Federal Court of Australia

Roberts v Magistrate Gett [2026] FCAFC 3

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the second respondent's costs of the appeal on a lump sum basis to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In October 2024, the Deputy Chief Magistrate of the Magistrates Court of Queensland made an order under s 23WU of the Crimes Act 1914 (Cth) allowing a forensic procedure to be carried out on the appellant (forensic procedure order). At the time, the appellant was in custody, having been charged with several serious criminal offences, and he had refused to consent to the carrying out of the forensic procedure. Before the relevant forensic procedure could be carried out, the appellant applied to this Court for an order in the nature of certiorari, quashing or setting aside the forensic procedure order. However, the appellant's application for judicial review was dismissed because the primary judge concluded that the relief sought should be refused in the exercise of the Court's discretion to prevent fragmentation of the appellant's criminal proceedings.

2    The appellant now contends that the primary judge erred in the exercise of her discretion to dismiss his application for judicial review. The appellant further submits that if his appeal is allowed, the Full Court should exercise the power conferred by s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) to give such judgment or make such order it thinks fit. Specifically, the appellant submits that this Court should uphold the grounds of review upon which he relied in his application to the primary judge.

3    The Deputy Chief Magistrate has filed a submitting notice. The second respondent, who is the police officer who applied for the forensic procedure order, resists the appeal and argues that the appellant has failed to demonstrate the primary judge erred in the exercise of her discretion to dismiss the appellant's application for judicial review. The second respondent also relies on a notice of contention in which he contends that the primary judge's order dismissing the appellant's application for judicial review should be affirmed on the basis that the original grounds of review were without merit.

4    The Court has jurisdiction to determine the appeal. Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) provides that the original jurisdiction of this Court includes jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

5    The appellant's application for judicial review concerned a matter arising under a law made by the Parliament, namely, the justiciable controversy about whether the Deputy Chief Magistrate's decision to make an order under s 23WU of the Crimes Act was affected by jurisdictional error. Further, in his application for judicial review, the appellant sought an order in the nature of certiorari. It is settled that certiorari, or like relief, may be granted in the exercise of the Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act: Nyoni v Registrar Bird [2022] FCAFC 61 at [41], citing Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32; (2007) 157 FCR 260 at [56]-[59]; EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8; (2014) 218 FCR 316 at [49]-[55]; and National Retail Association v Fair Work Commission [2014] FCAFC 118; (2014) 225 FCR 154 at [8].

6    Although the Deputy Chief Magistrate's decision was made in the context of criminal proceedings, this Court's jurisdiction to determine the appellant's application for judicial review is not displaced by either of the exceptions provided for in s 39B(1A)(c) of the Judiciary Act. This is because no criminal proceedings have been instituted in respect of the controversy between the parties about whether the Deputy Chief Magistrate's decision to make the forensic procedure order was affected by jurisdictional error: Commonwealth of Australia v Lyon [2003] FCAFC 284; (2003) 133 FCR 265 at [47]. Further, the controversy between the parties is not in respect of a 'criminal matter' because it is not a matter in which the direct outcome may be a trial and the possible punishment of the appellant for an alleged offence: Lyon at [48]-[50].

7    None of the other relevant exceptions to the conferral of jurisdiction under s 39B(1A) of the Judiciary Act, which are provided for in ss 39B(1B) and 39B(1C), apply in the circumstances of this case.

8    As will be seen, the primary judge erred in the exercise of her discretion to dismiss the appellant's application for judicial review. However, the notice of contention is established (that is, there is no merit in the substantive grounds of judicial review before the primary judge), and therefore the appeal must be dismissed.

Relevant background

9    The appellant is in custody, having been charged with several serious criminal offences. At the hearing of the appeal, the Court was advised that the appellant is still at the 'pre-committal' stage of his criminal proceedings.

10    It is unnecessary to provide an extensive summary of the allegations that are levelled against the appellant. It is enough to note that the appellant is alleged to have committed several offences in connection with the importation, collection and distribution of very large quantities of border-controlled drugs. It is further alleged that the appellant used various encrypted messaging applications to communicate with other people while committing those offences.

11    In an attempt to prove that the appellant was a party to various communications alleged to have been exchanged using those messaging applications, the prosecution intends to rely on what it describes as 'various strands of circumstantial evidence': Affidavit of Andrew James Owens, affirmed 8 November 2024 at para 110. One aspect of that circumstantial evidence is a high-definition image of a hand holding a watch, which image is alleged to have been sent using one of the encrypted messaging applications. The image was analysed by a fingerprint expert, who determined that the fingerprints matched historical fingerprint records for the appellant held by the Queensland Police Service. However, based on the materials before this Court, the circumstances in which those fingerprint records were created are not clear.

12    A set of fingerprints was taken from the appellant when he was arrested for the current offences. Based on what counsel for the second respondent told the Deputy Chief Magistrate at the hearing of the application for the forensic procedure order, this set of fingerprints was taken by the Australian Federal Police (the AFP fingerprints). Further, based on the evidence that was before the Deputy Chief Magistrate, it seems that the AFP fingerprints were unsuitable to be used to compare with the area of the palm visible in the digital image.

13    Based on what the second respondent's counsel told the Deputy Chief Magistrate from the bar table, it appears that a further set of fingerprints was taken from the appellant while he was under arrest 'at the state watch-house in relation to state offending' (the watch-house fingerprints). However, there was no evidence before the Deputy Chief Magistrate about the watch-house fingerprints. Without any evidence, counsel for the second respondent informed his Honour that they were taken 'in the usual course' for 'identification purposes' and that they were not taken with a view to being used to compare with the digital image. Counsel said that the watch-house fingerprints were also not suitable to be used for comparing with the fingerprints recorded in the digital image.

14    At this point, it is convenient to give a brief overview of some of the statutory provisions that are relevant to the second respondent's application.

Brief overview of relevant statutory provisions

15    Pursuant to s 23WQ of the Crimes Act, a person may be authorised to carry out a 'forensic procedure' on a 'suspect' by order of a magistrate under s 23WS. In the circumstances of this case, there is no issue that the appellant was a 'suspect' within the meaning of that word as it is defined in s 23WA.

16    An 'authorised person' may apply to a magistrate for an order under s 23WS. There is no issue that the second respondent was an 'authorised applicant' for an order for the carrying out of a forensic procedure, as defined in s 23WA. Such an application must be in writing and be supported by sworn evidence that deals with various matters referred to in s 23WT(1). It must also specify the type of forensic procedure sought to be carried out and be made in the presence of the suspect (subject to any order to the contrary): s 23WU.

17    The particular forensic procedure the subject of the second respondent's application was the taking of hand prints from the appellant. In that regard, a 'forensic procedure' relevantly includes the taking of a hand print, finger print, foot print or toe print: see the definition of 'forensic procedure' read with the definition of 'non-intimate forensic procedure' in s 23WA(1).

18    A magistrate may order the carrying out of a forensic procedure on a suspect under s 23WS if, relevantly:

(1)    the suspect is in custody and he or she has not consented to the procedure: ss 23WS(a) and 23WR(1)(b); and

(2)    the magistrate is satisfied as required by s 23WT.

19    As s 23WT is the main focus of the appellant's grounds of review, we will say more about that provision later in these reasons. However, for present purposes, it is enough to note that s 23WT provides that a magistrate considering an application for an order for the carrying out of a forensic procedure under s 23WS must be satisfied on the balance of probabilities of several matters that are set out in s 23WT(1).

20    One of the matters about which a magistrate must be satisfied is the subject of s 23WT(1)(d). That provision requires that a magistrate be satisfied that 'the carrying out of the forensic procedure is justified in all the circumstances'. In determining that question, the magistrate is relevantly required to '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': s 23WT(2)(b).

21    In balancing those interests, the magistrate is required to have regard to various matters specified in s 23WT(3), including whether there is 'a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence': s 23WT(3)(f).

22    Having provided a brief overview of some of the relevant statutory provisions that were at play in the application for the forensic procedure order, we will now explain what occurred when the second respondent applied for that order.

The second respondent's application for a forensic procedure order

23    The hearing of the second respondent's application for a forensic procedure order took place on 4 September 2024. The second respondent relied on his own sworn evidence, which formed part of his written application for the forensic procedure order dated 5 August 2024. The appellant also relied on his own evidence, which was set out in an affidavit.

24    The Deputy Chief Magistrate had the benefit of written submissions prepared on behalf of the second respondent and also heard oral submissions from counsel for the appellant and for the second respondent.

25    It is unnecessary to summarise the submissions that were made on the second respondent's behalf.

26    Counsel for the appellant made oral submissions to the Deputy Chief Magistrate in opposition to an order being made under s 23WS of the Crimes Act. As counsel explained, there were two limbs to his argument. Counsel said that the first limb was concerned with what he described as the 'oppressive nature of having a third go' at obtaining fingerprints from the appellant. He then indicated that the second limb of his argument was concerned with the 'nature of the case against [the appellant] without this evidence'. Although it is not entirely clear, both of those submissions appeared to be primarily directed to the question of whether the carrying out of the forensic procedure was justified in all the circumstances, for the purposes of s 23WT(1)(d) of the Crimes Act.

27    In developing those two limbs of his argument, counsel for the appellant made the following submissions:

(a)    If the forensic procedure were to be carried out absent the forensic procedure order, then it would amount to an assault. In those circumstances, and where the appellant had already twice provided his fingerprints when he was arrested, the forensic procedure sought to be carried out was intrusive of his rights to 'go about his own business'.

(b)    There was no evidence that the watch-house fingerprints were not suitable for comparison with the digital image.

(c)    The police had several opportunities to obtain a set of hand prints from the appellant, but they failed to take those opportunities.

(d)    The explanation that the sets of fingerprints that had been taken from the appellant were not suitable for comparison with the digital image ought not be accepted.

(e)    It is oppressive to persistently require the appellant to provide fingerprints to assist the prosecution.

28    Counsel also placed a great deal of emphasis on s 23WT(3)(f), and the requirement for the Deputy Chief Magistrate to have regard to whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the appellant committed the relevant offences. In that regard, counsel made detailed submissions focusing on the strength of the evidence that the prosecution already had, with a view to persuading the Deputy Chief Magistrate that there was a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the appellant committed the relevant offences. Counsel's argument is best summarised by the following extract of the transcript of the hearing in the Magistrates Court:

It [(evidence obtained as a result of the forensic procedure order)] is weak additional evidence in what the prosecution says is an overwhelmingly strong circumstantial case. When that is balanced on the one side to consider whether or not it's justified in all the circumstances that they have a third go at obtaining prints, in my submission, the balance falls in favour of not allowing them to oppressively and continually obtain prints from my client which are unlikely to significantly proceed with the prosecution case, and also which are intrusive, and that there are other ways of obtaining relevant evidence in proof of the offence.

29    On 30 September 2024, the Deputy Chief Magistrate gave ex tempore reasons for allowing the second respondent's application for the forensic procedure order. We will say more about those reasons later. At this point, it is enough to say that his Honour ultimately concluded that he was satisfied that the forensic procedure order should be made under s 23WS, having been satisfied as required by s 23WT. The forensic procedure order was formally made on 2 October 2024. The order was then amended on 11 October 2024. It is unnecessary to refer to the terms of the order or the amendments that were subsequently made.

30    Shortly before amendments were made to the forensic procedure order, the appellant filed an originating application for judicial review. Ultimately, by two grounds of review the appellant contended that the Deputy Chief Magistrate's decision was affected by jurisdictional error.

The application for judicial review before the primary judge

31    After various amendments were made to his originating application for judicial review, the appellant ultimately relied on the following grounds of review:

Ground One

The decision was affected by a jurisdictional error of law and, or alternatively, an error of law on the face of the record. The error was that the First Respondent misconstrued section 23WT(3) of the Crimes Act. The consideration prescribed by that section required the First Respondent to have regard to 'whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence' (emphasis added). The First Respondent's misconstruction was treating that consideration as being satisfied when there are not other reasonably practicable ways of proving a particular fact that forms part of the circumstantial case against the Applicant, as opposed to whether he committed the relevant offence.

Ground Two

The decision was affected by a jurisdictional error of law and, or alternatively, an error of law on the face of the record. The error was that there was a denial of procedural fairness to the Applicant. That denial was a failure by the First Respondent to deal in his reasons with the following arguments made to him on behalf of the Applicant:

1.    The argument that '…there are other reasonably practicable ways of obtaining evidence tending to confirm or disprove that he [the Applicant] committed the relevant offences', and that 'the photograph of the hand is weak additional evidence or, in a classical sense, a mere strand in an overwhelmingly strong prosecution case'; and

2.     There 'is insufficient evidence concerning Dr Spiteri's inability to use current prints and the ability to extract sufficient forensic evidence from the photograph in any print taken.'

32    The first ground of review raised a question about the proper construction of s 23WT(3) of the Crimes Act. By the second ground of review, the appellant asserted that he was denied procedural fairness because the Deputy Chief Magistrate failed to deal with two arguments that were said to have been put on the appellant's behalf in opposition to the application for the forensic procedure order.

33    In her Honour's reasons for her decision, the primary judge summarised the background to the application for judicial review, and the relevant statutory framework within which the Deputy Chief Magistrate was required to determine whether to make the forensic procedure order. Her Honour then turned to consider whether the relief sought by the appellant should be refused in the exercise of the Court's discretion to prevent fragmentation of criminal proceedings.

34    The primary judge referred to several authorities for the uncontroversial proposition that it is undesirable for civil courts to allow their jurisdiction to be exercised such that it gives rise to the fragmentation of criminal proceedings. Those authorities included Hutson v Australian Securities and Investments Commission [2023] QCA 167; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120; Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395; Cain v Glass (No 2) (1985) 3 NSWLR 230; and Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36.

35    The primary judge ultimately concluded that there were no exceptional circumstances that warranted granting the relief sought by the appellant, and she therefore did not deal in any substantive way with either of the appellant's two grounds of review.

36    Having set out the relevant background to this appeal, it is then necessary to identify the grounds of appeal on which the appellant relies.

Grounds of appeal

37    The appellant relies on three grounds of appeal. Each of those grounds attack the primary judge's conclusion that the appellant's application for judicial review of the forensic procedure order should be dismissed in the exercise of the Court's discretion to prevent fragmentation of the appellant's criminal proceedings. The appellant submits that this Court should find that those grounds are made out and, on that basis, make an order setting aside the primary judge's orders dismissing his application for judicial review. Further, the appellant submits that this Court should then proceed to determine the substantive grounds of review that were before the primary judge, find that the Deputy Chief Magistrate's decision to make the forensic procedure order was affected by jurisdictional error, and exercise the powers conferred by s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) to make an order in the nature of certiorari, quashing the forensic procedure order.

38    As explained earlier, the second respondent has filed a notice of contention in which he contends that the appellant's application for judicial review ought to have been dismissed in any event because none of the grounds of review establish that the Deputy Chief Magistrate's decision to make the forensic procedure order was affected by error.

The first ground of appeal

39    By his first ground of appeal, the appellant contends that the primary judge erred by 'failing to give sufficient weight' to several considerations that are said to have been advanced by the appellant in support of his grounds of review. Those considerations included:

(a)    the application for review challenged an order that authorised interference with the appellant's bodily integrity and privacy without his consent;

(b)    in making the order the Deputy Chief Magistrate did not comply with the law;

(c)    the object of the law is to ensure that interferences with a person's bodily integrity only occur when it is justified;

(d)    if the application for review were to be dismissed, the appellant would then be deprived of any avenue for preventing the execution of the order; and

(e)    even if the admissibility of any evidence obtained under the order might be open to challenge at any criminal trial, there would be no capacity to reverse the fact that there had been interference with the appellant's bodily integrity and privacy.

40    In order to establish error in the exercise of a discretion, it must be shown that the decision-maker applied an incorrect principle, took into account an irrelevant matter, applied a mistaken view of the facts or failed to take into account a material consideration: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). However, a failure to give sufficient weight to certain matters in the exercise of a discretion does not ordinarily give rise to appellable error of the sort identified in House v The King: see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and at [53] (Gageler J). This was emphasised by Gibbs CJ in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 614, by reference to the following passage from the judgment of Latham CJ in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519:

If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion … unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.

(emphasis added)

41    As the appellant does not suggest that the primary judge failed to exercise the discretion that was actually entrusted to her, ground 1 is without merit.

The second ground of appeal

42    By his second ground of appeal, the appellant contends that the primary judge erred in the exercise of her discretion 'by regarding the considerations listed for ground 1 as not of sufficient importance to justify the involvement of the Court in the matter'.

43    Once again, the appellant does not contend that the primary judge acted on a wrong principle, or that she failed to take into account a matter she was required to take into account, or took into account a matter she was required not to take into account. The appellant also does not argue that the primary judge mistook the facts. Instead, what is alleged is that the primary judge made a weighting error. This is confirmed by the appellant's written submissions in which it is expressly said that ground 2 is established because the primary judge 'failed to give sufficient weight' to various matters.

44    In those circumstances, and for reasons that have already been given in relation to the first ground of appeal, the second ground of appeal is also without merit.

The third ground of appeal

45    By this ground of appeal, the appellant essentially contends that it was not open to the primary judge to exercise her discretion to dismiss his application for judicial review on the basis that it would fragment his criminal proceedings.

46    It is not in dispute that there is, as Gageler J (as his Honour then was) said in Obeid v The Queen [2016] HCA 9; (2016) 329 ALR 372 at [15]:

a longstanding and general reluctance on the part of this Court in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train.

47    The leading statement about what is now usually referred to as the 'fragmentation principle' can be found in the following extract of the reasons of Gibbs ACJ (as his Honour then was) in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 25-26:

In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. I am not intending to criticize those concerned with the conduct of Bourke v. Hamilton, or to show any disrespect for the careful judgments delivered in that matter - indeed I have derived much assistance from them - when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration - in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v. Dunn, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf. Ibeneweka v. Egbuna) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.

(footnotes omitted, emphasis added)

48    The word or concept of 'fragmentation' has generally been used to refer to a recognised 'rule of restraint' that limits the circumstances in which superior courts might intervene in pending and ongoing criminal proceedings: Palmer v Australian Securities and Investments Commission [2025] FCAFC 151; (2025) 312 FCR 151 at [71]-[78]. There are several reasons for this rule of restraint. Adapting what was said by Kirby P (as his Honour then was) in Cain v Glass (No 2) at 235 in relation to pending committal proceedings, those reasons include, but are not limited to:

(a)    the undesirability of discontinuity, disruption or delay;

(b)    the superior knowledge of the criminal court concerning the whole facts and circumstances of the case under its consideration;

(c)    the undesirability of the beneficial remedies of declaration or the prerogative writs being misused to justify transfer to the superior courts of matters committed by law to the criminal courts;

(d)    the cost of proliferating litigation, especially at an interlocutory stage, which diverts attention from the real substance of the accusations brought and concentrates instead upon peripheral and often procedural matters; and

(e)    the undue advantage that may be given to rich and powerful defendants to interrupt and delay the operation of the criminal law in a way not so readily available to ordinary citizens.

49    Further, as Button J recently said in Palmer v Australian Securities and Investments Commission [2024] FCA 1167 at [58], one of the vices of the fragmentation of criminal proceedings is the potential for an accused to seek to raise the same point in multiple courts.

50    It must, however, be appreciated that 'fragmentation' is an umbrella term or characterisation, rather than a formal test: Palmer v Australian Securities and Investments Commission [2025] FCAFC 151; (2025) 312 FCR 151 at [178]. Accordingly, where it is contended that a court should exercise its discretion not to make an order in the nature of certiorari (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [28]) on the basis of the 'fragmentation principle', it is important to identify the particular circumstances that are said to justify the exercise of that discretion. Otherwise, there is a risk that the use of the term 'fragmentation' or the phrase 'fragmentation principle' may disguise rather than reveal the true ground on which the discretion has been exercised.

51    The appellant does not suggest that the primary judge failed to correctly identify the relevant principles to be applied in exercising her discretion to make an order in the nature of certiorari by reference to the 'fragmentation principle'. Instead, the appellant argues that it was not open to the primary judge to exercise her discretion to dismiss his application for judicial review because, contrary to her Honour's conclusions, there were in fact no other available means that were open to the appellant to challenge the forensic procedure order in the criminal proceedings.

52    The primary judge gave three reasons for declining, in the exercise of the Court's discretion, to make an order in the nature of certiorari. However, it is only necessary to refer to two of those reasons.

53    The primary judge's first reason was that there was some potential for 'additional and unforeseen issues to arise in the criminal proceedings' if she were to determine the appellant's judicial review application. In that regard, the primary judge expressed the view (at [27]) that the first ground of judicial review upon which the appellant sought to rely would:

require consideration of the circumstantial nature of the existing evidence relied upon in the case intended to be brought against the applicant and representations made by the prosecution about the strength of that case, being an argument relating to the proper construction of s 23WT(3)(f) of the Crimes Act.

54    The primary judge said that although the review sought by the appellant might not directly interfere with the criminal proceedings, it may require the Court to address issues that 'intersect with those arising for decision in that proceeding'. Her Honour's remarks in this respect were consistent with the second respondent's written submissions, in which it was suggested that the way in which the appellant had framed both his response to the application for a forensic procedure order and his application for judicial review meant:

that it is necessary to inquire into the nature of the prosecution case against the Applicant and also to weigh the strands of evidence presently apparent to determine whether there was a less intrusive but reasonably practicable way of obtaining evidence to confirm or disprove that the Applicant committed the relevant offence. The more that an application requires the civil court to stray into factual matters or mixed questions of fact and law, the even more appropriate it is to dismiss the application on fragmentation grounds.

55    However, the first of the primary judge's reasons assumed the correctness of the submissions the appellant sought to make in support of his first ground of review, both at first instance and on appeal. As will be seen in the context of our consideration of the appellant's first ground of review, the appellant submits that on its proper construction, s 23WT(3)(f) of the Crimes Act requires that a magistrate who is considering whether to make a forensic procedure order must assess whether the evidence that 'is otherwise reasonably available' tends to prove that a suspect committed the relevant offence. That is, on the appellant's construction of s 23WT(3)(f), in determining whether to make a forensic procedure order, a magistrate is required to assess the capacity of the evidence that already exists to confirm or disprove that a suspect committed a relevant offence. In that context, it appears likely that the primary judge was concerned about the prospect of being required to make findings about the strength of the prosecution case in circumstances in which the question of whether the appellant should be committed to stand trial was yet to be determined.

56    For reasons that we will shortly explain, the appellant's construction of s 23WT(3)(f) cannot be accepted. A magistrate who is considering whether to make a forensic procedure order is not required to assess the capacity of the existing evidence to confirm or disprove a suspect's guilt. This means that, contrary to the primary judge's conclusion, there was no potential that she would be required to address issues that would intersect with or otherwise relevantly affect the issues to be determined in the criminal proceedings involving the appellant in deciding whether the Deputy Chief Magistrate committed jurisdictional error when making a forensic procedure order. It follows that the primary judge erred in this respect.

57    The second reason the primary judge gave for reaching the conclusion that the appellant's application for judicial review should be dismissed was that the admissibility of any evidence obtained as a result of the forensic procedure could be challenged at the criminal trial, and that the appellant could make a 'no case to answer' submission at the conclusion of the committal or seek pre-trial directions.

58    The primary judge did not explain the basis on which she reached the conclusion that the admissibility of any evidence obtained because of the forensic procedure order could be challenged in the criminal proceedings. It may be that her Honour was persuaded by the second respondent's written submissions, which were, relevantly, to the following effect:

[T]he admissibility of any evidence obtained pursuant to the forensic procedure order (as well as the other circumstantial evidence relied on by the prosecution) can be challenged as a part of the criminal process. It will be possible for the Applicant to make a no case submission at the conclusion of the committal, and to seek pre-trial directions under s 590AA of the Criminal Code (Qld).

59    It is, however, far from clear that it would be open to the appellant to challenge the admissibility of any evidence obtained because of the forensic procedure order, whether in any committal proceedings or at any subsequent trial. A challenge to the admissibility of any such evidence would require a collateral attack to be made during the criminal proceedings about the validity of the forensic procedure order, as a step in an argument that the evidence should be excluded because it was unlawfully or improperly obtained: see Bunning v Cross (1978) 141 CLR 54.

60    As Weinberg JA said in Director of Housing v Sudi [2011] VSCA 266; (2011) 33 VR 559 (Sudi) at [221], there has been an 'ongoing debate in this country as to both the nature and scope of collateral review'. While it was made clear by the High Court in both Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 and Attorney-General (Cth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 that administrative decisions can generally be collaterally challenged in a court, the primary judge did not give any consideration to the question of whether the decision of the Deputy Chief Magistrate to make the forensic procedure order was of an administrative nature, having particular regard to the statutory context in which that order was made. Further, even if the forensic procedure order was of an administrative character, there was a further unaddressed question about the scope of any permissible collateral attack that may be open to the appellant. In that regard, issues that needed to be considered included whether any collateral challenge would have been limited to a review of the validity of the order on its face (Sudi at [27] (Warren CJ); [238]-[244] (Weinberg JA)), and whether collateral review of a forensic procedure order would be permitted as a matter of statutory construction: Sudi at [28] (Warren CJ).

61    However, as these issues were not the subject of any submissions before this Court, and because their resolution cannot affect the outcome of this appeal, it would be inappropriate to attempt to resolve them.

62    In the context of her Honour's second reason for exercising her discretion to dismiss the application for judicial review, the primary judge also noted that it was open to the appellant to make a 'no case to answer' submission at the conclusion of any committal proceedings. Presumably, this was a reference to s 104 of the Justices Act 1886 (Qld), which requires a magistrate considering whether to commit a defendant for trial to form an opinion about the sufficiency of the evidence relied upon by the prosecution to put a defendant on trial for any indictable offence. However, and with great respect to the primary judge, the fact that it would be open to the appellant to make a no case to answer submission was irrelevant to the question of whether the discretion to refuse to grant the relief sought should be exercised. The appellant would not have been able to raise any issues about the lawfulness of the forensic procedure order in making a no case to answer submission. It follows that, in this respect, the primary judge erred in the exercise of her discretion.

63    Finally, the primary judge also referred to the fact that the appellant could seek 'pre-trial directions'. Having regard to the second respondent's written submissions that were before her Honour, this must have been a reference to s 590AA of the Criminal Code (Qld), which provides that where an indictment has been presented, a party may apply for a direction or ruling, or a judge of the court may direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing. Other than in relation to obtaining rulings about the admissibility of evidence obtained because of the forensic procedure order, the appellant's ability to seek pre-trial directions or rulings was irrelevant to the question of whether the relief sought by the appellant should be refused on discretionary grounds. Therefore, the primary judge also erred in the exercise of her discretion in this respect.

64    It follows that ground 3 is established, at least in relation to the first reason given by the primary judge, and in relation to certain aspects of the second reason she gave.

65    It is therefore necessary to turn to the notice of contention, which in practical terms is directed to there being no merit in the appellant's original grounds of review before the primary judge.

Notice of contention – the appellant's original grounds of review

The first ground of review

66    By this ground, the appellant sought to contend before the primary judge that the Deputy Chief Magistrate had misconstrued, and therefore misapplied s 23WT of the Crimes Act. It will be recalled that a magistrate may only order the carrying out of a forensic procedure on a suspect if satisfied as required by s 23WT: s 23WS(b). Therefore, before proceeding further, and to aid in comprehending the reasons that follow, it is convenient to set out the terms of s 23WT in full.

67    Section 23WT provides as follows:

23WT    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 procedure is proposed to be carried out is a suspect; and

(b)    on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and

(c)    there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and

(ca)    if the forensic procedure has been requested by a foreign country or an international tribunal—a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part; and

(d)    the carrying out of the forensic procedure is justified in all the circumstances.

(2)    In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must:

(a)    if the forensic procedure has been requested by a foreign country or an international tribunal—balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and

(b)    in any other case—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 relevant offence and the gravity of the relevant offence;

(b)    the degree of the suspect's alleged participation in the commission of the relevant offence;

(c)    the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);

(e)    if the suspect is a child or an incapable person—the welfare of the suspect;

(f)    whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;

(g)    if the suspect gives any reasons for refusing to consent—the reasons;

(h)    if the suspect is in custody:

(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;

(i)    any other matter considered relevant to balancing those interests.

(4)    Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.

68    The focus of ground 1 is on the proper construction of s 23WT(3)(f).

69    The relevant principles that apply to the task of statutory construction are well established. Those principles were again recently summarised by the Full Court in Charlie v State of Queensland [2025] FCAFC 55; (2025) 309 FCR 345 at [27]-[32]. That summary emphasises that statutory construction is concerned with the attribution of meaning to statutory text while, at the same time, having regard to the context in which the relevant provision appears and its purpose.

70    The Full Court in Charlie also referred to a regularly cited passage taken from the joint judgment of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14], where it was said that:

[t]he starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

71    Section 23WT is one of several provisions that appear in Pt ID of the Crimes Act, which is entitled 'Forensic Procedures'. The various divisions that form part of Pt ID deal with topics that include forensic procedures on suspects by consent (Div 3), certain forensic procedures on suspects by order of a senior police officer (Div 4), forensic procedures on suspects by order of a magistrate (Div 5), and the carrying out of forensic procedures (Divs 6, 6A and 6B). Part ID is also concerned with the admissibility of evidence obtained by carrying out forensic procedures (Div 7) and with the destruction of 'forensic material', amongst other matters.

72    Broadly speaking, there are two types of 'forensic procedures' with which Pt ID is concerned: non-intimate forensic procedures and intimate forensic procedures. The first category of procedures ranges from non-intimate examinations of a person's body to the taking of samples from or under a nail, and it includes the taking of a hand print. The second category of forensic procedures includes more intrusive examinations of a person's body.

73    When the provisions in Pt ID are considered against this background, it is readily apparent that they are concerned with regulating the collection of' 'forensic material', and, upon its collection, with regulating its subsequent use as evidence, or the use of evidence of the results of the analysis of that material, or the use of other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure. The use of the word 'evidence' in various provisions that appear in Pt ID, and the existence of provisions that are concerned about the 'admissibility' of such evidence, are clear textual indications of the trite proposition that the purpose of seeking to undertake a 'forensic procedure' is to obtain or produce evidence that may then be used in a court.

74    Section 23WT, with which this appeal is principally concerned, appears in Div 5 of Pt ID. That Division contains provisions that focus on the forensic procedures that require an order from a magistrate before they can be performed. Generally, those are forensic procedures that are sought to be carried out on persons without their consent as well as on persons who cannot consent, and forensic procedures that have been requested by a foreign country or an international tribunal.

75    Before ordering the carrying out of a forensic procedure on a suspect, a magistrate must be satisfied on the balance of probabilities of at least four matters, which are set out in paras (a), (b), (c) and (d) of s 23WT(1). There is a fifth matter that appears in s 23WT(1)(ca). However, that matter may be quickly passed over because it only applies if a forensic procedure has been requested by a foreign country or an international tribunal.

76    Paragraphs (a) and (b) of s 23WT(1) are concerned with questions about whether the person on whom a forensic procedure is proposed to be carried out is a 'suspect', and whether there are reasonable grounds to believe that the suspect committed a 'relevant offence'. A 'suspect' is relevantly defined to include a person who has been charged with an indictable offence (s 23WA(1)). A 'relevant offence' is, relevantly, the indictable offence in relation to which the person is a suspect (s 23WA(1)). Both before the Deputy Chief Magistrate and before the primary judge there was no issue that the appellant was a 'suspect' and that on the evidence that was before his Honour, there were reasonable grounds to believe that the appellant committed a relevant offence.

77    Before ordering the carrying out of a forensic procedure, a magistrate must also be satisfied on the balance of probabilities that the forensic procedure sought to be carried out 'is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence': s 23WT(1)(c). This means that a magistrate who is considering whether to make a forensic procedure order is required to identify the specific forensic procedure that is sought to be carried out. The magistrate must then consider whether there currently exist reasonable grounds to believe that if that forensic procedure were to be carried out, it would be likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence. In that regard, the magistrate must be satisfied by the evidence that is before him or her of the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112; see also Walker v Budgen [2005] NSWSC 898; (2005) 155 A Crim R 416 at [26]-[27].

78    The appellant does not suggest that it was not open to the Deputy Chief Magistrate to be satisfied to the requisite standard that there were reasonable grounds to believe that the forensic procedure sought to be carried out, namely, the taking of a hand print from the appellant's hand, was likely to produce evidence tending to confirm or disprove that he committed a relevant offence for the purposes of s 23WT(1)(c).

79    A magistrate who is deciding whether to make a forensic procedure order must also be satisfied on the balance of probabilities that the 'carrying out of the forensic procedure is justified in all the circumstances': s 23WT(1)(d). In determining that issue, a magistrate is required by s 23WT(2) to undertake a balancing exercise. Relevantly, a magistrate is required to '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': s 23WT(2)(b). In balancing those interests, a magistrate is required to 'have regard' to the various matters set out in s 23WT(3). One of those matters is the subject of s 23WT(3)(f), the terms of which we will again reproduce for convenience:

whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence.

80    At the hearing of the appeal, senior counsel for the appellant submitted that the Deputy Chief Magistrate misconstrued s 23WT(3)(f) and thereby failed to have regard to a matter to which he was required to have regard, as demonstrated in the following passage of his reasons for his decision:

While it is an assault upon [the appellant] to have his handprint taken by police, in view, it is not determinative nor substantial. What force may be required to comply with a prospective order is effectively a matter for [the appellant]. With regard — when regard is had to what confined evidence the police seek, namely to match the handprint in the picture to that of [the appellant], there does not appear to be a less intrusive way to obtain this evidence, and I therefore do not accept the submission [of counsel for the appellant] in this regard.

81    At the hearing of the appeal, senior counsel for the appellant explained that what a magistrate is required to do for the purposes of s 23WT(3)(f) is to assess whether the evidence that 'is otherwise reasonably available' tends to prove that the suspect committed the relevant offence. The argument appeared to be that in assessing whether there is a less intrusive and reasonably practicable way of obtaining evidence that tends to confirm or disprove that the suspect committed the relevant offence, for the purposes of s 23WT(3)(f), a magistrate is required to assess the evidence that already exists, and its capacity to confirm or disprove the guilt of a suspect. In that context, senior counsel drew attention to the prosecution's own assessment of its case as 'strong', and the fact that this assessment was based on the evidence that was available and without regard to the evidence that was sought to be obtained from the forensic procedure.

82    Senior counsel explained that the 'underlying policy reason' why s 23WT(3)(f) is to be construed in the way he contended for is that there should be 'an explicit and overt consideration and view formed that notwithstanding that the guilt or innocence [of a suspect] can be proved by other means, it's still [in] the public interest to make the order'.

83    The appellant's submissions cannot be accepted. Fundamentally, there is no footing in the text of s 23WT(3)(f) for the appellant's construction.

84    As we have said, s 23WT(3)(f) appears in Pt ID of the Crimes Act. That Part constitutes a legislative scheme that is similar to other legislative schemes that operate at a State level, such as the Crimes (Forensic Procedures) Act 2000 (NSW), the Police Powers and Responsibilities Act 2000 (Qld), and the Crimes (Forensic Procedures) Act 2000 (ACT). When describing the object of the New South Wales legislation, Bellew J said in Plassas v Person [2016] NSWSC 1445 at [32] that the object of that Act was the public interest in facilitating the investigation of crime and the administration of justice in securing the conviction of those who are guilty and the non-prosecution or acquittal of those who are not guilty: see also Kindermann v JQ [2020] NSWSC 1268 at [34]; and AD v New South Wales Police [2021] NSWSC 1502 at [14]. In our view, that also fairly describes the object of Pt ID of the Crimes Act. However, we would add that Pt ID also recognises that there is a public interest in respecting an individual's physical integrity. Accordingly, Pt ID seeks to strike a balance between, on the one hand, the desirability of obtaining evidence to prosecute and convict people who commit offences, and also to disprove their guilt, and on the other hand, the need to uphold a person's right to physical integrity.

85    As we have already noted, s 23WT(3)(f) is one of the matters to which a magistrate must have regard in balancing the public interest in obtaining evidence tending to confirm or disprove that a suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect. It is a matter that a magistrate must take into account for the purpose of deciding whether they are satisfied on the balance of probabilities that a forensic procedure that is sought to be carried out is 'justified': ss 23WT(1)(d) and 23WT(2)(b).

86    It is evident that the main focus of s 23WT(3)(f) is on the physical integrity of a suspect. By its terms, a magistrate is required to have regard to the intrusiveness of the specific forensic procedure that is sought to be carried out. This is confirmed by s 23WT(4), which expressly requires a magistrate to take into account the religious beliefs of the suspect in 'considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure' (emphasis added).

87    Having assessed the intrusiveness of the relevant intended forensic procedure, a magistrate is then required by s 23WT(3)(f) to ask whether there is a 'less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence'. It is unsurprising that a magistrate would be required to undertake this assessment in undertaking the balancing exercise called for by s 23WT(2)(b), given the range of forensic procedures that may be carried out under Pt ID, and the varying degrees to which those procedures might affect the physical integrity of a suspect (e.g. obtaining a buccal mouth swab rather than a blood sample to obtain a sample for DNA analysis). However, it is the use in s 23WT(3)(f) of the word 'obtaining', and its ordinary meaning of 'to come into the possession of, to procure, to get, acquire, or secure', that is significant in the context of the appellant's arguments. In our view, the word 'obtaining' makes it abundantly clear that the particular matter to which a magistrate is required by s 23WT(3)(f) to have regard is whether, given the intrusiveness of the forensic procedure for which an order is sought, there is a less invasive but reasonably practicable way of coming into possession of, procuring, getting, acquiring or securing evidence tending to confirm or disprove that the suspect committed a relevant offence. That is, the provision is forward looking, being concerned with future, and not past acts and states of affairs.

88    It follows that the appellant's contention that s 23WT(3)(f) requires an assessment to be made about whether it is in the public interest to make a forensic procedure order even though the guilt or innocence of a suspect can be proved by other means must be rejected. There is no footing in the text used in s 23WT(3)(f) to support that construction. In any event, it is difficult to understand why s 23WT(3)(f) should be construed in a manner that would, in effect, require a magistrate to decide whether a forensic procedure should not be allowed to be carried out on the basis of a view about whether there already exists sufficient evidence of the guilt of a suspect. After all, s 23WT(3)(f) is expressed to be concerned, in part, with the question of whether there is an alternative, and less invasive way of obtaining evidence that confirms that a suspect committed an offence. The ordinary meaning of the word 'confirm' includes to make more firm, to add strength to, and to settle.

89    Contrary to the appellant's contentions, the Deputy Chief Magistrate did not misconstrue or fail to correctly apply s 23WT(3)(f) of the Crimes Act by failing to have regard to the available evidence that tended to confirm or disprove that the appellant committed the relevant offence. On that basis, the first ground of review is without merit.

90    Before leaving the first ground of review, it is necessary to observe that in SK v Children's Court of the Australian Capital Territory & Anor [2014] ACTSC 255 at [20], Murrell CJ concluded that 'inferentially' the similarly worded s 34(3)(e) of the Crimes (Forensic Procedures) Act 2000 (ACT) is 'focussed on the issue of whether evidence to substantially the same effect could be obtained in a less intrusive way' (emphasis in original). Considering the particular way in which the appellant put his submissions in support of the first ground of review, the correctness of her Honour's construction of s 23WT(3)(f) in SK need not be decided.

The second ground of review

91    By this ground of review, the appellant sought to argue before the primary judge that the Deputy Chief Magistrate fell into jurisdictional error by failing to afford him procedural fairness. More specifically, the appellant sought to contend that the Deputy Chief Magistrate denied him procedural fairness by failing to consider 'substantial and clearly articulated submissions'.

92    Those submissions were to the effect that there were 'other reasonably practicable ways of obtaining evidence tending to confirm or disprove that [the appellant had] committed the relevant offence', and that the digital hand print image that was sought to be compared with the appellant's hand print was 'weak additional evidence in what the prosecution say is an overwhelmingly strong circumstantial case' (the first argument). Further, the appellant pointed to submissions that had been made on his behalf that the second respondent had failed to properly explain the inadequacy of the fingerprints previously taken from the appellant as well as how a fingerprint examiner would extract sufficient forensic evidence from the digital hand print image (the second argument).

93    The appellant accepts that the Deputy Chief Magistrate identified all of those submissions in his reasons. However, the appellant submits that they were not addressed in 'any meaningful sense' and on that basis says that he was denied procedural fairness.

94    It is, of course, well-settled that a failure by a statutory decision-maker to respond to a substantial, clearly articulated argument relying upon established facts may amount to a failure to accord natural justice or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [25] (Gummow and Callinan JJ). However, the ultimate concern is with the identification of jurisdictional error, namely, whether the decision-maker did not perform the function with which it was entrusted or whether it did not perform that function in an authorised way: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [35]. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved: Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604 at [15].

95    In determining whether a decision-maker actively engaged with a substantial, clearly articulated argument, the following matters may be relevant (Singh at [37]):

(1)    the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed;

(2)    in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)    the reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error;

(b)    it is necessary to read the reasons in light of the whole case as it was before the decision-maker, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that an applicant for judicial review carries the onus of proof.

96    The appellant accepts that the Deputy Chief Magistrate clearly identified both the first argument and the second argument. This presents as a significant roadblock that stands in the way of a conclusion that his Honour failed to consider those arguments. The appellant's position is not improved when it is appreciated that there is no suggestion that his Honour failed to correctly identify the critical issues that he was required to determine. Those issues were whether there were reasonable grounds to believe that the forensic procedure was likely to produce evidence tending to confirm or disprove that the appellant committed a relevant offence, for the purposes of s 23WT(1)(c), and whether the carrying out of the forensic procedure that was the subject of the second respondent's application was justified in all the circumstances, for the purposes of s 23WT(1)(d). The Deputy Chief Magistrate also correctly noted that in determining whether carrying out the forensic procedure was justified, he was required to balance the factors referred to in s 23WT(2)(b). Further, he expressly noted that the appellant essentially relied on an argument that the carrying out of such a procedure was not justified because there was a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that he had committed the relevant offence, for the purposes of s 23WT(3)(f).

97    Accordingly, and bearing in mind that we should not lightly conclude that the Deputy Chief Magistrate failed to actively consider the first argument or the second argument, we are not prepared to conclude, in all of the circumstances, that his Honour failed to perform the function required by s 23WT, or that he did not perform that function in an authorised way.

98    We should also note that the underlying premise of the first argument is that the appellant's construction of s 23WT(3)(f) for which he contends in the context of his first ground of review is correct. We have concluded otherwise. Accordingly, to the extent the appellant submits that the Deputy Chief Magistrate fell into jurisdictional error because he failed to consider the first argument, the submission must be rejected. It was not necessary for the Deputy Chief Magistrate to consider an argument that was misconceived: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].

99    Further, and in any event, the submission that Deputy Chief Magistrate failed to deal with the second argument is at odds with the following extracts taken from his Honour's ex tempore reasons:

The reason for the forensic order, as outlined in paragraphs 239 to 244, provides the foundational reasons as to the inadequacy of the other fingerprints currently accessible to the applicant. In my view, on the balance of probabilities, it is sufficient to conclude that there are sound and good reasons why a more comprehensive capture of the [appellant's] handprint is required.

…

The reasons for the precise forensic order ha[ve] been sufficiently explained. It is clear that it was not for some months after [the appellant's] arrest that [the fingerprint expert] advised the applicant of the requirement for a better palm print to provide her expert opinion. The initial fingerprint match on the 10th of April 2024, that is, prior to [the appellant's] arrest, concerned only his fingerprint match.

(emphasis added)

100    There is no merit in the appellant's second ground of review.

Conclusion

101    For the reasons above, although it has been established that the primary judge erred in the exercise of her discretion to dismiss the appellant's application for judicial review on the basis of fragmentation, the appeal must nonetheless be dismissed. The second respondent has established the notice of contention, that the appellant's grounds of review before the primary judge are without merit.

Associate:

Dated:    23 January 2026