Magistrate failed to consider minor's right to privacy under the Victorian Charter
MB (a pseudonym) v Children’s Court of Victoria & Anor [2023] VSC 666
Summary
The plaintiff, who is a minor, sought judicial review of a retention Order that was granted by a Magistrate of the Children’s Court of Victoria (Children’s Court) with respect to the plaintiff’s DNA sample. Justice McDonald examined the Magistrate's failure to consider all relevant circumstances under both criminal and human rights legislation when determining whether the retention Order was justified in the circumstances.
This matter raised important human rights considerations of privacy and the State acting in the best interests of the child, in relation to the State’s retention of a child’s DNA information. Without the Charter, these fundamental considerations could not have been taken into account.
Justice McDonald’s decision showcases the Charter’s importance in requiring laws to be interpreted compatibly with human rights, ensuring that the lawfulness of decisions made which fail to consider human rights will be in question.
Facts
On 12 September 2022, the second defendant, Senior Constable Dean Pilati made an application under s 464ZFB(1) of the Crimes Act 1958 (Vic) (Crimes Act) for an Order permitting the retention of the plaintiff's DNA sample. The plaintiff had voluntarily provided his DNA sample to Victoria Police on 13 June 2022 in relation to a series of offences relating to aggravated home invasion, which the plaintiff was charged for on 12 March 2022. The plaintiff was a 16-year-old child at the time. Despite the DNA sample not producing any evidence which supported the plaintiff's charges, the plaintiff pleaded guilty to the series of offences. The plaintiff was convicted and sentenced. There was no dispute as to whether the Police were legally permitted to obtain the DNA sample from the plaintiff.
The application brought by the second defendant for the retention of the DNA profile sample was heard and granted by a Magistrate of the Children’s Court on 25 November 2022.
An application for an Order for the retention of DNA is prescribed under s 464ZFB of the Crimes Act whereby a police officer at any time after an accused is found guilty, but not later than six months, is permitted to apply to the Court or to the Children’s Court for an order permitting the retention of any DNA sample.
In making the decision, the Court is required under s 464ZFB(2) to take into account the seriousness of the circumstances of the relevant offence; the Court must be satisfied that ‘in all the circumstances’ the order is justified; and the Court is to make such inquiries as it considers desirable to come to its decision. In circumstances where the Order for retention is not made, the Commissioner of Police is required to destroy the sample.
The Magistrate held that the Order for retention of DNA ought to be granted on the basis that the seriousness of the offence as well as the plaintiff’s previous convictions, along with consideration for the overarching public interest, and the possibility of retaining the sample for any future crime, warranted the granting of the Order.
The plaintiff sought an Order from the Supreme Court quashing the retention Order made by the Magistrate on the three following grounds:
That the Magistrate failed to properly consider and apply the legislative requirements under s 464ZFB(2)(b) of the Crimes Act, specifically that the Court was to be satisfied in all the circumstances that the retention Order was justified;
That the decision was “legally unreasonable” due to the Magistrate’s reliance on the prosecutor’s submission that a “retention order was necessary to allow for the legitimate disclosure of a forensic report to (the plaintiff’s) co-accused”; and
That pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Cth) (the Charter) the retention Order was unlawful as the Magistrate failed to consider the plaintiff’s right to privacy and his “protection as is in his best interests as a child”.
The fundamental questions to be asked were whether the Order by the Magistrate was invalid by reason of its failure to consider all necessary circumstances when determining whether the Order was justified; and whether it was legally unreasonable and invalid pertaining to its failure to appropriately consider the Charter.
Decision
Justice McDonald expressed that the Children’s Court held a duty to make its decision on whether to grant the retention Order in light of the plaintiff’s rights. Justice McDonald held that the plaintiff had made out his three grounds and the Court ordered that the decision of the Children’s Court be quashed. The plaintiff was also entitled to a declaration made by the Court that the retention Order was “invalid and of no effect.” The proceeding was remitted to the Children’s Court for rehearing.
In coming to this conclusion, McDonald J addressed all three grounds put forth by the plaintiff.
Ground 1
Section 464ZFB(2)(b) of the Crimes Act stipulates that the Court must be satisfied in all the circumstances that the retention Order is justified. The Magistrate had failed to apply this section of the legislation by only having consideration for a few reasons rather than making a broad assessment of all considerations in determining if the Order was justified. In interpreting the legislation, McDonald J determined that the phrase “in all the circumstances” required a broad evaluative assessment to be undertaken by the Court in coming to its decision. The Magistrate’s four points of reasoning were determined to be incomprehensive and failed to adequately assess the reasons and circumstances which were against the Order.
The Magistrate did not adequately identify all of the circumstances, in particular there was no consideration for plaintiff’s age, the degree of the plaintiff’s participation in the offending, that the co-accused were adults, the plaintiff’s mental health and that the DNA sample was exculpatory. In failing to consider these other circumstances, the Magistrate also failed to adequately apply and interpret s 32(1) of the Charter which prescribes that all statutory provisions are to be construed in a way that is compatible with human rights. That is not to say that the Charter displaces ordinary statutory construction, but rather that it forms the contextual background in statutory interpretation.
The plaintiff also argued that the best interests of the child was a relevant consideration that the Magistrate should have contemplated in arriving at his decision; particularly given that the plaintiff was 17 years at the time of the hearing. Although not a mandatory consideration prescribed by s 32(1) of the Charter it was still relevant as it fell within the broad consideration of human rights.
Ground 2
Ground 2 related to the Magistrate’s reliance on the “prosecutor’s erroneous submissions” which infected the Magistrate’s decision and rendered it “legally unreasonable”. The submission sought to establish that the retention Order was required to allow for the forensic report regarding evidence relating to a bra strap and tracksuit pant to be disclosed to the co-accused. This submission contradicted other evidence submitted in Senior Constable Pilati’s affidavit which suggested that the retention Order was being sought to allow for forensic examination of the bra and tracksuit pant evidence to be undertaken. Justice McDonald deemed the submission made by the prosecutor to be incorrect on the basis that the retention Order did not need to be made for disclosure of the forensic report given that the prosecution already had a duty to disclose the report regardless of whether a retention Order was obtained.
Ground 3
Ground 3 sought consideration of the Charter and the obligations of the Children’s Court to properly consider the plaintiff’s rights as required under s 38(1). Section 38(1) requires public authorities to act in a way that is compatible with human rights. It should be noted that Courts are not considered a public authority for the purposes of the Charter except when they are acting in an administrative capacity. Justice McDonald expressed that when the Court is deciding whether to make a retention Order it is creating new rights and obligations and is thus deemed to be acting “in an administrative rather than judicial capacity.” In determining the relevant application of the Charter that ought to have been regarded by the Magistrate, the plaintiff submitted that s 17(2) - “that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child”; and s 13(a) - the right to privacy from unlawful and arbitrary interference, should have been considered in the decision-making process.
Section 17(2)
Section 17(2) came into effect by way of the “special measure” protection for children under s 464ZFC which requires the destruction of any information relating to a child after a finding of guilt where no retention Order is granted or sought for the subject DNA material. The distinction between adults and children when dealing with DNA samples is on the basis that children are recognised for their vulnerability, and thus when an Order is made under s 464ZFC, s 17(2) comes into effect to enforce Article 24 of the International Covenant on Civil and Political Rights. The failure of the Magistrate to consider s 17(2) was a failure to consider the best interests of the plaintiff as a child.
Section 13(a)
Section 13(a) of the Charter entitled the plaintiff to have his privacy protected from unlawful or arbitrary interference. Justice McDonald held that the retention Order was not authorised for the purposes of s 464ZFB(1), and thus unlawfully interfered with the plaintiff’s right to privacy.
Section 7(2)
Section 7(2) of the Charter prescribed the obligations of public authorities who seek to limit human rights. Section 7(2) provides that the limitation on the human right, under law, is to be reasonable and justified, to consider “all relevant factors” and “based on human dignity, equality and freedom”. Justice McDonald recognised that in considering a retention application, the Children’s Court ought to have considered whether the limitation on the plaintiff’s right as a child to have his DNA sample destroyed was “lawful, reasonable and justified in accordance with s 7(2) of the Charter”. Justice McDonald held that because the Order was not made under law as it was not authorised by s 464ZFB(1), it did not satisfy the first criteria of s 7(2) of the Charter to justifiably limit the plaintiff’s rights.
His Honour held that the retention Order was unlawful as a result of its lack of compliance with s 38(1) of the Charter which was required to be read in conjunction with s 17(2), 13(a) and 7(2) and, the failure of the Magistrate to consider the application of the Charter in the first instance.
Last updated: 13 December 2023
Credit: This summary was prepared by Brittany Garagounis from Hall & Willcox.