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Local Court 21 November 2012

R v MY; R v SP

[2012] NSWLC 12

Public order & justice offences
CRIMINAL LAW PROCEDURE FORENSIC PROCEDURE APPLICATION EVIDENCE

Citation: R v MY; R v SP [2012] NSWLC 12
Court: Local Court of New South Wales
Date: 21 November 2012
Judge(s): Heilpern LCM

Background

Two young persons, aged 11 and 12 at the time of the alleged offence, were charged with armed robbery in company at a beach in Yamba in January 2012. Their hearing was listed for December 2012. Police applied for a forensic procedure order to photograph both young persons so that a witness could attempt a photo-identification before the hearing.

The application was brought by the informant officer, Senior Constable Jeffcoat, who filed an affidavit in support. Paragraphs eight and nine of that affidavit described events at the scene, including information the officer had received from the alleged victim and witnesses, and circumstances of the arrests. Legal representatives for both young persons opposed the application.

The central dispute concerned the admissibility of those two paragraphs, which the parties accepted contained hearsay. The prosecution then applied under section 190(3) of the Evidence Act 1995 for the hearsay provisions to be waived so the affidavit could be admitted in full.

  • Whether the Evidence Act 1995 applies to proceedings under the Crimes (Forensic Procedures) Act 2000
  • Whether paragraphs eight and nine of the officer's affidavit were inadmissible hearsay
  • Whether the court could waive the hearsay provisions under section 190(3) of the Evidence Act
  • Whether the matters described in the contested paragraphs were "genuinely in dispute" for the purposes of section 190(3)(a)
  • What test applies when a court determines a forensic procedure application

Decision

Heilpern LCM accepted, consistent with the analysis in LK v Commissioner of Police and Anor [2011] NSWSC 458, that the Evidence Act applies to forensic procedure applications. The prosecution did not contest this. The Magistrate also accepted, at least for the purposes of the judgment, that the contested paragraphs contained hearsay, while noting some reservations about whether the material was truly tendered for a hearsay purpose.

The Magistrate turned to the prosecution's application under section 190(3) of the Evidence Act, which permits a court in civil proceedings to waive specified evidentiary provisions where the matter to which the evidence relates is not genuinely in dispute, or where applying those provisions would cause unnecessary expense or delay. Following Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 367, the Magistrate noted that the court itself determines what is genuinely in dispute, and that determination is not simply a function of what the objecting party asserts.

The Magistrate stood the matter down and asked the defence to take instructions on whether the contents of paragraphs eight and nine were genuinely disputed. The defence ultimately indicated that all content except the final sentence of paragraph nine was disputed. The Magistrate then considered each factual matter in those paragraphs in turn to assess which were genuinely contested, and addressed the test applicable to forensic procedure applications, namely whether reasonable grounds exist, based on what the officer was told, saw, or heard, to believe the suspect committed an offence.

The Magistrate expressed serious concern about the quality of submissions made by one of the defence representatives, Mr G Kumarasinhe, stating plainly that even after reading the transcript repeatedly, the court could not discern what those submissions meant or what legal propositions they were intended to advance. The Magistrate expressed gratitude to the other representatives for their assistance.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Local Court confirmed that the Evidence Act 1995 applies to forensic procedure applications under the Crimes (Forensic Procedures) Act 2000, including requirements that evidence be given on oath or affirmation, and that hearsay rules are not automatically displaced simply because the proceeding is interlocutory.

  • Under section 190(3) of the Evidence Act, a court may waive hearsay provisions in civil proceedings where the disputed matter is not genuinely in dispute or where strict application would cause unnecessary expense or delay. The court itself determines what is genuinely in dispute, irrespective of an objecting party's stated position.

  • A forensic procedure application does not require the applicant to call all underlying witnesses whose accounts are recounted in a supporting affidavit. The applicable test is whether, based on what the informant officer was told, saw, or heard, reasonable grounds exist to believe the suspect committed an offence.

  • Requiring the full complement of witnesses to give evidence on a forensic procedure application would, in effect, duplicate the evidence to be heard at the substantive trial. The Magistrate noted this consequence when the defence insisted that the full rules of evidence must apply.

  • No application was made by either defence representative to call or cross-examine additional witnesses under section 30(6)(b) of the Crimes (Forensic Procedures) Act 2000, and no adjournment was sought, which the Magistrate noted in assessing how the hearing had been conducted.

Legislation and Cases Referenced

Legislation:
- Crimes (Forensic Procedures) Act 2000 (NSW), ss 24, 26, 30(6)(b), 33
- Evidence Act 1995 (NSW), ss 4, 190(1), 190(3)

Cases:
- CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943
- LK v Commissioner of Police and Anor [2011] NSWSC 458
- Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 367
- Smits v Roach [2006] HCA 36
- W v Bugden and Another [2005] NSWSC 898