Federal Court of Australia

Roberts v Magistrate Gett [2025] FCA 360

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed 1 November 2024 is dismissed.

2.    The applicant pay the second respondent’s costs of the proceeding on the standard basis.

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

REASONS FOR JUDGMENT

DOWNES J:

1    Mr Daniel Roberts (the applicant) applies for judicial review of a decision of Deputy Chief Magistrate Gett (the Magistrate) pursuant to s 39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth).

2    The decision under review is a forensic procedure order made by the Magistrate on 2 October 2024 (as amended on 11 October 2024). The order was made pursuant to ss 23WS and related provisions of the Crimes Act 1914 (Cth) and (in effect) requires the applicant to submit to a procedure to the taking of his fingerprints and handprints by authorised members of the Australian Federal Police and the Queensland Police Service. The Magistrate directed that the applicant’s solicitor be permitted to be present during the procedure.

3    For the following reasons, the application will be dismissed. Costs should follow the event.

Background

4    The applicant has been charged with a number of serious Commonwealth criminal offences, and has been remanded in custody. The prosecution is at the pre-committal stage in the Magistrates Court of Queensland.

5    The applicant is alleged by the prosecution to have used an encrypted messaging application in the course of the alleged offending. An aspect of the circumstantial evidence relied upon is a high-definition image of a hand which was sent to a group chat. The image was able to be analysed by a fingerprint expert, who determined that the fingerprints matched older fingerprint records of the applicant, as well as a set of his fingerprints taken when he was arrested on 17 April 2024.

6    A fingerprint examiner advised Detective Senior Constable Nathan Scott (the second respondent) that “a further procedure that appropriately captures the relevant area of the palm would enable a further comparison to be undertaken, using a newly obtained sample”.

7    Consent was sought from the applicant to provide a new set of prints, but he refused.

8    On 5 August 2024, the second respondent made an application under s 23WU of the Crimes Act for a forensic procedure order to take the applicant’s fingerprints and handprints.

9    On 30 September 2024, the Magistrate made the decision pursuant to ss 23WU and 23WS of the Crimes Act authorising the forensic procedure to be performed on the applicant. The Magistrate gave ex tempore reasons for the decision. An order was then made on 2 October 2024, which was amended on 11 October 2024.

10    The forensic procedure has not yet been carried out on the applicant.

11    By an amended originating application for judicial review filed 1 November 2024, the applicant seeks an order in the nature of certiorari quashing the decision.

The law

Jurisdiction

12    There was no dispute that the Court has jurisdiction to issue the relief sought.

Statutory framework

13    Part ID Division 5 of the Crimes Act establishes the statutory scheme for the carrying out of forensic procedures on a suspect by order of a magistrate.

14    Section 23WU of the Crimes Act provides that an “authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect”.

15    Section 23WS of the Crimes Act provides for the making of a final order for carrying out a forensic procedure:

23WS Final order for carrying out of forensic procedure

A magistrate may order the carrying out of a forensic procedure on a suspect if:

(a)    subsection 23WR(1) applies; and

(b)    the magistrate is satisfied as required by section 23WT.

16    Section 23WR(1) provides that the magistrate may order the carrying out of a forensic procedure on a suspect if, relevantly, the suspect is in custody and has not consented to the forensic procedure (whether or not consent has been sought).

17    Section 23WT sets out the matters that must be considered before ordering a forensic procedure. Relevantly, s 23WT(3)(f) required the 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 suspect committed the relevant offence”.

Consideration

18    Fragmentation is a threshold question and should be determined before consideration of the merits: Hutson v Australian Securities and Investments Commission [2023] QCA 167 at [61]–[62] (Mullins P, Dalton JA and Henry J agreeing).

19    In the recent decision of Palmer v Australian Securities and Investments Commission [2024] FCA 1167, Button J observed at [55] that “[t]he undesirability of civil courts permitting their jurisdiction to be exercised so as to give rise to the fragmentation of criminal proceedings has been confirmed, time and again”.

20    The High Court has “repeatedly stressed the need for civil courts to avoid becoming involved in aspects of the criminal justice system”: see Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7] (O’Loughlin, North and Weinberg JJ) and that the “fragmentation of the criminal process is to be actively discouraged”: see Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [23] (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ).

21    Reasons for the “basic rule of restraint” against fragmenting criminal proceedings were canvassed by Kirby P in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235 as including:

(1)    the undesirability of discontinuity, disruption or delay in committal proceedings;

(2)    the superior knowledge of the committing magistrate concerning the whole facts and circumstances of the case under their consideration;

(3)    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 magistracy;

(4)    the cost, which is largely borne by the public purse, of proliferating litigation, particularly at an interlocutory stage, which diverts attention from the real substance of the accusations brought and concentrates instead on peripheral and often procedural matters;

(5)    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; and

(6)    the power of the Attorney-General to present an ex officio indictment or to refuse to present an indictment, whatever the outcome of the committal proceedings.

22    However, restraint does not constitute an abdication of responsibility, as courts continue to assert an entitlement to intervene in exceptional or special circumstances, where the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit: Yates v Wilson (1989) 168 CLR 338 at 339 (Mason CJ, Toohey and Gaudron JJ); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 339 (Mason CJ, with whom Brennan and Deane JJ agreed); Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 187 (Beaumont, Ryan and Lindgren JJ).

23    The test is whether “it is in the interests of justice” to intervene: see Hutson at [47]. The interests of justice are not confined to the interests of the defendant but constitute “a broader question involving efficient and fair use of resources available in the criminal justice system and the interests of the administration of justice generally”: Hutson at [47]; Palmer at [74].

24    The threshold required to establish an exceptional circumstance is a high one. For example, even a constitutional challenge to the validity of the charges was held to be insufficient to amount to an exceptional circumstance and overcome the caution against intervention in Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development (2023) 414 ALR 26; [2023] WASCA 36 (Buss P, Mitchell and Beech JJA).

25    Other authorities on fragmentation of criminal proceedings were addressed by Button J in Palmer and I do not propose to repeat them. However, it suffices to observe that the tenor of the authorities identified by her Honour is that the fragmentation of criminal proceedings should be actively discouraged and that there is a significant threshold required to be overcome before intervention is justified.

26    In this case and for the following reasons, there are no exceptional circumstances that warrant the intervention of this Court.

27    Although it is neither necessary nor appropriate to attempt to canvass the extent to which a ruling on the validity of the decision of the Magistrate could impact the criminal proceedings, there is at least some potential for additional and unforeseen issues to arise in the criminal proceedings as a consequence of determining the judicial review application: see, generally, Palmer at [67]–[70]. This is especially as the first ground of judicial review 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. It follows that, although the review sought by the applicant may not directly interfere with the criminal proceeding, it could nonetheless address issues that intersect with those arising for decision in that proceeding.

28    The admissibility of any evidence obtained pursuant to the forensic procedure order can be challenged as part of the criminal process, and the applicant can make a no-case submission at the conclusion of the committal or seek pre-trial directions. Notwithstanding this, the applicant submits that this case is of exceptional character because the decision, if carried into effect, involves an invasion of his privacy and bodily autonomy. The applicant submits that such an invasion of his rights would be irrevocable and cannot be appropriately mitigated in the criminal proceedings.

29    In support of this submission, the applicant relies on the decision of Wilson J in Commissioner of Australian Federal Police v [REDACTED] [2024] QSC 291 as being an example of another case akin to this one. In that case, the Commissioner applied for declarations to prevent the disclosure of confidential information in a criminal proceeding in the District Court of Queensland based on a public interest immunity claim. Wilson J considered that special or exceptional circumstances justifying fragmentation existed, because otherwise the confidentiality in the information would be destroyed by publication in the trial and there were no alternative remedies that could be sought by the Commissioner.

30    However, that case can be distinguished from the facts before me. That is because Wilson J gave additional reasons for being so satisfied which included that it is the duty of the court to uphold public interest immunity, which was described by her as a “fundamental immunity”, and that the application was brought by an intervenor whose interest was limited to the question of public interest immunity.

31    In contrast, the proposed forensic procedure ordered by the Magistrate is minimally invasive, it will be performed in the presence of the applicant’s solicitor, there is no duty imposed on the court of a similar kind to that at play in the case before Wilson J, and the applicant has not provided any reasons other than a reference to his bodily integrity and privacy to justify his refusal to consent to the procedure, being a not dissimilar procedure to that undertaken on two previous occasions. Such circumstances do not rise to the “significant threshold” required before the Court entertains a challenge to an investigative process in a criminal proceeding: Kizon v Palmer (No 2) (1998) 82 FCR 310 at 326 (French J). It is therefore not in the interests of justice to intervene.

32    Accordingly, I consider that the relief sought should be refused in the exercise of the Court’s discretion to prevent fragmentation of the criminal proceedings.

Conclusion

33    As I have concluded that the application should be dismissed on fragmentation grounds, it is not necessary to consider the grounds of review advanced by the applicant.

Associate:

Dated:    14 April 2025