BJM v Police No. Scciv-02-1264

BJM v POLICE
[2002] SASC 333
Magistrates Appeal: Criminal

MULLIGHAN J The appellant is charged with two counts of rape and two counts of unlawful imprisonment and other related offences. He was arrested on 28^th August 2002 at Port Augusta and has been remanded in custody.
On 29^th August 2002 a Magistrate made an interim order pursuant to s 23 of the Criminal Law (Forensic Procedures) Act 1998 (“the Act”) authorising forensic procedures, namely the taking of a sample of blood, pubic combings, a sample of pubic hair and a penile swab from the appellant for the purpose of assisting the investigation of the alleged offences. Those forensic procedures have been undertaken and the samples, combings and swab have been retained but not inspected or analysed.
On 6^th September 2002 an application was made to another Magistrate for a final order as to the same subject matter pursuant to s 26 of the Act. He made an order under that section which is called a final order. The appellant appeals against that order. Section 26 provides:
“26. (1) An appropriate authority may make a final order for carrying out a forensic procedure on a respondent if satisfied that—
(a)there are reasonable grounds to suspect that the respondent has committed a criminal offence; and
(b)there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence; and
(c)the public interest in obtaining evidence tending to prove or disprove the respondent's guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference.
(2)In weighing the public interest in obtaining evidence tending to prove or disprove guilt against the public interest in ensuring that private individuals are protected from unwanted interference, the appropriate authority must have regard to—
(a)the seriousness of the suspected offence; and
(b)the extent to which the procedure is necessary for the proper investigation of the suspected offence; and
(c)any likely effects of the procedure on the welfare of the respondent (so far as they can be reasonably anticipated) given the respondent's age, physical and mental health, and cultural and ethnic background; and
(d)whether there is a less intrusive but reasonably practicable way of obtaining evidence of the same or similar probative value to confirm or disprove that the respondent committed the suspected offence; and
(e)if the respondent gives any reasons for refusing consent—those reasons; and
(f) other relevant factors.
(3) However—
(a)a final order may only be made for carrying out a forensic procedure on a respondent who is not a protected person if the respondent has been given an opportunity to give informed consent to the procedure and has refused, failed to give, or withdrawn, consent; and
(b)a final order for carrying out an intrusive forensic procedure may only be made if the suspected offence is an indictable offence.”
Pursuant to s 18 of the Act, the Magistrates Court, in its Criminal Division, is an appropriate authority for the purpose of proceedings for a final order under the Act. The learned Magistrate, who made the final order, exercised the jurisdiction of the Magistrates Court in the Criminal Division. “Forensic material” means material obtained by carrying out a forensic procedure and includes the results of the analysis of any such material. A forensic procedure includes the taking of the blood, combings and samples which were taken from the appellant: s 3. Forensic material obtained under an interim order must not be analysed unless it is likely to perish or lose its evidentiary value before a hearing for a final order is held or a final order is made confirming the interim order: s 42(1). If a final order is not made, the forensic material obtained as a result of a forensic procedure must be destroyed: s 43(1). If a police officer, or other person with responsibilities related to a forensic procedure carried out, or to be carried out, under the Act contravenes a requirement of the Act, evidence obtained as a result of carrying out the forensic procedure is not admissible against the person on whom the procedure was carried out except in certain circumstances which have no relevance in the present case at this stage: s 45(1).
“Criminal offence” is defined in s 3 as any offence, except summary offences that are not punishable by imprisonment or are capable of being expiated.
I agree with the observations of Martin J in Police v Beck (2001) 79 SASR 98, at 103, that the Act is a code governing the performance of forensic procedures upon persons suspected of having committed a criminal offence, except identified exceptions, such as the taking of fingerprints and samples of breath and blood pursuant to the Road Traffic Act 1961. If the interim order should not be confirmed, the forensic materials taken from the appellant cannot be analysed.
The learned Magistrate did not give reasons for granting the final order except to say that the application came within the matters set out in s 26 and that he rejected the argument put on behalf of the appellant which was along the lines advanced on this appeal, which I mention shortly.
There is no doubting that the offences with which the appellant is charged are serious criminal offences.
The grounds of the appeal are:
“1The Learned Special Magistrate erred in his application of S26 of the Criminal Law (Forensic Procedures) Act and in particular erred in determining that there were reasonable grounds to suspect that the forensic procedure could, in the circumstances of this case, produce material of value to the investigation of the suspected offence.
2In the alternative the Learned Special Magistrate erred in his consideration of the weighing of competing considerations in S26(1)(c) and S26(2) of the Act in the circumstances of this case.
3The learned Special Magistrate erred in making a final order for the carrying out of the forensic procedure.”
Before turning to the submissions made on the appeal, it is necessary to say something about the allegations made against the appellant and the investigations of the police.
It is alleged that the appellant raped a young girl in a small house for guests at the property of her mother near a country town in South Australia. This guest house is away from the main dwelling on the property. She knew him and went to this house and spent some time with him. He was smoking marijuana and drinking alcohol. Later his friendly attitude to the girl changed. He grabbed her and placed handcuffs on her wrists and a blindfold over her eyes and something in her ears. He pushed her on to a bed and put tape over her mouth and around to the back of her head. He removed part of her clothing, threatened her and then raped her which, according to the girl, caused her to bleed. He then put a shackle on her ankles and connected it to the handcuffs with a chain.
The appellant had a Toyota Landcruiser. He dressed the girl to some extent but left the handcuffs and shackles in place. He went to the main house and abducted the girl’s mother and forced her into the back of his vehicle. He was wearing a handgun in a shoulder holster. He had earlier abducted the girl and forced her into the back of the vehicle. He made threats to them and handcuffed and blindfolded the mother. He drove off in the vehicle which was towing a campervan trailer and kept the mother and the girl hostage.
These events are alleged to have occurred on the night of Wednesday, 21^st August 2002 and Thursday, 22^nd August 2002.
The mother and the girl were driven on country roads to a motor vehicle tyre dump which is out of sight of the nearby road. The appellant kept them in that location for some time. He smoked cannabis and consumed amphetamines. Whilst at that location he assaulted the mother. He told the mother and the girl that he had been taking amphetamines for about 15 years.
The appellant eventually drove the mother and the girl to Port Augusta and released them at about 11.00 pm on the Thursday. In effect, he had threatened to shoot them if they went to the police. After they were released, they hired a taxi and travelled to Adelaide to the Royal Adelaide Hospital where the mother’s defacto husband was a patient. They arrived at about 3.00 am on Friday, 23^rd August 2002. The next morning they returned to the mother’s home and then returned to near Adelaide. The girl had a shower and the mother disposed of the clothes the girl had been wearing when abducted.
The mother did not contact the police until Wednesday, 28^th August because of fear of the appellant.
During the police investigation, a crime scene examiner went to the guest house on the mother’s property at 3.45 pm that day. He found a flavoured milk carton which was open.
A buccal swab was taken from the girl and the crime scene examiner forwarded the cigarette butt, the pillow case, mattress and buccal swab to the State Forensic Science on 3^rd September 2002. The information before the learned Magistrate, and on this appeal, does not disclose if any forensic tests or analyses have been undertaken with respect to any of these items.
I now turn to the submissions relating to the grounds of appeal.
It is contended that the learned Magistrate erred in concluding that there were reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of any of the offences which the appellant is alleged to have committed. There is no evidence that there was DNA extracted from any blood stains found on the mattress or pillow inconsistent with the DNA of the girl or that any DNA had been found on the cigarette butt or milk carton. Consequently, if DNA is extracted from the blood of the appellant, there is no other DNA profile with which it may relevantly be compared. Also, there was no evidence before the learned Magistrate or on this appeal that any pubic hair had been found on the girl, bed, pillow or otherwise in the guest house with which the pubic hair of the appellant could be compared. The DNA profile of the appellant and the description of his pubic hair standing alone are not material of value to the investigation of the alleged offences: s 26.
These contentions were rejected by the learned Magistrate.
It is necessary to consider each of the matters set out in s 26.
The legislation recognises the intrusive nature of the forensic procedures. It does not permit the forensic procedures merely because a person is suspected of, or even charged with, committing a serious offence. There must be reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence (my emphasis). Also, consideration must be given to the rights of the suspected person. The public interest in obtaining evidence tending to prove or disprove the suspect’s guilt must outweigh the public interest in ensuring that private individuals are protected from unwanted interference.
It is submitted that something more than speculation or the assumption of a theoretical possibility is required to establish that there are reasonable grounds to suspect that the forensic procedure could produce material of value. The suspicion must be founded on grounds that are objectively reasonable. These submissions are undoubtedly sound, however what is necessary is that there are reasonable grounds for suspecting that the forensic procedure could produce material of value.
There are reasonable grounds for this suspicion for the following reasons. On the story of the girl, the nature of the attack on her at the guest house reveals that there had been body to body contact between her and her attacker, including in the pelvic and genital region. It is possible that there was cross-contamination of pubic hair and bodily fluids, including blood and semen. The delay between the attack and the forensic procedure and the girl having taken a shower does not mean that evidence of such cross-contamination does not exist. There is no evidence that the appellant washed his penis after the attack. He declined to be interviewed by the police. If the girl was raped, as she alleges, epithelial cells from her vagina blood and from, or passing through, her vagina may have contaminated her attacker’s penis. Without question, the forensic procedure carried out on the appellant could produce material of value to the investigation.
Furthermore, if the attacker ejaculated during the sexual attack on the bed, there could be traces of his semen in the blood stains found on the mattress and on the pillow. It will be seen that the test in s 26(1)(b) is not that the forensic procedure would produce material of value, but that it could do so. Also, pubic hair may have been left on the mattress and the pillow by the attacker.
There may have been contamination of the pubic area of the attacker by the girl during the act of vaginal rape and analysis of the pubic comings of the appellant could provide material of value to the investigation.
Lastly, I mention the allegations of drug taking by the attacker. He had been taking amphetamines for 15 years and consumed cannabis. He did so in the presence of the mother and the girl. Analysis of the sample of blood taken from the appellant could reveal the presence of amphetamines and, or, cannabis in his blood. Even if it became known that the appellant had consumed such drugs shortly before his arrest and therefore it could not be established by the means of the analysis that he had consumed the drugs, or either of them, when the mother and the girl were attacked, the analysis could establish that he was a consumer of the drugs. That fact could be a piece of circumstantial evidence, not necessarily of great weight, but nevertheless of some weight, tending to establish that the appellant was the attacker.
It was submitted that even if DNA was obtained from a deposit on the cigarette butt said to be found on a bench in the kitchen, the source of that material in the circumstances of the prosecution case would be irrelevant. No such assertion could be justifiably made at this stage of the investigation or the criminal justice process. It is not known what the appellant will say. He has not made any disclosures to the police. He may eventually deny that he had ever been in the guest house or, if he had been there, he was a smoker at the time. The forensic procedure relating to the cigarette butt could produce material of value to the investigation to assist in establishing that he was at the guest house. Other evidence may establish when the cigarette butt was left. The same can be said of the opened flavoured milk carton. If it was used by the appellant, he may have left a deposit on it which could contain his DNA.
I now turn to a submission put on behalf of the appellant which I have earlier mentioned, namely that as there was no evidence before the learned Magistrate that any DNA, apart from that of the girl, had been found on the mattress or the pillow, there could be no reasonable grounds to suspect that the extraction and analysis of DNA from samples taken from the appellant could produce material of value to the investigation of the offences which he is alleged to have committed. It is implicit in this submission that all relevant tests and analyses of samples taken from the mother and girl, the blood on the mattress and the pillow, the cigarette butt and other sources, must be completed before any work may commence on forensic materials taken from the appellant.
In my view, that submission runs counter to the language of s 26(1)(b). As has been mentioned, all that is required is that there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation, not that it would do so. Clearly, in a case of sexual assault of the nature alleged against the appellant, there are reasonable grounds to suspect that the forensic procedures could produce material of value for the reasons I have mentioned. There is nothing in the Act to suggest that all forensic tests on the samples taken from the scene of a crime or a victim must be analysed before any tests can be undertaken on samples and materials taken from a suspect. Indeed, the wording of s 26(1)(b) is to the contrary.
The appellant also contended that if it is accepted that there are reasonable grounds to suspect as required in s 26(1)(b), the proper weighing of the matters set out in s 26(2) and in particular s 26(2)(b) should lead to the conclusion that the interests of the appellant outweigh the public interest of obtaining evidence tending to prove or disprove his guilt.
Clearly there has been serious invasion of the appellant’s privacy, particularly by the forensic procedures involving his pubic area and penis. However, in the circumstances, no other less intrusive procedure was available. The alleged offences are very serious. In my view, the forensic procedures are necessary for the proper investigation of the suspected offences. There are no matters personal to the appellant which suggest that the forensic procedures should not be undertaken. There is nothing about his age, physical or mental health or cultural or ethnic background which has been advanced as a reason not to confirm the interim order.
Upon balancing the competing considerations, it is appropriate that a final order be made and the learned Magistrate did not err in the making of the final order.
None of the grounds of the appeal is established and the appeal is dismissed.

[2002] SASC 333

2 October 2002