Citation: Fawcett v Nimmo & anor [2005] NSWSC 1047
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 October 2005
Judge(s): Michael Grove J
Background
The plaintiff was a professional photographer known to frequent a Sydney street near the residence of a prominent actress, apparently hoping to photograph her. On a Sunday morning in January 2005, a security guard patrolling outside the residence briefly left his post and returned to find a small, battery-operated device sealed in shrink wrap, partially submerged in water and foliage on a public footpath across the road. The device was capable of transmitting audible signals and, on forensic examination, was found to carry the DNA profiles of two individuals.
Police applied to the Local Court for an order compelling the plaintiff to submit to a buccal swab (a cheek swab used to collect DNA), to determine whether his DNA matched one of the profiles on the device. The application was made under the Crimes (Forensic Procedures) Act 2000. A Local Court Magistrate granted the order, finding there were reasonable grounds to believe the plaintiff had committed an offence under the Listening Devices Act 1974.
The plaintiff challenged that order in the Supreme Court, arguing the evidence before the Local Court was insufficient and that the Magistrate's reasons failed to satisfy the statutory requirements.
Legal Issues
- Whether the evidence before the Local Court was sufficient to establish reasonable grounds for suspecting the plaintiff had committed a prescribed offence under the Listening Devices Act 1974.
- Whether the Magistrate's reasons for making the forensic procedure order adequately disclosed the basis upon which the order was founded, as required by the Crimes (Forensic Procedures) Act 2000.
- Whether the device found on the public footpath could properly be characterised as a "listening device" in the condition and location in which it was discovered.
Decision
Grove J observed that, before ordering a compulsory forensic procedure under the Crimes (Forensic Procedures) Act 2000, a magistrate must be satisfied on the evidence before the court that there are reasonable grounds for suspecting the person committed a prescribed offence. All indictable offences qualify as prescribed offences. The Magistrate had identified possible offences under sections 5 and 9 of the Listening Devices Act 1974, both of which are indictable.
On the section 9 offence (possession of a listening device for use in contravention of section 5), Grove J found the Magistrate's reasoning was misdirected. The Magistrate had framed her finding by reference to "a charge" rather than addressing whether the evidence supported reasonable grounds for suspicion of an offence. Critically, the device was not in the plaintiff's possession when found but was lying in a public street. The Magistrate gave no indication of what evidence grounded a finding of either earlier possession accompanied by relevant intent, or some form of constructive possession at the time of discovery.
Grove J also noted that the device had not been tested to determine its capacity to receive sound in the condition and location in which it was found. There was accordingly no definite finding about the range within which the device's microphone could pick up sound. This left significant uncertainty about whether the device met the definition of a listening device in the relevant circumstances.
The reasons recorded by the Magistrate did not, in their expressed terms, support the making of the order under the statute. The statutory obligation to give reasons exists precisely to demonstrate the basis on which such a significant order, affecting a person's rights against self-incrimination, is made. Because the reasons failed to disclose that basis, the order could not stand.
Orders Made
- The forensic procedure order made by the Local Court Magistrate on 6 April 2005 was quashed.
- The proceedings were remitted to the Magistrate to be dealt with according to law.
- The first defendant (the applying police officer) was ordered to pay the plaintiff's costs, with a Suitors Fund Act certificate if qualified.
Key Takeaways
- Under the Crimes (Forensic Procedures) Act 2000, a magistrate ordering a compulsory buccal swab must be satisfied, on the evidence actually before the court, that there are reasonable grounds for suspecting the subject person committed a prescribed offence. A suspicion held only by the investigating officer does not suffice.
- The statutory obligation to record reasons for making a forensic procedure order requires those reasons to disclose the evidentiary basis on which the order is founded. Reasons that fail to do so will not support the order.
- Where the proposed basis for suspicion is possession of a device with intent to use it unlawfully, the reasons must identify what evidence before the court grounds that inference. The Supreme Court found the Magistrate's reasons silent on this point.
- Framing the relevant inquiry as though a charge had already been preferred, rather than assessing whether evidence before the court supported reasonable grounds for suspicion, constitutes a legal error in applying the Crimes (Forensic Procedures) Act 2000.
- Compulsory forensic procedures represent a significant intrusion on individual rights, and the Act's requirements around evidence and reasons reflect the need to balance scientific investigative tools against those rights. The Supreme Court treated compliance with those requirements as mandatory, not discretionary.
Legislation and Cases Referenced
Legislation:
- Crimes (Forensic Procedures) Act 2000 (NSW), particularly ss 20, 24, 31, and 115A
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
- Listening Devices Act 1974 (NSW), ss 5, 9, and 28
- Suitors Fund Act (NSW)
Cases cited: No cases were cited in the portions of the judgment provided.