 2.5.2, ss 6, 7, 8, 11, 12, 18, 32, 33, 34, 35, 38, 85, 94A
Magistrates Court Act (ACT), ss 9B, 12, 47(1)
Administrative Decisions (Judicial Review) Act 1989 (ACT), s 5, Dictionary
Crimes Act 1958 (Vic), s 464M
Human Rights Act 2004 (ACT), ss 12, 22
Crimes Act 1914 (Cth), Pt ID, Div 5B, ss 4AAA, 23XX, 23YDAC, 23YDAE, 23YDAG, 23YDACA,
Crimes Amendment (Forensic Procedures) Act 2001 (Cth)
Supreme Court Act 1933 (ACT), s 20
Crimes (Forensic Procedures) Act 2000 (NSW), ss 97, 82, 88
Evidence Act 1995 (Cth), s 137

Walker K, “Persona designata, incompatibility and the separation of powers” (1997) 8 PLR 153
Stuart F, “Commonwealth forensic procedures legislation” (1995) 69 L Inst J 910
Sackett D L and Ors, “Evidence based medicine: what it is and what it isn’t” (1996) 312 British Medical Journal 71-2
Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Forensic Procedures Bill and the Proposed National DNA Database (1999)

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101
Grollo and Anor v Bates and Ors (1994) 53 FCR 218
R v B [1995] 2 NZLR 172
King v McLellan [1974] VR 773
R v Boulton (1871) 12 Cox CC 87

McAneny v Kearney; Ex parte Kearney [1966] Qd R 306
Hilton v Wells & Ors [1985] HCA 16; (1985) 157 CLR 57
Love v Attorney-General (NSW) (1990) 169 CLR 307
Grollo v Palmer and Ors [1995] HCA 26; (1995) 184 CLR 348
K v Cullen & Anor [1994] FCA 1471; (1994) 53 FCR 410
Evans v Shiels (2004) 185 FLR 1
Reid v Howard & Ors (1995) 184 CLR 1
House v The King [1936] HCA 40; (1936) 55 CLR 499
Vickers v The Queen [2006] NSWCCA 60; (2006) 160 A Crim R 195
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant s20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Barac v Thexton [2008] ASTSC 137
Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1985) 162 CLR 24
R v Swaffield; Pavic v R (1998) 192 CLR 159
Kovacs [2000] NSWCCA 74; (2000) 111 A Crim R 374
R v R [2003] 2 Qd R 544

No. SC 592 of 2009

Judge: Refshauge J
Supreme Court of the ACT
Date: 15 July 2009

IN THE SUPREME COURT OF THE )
) No. SC 592 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: YOUSHA SLEIMAN

Applicant

AND: JASON MURRAY

Respondent

ORDER

Judge: Refshauge J
Date: 15 July 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant, Yousha Sleiman, has been charged with the offence of armed robbery alleged to have been committed on 21 August 2002. At that time, s 92 of the Crimes Act 1900 (ACT) provided:

92 Armed Robbery

A person who commits robbery and at the time of doing so has with him or her a firearm, an imitation firearm, an offensive weapon, an explosive or an imitation explosive is guilty of an offence punishable, on conviction, by imprisonment for 25 years.

2. Although I have been provided with a statement of the facts said to constitute the offence that Mr Sleiman is alleged to have committed, it is not necessary to set them out in full, save for the following brief explanation which establishes the context in which this application arises.

3. It is alleged that at about 2.00 pm on 21 August 2002, two men, at least one of whom was masked, entered a Manuka jeweller’s shop. One of them carried a metal wrench and the other a jemmy bar about 45 centimetres long. The person with the jemmy smashed a glass cabinet and took out of it some diamond rings and other jewellery. The two then left, without the jemmy. The store owner picked up the jemmy and threw it at them, hitting on his upper back the one who had been carrying the wrench. There does not appear to have been any specific identification of the men.
4. Police attended shortly after and general descriptions of the men were given. The police took possession of the jemmy bar and it was subjected to forensic analysis. Some material was able to be detected on the jemmy and a DNA profile obtained from it.
5. A vehicle was subsequently located and a mask consistent with that worn by one of the two men was seized. A DNA profile was obtained from material on the mask. That profile was consistent with that obtained from the material from the jemmy bar.
6. On 16 October 2007, police received information from the National Criminal Investigation DNA Database (NCIDD) that “a match” to the DNA profile from the jemmy bar and the mask had been identified on that part of the Database which had been provided by NSW. The “matching” DNA profile came from Mr Sleiman. This means, as I understand it, that the NSW Police have a sample of material from which a DNA profile has been obtained and that the material which was analysed to produce that profile came from Mr Sleiman.
7. Mr Sleiman was charged with armed robbery by summons on 28 January 2009 returnable before the ACT Magistrates Court on 20 March 2009.
8. On 3 April 2009, the informant, Senior Constable Jason Murray, made an application purportedly under s 32 of the Crimes (Forensic Procedures) Act 2000 (ACT) (the Forensic Procedures Act) for an order for the carrying out of a forensic procedure, “namely buccal swab”.
9. I say “purportedly” for the summons issued on 6 April 2009 directed to Mr Sleiman, commanding him to appear on 9 April 2009, stated that the application had been made “before a Deputy Registrar of the Magistrates Court of the Australian Capital Territory”. There is, in my view, no power for a deputy registrar to hear such an application; s 32 of the Forensic Procedures Act specifies that a magistrate may make such an order and s 35 of that Act specifies that the application is to be made to a magistrate. For reasons that appear below, I am of the view that the application is made to a magistrate as a persona designata and not to the court which could then delegate power to a deputy registrar.
10. There can be, however, no reasonable question about the validity of the summons itself for s 37 of the Forensic Procedures Act gives to the Magistrates Court (and not to “a magistrate”) the power to issue a summons. Under s 12 of the Magistrates Court Act 1930 (ACT), a registrar (and under s 9B, a deputy registrar) may issue a summons to a witness or do anything necessary and preliminary to a hearing. No issue was raised about the validity of the summons and Mr Sleiman’s counsel on this application, Mr K Archer, expressly disavowed any challenge to it.
11. The first application was heard by Magistrate Doogan on 17 June 2009. Mr D Sahu Khan appeared for Senior Constable Murray and Mr H Dhanji of counsel appeared for Mr Sleiman. Senior Constable Murray gave evidence and was cross-examined.
12. After hearing submissions, her Honour granted the application and made an order that Mr Sleiman attend at the City Police Station between the hours of 9.00 a.m. and 4.00 p.m. on or before 24 June 2009 to submit to having a sample taken from him by way of a buccal swab. Curiously, the application for judicial review cited the order as requiring Mr Sleiman to report to the “Sydney Police Centre”. I assume that this was a transcription error.

13. As it becomes critical in this case, I set out her Honour’s reasons for decision:

[w]ell, it’s quite clear that a number of the criteria in section 34 are met. I’m certainly satisfied on the balance of probabilities that – and there’s no issue, as I take it, in relation to most of the criteria under section 34. There’s no issue that the person, being the respondent or the applicant in this application, the respondent to the application, or the defendant for short terms is a suspect. That the offence is a serious offence.
I do have concerns, and I have sympathy with the position taken by the prosecution in this, and the concern is that if they were to introduce this evidence that there could be some potential prejudice to the defendant, and that it is highly likely that based on that potential prejudice, being that he is known in another jurisdiction. Therefore, that in the mind of a jury, if it were to go to a jury, or even a judge alone trial, could raise some potential prejudice to him, and on that basis it could be that the DNA evidence taken in another jurisdiction could very well be excluded.
And on the basis of that – and I don’t know, because I haven’t been told, I’m not privy to what other information or what other evidence there is, I don’t know how strong the case is without that forensic material. There’s nothing much here, the only application or the only information in the application in the affidavit gives a brief description of the suspects and, as I say, there’s no information before me as to the strength of the prosecution case. But having said that, it could well be that the DNA evidence, if it indeed does confirm that the defendant was the person at the scene and the person who committed this offence, it could well supplement any other information and any other evidence that the prosecution may have. It certainly has taken a long time to get the brief of evidence together.
So I have to consider then the balancing interests [sic] as are contained in subsection (3) of section 34, and there is nothing in those provisions which would give me any difficulty in finding that it’s quite appropriate, in my view, for the forensic procedure to be undertaken, having regard to the criteria, as I must, the seriousness of the circumstances surrounding the offence. Armed robbery is a most serious crime in this Territory, and indeed in every other jurisdiction: it carries the maximum sentence of 25 years imprisonment. The degree of the suspect’s alleged participation in the offence, again from the information that has been provided to me and the evidence given by Constable Murray, it would appear that if indeed the mask and the jemmy that was used in the commission of the offence did contain the defendant’s DNA, then his participation is, to a great degree, the other criteria in my view don’t apply.
So I am satisfied under the provisions that I need to be satisfied that the forensic procedure should be undertaken of the defendant, and I intend to grant the application.

14. On 24 June 2009, an urgent application was made to me to review the decision of her Honour. It was made urgently because, of course, Mr Sleiman was ordered to attend at the City Police Station that day and if a stay had not been granted, he would have had to attend and would have potentially been in contempt of court if he did not attend as directed. No explanation was given to me as to why it took so long to make the application, in effect at the very last minute.
15. Nevertheless, I was persuaded that there was an issue to be determined. As a transcript was able to be secured promptly, I made an interim order staying her Honour’s order and listed the matter for hearing urgently.
16. The application was for judicial review under the Administrative Decisions (Judicial Review) Act 1989 (the Judicial Review Act) or, alternatively, under the jurisdiction said to be exercisable by this court under the decision of the Federal Court in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101 (though incorrectly cited in the originating application as [2001] ACTSC 27, which was the re-consideration of the costs appeal following the Federal Court’s decision).
17. Under the Judicial Review Act, a decision is only reviewable if it is “a decision of an administrative character”: see the definition of “decision to which this Act applies” in the Dictionary to the Judicial Review Act. An initial question arose as to whether her Honour’s decision was one “of an administrative character”.

Nature of the decision

18. In submitting that it was a decision of an administrative character, Mr Archer, who appeared for the plaintiff, referred me to Grollo and Anor v Bates and Ors (1994) 53 FCR 218 where Einfeld J held that an order made by a magistrate under s 464M of the Crimes Act 1958 (Vic) ordering a person suspected of committing an offence to give his or her fingerprints to police was not the exercise of judicial power but was an administrative act, amenable to review under the Commonwealth equivalent of the Judicial Review Act.

19. His Honour relied particularly on the following factors:

(i) the section under which the application was made did not involve the resolution of a dispute between parties about their pre-existing rights;

(ii) the procedure prescribed, especially that the final order can be made without notice, is not applicable to judicial proceedings;

(iii) though, like committal proceedings, such an application has a judicial character and the magistrate hearing it is bound to act judicially, since committal proceedings are not judicial but administrative, so such an application is administrative;

(iv) the application belongs to the same category as an application for a search warrant, or a warrant authorising telephone interception or the installation of a listening device;

(v) the application is for an investigative facility designed to assist police to collect evidence and is not sufficiently connected with the exercise of judicial power to make it incidental to that power.

20. I am not entirely convinced by all of these arguments. For example, in relation to (i) above, Mr Sleiman has a right to privacy recognised by s 12 of the Human Rights Act 2004 (ACT), which such a procedure may breach (R v B [1995] 2 NZLR 172). He has, too, the right not to incriminate himself recognised by s 22 of that Act and which such a procedure may also breach, though in the light of the principles recognised in cases such as King v McLellan [1974] VR 773 that would seem unlikely.
21. That the person must have refused to consent to the procedure brings at once a dispute into contention. At common law, a person suspected of an offence, even if arrested, had the right to refuse to submit to a forensic procedure or a medical examination and could not be compelled to do so: R v Boulton (1871) 12 Cox CC 87 (at 91), McAneny v Kearney; Ex parte Kearney [1966] Qd R 306 (at 310-311).
22. There are also differences between the situation Einfeld J was considering and the situation before me. For example, unlike the procedure under s 464M of the Crimes Act 1958 (Vic), an order cannot be made under the Forensic Procedures Act without notice to the suspected person and that person has a right to address the magistrate and cross-examine the applicant, and with leave, call or cross examine any other witnesses: s 38 of the Forensic Procedures Act.
23. Nevertheless, I am by no means convinced that his Honour was in error in the characterisation of the power.
24. There are also strong indications in the Forensic Procedures Act itself that it is an administrative power that is being exercised. It is a power that is conferred in a way that suggests it is conferred on a persona designata: Hilton v Wells & Ors [1985] HCA 16; (1985) 157 CLR 57; Love v Attorney-General (NSW) & Anor (1990) 169 CLR 307; Grollo v Palmer and Ors [1995] HCA 26; (1995) 184 CLR 348.
25. The notion of conferral of power on a persona designata has been criticised. See Walker K, “Persona designata, incompatibility and the separation of powers” (1997) 8 PLR 153. Nevertheless, it remains good law. Indeed, the model forensic procedures draft legislation (the Model Law) was drawn up by the Model Criminal Code Officers Committee relying on this notion to permit the power to be exercised by judicial officers which constitutionally could not be exercised by courts. See Stuart F, “Commonwealth forensic procedures legislation” (1995) 69 L Inst J 910. It is this Model Law that is the source of the Forensic Procedures Act.
26. The introduction of provisions of the Model Law into the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) were accompanied by provisions which were intended to permit Commonwealth laws to confer non-judicial functions and powers on judges and magistrates in criminal matters. See s 4AAA of the Commonwealth Crimes Act, which makes it clear that the powers and conferral on the judicial officer is in a personal capacity as a persona designata. This provision was inserted by the Crimes Amendment (Forensic Procedures) Act 2001 (Cth), making a clear connection with forensic procedures and application to such judicial officers for orders about them, despite the general terms of the section. The Explanatory Memorandum also makes the connection clear when it says that the amendments to the Act contained in the Bill “are based on the February 2000 draft Model Forensic Procedures Bill”.
27. Commenting on the amendments generally, including provision that became s 4AAA, the Memorandum says:

[f]or constitutional reasons, the proposed section 4AAA clarifies that the function or power conferred on the State and Territory judge, magistrate or court employed officer is conferred in a personal and voluntary capacity ... The proposed provisions also replace a similar but specific provision concerning orders for forensic procedures of section 15FA of the Crimes Act 1914 ...

28. Further, in a specific comment on the provision which became s 4AAA, the Memorandum is even more explicit:

... new sections 4AAA and 4AAB ... outline the rules applicable to the situation where a Commonwealth law relating to criminal matters confers on State and Territory judges, magistrates or other court employed officers a function or power that is neither judicial nor incidental to a judicial function or power. For example, the power of a magistrate to order the carrying out of a forensic procedure on a suspect under section 23WS of the Crimes Act 1914. The proposed section 4AAA clarifies that the function or power is conferred in a personal and voluntary capacity. This is necessary for constitutional reasons. In essence, non-judicial functions or powers must be conferred in a personal capacity because judicial office holders, for example, a magistrate, must only exercise Commonwealth judicial functions in their official capacity. Failure to adhere to this may undermine the fundamental separation of powers doctrine enshrined in Chapter III of the Commonwealth Constitution (see, for example, Grollo v Commissioner of Australian Federal Police [1995] HCA 26; (1995) 131 ALR 225; Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57).

29. While the ACT does not have the same constitutional issues, it has adopted, in the Forensic Procedures Act, the same model provisions. Thus, for example, though there are drafting differences, Pt ID Div 5B the Commonwealth Crimes Act is in almost identical terms to Div 2.5.2 of the Forensic Procedures Act. In my view, this is strong support for the view that the power the magistrate is exercising is administrative.
30. The Act has not enacted a provision as express as s 4AAA of the Commonwealth Crimes Act, but I note that the power in Div 2.5.2 of the Forensic Procedures Act is granted to “a magistrate” and not to the court, a further indication that it is a power imposed on a persona designata: K v Cullen & Anor [1994] FCA 1471; (1994) 53 FCR 410 (at 414-5). This is to be contrasted with the reference in s 37(1)(a) of the Forensic Procedures Act to the Magistrates Court which issues the summons, making the distinction between the two quite clear.
31. In my view, the power is an administrative one amenable to review under the Judicial Review Act.

Kelly v Apps

32. Mr Sleiman relies in the alternative on the power said to flow from Kelly v Apps which gives apparently unlimited power for the Supreme Court to intervene in decisions in the interests of justice.
33. This decision has been severely criticised by Connolly J in Evans v Shiels (2004) 185 FLR 1 who refused to apply it in that case. The validity of this criticism is reinforced, in my opinion, by the views expressed by the High Court on a similar provision to s 20 of the Supreme Court Act 1933 (ACT) in Reid v Howard & Ors (1995) 184 CLR 1 (at 16-7).
34. If I had not found the decision made under the Forensic Procedures Act by Magistrate Doogan to have been of an administrative character, I would have been loathe to accept jurisdiction on this basis, and if review under the Judicial Review Act (had it otherwise been available) would have failed, I would not have proceeded on this basis.

The Forensic Procedures Act

35. The Forensic Procedures Act was enacted as part of a uniform legislative scheme. It was based on the Model Bill prepared by the Model Criminal Code Officers Committee in May 1999. See Model Criminal Code Officers Committees of the Standing Committee of Attorneys-General, Model Forensic Procedures Bill and the Proposed National DNA Database (1999). There had been earlier versions of the Bill promulgated in 1994 and 1995 which some States had enacted.
36. This Territory and the Commonwealth enacted legislation following the 2000 modification of the Model Bill.
37. The Forensic Procedures Act establishes a DNA database system (s 94A). The material included on this database is that collected from suspects (s 8) in accordance with Pts 2.3, 2.4 and 2.5 of the Act. It must be removed, however, in certain circumstances, such as if the suspect is acquitted of the offence with which he or she is charged or is found guilty but not convicted or where the proceedings are not commenced within a year. The upshot is that continuing entries in the database will almost entirely be of material from persons convicted of offences (where there is no appeal from conviction or any appeal against conviction is dismissed).
38. This is relevant because of the national scheme which is the basis on which the application was made before the Learned Magistrate. The national scheme is established under the Commonwealth Crimes Act as follows.
39. A Commonwealth DNA database is apparently established administratively. Section 23YDAC of the Commonwealth Crimes Act defines it and this definition describes what it contains. While not apparently established legislatively, the Commonwealth Crimes Act does regulate aspects of it, such as use of information on it (s 23YDAE), inclusion of material on it which should have been destroyed (s 23YDAG) and so on.
40. Importantly for this case, the Act recognises the National Criminal Investigation DNA Database, NCIDD, which is the whole or part of the Commonwealth DNA database integrated with the whole or part of one or more State/Territory DNA database systems (s 23YDACA). It appears from the course of these proceedings that both the ACT and NSW have integrated part of their systems into the NCIDD. I say this because the ACT clearly had access to the system (since that is how it discovered Mr Sleiman’s matching DNA), and that is only available to participating jurisdictions (s 23YDACA(2)) and the material which the ACT accessed came from NSW.
41. Section 97 of the Crimes (Forensic Procedures) Act 2000 (NSW) permits information from the DNA database of that State to be used for the conduct of proceedings in other participating jurisdictions. Thus, any material that NSW had would be available for tender at a trial of the armed robbery charge in this Territory.
42. The Forensic Procedures Act also regulates matters such as the undertaking of forensic procedures. Section 18 and the table to it, table 18 of the Forensic Procedures Act, shows that there are three circumstances under which a forensic procedure may be authorised to be carried out on a suspect: with the suspect’s informed consent (Pt 2.3), by forensic order of a police officer (Pt 2.4) or by forensic order of a magistrate (Pt 2.5). Where the suspect is an adult and not in custody, it may only be authorised where there is informed consent or by order of a magistrate. In this case, Mr Sleiman was not in custody and since he did not consent, an application had to be made to a magistrate.

The application for an order

43. Section 32 of the Forensic Procedures Act sets out the circumstances in which a magistrate may make an order for the carrying out of a forensic procedure. One of those, which it was conceded was applicable here, was where the suspect is not in custody and has not consented to the forensic procedure.
44. Section 33 then gives a magistrate power to make such an order.
45. Section 35 sets out certain procedural matters: it requires that only an authorised applicant apply for an order and requires the application to be made in writing, be supported by an affidavit or evidence on oath dealing with the matters in s 34 (see below at [46]) and to state the type of forensic procedure sought to be carried out under the order. An authorised applicant (s 12) includes the police officer in charge of a police station, the director of public prosecutions or an investigating police officer (s 11) which is the police officer in charge of investigating the offence or any other police officer directed by that police officer to do something in relation to the investigation. Save as appears below, it was not suggested in this case that any of these preconditions had not been met.
46. Section 34 requires the magistrate to be satisfied on the balance of probabilities of certain matters. It provides:
    34. Matters to be considered by magistrate before ordering forensic procedure

(1) The magistrate must be satisfied on the balance of probabilities that –
(a) the person on whom the forensic procedure is proposed to be carried out is a suspect; and
(b) if the forensic procedure is a procedure other than the taking of a handprint, fingerprint, footprint or toeprint – the offence for which the person is a suspect is a serious offence and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed –
(i) that offence; or
(ii) another serious offence arising out of the same circumstances as that offence; or
(iii) another serious offence for which the evidence likely to be obtained because of carrying out the procedure on the suspect is likely to have probative value; and
(c) if the forensic procedure is the taking of a handprint, fingerprint, footprint or toeprint – the offence for which the person is a suspect is an offence other than an offence that may be dealt with by way of infringement notice and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed –
(i) that offence; or
(ii) another offence (other than an offence that may be dealt with by way of infringement notice) for which the handprints, fingerprints, footprints or toeprints are likely to have probative value; and
(d) the carrying out of the forensic procedure is justified in all the circumstances.
(2) In deciding whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3) In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;
(b) the degree of the suspect’s alleged participation in the commission of the offence;
(c) the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the magistrate;
(d) if the suspect is a child or incapable person – the best interests of the suspect;
(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;
(f) if the suspect gives any reasons for refusing to consent – the reasons;
(g) if the suspect is in custody and the investigation period when the suspect may lawfully be held has not expired –
(i) the period for which the suspect has already been detained; and
(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;
(h) any other matter considered relevant to balancing those interests.

47. Before the Learned Magistrate and before me, Mr Sleiman accepted that the matters referred to in s 34(1)(a), (b) and (c) were not in contention. The real issue revolved around s 34(1)(d) which, of course, brought into play ss 34(2) and (3).
The applicant’s contentions
48. I permitted an amendment to the application for judicial review to make specific reference to s 5 of the Judicial Review Act so as to make it clear what the challenges were and to have them more clearly articulated.
49. The challenges were that the Learned Magistrate had made an error of law, had proceeded when there was no evidence justifying the decision and that the decision involved an improper exercise of power, namely that her Honour had taken into account an irrelevant consideration.
(a) Error of law
50. I did not find it easy to understand the error of law claimed by Mr Sleiman. When pressed, his counsel, Mr Archer, articulated it as follows:

... the question of future prejudice arising from the identification of the sample [taken in NSW and included in the NCIDD] as being taken in New South Wales is ... an interpretation of sub subsection (2) [of s 34 of the Forensic Procedures Act] which was not available, therefore her Honour fell into error of a form that would enable this court to intervene.

51. This seems to me to be, in reality, simply a claim that her Honour relied on an irrelevant consideration, a matter I will take up below.
52. Mr Archer made a number of points. He noted that the point ultimately relied on by Senior Constable Murray’s counsel before her Honour, Mr D Sahu Khan, who also appeared before me, was that there was a risk that the sample obtained from the NSW police might be ruled inadmissible, presumably under s 137 of the Evidence Act 1995 (Cth), because it would disclose that Mr Sleiman had been convicted of a prior offence. See [37] above.
53. Mr Archer submitted that this had not been anywhere stated in the application to the Learned Magistrate nor in the supporting affidavit. He acknowledged that there was a statement in the material before her Honour that the matched sample came from an inter-jurisdictional DNA match obtained through the NCIDD.
54. He further submitted that, were the submissions accepted by her Honour to prevail, it would drain s 34(2) of the Forensic Procedures Act of any meaning for all inter-jurisdictional matches would be at risk of the same order being made.

55. He also submitted that it is common for forensic material to be sourced from such prejudicial repositories. A good example was, he submitted, fingerprints which are only taken in circumstances of criminal investigation. He submitted that this does not necessarily render them inadmissible and he could find no authority which had rendered them inadmissible for this reason. DNA, in contrast, may be taken for a number of reasons.
56. Mr Archer emphasised that the process is one which should be “evidence based” and pointed to the reference in s 35(2)(a) of the Forensic Procedures Act to supporting an application for an order of the magistrate “by evidence on oath or by affidavit”.

(b) No Evidence

57. Inevitably, the heads of complaint overlapped. As I understand it, the complaint under this ground was that the basis on which the Learned Magistrate had proceeded was not to be found in the evidence before her.
58. Mr Archer submitted that there was no evidence that the original sample had been tainted or was inadmissible in any way.

(c) Improper Exercise of Power

59. Section 5(1)(e) of the Judicial Review Act refers to this head of complaint, then s 5(2) specifies that it includes a variety of matters which more particularly sustain it. The one relied on by Mr Sleiman here was under s 5(2)(a), namely taking an irrelevant consideration into account in the exercise of the power.
60. Mr Archer submitted that the possible exclusion of the information from the NSW database because of the prejudice it carried by way of implying a prior conviction was irrelevant to the balancing exercise required of the Learned Magistrate.
61. He also submitted that as a sample of material from which a DNA analysis had been taken was already in existence, there could be no public interest in a further sample being taken. Indeed, he submitted that an analysis of the subsequent sample could not be relevant at trial.
62. He further submitted that, when the legislation referred to “confirm or disprove”, this had already occurred in the NCIDD match and no further investigation was permissible.

The respondent’s contentions

63. To a large extent, Mr Dean Sahu Khan, appearing for the respondent in this court, Senior Constable Murray, did not address the applicant’s submissions in the way I have set them out above.
64. He pointed out that under s 7 of the Forensic Procedures Act, the procedure in this case, namely the taking of a sample by buccal swab, is described as a “non-intimate forensic procedure” to be contrasted with those listed in s 6, described as “intimate forensic procedures” the latter including matters such as the taking of blood, examinations of the genital area or buttocks or the taking of a dental impression. This was a relevant factor, he submitted, in the balancing exercise to be undertaken as required under s 34(2). Presumably, a non-intimate procedure would interfere less with the personal integrity of Mr Sleiman.
65. He referred extensively to the Commonwealth Crimes Act. In particular, he emphasised that s 23XX rendered inadmissible the evidence of forensic material or any analysis of it obtained because of the carrying out of a forensic procedure where any provision of the Act concerning the procedure had been breached or there had been a failure to comply with any of them. I did point out to him that this did not seem to apply here as the material was apparently sourced in NSW. I do note, however, that s 82 of the Crimes (Forensic Procedures) Act 2000 (NSW) was in relevantly identical terms as indeed was s 85 of the Forensic Procedures Act.
66. Finally, Mr Sahu Khan referred me to the dictionary meaning of “confirm”, which he submitted should not be given the narrow interpretation given to it by Mr Archer. Thus, he submitted, the Macquarie Dictionary defines it as:

to make certain or sure; corroborate, verify ... to make firm or more firm; add strength to; settle or establish firmly.

67. This, he submitted, showed that the fact that a match had already been obtained did not necessarily prevent an order for a further forensic procedure being made.
Consideration
68. In approaching this case, I note that I am not required to determine whether the decision of the Learned Magistrate was one I would have made. This is not a merits review.
69. In any event, even were it a merits review, as may be permitted were I to proceed as if Kelly v Apps were applicable, then it is a decision which involves a balancing of competing interests. In this, it appears to me that it is at least akin to the exercise of a discretion in that reasonable minds may properly differ on the result of the balance. By analogy with the balancing exercise required under s 137 of the Evidence Act 1995 (Cth), it seems to me that appellate review must be conducted in accordance with the principles stated in House v The King [1936] HCA 40; (1936) 55 CLR 499; Vickers v The Queen [2006] NSWCCA 60; (2006) 160 A Crim R 195 (at [76]). This would to a great extent converge the two methods of review in this case, justifying my approach set out above at [34].
(a) Error of law
70. I had considerable difficulty in understanding exactly what was the error of law claimed by Mr Sleiman that the Learned Magistrate had made, especially apart from the claim that her Honour had taken into account irrelevant considerations, which is not, strictly speaking, an error of law.
71. It is perhaps useful to follow the three stages of the determinative process in which a judicial officer could make a legal error as identified by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (at 156), namely:

... determining the facts by way of primary findings and inferences, directing himself [sic] as to the law and applying the law to the facts found.

72. In this case, the primary facts were not really in dispute: there had been an armed robbery in 2002, certain items were used by the robbers and the police took possession of them, the police analysed material discovered on the items and the analysis revealed a DNA profile, the NCIDD revealed a DNA profile which matched to a relevant degree that of the profile from the material on these items and that profile on the NCIDD came from Mr Sleiman.
73. There is limited scope for a judicial officer to commit an error of law, as recognised by the law, in finding the primary facts: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165.
74. There appears no challenge to the finding of these facts.
75. At the next stage, it appears to me that her Honour was clearly aware of the law. She referred to the need for a balancing exercise and was aware of the terms of s 34 of the Forensic Procedures Act to which she adverted. Whilst her Honour’s statement or reasons were, perhaps, not perfect, I have to recall that a busy Magistrates Court list does not permit as detailed a consideration of the terms of a judgment as in, for example, this court. See, for example, Barac v Thexton [2008] ASTSC 137 (at [41]).

76. Again, no real challenge was made to her Honour’s finding of the law.

77. The third aspect is the application of the law to the facts. It is here that the challenge appears to be targeted. In the first place, Mr Archer appeared to be submitting that where there was already evidence, presumably of the same nature as that sought to be obtained through the order, then such an order could not be made. That is to say, “confirm or disprove” in s 34(2) of the Forensic Procedures Act could not extend to include further proof – something like “further confirmation” or strengthening of the evidence.
78. I see nothing in the legislation that requires such an interpretation. The words “confirm or disprove” should be given their ordinary dictionary meaning (see [66] above) and a further forensic analysis, freed of the provenance which might render it problematic – either because proper procedures were not followed (such as under s 82 of the NSW Act, though there was no evidence to justify such a finding in this case) or because its source might reveal prejudicial evidence (under s 137 of the Evidence Act 1995 (Cth)) - is not necessarily to be excluded simply because it is a repeat of what may have previously been undertaken.
79. Mr Archer suggested that this would permit successive applications, and this would be harassing and oppressive but that is not a matter going to whether the legislation permitted it, or jurisdiction, but to the exercise of discretion. Thus, each successive application would clearly have to be justified by a significant factual basis, probably more significant in each successive case. Mr Archer did not explain why the court does not have jurisdiction to permit this, though it must be limited by a discretion that has to be exercised judicially in accordance with s 34(2) of the Forensic Procedures Act.
80. The next argument that might fall under this ground that was made by Mr Archer is that a reason such as that relied upon by the Learned Magistrate would render s 34(2) of no effect since every use of a DNA profile from NCIDD would risk the same prejudice.
81. That, however, would not in fact render the sub-section devoid of meaning, for it applies widely to every application for an order directing a forensic procedure to be undertaken where a suspect does not consent (and where a police officer has no power to make an order). It is not limited to applications for a forensic procedure by buccal swab or even to DNA evidence. Thus, there will be very many applications that do not rely on the NCIDD and where the sub-section will have much work to do.
82. Even in cases relying on the NCIDD, there will be cases where, for example, the nature of the procedure or the importance of the evidence would require a careful consideration of the balancing of interests that the sub-section requires which may not justify an order.
83. Mr Archer’s submission as to the likelihood of such material being excluded as remote does not seem to me to be a submission that there was an error of law and will be dealt with below.
84. Similarly, the submission that no statement was made in the affidavit as to the possible exclusion from admission at trial of the evidence from the NCIDD will be dealt with below, though that can amount to an error of law if there is no evidence or factual material at all from which a finding of fact is made: Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321 (at 356).
85. In my view, her Honour made no error of law in making the decision she did. It there was an error, it seems to me, in any event, to be a non-jurisdictional error and one with which I would not interfere.
(b) No evidence
86. Mr Archer submitted that there was no evidence before the Learned Magistrate from which she could have concluded that there was a risk that the material from NCIDD may be excluded.
87. That there was such a risk was an inference that could be drawn from facts that were stated, namely that the source of the match was the NCIDD. This was clearly stated in the statement of Senior Constable Murray, though the actual NCIDD form was not before her Honour. There were also references in a number of places to “an inter-jurisdictional match”. While somewhat cryptic, I am prepared to accept that an experienced magistrate as her Honour was, would have understood what this was.
88. Given the nature of the NCIDD and its statutory regulation, reference in the evidence to it was sufficient to permit her Honour to draw the inference.
89. As I indicated above, Mr Sahu Khan attempted to strengthen the position by raising the possibility that the exclusory provisions (such as s 85 of the Forensic Procedures Act and its NSW and Commonwealth counterparts) might have excluded the material from the NCIDD and hence that such a risk would justify the order made by her Honour.
90. This was unjustified. There was no evidence from which her Honour could draw an inference that there was a risk that the evidence from the NCIDD would be inadmissible because of a failure to follow proper procedures. Such an inference would be merely speculative. In any event, her Honour did not draw such an inference and, indeed, it was not suggested in submissions to her.
91. In my view, Senior Constable Murray was not required to include in his affidavit any reference to the risk of exclusion by reference to a provision such as s 137 of the Evidence Act 1995 (Cth). Indeed, that may arguably be a conclusion rather than a fact and conclusions are not ordinarily included in affidavits.
92. There was evidence, namely the source of the matched DNA profile, which was sufficient to justify the submission made by Mr Sahu Khan and accepted by her Honour and this ground is not made out.
93. Having said this, I should not be taken to say that the evidence adduced was as fulsome as is desirable. The circumstances of the matter that caused the NCIDD entry might well be desirable to be included, but I am not aware of whether that is possible. It would, however, potentially contribute to a better understanding of the circumstances and may be relevant to the balancing exercise required by s 34(2) of the Forensic Procedures Act.
94. I do not consider, however, that the application itself was deficient in not specifying any grounds, such as the risk of exclusion. There is no statute nor rule which requires this. In a summary jurisdiction such as before a magistrate, it would not be desirable to accumulate technicalities. If there is prejudice, such as if Mr Sleiman were caught off-guard by a submission that is made on evidence properly adduced, then there is always the option of seeking an adjournment, perhaps even a short one, if thought or research is required to respond.
95. Mr Archer stressed a number of times that the application was to be “evidence based”. I am not sure what he intended to mean by the phrase. It has a quite specific meaning in relation to the practice of medicine: see, Sackett D L and Ors, “Evidence based medicine: what it is and what it isn’t” (1996) 312 British Medical Journal 71-2. If all he meant was that the application had to be supported by affidavit or oral evidence, then it is no different to most applications. If he meant that there had to be evidence to support any factual findings by her Honour, then this is re-inforced by s 5(1)(h) of the Judicial Review Act. What more, if anything is meant, was entirely unclear to me.
(c) Improper exercise of power – irrelevant considerations
96. As I understood this ground, it was submitted that, by taking into account the possibility that the material and DNA profile obtained from the NCIDD might be excluded because of possible prejudice, her Honour had taken into account an irrelevant consideration. Presumably, this exclusion would be made under s 137 of the Evidence Act 1995 (Cth). That exclusion is mandatory, where the probative value is outweighed by the danger of unfair prejudice in admitting the evidence and is to be contrasted with s 135, the general discretion, where the probative value must substantially outweigh the unfair prejudice of admitting the evidence.

97. In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985) 162 CLR 24, Mason J (as his Honour then was) said (at 40):

[i]n the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard...

98. Here, while the discretion is very wide, it is not unconfined. Thus, it can be ascertained from the terms of the section at least some of the matters that must be taken into account and what is permissible.
99. In particular, the section refers to “the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned”. I am satisfied that, by using the word “evidence” that the legislature intended to mean “admissible evidence”.
100. Thus, whether the evidence available to Senior Constable Murray is admissible is clearly a relevant consideration.
101. In any event, s 34(3) sets out factors to which the court must have regard and this has a final paragraph (h), namely “any other matter considered relevant to balancing those interests”. While not perhaps unconfined, this is extremely wide in what might be considered.
102. At a more general level, there is a public interest in the conviction after a fair trial of those who are guilty of an offence: R v Swaffield; Pavic v R (1998) 192 CLR 159 (at 176). While this consideration will not enter into the exercise of the discretion under s 137 of the Evidence Act 1995 (Cth) (Kovacs [2000] NSWCCA 74; (2000) 111 A Crim R 374 (at 381)), there is no reason, in my view, why it is not relevant here. Indeed, it seems to me an important part of the public interest and supported by the inclusion of expressed relevant matters in 34(3)(a), the gravity of the offence and (b) the degree of the suspect’s alleged participation in it.
103. Mr Archer suggested that the discretion would never be exercised to exclude such material under s 137. As an analogy, he submitted that in the case of fingerprints, where there is apparently a central database, material from it had never been excluded. Mr Sahu Khan could not supply a case where such fingerprint material had been excluded on discretionary grounds. That may, however, be at least in part because there is a statutory power to require an arrested person to provide fingerprints: s 230 Crimes Act 1900 (ACT). Thus, while investigators may rely on the central database for information, it is much more likely, if not inevitable, that the examined prints will be those freshly taken and that these will be what will be used in evidence.
104. On the other hand, while not directly in point, I do note that in R v R [2003] 2 Qd R 544 a similar situation to that here pertained. The accused had been arrested for rape in 1992 and acquitted. His DNA profile was, however, legally retained on the Queensland database. In 2000, another rape occurred and material was taken from the victim which contained the offender’s DNA A match to the accused was made in October 2000 by comparing the two samples and, as a result, a further sample was taken in June 2001. Jerrand JA, in the judgment of the court, with which MacPherson JA and Mullins J agreed, said (at 555):

[t]he discretion to exclude admissible evidence as a matter of public policy ... would not justify the exclusion of the admissible evidence (the DNA analysis of the June 2001 sample) which had been obtained in the knowledge of the results of the October 2000 comparison. That October 2000 comparison was itself admissible evidence but not led, and this was done to keep knowledge of the 1992 charge from the jury.

105. In that case, the accused was acquitted of the 1992 charge; here Mr Sleiman must have been convicted of the charge which led to his DNA profile being retained on NCIDD; s 88 of the Crimes (Forensic Procedures) Act 2000 (NSW).
106. I accept that there is perhaps a relatively small likelihood of exclusion and a court would be likely to consider that it could give appropriate directions that would avoid any prejudice. On the other hand, the taking of a buccal swab is not a very invasive procedure in itself and the evidence of a DNA match appears central to the prosecution case.
107. The Learned Magistrate did express some query about the information available as to the strength of the prosecution case. I found that a little surprising, given that there was a fairly full statement of facts. It was tolerably clear from it that the DNA played an important part in the prosecution. There was no other identification evidence of any real value and little to link Mr Sleiman with the robbery save for perhaps a broad conformance with the general description of the robbers and, of course, the DNA profile.
108. Accordingly, it seems to me that it could not be said that the Learned Magistrate took into account an irrelevant consideration.
Finding
109. As a result, I am unable to find that the Learned Magistrate’s decision should be set aside on review. The application is dismissed.
110. This is not to suggest, however, that I express any approval or indeed disapproval of the decision of the Learned Magistrate. It does seem to me that the Director of Public Prosecutions must consider the amount of material placed before a magistrate for the purposes of such applications where, as it appears, he will be acting for the applicant and to ensure that the standard of application, including supporting material, is appropriate, especially as further experience is gained in proceedings where the NCIDD either is involved or has contributed to the process.
111. I indicated that if, as appears, the plaintiff resides in Sydney, I would consider making an order that permitted him to submit to the forensic procedure at a place other than in Canberra if that was convenient to him and to the police.
112. I shall hear the parties as to any further or consequential orders.

I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 2009

Counsel for the applicant: Mr K Archer
Solicitor for the applicant: Porters Lawyers
Counsel for the respondent: Mr D Sahu-Khan
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 26 June 2009
Date of judgment: 15 July 2009