Charara v Commissioner of Police [2008] NSWCA 22 (10 March 2008)

Last Updated: 31 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Charara v Commissioner of Police [2008] NSWCA 22
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40079/07
40227/07

HEARING DATE(S):
15 February 2008

JUDGMENT DATE:
10 March 2008

PARTIES:
Jamal Charara - Appellant
Commissioner of Police NSW - Respondent

JUDGMENT OF:
Giles JA McColl JA Campbell JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
10879/06

LOWER COURT JUDICIAL OFFICER:
Malpass AsJ; Latham J

LOWER COURT DATE OF DECISION:
5/2/07; 22/2/07

LOWER COURT MEDIUM NEUTRAL CITATION:
Charara v The Commissioner of Police NSW [2007] NSWSC 26

COUNSEL:
In person - Appellant
P Menzies QC; T Ryan - Respondent

SOLICITORS:
In person - Appellant
NSW Police Legal Services - Respondent

CATCHWORDS:
CRIMINAL LAW – Forensic procedure – hair sample taken from serious indictable offender in periodic detention – police officer performing procedure purporting to act under authority of order made under s 70 Crimes (Forensic Procedures) Act – whether taking of hair unlawful – proper construction of s 70 of Act – whether s 70(1)(c) or s 70(2)(c) of Act applicable in the circumstances – proper construction of s 62(1) and s 74(3) of Act – whether failure to comply with s 71 of Act because hair sample could have been taken pursuant to court order under s 74(3) – relevance of privilege against self-incrimination – whether right to natural justice arises – whether compliance with s 73 of Act – whether compliance with s 73 is a precondition for the validity of an order made under s 70 – whether if in circumstances taking of hair sample was unlawful Act would require destruction of sample and information derived from sample
STATUTES – Interpretation – whether definition of “order” in s 3 Crimes (Forensic Procedures) Act applies to s 70 of Act – s 6 Interpretation Act 1987
APPEAL – whether appeal from a final decision of an Associate Justice lies to a single judge or to the Court of Appeal
PROCEDURE – costs – appeal from decision of Associate Justice brought in incorrect tribunal – respondent awarded costs of motion on indemnity basis – appeal – whether conduct of appellant has degree of delinquency concerning conduct of proceedings to warrant order for indemnity costs

LEGISLATION CITED:
Crimes Act 1900
Crimes (Forensic Procedures) Act 2000
Interpretation Act 1987
Justices Act 1902
Supreme Court Act 1970
Supreme Court Rules
Uniform Civil Procedure Rules

CATEGORY:
Principal judgment

CASES CITED:
Brennan v Comcare (1994) 50 FCR 555
Charara v The Commissioner of Police NSW [2007] NSWSC 26; (2007) 168 A Crim R 89
Fernando v Commissioner of Police (1995) 36 NSWLR 567
Gill v Residential Tribunal [2001] NSWSC 896; (2001) 53 NSWLR 425
Kerr v Commissioner of Police [2001] NSWSC 637
Klewer v Walton [2003] NSWSC 113
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Silvestro v Ming [2007] NSWSC 267

TEXTS CITED:


DECISION:
(1) Set aside the order of Latham J made 22 February 2007 that the Appellant pay the costs of the Respondent of the Notice of Motion then before her Honour on an indemnity basis.
(2) In lieu, order the Appellant to pay the costs of the Respondent of that Notice of Motion.
(3) Otherwise, appeal dismissed.
(4) Appellant to pay 95% of the costs of the Respondent of the appeal proceedings, including the application for leave to appeal.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40079/07

CA 40227/07

SC 10878/06

GILES JA

McCOLL JA

CAMPBELL JA

10 MARCH 2008

JAMAL CHARARA v COMMISSIONER OF POLICE

Judgment

1 GILES JA: I agree with Campbell JA.

2 McCOLL JA: I agree with Campbell JA.

3 CAMPBELL JA:

Nature of the Case

4 On 21 March 2002 the Appellant was in Parramatta Gaol serving a sentence of periodic detention. A police officer, purporting to act under section 70 Crimes (Forensic Procedures) Act 2000 (“the Act”) removed a hair sample consisting of two hairs from the Appellant’s head. This happened after the Appellant made clear that he did not consent to the hair being removed. The purpose of taking the hair sample was so that it could be subjected to DNA analysis, and the results of that analysis included in the DNA database maintained by the police.

5 The Appellant began proceedings in the Common Law Division of the Supreme Court of New South Wales, in which he sought a declaration that the taking of his hair was unlawful, and an order that both the hair taken, and records relating to it stored in the police DNA database by New South Wales Police be destroyed. Malpass AsJ dismissed the proceedings, and ordered the Appellant to pay the costs of the proceedings: Charara v The Commissioner of Police NSW [2007] NSWSC 26; (2007) 168 A Crim R 89.

6 Dissatisfied with that decision of Malpass AsJ, the Appellant filed a Notice of Motion in the Common Law Division seeking orders that:

“1. The decision of the Associate Judge be set aside.

2. The matter be re-listed for hearing before a Supreme Court Judge.”

7 On the return date of that Notice of Motion, 22 February 2007, the Registrar referred it to Latham J. Her Honour was sitting as Duty Judge that day. She dismissed it that same day, on the basis that it was in substance an appeal against the decision of Malpass AsJ, and that any such appeal needed to be brought in the Court of Appeal. She ordered the Appellant to pay the costs of the motion on an indemnity basis.

8 On 17 April 2007 the Appellant filed in the Court of Appeal a summons seeking leave to appeal from both the decision of Malpass AsJ, and the decision of Latham J.

9 On 16 August 2007 the Court of Appeal (Tobias JA and Basten JA) granted the Appellant limited leave to appeal. Concerning the decision of Malpass AsJ, the appeal was limited to whether requirements of section 70(1)(c) and section 73 of the Act had been complied with, and the effect of any such non-compliance on the lawfulness of the taking of the sample. Concerning the decision of Latham J, the leave to appeal was confined to her Honour’s costs order.

Events Leading to the Taking of the Hair Sample

10 On 9 April 1999 the Appellant was convicted of a number of offences, including resisting arrest, and assaulting a police officer while in the execution of the officer’s duty. Following an appeal to the District Court, those convictions were confirmed on 1 September 2000. Section 60(1) Crimes Act 1900 makes a person who assaults a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, liable to imprisonment for five years. The sentence actually imposed on the Appellant was six months periodic detention.

11 Malpass AsJ has made the following findings (at [2]-[4]), that are not contested:

“Whilst he was in periodic detention (prior to 21 March 2002), he was informed by the corrective services liaison officer that a testing procedure would be taking place the following weekend and that he should seek independent legal advice prior thereto. The plaintiff made contact with his barrister (Mr Kennedy).

During the period from September 2001 to December 2002, Sergeant Hassett was a member of the forensic procedures testing team (as a team leader). On 21 March 2002, he attended Parramatta Correctional Centre with the team. The plaintiff was requested to undergo a testing procedure. He was told that the purpose of the exercise was to enable a sample to be stored in the DNA database. Sergeant Hassett has deposed to the following:-

“I then went through the “Consent Form” with Mr Charara and asked all the appropriate questions as required by law with regard to the procedure”.

Thereafter, the plaintiff refused to give consent. Sergeant Hassett also deposed to the following:-

“I then provided a copy of the section 69 information sheet to Mr Charara and went through the information sheet with him on a point by point basis”.

Sergeant Hassett then purported to make an order pursuant to section 70 of the Crimes (Forensic Procedures) Act 2000 (the Act).

Subsequently, Sergeant [Norton] took a hair sample from the plaintiff’s head. The sample was then sealed and marked.”

12 The particular testing procedure that the Appellant was requested to undergo, and refused to consent to, was the taking of a buccal swab.

13 The “section 69 information sheet” referred to by Sergeant Hassett is a form that provides a list of the information to be provided to a person from whom the police officer wishes to take a forensic sample. No complaint is made in the present proceedings about any information not being provided to the Appellant that the law required him to be provided with.

14 The order that Sergeant Hassett purported to make was in writing, on a standard form of the NSW Police Service. It was headed

“NSW Police Service

SENIOR POLICE OFFICERS ORDER

FOR NON-INTIMATE PROCEDURE

Hair Sample (Other than Pubic Hair)

Section 70(2) Crimes (Forensic Procedures) Act 2000

SERIOUS INDICTABLE OFFENDER”

15 After giving identifying details of the Appellant, and the barcode number assigned to the sample to be taken from him, the order read:

“I Sergeant Stephen Hassett of Forensic Procedures Testing Team order the taking of a sample of hair with root from Sam Jamal Charara, a serious indictable offender.

I am satisfied:

a) the offender has been requested under section 68 to consent to the carrying out of the forensic procedure and

b) the offender has not consented and

c) I have taken into account the matters set out in section 71 before making this order.

Signed: [S Hassett] Dated: 21/3/02 Time: 10:44am

I have supplied a duplicate copy of this order to the serious indictable offender.”

16 Evidence before the trial judge established that Sergeant Norton is an appropriately qualified police officer, and thus falls within the category of people required, by the combined operation of sections 65 and 50 of the Act, to carry out the taking of a sample of hair other than pubic hair. Sergeant Norton’s qualifications were not a matter of contest in the Court below.

The Act

17 The provisions of the Act quoted in this section of the judgment are derived from the historical version valid from 1 January 2001 to 31 August 2002, obtained from the Parliamentary Counsel’s website. That is because the validity of Sergeant Hassett’s order must be decided by reference to the law as at the date of the order. The version of the Act that was current in March 2002 differs in some significant ways from the present form of the Act. In particular, section 70(1)(c), section 70(2)(c) and section 71, provisions of central importance on this appeal, have all now been repealed.

18 The Act lays down circumstances in which, and procedures by which, forensic material may be obtained from a person’s body, and the use that may be made of such forensic material. Some of the historical background to the introduction of the Act appears in Fernando v Commissioner of Police (1995) 36 NSWLR 567.

19 Section 3 defines “forensic material” as meaning:

“(a) samples, or

(b) hand prints, finger prints, foot prints or toe prints, or

(c) photographs, or

(d) casts or impressions,

taken from or of a person’s body.”

20 Thus, the subject matter of the Act is wider than the taking of samples for the purpose of DNA analysis that is the subject of the present appeal. However, the Act makes special provision concerning the manner in which forensic material may be taken and subjected to DNA analysis, the circumstances in which the results of that analysis may be included in a DNA database, and the circumstances in which such results may be used.

21 The Act makes different provision for the manner of taking and using samples depending upon whether the person from whom they are taken is a suspect, an adult, under arrest, incapable, a child at least 10 but under 18, an Aboriginal person or Torres Strait islander, a person convicted of a serious indictable offence, a person serving a sentence of imprisonment, or a volunteer.

22 Section 3 defines “Non-intimate forensic procedure” as being an item on a list of procedures, one of which is:

“(b) the taking of a sample of hair other than pubic hair”

23 Section 3 defines “Serious indictable offence” as meaning:

“(a) an indictable offence under a law of the State ... that is punishable by ... a maximum penalty of 5 or more years imprisonment ...”

24 Section 3 defines “Serious indictable offender” as meaning a person who has been convicted of a serious indictable offence. Thus the Appellant was, at the relevant time, a serious indictable offender within the meaning of the Act.

25 Part 7 of the Act, which runs from section 61 to section 75 inclusive, sets out a regime for the carrying out of certain forensic procedures on a serious indictable offender.

26 Section 61 limits the type of forensic procedures to which Part 7 applies. The only ones to which Part 7 applies are the taking of a sample of blood, the taking of a sample of hair other than pubic hair, the taking of a hand print, finger print, foot print or toe print, and the taking of a buccal swab. “The taking of a sample of blood” appears on the list by which “intimate forensic procedure” is defined in section 3. However, it is the only one, of the variety of intimate forensic procedures appearing on that list, that section 61 makes provisions of Part 7 apply to. “The taking of a sample of hair other than pubic hair”, and “the taking of a hand print, finger print, foot print or toe print”, both appear in the list by reference to which “non-intimate forensic procedure” is defined in section 3, but there are numerous procedures included in that list of non-intimate forensic procedures to which Part 7 does not apply. “The taking of a sample by buccal swab” is in a category of its own – it does not appear in the list of “intimate forensic procedures” in section 3, nor in the list of “non-intimate forensic procedures” in section 3.

27 Section 62 provides:

“(1) A person is authorised to carry out a non-intimate forensic procedure to which this Part applies on a person (other than a child or an incapable person) who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention:

(a) with the informed consent of the serious indictable offender, or

(b) by order of a police officer under section 70.

(2) A person is authorised to carry out a non-intimate forensic procedure to which this Part applies on a child, or an incapable person, who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention by order of a court under section 74.”

28 Section 64(1) provides:

“A person is authorised to take a sample by buccal swab from a person (other than a child or an incapable person) who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention:

(a) with the informed consent of the serious indictable offender, or

(b) by order of a court under section 74.”

29 It follows from the sections quoted so far that an order of a police officer under section 70 cannot empower the taking of a buccal swab, cannot empower the carrying out of any intimate forensic procedure whatsoever, and cannot empower the carrying out of a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, or the taking of a hand print, finger print, foot print or toe print. Nor can it empower the taking of any forensic material whatsoever from a person who is a serious indictable offender, but is not serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention.

30 Section 66 further restricts the circumstances in which Part 7 can authorise the carrying out of any type of forensic procedure whatsoever:

“(1) A person is not authorised to carry out a forensic procedure under this Part on a serious indictable offender if the serious indictable offender is a suspect or a volunteer.

(2) A forensic procedure may be carried out on a serious indictable offender who is a suspect only if authorised by and in accordance with Parts 2-5.

(3) A forensic procedure may be carried out on a serious indictable offender who is a volunteer only if authorised by and in accordance with Part 8.”

31 Section 67 sets out requirements that a consent must comply with if it is to count as “informed” consent. As the Appellant gave no consent at all, it is unnecessary to consider section 67 further.

32 Section 68 provides:

“A police officer may request a serious indictable offender (other than a child or an incapable person) to consent to a forensic procedure to which this Part applies being carried out on the offender.”

33 Thus, before a request is one that is made under section 68, it must:

- be made by a police officer;

- be made to a serious indictable offender;

- be made to a person who is not a child or an incapable person;

- be in substance a request to consent to a procedure to which Part 7 applies being carried out on the offender (ie, not a request to consent to something other than a forensic procedure being carried out, nor a request to consent to a forensic procedure other than the limited types of forensic procedure to which Part 7 applies);

- be in substance a request to consent that the procedure be carried out on the offender himself or herself, rather than on someone else (such as a child of the offender).

34 Section 69(1) requires the police officer to inform the serious indictable offender of such of a specified list of matters as are applicable in the circumstances. Section 69(1) permits that informing to be done either personally or in writing. Section 69 goes on to provide:

“(2) Failure to consent to non-intimate forensic procedure

The police officer must (personally or in writing) inform a serious indictable offender requested to undergo a non-intimate forensic procedure to which this Part applies that, if the offender does not consent, a police officer may order the carrying out of the forensic procedure under section 70 if the police officer has taken into account the matters set out in section 71.

(3) Failure to consent to intimate forensic procedure

The police officer must (personally or in writing) inform a serious indictable offender requested to undergo an intimate forensic procedure to which this Part applies that, if the offender does not consent, an application may be made to a court for an order authorising the carrying out of the forensic procedure.

(4) Failure to consent to taking of sample by buccal swab

The police officer must (personally or in writing) inform a serious indictable offender requested to permit the taking of a sample by buccal swab, that, if the offender does not consent:

(a) a senior police officer may order the taking of a sample of hair other than pubic hair under section 70, or

(b) that an application may be made to a court for an order authorising the taking of a sample by buccal swab or some other forensic procedure.”

35 Section 69(2) is concerned with a situation where the request made by the police officer is to undergo a non-intimate forensic procedure to which Part 7 applies. The substance of the information required to be conveyed by section 69(2) in that situation is that if the offender does not consent, a police officer may order, under section 70, the carrying out of the self same forensic procedure to which consent has been sought (provided that the police officer has taken into account the matters set out in section 71).

36 Section 69(3) is concerned with the situation where a police officer has requested the serious indictable offender to undergo an intimate forensic procedure to which Part 7 applies. The substance of what the police officer is required to inform the offender of in that circumstance is that if the offender does not consent, an application may be made to a court for an order authorising the carrying out of the self same forensic procedure that consent had been requested to.

37 It is section 69(4)(a) that applies in the present case. In the present case neither of section 69(2) nor section 69(3) applies, because the Appellant had been requested to permit the taking of a sample by buccal swab, and a buccal swab is neither a non-intimate forensic procedure to which Part 7 applies, nor an intimate forensic procedure to which Part 7 applies. Where the serious indictable offender has been requested to permit the taking of a sample by buccal swab, the police officer making that request is required to inform the offender that, if the offender does not consent one or other of the eventualities set out in section 69(4)(a) or (b) may occur. These eventualities are not confined to an order, by a senior police officer or the court, for the carrying out of the self same forensic procedure in respect of which consent had been requested.

38 It is not submitted in the present case that that information was not conveyed to the Appellant.

39 Section 70 of the Act provides:

“(1) A police officer may order the carrying out of a non-intimate forensic procedure on a serious indictable offender if:

(a) the offender has been requested under section 68 to consent to the carrying out of the forensic procedure, and

(b) the offender has not consented, and

(c) the police officer has taken into account the matters set out in section 71.

(2) A police officer may take a sample of hair other than pubic hair from a serious indictable offender if:

(a) the offender has been requested under section 68 to consent to the taking of a sample by buccal swab, and

(b) the offender has not consented, and

(c) a senior police officer has ordered that the sample be taken after taking into account the matters set out in section 71.”

40 Section 70(1) permits a police officer to order the carrying out of any of the types of non-intimate forensic procedures to which Part 7 applies if (inter alia) the offender has been requested under section 68 to consent to the carrying out of “the” forensic procedure – ie, the self same forensic procedure as the order relates to. That is not the situation with which the present case is concerned, where the Appellant was requested to consent to the taking of a buccal swab, and Sergeant Hassett purported to order the taking of a sample of hair other than pubic hair. Thus, it is section 70(2) that is relevant to whether the order made by Sergeant Hassett in the present case is valid.

41 When leave to appeal was granted in the present case, it was granted on the basis that it was limited to whether or not section 70(1)(c) and section 73 were satisfied, and the effect of that on the lawfulness of the taking of the sample. The argument of both sides on the application for leave to appeal had proceeded on the basis that section 70(1)(c) was the relevant provision. At the outset of the hearing of the appeal Mr Menzies QC, counsel for the Commissioner, submitted that it was section 70(2) rather than section 70(1) that applied in the present case. Thereupon the Court, without objection from the Commissioner, varied the order granting leave, so that the question permitted to be argued was whether or not such of 70(1)(c) and 70(2) as might prove relevant had been satisfied, and whether section 73 had been satisfied, and the effect of those matters on the lawfulness of the taking of the sample. I have already expressed the view that it is section 70(2) that is the relevant provision, not section 70(1).

42 Another difference between section 70(1) and section 70(2) is that there is no restriction on the type of police officer who may make an order under section 70(1), but the only type of police officer who can make an order under section 70(2) is a senior police officer. Section 3 of the Act defines “senior police officer” as meaning “a police officer of or above the rank of sergeant”. Thus Sergeant Hassett counted as “a senior police officer”, and so was capable of making an order under section 70(2).

43 Section 71 provides:

“In determining whether to make an order under section 70, the police officer concerned is to take into account whether this Act would authorise the forensic procedure to be carried out in the absence of the order.”

44 Section 74(1) enables a police officer to apply to the court for an order directing a serious indictable offender in certain circumstances, to permit an intimate forensic procedure to which Part 7 applies to be carried out on the offender. Section 74(2) enables a police officer to apply to a court for an order concerning the carrying out of a non-intimate procedure to which Part 7 applies on a child or an incapable person who is a serious indictable offender. Section 74 continues:

“(3) A police officer may apply to any court for an order for the taking of a sample by buccal swab or the carrying out of any other forensic procedure on a serious indictable offender.

(4) A police officer may make such an application to the court that is sentencing a serious indictable offender or to any court at a later time.

(5) A court may order the carrying out of a forensic procedure under this section if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.

(6) In determining whether to make an order under this section, a court is to take into account whether this Act would authorise the forensic procedure to be carried out in the absence of the order.”

45 Section 73 provides:

“(1) The police officer must, at the time of, or as soon as practicable after, making an order under section 70, make a record of:

(a) the order, and

(b) the date and time when the order was made, and

(c) the reasons for making it,

and sign the record.

(2) The police officer must ensure that a copy of the record is made available to the serious indictable offender as soon as practicable after the record is made.”

The Commissioner’s Submissions

46 Mr Menzies submits that section 62 (1) should be construed as though it said:

"A non-intimate forensic procedure is authorised only:-

(a) with the informed consent of the serious indictable offender, or

(b) by order of a police officer under s 70."

47 He points out that section 64(1) expressly makes provision for the taking of a sample by buccal swab to be authorised by the order of a court under section 74, and that there is no such express provision in section 62(1) authorising a non-intimate forensic procedure to which Part 7 applies to be carried out pursuant to a court order under section 74. He submits that, while the words of section 74(3) empowering the court to make an order for "the carrying out of any other forensic procedure on a serious indictable offender" could in some contexts empower the court to order the taking of a sample of hair other than pubic hair from a serious indictable offender who was serving his or her sentence in gaol, those general words in the particular context of Part 7 of the Act should be taken as impliedly limited by section 62(1), so that a court does not have power to order the taking of a sample of hair other than pubic hair from such a serious indictable offender.

48 I accept that the power of a court under section 74(3) to order a forensic procedure to be carried out on a serious indictable offender is considerably wider than the power of a police officer to make an order under section 70. For example, section 74(3) empowers a court to order the carrying out of a forensic procedure on a serious indictable offender even if the offender is not serving a sentence of imprisonment in a correctional centre or other place of detention. Thus, section 74(3) would still have scope for operation, even if it were limited in the way for which Mr Menzies contends.

49 However on balance, I do not accept that Mr Menzies’ construction of sections 62(1) and 74(3) is the correct one. I accept that the terms of section 62(1) show that it is the intention of Parliament that, at least in some circumstances, an order of a police officer should be sufficient to enable a non-intimate forensic procedure to be carried out on a person in gaol for a serious indictable offence. However, the word "only" does not appear in section 62(1). It is true that there is no express provision saying that if the court orders a forensic procedure to be carried out on the serious indictable offender then someone is authorised actually to carry out the procedure that has been ordered. However in my view when section 74(3) confers a power on a court to make an order, it is implicit in that conferring of power that that order may lawfully be carried out.

50 The notion of taking of a sample by buccal swab “or the carrying out of any other forensic procedure” appears not only in section 74(3) but also in section 69(4)(b). The categorisation of forensic procedures into intimate forensic procedures, non-intimate forensic procedures, and the taking of a sample by buccal swab suggests that the draftsperson is being quite careful in the language by which particular types of forensic procedure are referred to. That there has been this deliberate care in the categorisation of the forensic procedures would make one pause before concluding that “or any other forensic procedure” in section 74(3) did not have its ordinary-language meaning “any other forensic procedure whatsoever, that is not the taking of a buccal swab”.

51 As well, the co-existence of powers under section 74(3), and under section 70 combined with section 62(1), to order a serious indictable offender serving a term of imprisonment in gaol to provide a sample of hair, gives a sensible operation to the Act.

52 It is noteworthy that Part 7 provides no sanction for breach of a police officer’s order made under section 70. The only consequence that the Act provides for the making of such an order is that section 62 then provides statutory authority for the committing of what might otherwise be a trespass to the person. (I say "might" because section 107 of the Act provides a defence to (broadly) any person who carries out a forensic procedure under the Act in good faith and on the basis of reasonable belief). As well, when the Act requires the formality of an order, and section 73 requires that order to be recorded, proof that that statutory authority exists (or does not exist) is facilitated.

53 By contrast, section 75 of the Act provides:

“(1) If a court orders a serious indictable offender who is serving a sentence of imprisonment in a correctional centre or other place of detention to permit a forensic procedure to be carried out, the court may order that a police officer, together with a person who, under Part 6 as applied by section 65, may carry out the forensic procedure, be permitted to attend on the offender in the correctional centre or place of detention to allow the forensic procedure to be carried out.

(2) A serious indictable offender ordered under section 74 to permit the carrying out of a forensic procedure must not, without reasonable excuse, refuse or fail to permit the forensic procedure to be carried out.”

Maximum penalty: 50 penalty units or 12 months imprisonment, or both.

54 If there were circumstances where a police officer’s order under section 70 was not carried out because the offender in question resisted violently, or if the police officers concerned took the view that there was no point in even trying to take a sample pursuant to a section 70 order because of a likelihood that the offender would resist, the more formal procedure of a court order requiring the sample to be taken, with its attendant sanction, could then be followed.

55 Thus, I do not read section 62(1) as an exhaustive statement of the circumstances in which a non-intimate forensic procedure to which Part 7 applies can be authorised to be carried out on a person who is in gaol for a serious indictable offence.

The Appellant’s Submissions

56 The Appellant submits that section 74(3) was available to Sergeant Hassett as a means by which the Appellant could have been required to undergo the particular forensic procedure that Sergeant Hassett purported to order him to undergo. He submits that Sergeant Hassett did not comply with section 71, because he did not take into account that the hair sample could have been obtained pursuant to a court order under section 74(3), and that in the circumstances of the case a court order should have been used as the means of obtaining the sample.

57 The Appellant submits that it is unlikely that Parliament intended that any person convicted must submit to a forensic procedure, because Parliament did not say so in definitive terms, and if Parliament had had that intention:

(a) there would be no need to provide informed consent before the procedure was carried out, as sections 69 and 72 require;

(b) there would be no right to refuse consent, yet section 69(1)(g) specifically requires that the offender be informed that he or she may refuse consent to carrying out the procedure; and

(c) there would be no provision to apply to the court for such an order.

58 He also submits that the principles of the “right against self incrimination” and “denial of natural justice of being heard by the court before the making of an order” are important rights that Parliament should not be taken to be interfering with. Thus, he submits, the court should be resorted to for orders for the taking of forensic samples if it is practicable to do so, and in his case it would have been perfectly practicable for the hair sample to be taken pursuant to court order rather than by a purported order under section 70(2). The Appellant submits that on his construction section 70 orders still have work to do, in circumstances where a senior police officer is reasonably of the view that there is a special reason, such as urgency, why the procedure must be carried out immediately, or it is otherwise impracticable to obtain a court order.

The Evidence About What was Taken Into Account

59 The evidence in the present case included some cross-examination of Sergeant Hassett by the Appellant (who appeared for himself at the trial as well as on the appeal). It included:

“Q. What matter do you say you considered yourself on the day before you proceeded to issue that order?

A. There were numerous things to consider, I suppose; among the most important is, you are serving a sentence; you are currently serving a sentence for an indictable offence that can carry five years or more; that you have been requested under section 68 to consent to the order, and have failed to do so. Basically, that all the other information in section 69 has been read out to you and you have been informed of it; that you have had time beforehand in relation to the procedure carried out by Corrective Services.

Q. Can you say that again?

A. I said Corrective Services had been informed you are undergoing this procedure and made available to you that information, and you have also had the availability of speaking to a legal officer, if required, in relation to the buccal swab; that is some of them.

...

Q. Are you able to tell this Court whether it was a matter of urgency or not?

A. A matter of urgency – other things taken into consideration, I suppose the length of period of time that you had left to serve is taken into account, the fact that we probably would say, we worked on a roster system, we were doing the whole State, and just can’t get back to this, to different gaols.”

60 That evidence was clearly not an exhaustive statement of the matters taken into account – the list of matters taken into consideration by Sergeant Hassett stated only some that were “among the more important”. The cross examiner did not "close the gates" by requiring Sergeant Hassett to give an exhaustive list of the matters he took into consideration, nor did he put directly to Sergeant Hassett that he had not taken into consideration the possibility of obtaining an order from the court. When Sergeant Hassett alluded to the period of time that the Appellant had remaining in gaol, and to the way in which the work demands on his team extended beyond the particular gaol in which the Appellant was housed, there was no follow-up cross examination to establish that, notwithstanding these matters, it would have been practical to approach the court for an order that the hair sample be taken.

61 In re-examination Sergeant Hassett was asked, without objection:

“Q. You have been asked a lot of questions about what you did consider. Did you consider the possibility of going to a court and getting an order, rather than issuing the senior police officer order?

A. I suppose it is a consideration, but you have also got to take into account the period of time left to go, that periodic detainees were not turning up when they were informed they were going to be tested, not the next week.

Q. It was an important consideration but not the most important one in your view?

A. Well, the power is for us to do it; basically we did it and tried to inform him the power is there for us to do that.”

While no doubt that evidence would have been more persuasive had it not been given in answer to leading questions, it was still entitled to some weight.

62 As well, the order itself contained a statement that “I have taken into account the matters set out in section 71 before making this order”. That statement was part of a standard form that Sergeant Hassett signed. In my view the statement adds no weight to the factual evidence about what he actually took into account.

The Trial Judge’s Finding

63 Malpass AsJ held, at [28]-[30]:

“Whilst the argument of the plaintiff seemed to be that there was a failure to take into account relevant matters, the identification of any such matters remained elusive. In my view, the plaintiff has not satisfied the Court that there were matters that were relevant and which were not taken into account as required by section 71.

There was mention of a question of lack of urgency which should have been taken into account. The thrust of the plaintiff’s argument seemed to be that there was time for the making of an application to the Court for an order pursuant to section 74 and that if this had been done it would have given the plaintiff an opportunity to challenge the making of the order in court.

There was some evidence relevant to any question of urgency. It is somewhat unclear as to whether any regard was had to it. I will merely mention some of the evidence that was elicited. At the time of the carrying out of the procedure, the plaintiff was three weeks away from completing his periodic detention. There was evidence that at times periodic detainees failed to turn up for testing. I take this matter no further. It is immaterial in this case, as the plaintiff’s argument is misconceived.”

Decision Re Section 71

64 At least on the appeal, there was no elusiveness about what the relevant matters were that the Appellant alleged should have been taken into account. They were that a court order could, and in the circumstances should, have been obtained. As it is part of the case of the Appellant that these are matters that should have been taken into account, and were not taken into account, the Court must be persuaded that on the correct construction of the legislation they should have been taken into account, and the Appellant bears the onus of establishing that in fact they were not taken into account.

65 Insofar as the Appellant submits that the legislation evinces any intention that it is only when obtaining an order from the court is for any reason impracticable that a police officer can (or perhaps should) make an order under section 70, I do not accept that either of those possibilities is the correct construction of the legislation. A simple, but nonetheless powerful reason is that there are no express words in the statute that say so. Nor is there any reason to read an implication to that effect into the statute.

66 Rather, in my view, section 71 requires the police officer to take into account the various ways in which, in some circumstances, a non-intimate forensic procedure could be carried out on a serious indictable offender without there being an order under section 70. “Taking it into account” does not, in itself, say what the result should be once it is taken into account.

67 One indication that the Act does not make a court order the preferred way of obtaining a hair sample emerges from section 74(6) of the Act. Section 74(6) uses identical wording to section 71, in relation to a court’s determination about whether it should make an order. If section 71 meant that a police officer should stay his or her hand concerning the making of an order under section 70 if an order could be made under section 74, then section 74(6) would likewise mean that a court should stay its hand if it were possible for a police officer to make an order under section 70. Such a construction leads to an endless circularity of reasoning, and thus could not be the correct one.

68 Another indication that the Appellant’s construction of section 71 is incorrect emerges from considering how section 71 fits in with other provisions in the Act. The Act has provisions other than section 71 that provide clear guidance that an order under section 70 should not be made if the serious indictable offender is also a suspect, or is also a volunteer. However, the Act provides no such guidance concerning what course a police officer should take if it is in principle possible to approach a court for an order that the forensic procedure be carried out.

69 The way I reach that conclusion is as follows. Section 71 is directed to the police officer who is considering making an order under section 70. It directs that officer to take into account, in effect, the sort of circumstances where the Act would authorise the forensic procedure in question to be carried out even if an order were not made under section 70. The sorts of circumstances where the Act would authorise the forensic procedure in question to be carried out even if an order were not made under section 70 include not only situations where a court made an order, under section 74(3), but also situations where the offender in question is also a suspect or a volunteer.

70 Section 66 is a provision that is directed to the person who is proposing to carry out a forensic procedure, not to the police officer who makes the order under section 70. Section 66 makes clear that (by way of exception to section 62) that person cannot carry out a forensic procedure under Part 7 on a serious indictable offender if the serious indictable offender is a suspect or a volunteer. Rather, in such a case, the procedures of Parts 2-5 or Part 8 of the Act must be followed. Further, section 66 applies even if a police officer has made an order under section 70. Thus, whether the serious indictable offender is a suspect or a volunteer must be taken into account by a police officer who is considering making an order under section 70. That is because the fact that there is an alternative way in which the sample can be obtained from a suspect or volunteer also has the consequence, under section 66, that any order made under section 70 for the taking of a sample from a suspect or volunteer could not lawfully be carried into effect. However, there is nothing analogous to section 66, that denies authority to a person proposing to carry out a forensic procedure in circumstances where a court could make an order for the carrying out of a procedure under section 74.

71 The requirement that section 71 imposes on a police officer is to “take into account” whether the Act would authorise the forensic procedure to be carried out if the order were not made. That terminology is to be contrasted with the terminology of section 20 of the Act. Sections 18 and 19 authorise a senior police officer to order the carrying out of certain kinds of forensic procedures on suspects in certain circumstances, one of which is (in each case) that “the senior police officer is satisfied as required by section 20”. Section 20 provides:

“A senior police officer who makes an order under section 18 or 19 must be satisfied that:

(a) the suspect is under arrest, and

(b) the suspect is not a child or an incapable person, and

(c) there are reasonable grounds to believe that the suspect committed:

(i) an offence, or

(ii) another offence arising out of the same circumstances as that offence, or

(iii) another offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and

(d) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed such an offence, and

(e) the carrying out of the forensic procedure without consent is justified in all the circumstances.”

72 The requirement under section 71 for a police officer to “take into account” a certain matter is not as prescriptive as the requirement of section 20 that the police officer “must be satisfied” of a variety of matters.

73 I do not see the same significance as the Appellant does in the Act providing for informed consent being one way in which the procedure can lawfully be carried out, and in the Act giving the offender the opportunity to refuse consent. Rather, informed consent provides one means by which (in this situation as in many others) one person may lawfully interfere with another person's body. It is understandable, as a matter of sensible policy, for the legislation to require a procedure under which consent is sought, steps are gone through to make sure that any consent is an informed one, and if consent is not forthcoming a formal procedure involving the making of an order (whether by a police officer, or the court) is required to be gone through and recorded before it is lawful for the interference to take place.

74 I do not accept that this is a field where the privilege against self-incrimination has any role to play. The scope of that privilege is stated in Cross on Evidence, 7th Australian ed, (2004), par [25065]:

“No one is bound to answer any question or produce any document if the answer or the document would have a tendency to expose that person to the imposition of a civil penalty or to conviction for a crime.”

75 Cross goes on to say, at [25095]:

“The rule prevents oral and documentary disclosures only. One may, therefore, be required to provide a finger-print or show one’s face for identification or furnish a sample of breath for analysis notwithstanding that compliance with the requirement may mean exposure to civil penalty or conviction. This is subject to the judge’s power to exclude the evidence at trial where such requirement is unlawful or unfair.”

Taking of the hair sample is precisely analogous to taking a finger print, or taking a sample of breath for analysis.

76 Nor is this a situation where a right to natural justice arises. The terms of the Act set out in considerable detail the information that must be provided and the procedures that must be gone through before an order is made under section 70. There is nothing in the Act itself to require the offender to be given an opportunity to be heard, just as there is no requirement for a police officer to give a person an opportunity to be heard before arresting that person, or requiring that person to undertake a breath test. That the offender in question would have been given the opportunity to be heard had there been an application made to a court for an order, is not a reason for concluding that the statute intends an opportunity to be heard to be given before an order under section 70 is made.

77 One part of the Appellant’s submissions was to the effect that it could not have been the intention of Parliament that merely being a serious indictable offender in gaol should be a sufficient reason for being subjected to the forensic procedure in question. I agree that Parliament has not expressed any such intention. The authority that section 62(1) confers for the taking of a sample pursuant to a section 70 order is limited by not applying to a child or an incapable person, by the factors I have identified at para [29] above, and by the terms of section 66. However, within those limits the authority that section 62(1) confers can be exercised against any serious indictable offender who is in gaol.

78 Mr Whelan, the Minister for Police gave the second reading speech for the Bill that eventually became the Act in the Legislative Assembly on 31 May 2000 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 31 May 2000 at 6293). In the course of explaining Part 7 of the Bill he said:

"Evidence from overseas has shown that less than 10 per cent of the population is responsible for over 90 per cent of crime committed. Studies have shown that a large percentage of criminals by their very nature tend to be recidivists. When the United Kingdom tested its prisoner population and placed the profiles on its national database the matches to crimes almost doubled. The Government is committed to clearing up crime and will use this legislation as a tool to assist in this process.

... A forensic procedure may be carried out on prisoners, either with their informed consent or by order of a senior police officer or a magistrate. As with suspects, children and incapable offenders who are prisoners are not capable of giving informed consent and any procedure carried out on such offenders must first be authorised by a court. All prisoners must also be given information about the forensic procedure, including its purpose, the way in which it will be carried out, their right to refuse consent to the procedure, the consequences of this refusal and that a profile derived from forensic material may be placed on the DNA database. If they do not consent, a senior police officer may authorise a non-intimate procedure. Alternatively, the police officer may seek a court order authorising buccal swab. "

79 That tends to suggest that testing of a large part of the “prisoner population”, in so far as they amounted to people who had committed serious indictable offences, was precisely what the Government had in mind. It also does not suggest a limitation of any kind upon the circumstances in which an order under section 70 could be issued, by reference to whether it was practicable for a court order to the same effect to be obtained.

80 I do not regard the meaning of sections 62, 70 and 71 as being ambiguous or obscure. Nor do I regard the ordinary meaning conveyed by its text (taking into account its context in the Act and the purpose or object underlying the Act) as leading to a result that is manifestly absurd or unreasonable. Thus I do not use the second reading speech, pursuant to section 34(1)(b) Interpretation Act 1987, to determine the meaning of sections 62, 70 and 71. The only use I make of the second reading speech is pursuant to section 34(1)(a) Interpretation Act, to confirm that the meaning of sections 62, 70 and 71 is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act and the purpose or object underlying the Act).

81 I should mention another argument of the Appellant. He pointed out the definition of “order” in section 3 of the Act as being:

“(a) order of a Magistrate under section 24, or

(b) order of a Magistrate under section 27, or

(c) interim order of an authorised justice under section 32, or

(d) order of a court under section 74 or 75, or

(e) order of a Magistrate under section 80 or 81.”

82 He submitted that the definition shows that orders by a senior police officer under section 70 must be intended to have a narrow scope.

83 In my view, this argument proves too much. If the definition of “order” applied to section 70, a police officer could never make an order under section 70. Yet the clear language of section 70 is that a police officer may make such an order, and other reference to a police officer making an order under section 70 appears in section 62(1)(b), section 69(2), section 69(4), section 71 and section 73.

84 Even though section 3 of the Act does not open with words saying that the definitions in section 3 apply in the Act unless the context or subject matter otherwise requires, section 6 Interpretation Act 1987 establishes a general rule of legislative construction:

“Definitions that occur in an Act ... apply to the construction of the Act ... except in so far as the context or subject-matter otherwise indicates or requires.”

In the present case, the context and subject matter of section 70 requires that the definition of “order’” does not apply to section 70.

85 In summary, I accept that the possibility of obtaining a court order is one of the matters that section 71 requires to be taken into account, even though it is not required to be taken into account as being a matter with the fundamental importance that the Appellant ascribes to it.

86 I note that no argument was put to the effect that application of the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 lead to the conclusion that, even if Sergeant Hassett had not taken into account the possibility of obtaining a court order, that would not have the consequence that the order he made was invalid.

87 At the level of the facts, the Appellant accepts that he has the onus of proving that the requisite matters were not taken into account, but contends that once he has raised a prima facie case that they were not taken into account the onus shifts to the Commissioner to prove that they were taken into account. It is not necessary to decide whether this submission about the point at which the onus shifts is correct. In my view, the observations about the evidence in paras [60]-[61] above, have the effect that the Appellant has not raised even a prima face case that Sergeant Hassett did not take into account the possibility of obtaining a court order, nor that it would have been practicable to obtain a court order.

Section 73

88 The Appellant did not raise any argument before Malpass AsJ to the effect that there had been a failure to comply with section 73, and that that failure invalidated Sergeant Hassett’s order. However, such an argument was put on the application for leave to appeal, and leave to appeal was granted concerning it. The argument was that no reasons were recorded at all by Sergeant Hassett, as required by section 73(1)(c).

89 There is no evidence of there being any record of the reasons for making the order under section 70 beyond the statement of what it was that Sergeant Hassett was satisfied about, that appears in the order itself (para 15] above). When the Commissioner produced no written statement of reasons beyond the order itself, the Court is entitled to infer that that is the only statement of reasons in existence.

90 It is unnecessary to decide whether the matters set out in the order itself are a sufficient compliance with section 73(1)(c). That is because section 73(1)(c) requires the record to be made “at the time of, or as soon as practicable after, making an order under section 70”. The making of the record is not a precondition for the validity of the order. Thus, even if section 73 had not been adequately complied with, that would not invalidate the order.

The Relief Sought – Sample and Information Destruction

91 While it is the Act in the form it had on the day the sample was taken from the Appellant that determines the legality of the taking of that sample, any questions about whether the sample itself, or any information derived from the sample should be destroyed (whether pursuant to an order of the Court, or otherwise) depends upon the Act in its present form.

92 Section 82 of the Act provides:

“(1) This section applies where:

(a) a forensic procedure has been carried out on a person, and

(b) there has been any breach of, or failure to comply with:

(i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or

(ii) any provision of Part 11 with respect to recording or use of information on the DNA database system.

(2) This section does not apply if:

(a) a provision of this Act required forensic material to be destroyed, and

(b) the forensic material has not been destroyed.

Note. Section 83 applies where this Act requires forensic material to have been destroyed.

(3) This section applies:

(a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and

(b) to evidence of any results of the analysis of the forensic material, and

(c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

(4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:

(a) the person does not object to the admission of the evidence, or

(b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or

(c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child.”

93 Section 82(5) sets out matters that may be considered by a court for the purpose of subsection 4(b). Section 82(6) provides that the probative value of the evidence does not by itself justify the admission of the evidence. Section 82(7) applies if the judge permits evidence to be given before a jury, and states how the judge must deal with the jury concerning that evidence.

94 As Studdert J pointed out in Kerr v Commissioner of Police [2001] NSWSC 637 at [33]:

"It is implicit from s 82 that the legislature contemplates that the evidence with which the section is concerned remains in existence at the time of the trial."

95 Section 83 of the Act provides:

“(1) If a provision of this Act requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies:

(a) to evidence of the forensic material, and

(b) if the material has not been destroyed—to evidence consisting of the forensic material, and

(c) to any results of the analysis of the forensic material, and

(d) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.

(2) The results of the analysis, and the other evidence, are not admissible if adduced by the prosecution in any proceedings against the person, but may be admissible if adduced in such proceedings by the person.”

96 Part 10 of the Act (sections 86-89 inclusive) deals with circumstances in which forensic material obtained as a result of carrying out a forensic procedure must be destroyed. While it relates to destruction of the material, it says nothing explicitly about destruction of any data that has been obtained by analysis or investigation of that material.

97 Further, no provision in Part 10 relates expressly to the destruction of forensic material obtained from a serious offender pursuant to an order under section 70. However, section 89 is capable of applying to such material. It provides:

“(1) If a court finds that evidence described in section 82 relating to a forensic procedure is inadmissible under that section, the Commissioner of Police must, as soon as practicable after the end of the proceedings before the court (including any re-trial and any period during which an appeal may be made), ensure that the forensic material taken from the suspect by that forensic procedure is destroyed.

(2) This section does not require the destruction of a DNA profile derived from forensic material.

Note. The Commissioner of Police may delegate this function. See section 31 of the Police Service Act 1990. Section 3 (5) explains the meaning of destroy.”

98 In its present form, section 3(5) provides:

“For the purposes of this Act, a person who is required to destroy forensic material is required not only to destroy the material but also to ensure that any information that relates any such DNA profile to a person whose DNA it describes is removed from the DNA database system.”

99 Under the Act in its present form, only section 79(2) expressly makes provisions for information obtained from the analysis of the material to be destroyed in certain circumstances. Section 79(2) is concerned with forensic procedures conducted on a volunteer, and hence has nothing to do with the present case. It follows that there is no provision in the Act that requires the information obtained from the analysis to be totally removed from the DNA database. Rather, the extended definition of “destroy” in section 3(5) has the effect that when any forensic material is required to be destroyed by a provision in the Act, not only must the material be physically destroyed, but the DNA database must be modified to remove any information that relates DNA derived from that material to the person whose DNA it is. In other words, the DNA profile can remain on the database provided there is no means of identifying the person whose DNA profile it is.

100 When the Act expressly states the consequences that are to follow if there has been a breach of, or failure to comply with, any provision of the Act in relation to a forensic procedure carried out on a person, the remedies that are available in the event of any such breach or failure are those that the Act expressly provides. The only circumstance in which the Act provides that the hairs taken from the Appellant should be destroyed is if a court finds that evidence of the hairs, or evidence of any results of any analysis of the hairs, or evidence obtained as a result of, or in connection with, the taking of the hairs, is inadmissible. That event has not yet happened, and might never happen. Thus, even if the hair had been taken in breach of a provision of the Act, there would have been no occasion for an order that either the hair, or the records relating to it stored in the police database, be destroyed.

The Relief Sought - Declaration

101 If I had come to a different view about whether the taking of the hair was lawful, a question would arise concerning whether, in circumstances where remedies of destruction of the hair itself, and removal of the information from the police database were not available, and where it is not suggested that any particular practical consequences flow from the hair and the data continuing to be in existence, it would be appropriate for the Court to make a declaration that the taking was unlawful. In the circumstances, that question need not be further considered.

Latham J’s Cost Order

102 The proceedings before Malpass AsJ were proceedings for final relief, namely the declaration that the taking of the hair was unlawful, and the order that the hair and the records relating to it be destroyed. At the time that the Appellant filed the Notice of Motion which was ultimately heard by Latham J Part 60, rule 17 Supreme Court Rules provided for an appeal to lie to the Court of Appeal (subject to leave when section 101 Supreme Court Act 1970 imposed a requirement for leave to appeal) from a decision of an Associate Judge, inter alia:

“(k) where the decision of the Associate Judge is a final decision other than:

(i) a decision on an application for a summary judgment, or

(ii) a decision on an application for a summary dismissal of proceedings.”

In accordance with that provision, no appeal lay to a single judge of the Supreme Court from a final decision of an Associate Justice, such as Malpass AsJ’s decision in the present case.

103 Section 104 Supreme Court Act provided:

“Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an Associate Judge ...”:

104 As section 104 is expressed to be “subject to the rules” rule 60.17 prevails over it.

105 That rights of appeal flow in this way is also consistent with rule 49.4 Uniform Civil Procedure Rules, which provides:

“An appeal lies to the Supreme Court from any decision of an Associate Judge of the Supreme Court, except in any case where an appeal lies to the Court of Appeal.”

106 Section 118(3) Supreme Court Act provides:

“A judgment given or an order made by a divisional associate Judge in any Division may be set aside or varied by the Court.”

The language of the Appellant’s notice of motion that came before Latham J is consistent with him attempting to invoke that power. However, the transcript before Latham J revealed no mention of section 118(3), and is consistent with the Appellant having wanted to appeal against the decision of Malpass AsJ. Nor was section 118(3) relied on in this Court. Thus, it is unnecessary to enter into a consideration of the proper scope of operation of section 118(3) (cf Gill v Residential Tribunal [2001] NSWSC 896; (2001) 53 NSWLR 425.)

107 Before Latham J, the Commissioner relied upon the decision of Levine J in Klewer v Walton [2003] NSWSC 113. However that decision had peculiarities arising from it concerning the decision of a Master on an appeal under section 104 Justices Act 1902. It is thus not directly applicable in the present case.

108 The reasons Latham J gave for holding that the “appeal” was incompetent were:

“I turn to the construction of Pt 60 r 17 of the Supreme Court Rules to determine whether the appeal should lie from an Associate Justice to a single Justice of this court or whether the appropriate forum is a Court of Appeal.

The construction of the rule was discussed and determined in [Klewer] v Walton. It is persuasive, if not binding. I know of no other decision which would suggest to the contrary. In any event a reading of Pt 60 r 17 on its face satisfies me that an appeal from a decision of Associate Justice Malpass lies with the Court of Appeal, it being a final decision within para k of Pt 60 r 17 and in addition coming within 28 of Schedule D and therefore falling within the ambit of para a of Pt 60 r 17.

The plaintiff, despite his submissions, has not persuaded me that I should depart from a plain reading of the rules, nor from settled authority in this Court. Accordingly the notice of motion is dismissed.”

109 The Appellant directed our attention to some statements in Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, (2006), par [1.6] and of Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 572 concerning the limited usefulness of precedent in construing statutes.

110 However Latham J did not base her decision upon Klewer v Walton. She regarded that case as "persuasive, if not binding". She was right in thinking it had sufficient analogy to the case before her to be persuasive, and left open the question of whether it was binding. As well, Latham J based her decision upon "a plain reading of the rules”. The rules by themselves were quite sufficient to reach the conclusion that the appeal was incompetent.

111 In light of the statutory provisions to which I have referred, and the argument that was put to her, Latham J was right in taking the view that the only possible route for appeal from the decision of Malpass AsJ was to the Court of Appeal.

112 After Latham J had delivered her reasons for judgment and made an order dismissing the Notice of Motion, she asked counsel for the Commissioner for submissions on costs. He applied for indemnity costs, on the ground that the proceedings had no reasonable prospects of being successful. Her Honour made an order for indemnity costs, without giving the Appellant the opportunity to make submissions about the costs order he submitted was appropriate, and in particular about why it would be inappropriate for the Court to make an order for indemnity costs. The Commissioner now accepts that an order made in those circumstances cannot stand.

113 Upon the application for leave to appeal, counsel for the Commissioner offered to submit to an order revoking Latham J’s order for indemnity costs, and replacing it with an order for costs on the ordinary basis. However, at the leave hearing the Appellant wished to argue on the appeal that Latham J should not have made any order as to costs.

114 The Appellant relied on the decision of Harrison J in Silvestro v Ming [2007] NSWSC 267 to oppose the making of any order for costs. Silvestro involved an appeal to Harrison J from a decision of an Associate Judge, who had herself heard an appeal from a Local Court magistrate. The appeal was fully argued by counsel on both sides, on the assumption that a single judge of the Supreme Court had power to hear the appeal.

115 After reserving judgment, Harrison J re-listed it to draw the parties’ attention to UCP Rule 49.4, and to the provision of Part 60 rule 17 Supreme Court Rules that was relevant in the circumstances of the particular case. His Honour came to the (inevitable) conclusion that the purported appeal was incompetent. He continued, at [31]:

“In these circumstances, it is my view that I should dismiss the plaintiff’s Amended Notice of Motion. The proceedings before me could, and should, have been obviated by attention to the relevant provisions by both parties. I consider therefore that I should make no order as to costs.”

116 The situation that arose in Silvestro, where legal representatives on both sides fully argued an appeal without paying attention to whether the appeal had been brought to the correct tribunal, is markedly different to the present case, where counsel for the Commissioner at the beginning of his submission to Latham J contended that the appeal had been brought to the wrong tribunal.

117 The only consideration of principle that the Appellant put before us in opposition to an order for costs of the Notice of Motion on the ordinary basis, in the event that Latham J was right to dismiss the Notice of Motion, is that the correct reading of the various statutory provisions involved is a technical matter.

118 That the statutory provisions governing the right of appeal had some complexity is not a reason for this Court, in re-exercising the costs discretion, to depart from the usual guideline that costs follow the event.

119 While the Commissioner submits that the order for costs should be on the indemnity basis because the Notice of Motion was doomed to failure, I am not persuaded that the conduct of the Appellant in taking out the Notice of Motion has the degree of delinquency concerning the conduct of proceedings that warrants an order for indemnity costs. In my view the order for costs should be made on a non-indemnity basis.

Costs of the Appeal Proceedings

120 The Appellant has achieved a limited success of replacing Latham J’s indemnity costs order with an order for costs on the ordinary basis. That limited degree of success was offered to him on the day of hearing of the application for leave to appeal, but at that stage he declined to accept it. It had not been offered before the day of the hearing of the application for leave to appeal. The argument concerning issues other than Latham J’s costs order were by far the most significant ones on the appeal, in terms of the time and difficulty involved. In all these circumstances, in my view the appropriate order is that the Appellant pay 95% of the costs of the Respondent of the appeal proceedings, including the application for leave to appeal.

Orders

121 The orders I propose are:

1. Set aside the order of Latham J made 22 February 2007 that the Appellant pay the costs of the Respondent of the Notice of Motion then before her Honour on an indemnity basis.

2. In lieu, order the Appellant to pay the costs of the Respondent of that Notice of Motion.

3. Otherwise, appeal dismissed.

4. Appellant to pay 95% of the costs of the Respondent of the appeal proceedings, including the application for leave to appeal.

**********

AMENDMENTS:


25/03/2008 - Sentence (relating to District Court appeal) inserted into paragraph 10. - Paragraph(s) 10


LAST UPDATED:
25 March 2008