Director of Public Prosecutions v Martin (a pseudonym) (Ruling No.1)
[2022] VCC 924
•16 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA MARTIN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF RULING: | 16 June 2022 | |
CASE MAY BE CITED AS: | DPP v Martin (a pseudonym) (Ruling No.1) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 924 | |
RULING
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Dickie | |
| For the Accused | Mr T. Marsh |
HER HONOUR:
1The defence has submitted that evidence and forensic samples taken by a Forensic Medical Officer at police request from the accused Josh Martin[1] on 4 December, 2019 is inadmissible at trial. The defence further submitted evidence involving use of the accused's DNA obtained from him on 8 August 2014 and retained on the DNA database is likewise inadmissible.
[1]A pseudonym.
2Mr Marsh for Mr Martin submitted that on both occasions police breached the provisions of s464R and s464S of the Crimes Act which govern the performance of forensic procedures on an adult by failing to obtain the required informed consent of his client before carrying out those procedures.
3He submitted that in 2019 police failed to convey one piece of required information to Mr Martin and in both 2019 and 2014 failed to convey required information in language likely to be understood by Mr Martin which forms the legislative basis for that informed consent.
4The prosecutor Mr Dickie conceded that in 2019 police had breached s464S by omitting to convey a piece of required information contained in s464S(1) paragraphs (a)-(h). He did not concede police used language unlikely to be understood by Mr Martin. He submitted that in any event pursuant to the provisions of s464ZE(2), (2A) and (3) the circumstances justified reception of the evidence.
5In relation to the 2014 procedure, Mr Dickie submitted no breach had occurred.
The Legislation
6Section 464R is headed 'Forensic procedure on adult'. Section 464R(1) which allows a police officer to request a suspect to undergo a forensic procedure on certain conditions was not a subject of dispute between prosecution and defence. Of relevance to this case, s464R(2) of the Crimes Act states:
'A forensic procedure may be conducted on a suspect if:
(a) the suspect gives his or her informed consent.
7Section 464S1(1) then defines informed consent as follows:
'A person gives informed consent to request to undergo forensic procedure if he or she consents to the request after a police officer informs the person in language likely to be understood by the person:
(a) of the purpose for which the procedure is required; and
(b) of the nature of the procedure sought to be conducted; and
(c) that the person may request that the procedure be conducted in the presence of a medical practitioner or nurse or midwife of his or her choice; or where the procedure is the taking of a dental impression, a dentist of his or her choice; and
(d) of the offence which the person is suspected of having committed with which the person has been charged or for which the person has been summonsed to answer a charge; and
(e) that the procedure could produce evidence to be used in a court; and
(ea) that information for analysis of forensic material obtained by the procedure will be placed on a DNA database and may be used for the purpose of a criminal investigation or any other purpose for which the DNA database may be used under this sub-division or under a corresponding law of the participating jurisdiction; and
(f) that the person may refuse to undergo the procedure; and
(g) where the sample or examination sought may be obtained by a compulsory procedure and the person refuses to undergo the procedure, that an application may be made to the Magistrates' Court for an order authorising the conduct of the procedure; and
(h) where the sample or examination sought may be obtained by a non-intimate compulsory procedure within the meaning of s464SA and the person refuses to consent to the procedure, that a senior police officer may authorise the conduct of the procedure'.
8Section 464ZE is headed 'Evidence relating to forensic procedures or DNA profile samples'. Relevant to this case, s464ZE(1) renders evidence:
“..obtained as a result of a DNA profile sample taken from a person or a forensic procedure conducted on a person inadmissible as part of the prosecution case in proceedings against that person for any offence if:
(a) the requirements of s464R to s464ZA have not been complied with.'…
9However, s464ZE(2) permits the court to admit evidence:
'…obtained as a result of the taking of a DNA profile sample or a forensic procedure otherwise inadmissible by reason of sub-s(a)… if:
(a) the prosecution satisfies the court on the balance of probabilities that the circumstances justify the reception of the evidence…'
10Pursuant to s464ZE(2A) in determining this issue the court may have regard to the following:
(a) the probative value of the evidence including whether equivalent evidence or evidence of equivalent of probative value could have been obtained by the means;
(b) the reasons given for the failure to comply with the provision referred to in sub-s1(a)
(c) the gravity of that failure and whether it deprived the person of a significant protection under this subdivision;
(d) whether that failure was intentional or reckless;
(e) the nature of the requirement that was not complied with;
(f) the nature of the offence alleged against the person and the subject matter of the proceedings;
(g) whether the reception of the evidence would seriously undermine the protection given to persons under this subdivision;
(h) any other matters the court considers relevant.
11Sub-section (3) states that the probative value of the evidence does not by itself justify the reception of the evidence.
12I must also have regard to s138 of the Evidence Act which additionally governs the reception of improperly or illegally obtained evidence. Under s138(1) improperly or illegally obtained evidence is not to be admitted 'unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained'.
13Section 138(3) states that without limiting the matters that the court may take into account under sub-s1 it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceedings; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding whether or not in the court has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty if any of obtaining the evidence without impropriety or contravention of an Australian law.
14An independent third person was present throughout the 2014 record of interview, at the end of which Mr Martin conducted a buccal swab of his own mouth under police direction. In 2019 the forensic procedure was performed by forensic medical officer Dr Phillipa Brooke following a short, recorded interview between police and Mr Martin during which he was cautioned, his rights explained, and consent obtained to the forensic procedure. No independent third person was present at this part of the interview although one was eventually obtained and was present for formal questioning about the alleged offending some hours later.
15The forensic procedure conducted by Dr Brooke was not electronically recorded. She examined Mr Martin's body and took forensic samples and swabs including from his penis and fingernails.
The 2019 Forensic Procedure
16Mr Martin was arrested in the early hours of 4 December 2019 and ultimately charged with one count of conduct endangering life, one count of conduct endangering a person, eight counts of rape, one charge of sexual assault, one charge of sexual assault by compelling sexual touching, one charge of rape by compelling sexual penetration, one charge of attempted rape and one charge of attempted robbery. All charges, bar the attempted robbery involve the same complainant and underlie alleged offending occurring over several hours from about 7 pm on December 3, 2019. The attempted robbery of a Coles Express store allegedly took place in the early hours of 4 December 2019.
17In short compass, as the complainant was walking along the Merri Creek trail in Brunswick, the accused allegedly dragged her down to the creek. There he allegedly pushed her head underwater, then strangled her, stopping on the provision that she have sex with him. On the creek embankment he then allegedly perpetrated a number of rapes and sexual assaults involving some violence. He allegedly could not achieve a full erection during the attack.
18Eventually the complainant persuaded the accused to go somewhere dry as she was wet and cold. She walked with him holding his hand, allegedly at his direction. Then, on reaching a McDonalds store on Nicholson Street, she grabbed a metal pole at the store entrance and began yelling at the accused to go home. After loitering at the entrance for about half a minute Mr Martin then allegedly ran off. Police were called and arrived at the scene at 10.28 pm.
19At about 1 am on 4 December, 2019 the accused allegedly committed an attempted robbery at the Coles Express Way in Carlton. Police were called and located Mr Martin nearby. He was arrested at 1.12 am and taken to the Melbourne West police station where his outer clothing which was found to be wet and muddy was seized.
20The chronology of events thereafter is as follows:
21Mr Martin arrived at the Melbourne West police complex at 1.45 am where he was assessed, records indicating no apparent impairment or incapacity.
22Between 2.08 and 2.10 am he was cautioned and given his rights, which procedure was recorded, and then placed in a cell. Police went into the cell at about 3.18 am to interview him about the attempted robbery, but he apparently abused them and refused, complaining of a sore heart. Custodial nurse Kate Varney-Johnson was called in and after examining Mr Martin, told police she had no concerns about his fitness for custody or interview.
23Mr Martin went to sleep. By 3.55 am those police officers became aware of the alleged rapes in Brunswick and suspected Mr Martin's involvement. The rape investigators alerted Melbourne West police of the need to seize the accused's clothing and conduct a forensic examination of him. Ultimately clothing still worn by Mr Martin was seized and he was placed in a prisoner's suit.
24At 8.08 am police requested the attendance of a forensic medical officer (FMO) from the Victorian Institute of Forensic Medicine to examine Mr Martin both physically including the taking of forensic samples, and to assess his fitness to be interviewed. FMO Dr Phillipa Brooke attended at 10.05 am and from 10.15 am spoke with the accused for about half an hour.
25At the committal hearing on 17 December, 2020 she gave evidence in effect that Mr Martin told her he had a history of schizophrenia and bipolar disturbance, (Transcript 151, Lines 25-29) was taking only anti-depressant and pain medication (Transcript 152, Lines 11-19) and told her he believed people were following him and that he suffered from command hallucinations (Transcript 153, Lines 6-31). He said he had been recently admitted to the Royal Melbourne Hospital after attempting suicide and was a regular ice user (Transcript 154, Lines 6-13).
26Because of his reported psychiatric history and to exclude the possibility he was suffering psychosis, Dr Brooke eventually formed the opinion Mr Martin should be psychiatrically examined before being questioned by police in a formal record of interview. She also suspected from his presentation that Mr Martin suffered some degree of cognitive impairment (Transcript 157, Lines 14-24).
27Dr Brooke stated, 'My plan was if psychiatric, more comprehensive psychiatric evaluation didn’t find an acute psychosis, then because I did have some, still have some potential concern about intellectual disability, then I recommended an independent third person be present for his interview' (Transcript 160, Lines 5-11).
28She also said she wanted Mr Martin assessed by someone with a lot more experience and speciality in psychiatry (Transcript 160, Lines 15-16).
29At Transcript 166, she said while she wanted psychosis excluded she, 'wasn't convinced there was overt psychosis going but I did have concerns' (Lines 20-21).
30Dr Brooke did form the opinion Mr Martin was fit to consent to and undergo a forensic examination. This was because, she said, 'Mr Martin wasn't, he wasn't responding to external stimuli. He wasn't responding to the apparent voices in his head. He was answering questions appropriately. He was following directions quite easily. So, whilst I did have some concerns about his mental health and suggested further assessment, I did at that particular point of time, he was, I did consider, that he was able to participate in the examination' (Transcript 163, Lines 23-31 and Transcript 164, Line 1).
31She held this opinion despite her suspicions that he may also have an intellectual disability (Transcript 164, Lines 11-12). She said Mr Martin did not appear drug affected and told her he had not used drugs recently (Transcript 164, Lines 17-19).
32Dr Brooke said assessment for fitness for interview was, 'assessing whether someone is going potentially to be vulnerable to a police interview over, which can be over a number of hours, are they suggestable to being led and some of the things that might make someone vulnerable or suggestible or falsely incriminate themselves is they may have a mental disorder' (Transcript 143, Lines 26-31 and Transcript 144, Lines 1-3).
33At Transcript 155, Lines 21-25 Dr Brooke said, 'Someone's ability to consent is part of the fitness for interview but the two aren't synonymous. Someone may still be able to consent for certain procedures or to participate in certain things, but they may not be fit for interview'.
34After the initial fitness for interview assessment, Dr Brooke obtained Mr Martin's verbal consent to take DNA samples and photographs, gaining two consent forms for the forensic procedure and went over the consent process with him (Transcript 161, Lines 15-27).
35Whilst it was Dr Brooke's evidence that she told police officers Mr Martin was fit to consent to a forensic examination, but not further interview after she first assessed him, it appears from other evidence that she again spoke to the accused after the forensic procedure was completed and only then provided a full opinion to police, that is, that he required a psychiatric assessment before being interviewed about the alleged offending. (See the voir dire transcript of 1 June 2022, evidence of Detective Greg Langdon, p92, lines 11-26, and p94, lines 9-14, together with his statement and that of Detective Anton Bennett).
36It can be assumed Dr Brooke had told police something of Mr Martin's unfitness for formal interview before the forensic examination interview as recording of the latter ceased after Mr Martin gave his consent to the procedure and Dr Brooke entered the interview room. Ultimately police formally conducted a record of interview about the alleged offending between 5.57 and 7.12 pm that day. For reasons not relevant to this matter that record of interview, which was conducted in the presence of an independent third person as I have said, was ruled inadmissible in a pre-trial hearing before another judge of this court.
37Between 10.47 and 10.56 am police spoke to the accused on tape. As I have said no independent third person was present. He was cautioned, given his rights and the information required under s464S(1)(a), (b) and (d) was given to him in what might be said to be broken down form (see ROI Questions 29-35) and during which Mr Martin was twice asked if he understood, replying 'Yeah' each time.
38The information pursuant to paragraphs (e) –(h) was read to Mr Martin from a card in one continuous stream before he was asked if he understood it. Mr Martin said he did. Mr Martin then gave his consent to the procedure, and signed the appropriate forms. Dr Brooke came into the interview room and the recording ceased.
39From 10.56 am, Dr Brooke conducted the forensic examination which was not, also as I have, said electronically recorded.
40Abrasions were identified on Mr Martin's lower back, thighs and knees, dirt and debris found beneath his penis foreskin and dirt and debris in his hair. Forensic samples and swabs including from Mr Martin's penile shaft and his fingernails were taken.
41Examination of the swabs produced DNA which was compared with the sample taken from the complainant. In relation to the swab from the accused's penile shaft, it was the analyst's opinion the DNA was 120 million times more likely than not if the complainant was a contributor. It was also the analyst's opinion that DNA found on a swab of Mr Martin's right fingernail was 4.5 million times more likely than not if the complainant was a contributor.
42Examination of DNA found on the swabs taken from the complainant were compared with the DNA sample taken from the accused on 8 August 2014. It was the analyst's opinion the DNA found on swabs from the complainant's perioral, (that is, mouth area) left breast, right hand and left abdomen were 100 billion times more likely than not if the accused was a contributor.
The 2014 Forensic Procedure
43On 4 April 2015, Mr Martin was sentenced by the County Court to a total effective sentence of five years' imprisonment with a minimum term of three years for one charge of rape and two charges of attempted armed robbery. The rape occurred on 24 July 2014 and the attempted armed robberies on 4 August 2014.
44On 8 August 2014 at the end of a formal record of interview in relation to those offences, Mr Martin provided a DNA sample via a buccal swab in the presence of an independent third person. Police in that interview also read from a form to convey all the information required by s464S(1) and again all of it was put essentially to him at the one time. Mr Martin gave his consent to the procedure and at police direction carried out the buccal swab himself.
Voir dire hearing
45This was conducted on 1 June and 2 June 2022. The four police officers involved in the two forensic procedures and formal interviews and the independent third person present at the 2014 record of interview gave evidence and were cross-examined.
46Detective Acting Sergeant Anton Bennett and Detective Leading Senior Constable Jodie Stoll conducted the 2014 record of interview.
47Detective Bennett was the informant for the rape and Detective Stoll the informant for the attempted armed robberies. They have been police officers for 28 and 27 years respectively. Detective Bennett oversaw the forensic procedure conducted at the end of the interview, delivering the required cautions and conveying the information required under s464S. He also directed Mr Martin in taking the swab from his mouth.
48Detective Bennett in evidence said an independent third person was organised as a precautionary measure on police becoming aware one had been used in previous police interviews with Mr Martin and to ensure that the interview was fair, true, correct and admissible (Transcript 7, Lines 5-10).
49Police were also privy to an earlier DNA sample from Mr Martin that had been obtained by court order in 2011. Detective Bennett said he read the required s464S (1) information from an official police form, VP Form F1, which he said police were 'required to read, um, for the process' (Transcript 13, Lines 29-31).
50He said he used the language on the form because that was what police were trained to do (Transcript 45, Lines 13-15). He said there was nothing about Mr Martin that indicated 'he didn't understand what was being said' (Transcript 45, Lines 18-19).
51Asked about his impression of Mr Martin's ability to understand the questions asked of him and the information provided he said, 'As far as I could tell he fully understood and anything he didn't understand he asked questions about and I answered those questions” (Transcript 14, Lines 18-20). He said Mr Martin had no difficulty following directions and taking the swab from his mouth.
52Detective Stoll said that an ITP was used because of a notation that one was used in previous police interviews with Mr Martin as, 'a matter of completeness' (Transcript 49, Lines 25-27). She said it was her understanding that the form used by Detective Bennett in conveying the s464S information was a 'legislative document that must be adhered to which was why it was read to suspects in that way' (Transcript 47, Lines 3-6).
53She said if a suspect conveyed they were not understanding the information, then it would be broken down, but she was quite comfortable Mr Martin had understood. This was both because before the interview Mr Martin had spoken with ITP Morrie Hartman who had explained the process to him and because she found him to be 'quite intelligent and articulate' displaying 'no issues in understanding any of the questioning or any of the information given to him' (Transcript 60, lines 16-21).
54Mr Marsh cross-examined police about being on notice because of the previous use of an ITP when interviewing Mr Martin that he may have had a cognitive disability or mental illness which could interfere with his capacity to understand. Both officers displayed a reluctance to concede this, stating that ITPs were used for reasons other than this, such as the difficulty with being in custody or a general inability to understand. Each essentially said their conduct of an interview depended on their impression of the person's capacities during the interview.
55ITP Morrie Hartman gave evidence that he had no recollection of the 2014 record of interview. He said he had been a community advocate guardian with the Office of the Public Advocate for 28 years during which time he had many experiences with people with disabilities and mental challenges. He also described ITP training (Transcript 107, Lines 21-28).
56He said he viewed his role as an ITP as ensuring the suspect understood why they were there, that they could have a break if they had any problems and that they understood everything that was happening (Transcript 108, Lines 5-18).
57Mr Hartman said he would speak to the suspect before the record of interview and then tell police whether he thought the person was able to be interviewed or not and if there was any doubt would call for an FMO (Transcript 108, Lines 27-31).
58Detective Leading Senior Constable Stephen Harvey and Detective Greg Langdon conducted the 2019 interview. They have been police officers for 30 and 23 years respectively. Detective Harvey is the informant for the 2019 charges and he delivered the cautions and required information to Mr Martin.
59Detective Harvey said in evidence that he called for an FMO because research had shown an ITP had been used in Mr Martin's previous interviews, so there might be a fitness issue and because he wanted forensic samples taken by an FMO (Transcript 65, Lines 12-31 and Transcript 66, Line 1-3).
60He conceded that an ITPs previous presence at interview could indicate a possible cognitive impairment or mental health issue in Mr Martin (Transcript 66, Lines 27-31). He did not know when the fitness for interview examination took place but thought it was after the forensic procedure was performed (Transcript 68, Line 19-25).
61He assumed Dr Brooke would tell him of any problems with Mr Martin's mental capacity but did not seek advice from her beforehand (Transcript 73, Lines 23-26). He read directly from the police form in conveying the s464S information and usually did this 'depending on the person I'm talking to and the level of intelligence I believe them to have and ensure that basically they understand what I'm saying' (Transcript 72, Lines 9-14).
62He agreed information about the suspect's right to have a medical practitioner of choice to perform the procedure was left off the form he used, saying this was an oversight (Transcript 73, Lines 3-5).
63Detective Harvey said that as an experienced investigator he judged a suspect's level of capacity on conversations with them. On that basis he judged Mr Martin to be 'of normal or normal-ish intelligence' who 'answered questions freely, openly and showed no sign of major intellectual dis-impairment or any major problems (Transcript 74 L 10-16).
64Detective Harvey said that in the past he had gone through the s464S information line by line with a severely intellectually impaired suspect (Transcript 78, Lines 16-19) and that had also undertaken a course about interacting with the cognitively impaired. During his interactions with Mr Martin in 2014 as part of the police arresting team for those charges, he formed the impression that Mr Martin seemed to understand the process and answer questions without major problems of understanding (Transcript 84, Lines 24-28).
65Detective Langdon said police organised the attendance of an FMO following a briefing both for reasons of fitness assessment and to conduct the forensic procedure. The fitness assessment was considered because of Mr Martin's past history. He said there were concerns about gathering evidence early on (Transcript 89, Lines 21-22). He believed after Dr Brooke spent half an hour with Mr Martin that police were 'good to go' with the forensic procedure (Transcript 92, Lines 22-26).
66He said it was after completing the forensic examination that Dr Brooke brought concerns about Mr Martin's fitness for interview to police (Transcript 94, Lines 9-14). Detective Langdon said he was aware that the information to be conveyed could be delivered in adjusted language for greater 'ease of understanding' (Transcript 95, Lines 9-15). He described Mr Martin's answers to the request for a forensic procedure as 'pretty sharp' (Transcript 92, Lines 6-9).
Submissions
Prosecution
67Mr Dickie for the prosecution conceded a breach occurred in 2019 because police failed to inform Mr Martin of his right to have a medical procedure performed by a medical practitioner or nurse of his choice. However, he submitted, and I think this was accepted, that this was simply because it was not on the form used by Detective Bennett in reading the information to Mr Martin.
68Referring to the matters set out in s464ZE(2A) (a)-(h) Mr Dickie submitted as follows:
69(a) Whether the probative value of the evidence including whether equivalent evidence or evidence of equivalent value could have been obtained by other means. Mr Dickie submitted that insofar as the 2019 evidence was concerned the probative value was very high, particularly in circumstances where sexual penetration was alleged.
70He submitted that given the officers considered in each case that Mr Martin was capable of giving consent, the alternative route of obtaining the evidence via an order from the Magistrates' Court was not open to them. He further submitted that on the evidence there was in fact no basis for them to conclude he was also capable, there being no indication he was suffering from self-evident mental impairment or lack of cognition.
71He pointed out that in 2019 Dr Brooke had formed the opinion that Mr Martin was capable of consenting to the procedure and informed police of that according to Dr Brooke and Detective Langdon. Dr Brooke's concerns over Mr Martin's possible mental impairment also apparently arose from self-reporting by the accused rather than observation of active symptoms. Evidence of dirt and debris beneath the foreskin of Mr Martin's penis also indicated his penis was out and erect in the creek bed.
72Mr Dickie submitted there was no evidence why the information about the rights to a medical practitioner did not appear on the form given it was clearly there in 2014 and should be rectified. This was all he was able to submit in relation to paragraph (b) being ” the reasons for the failure to comply with the provision referred to sub-s1(a)….”
73In relation to paragraph (c)” the gravity of that failure and whether it deprived the person of a significant protection under the sub-division”, Mr Dickie submitted that if that right had been read to the accused and he then requested the presence of his own doctor, that evidence would have been collected in any event. Had that not been possible and Mr Martin then refused, application could have been made for a Magistrates' Court order for the procedure to be carried out and the evidence then collected, it being highly likely that such an order would have been granted. He submitted there was no indication that Mr Martin was prejudiced in any way by the admission.
74In relation to paragraph (d) as to whether that failure was intentional or reckless, in essence Mr Dickie submitted it was neither, but rather inadvertent.
75As to the” nature of the requirement that was not complied with”,(S2A (e)) Mr Dickie relied on his submissions in relation to paragraph (c).
76Regarding par (f) “The nature of the offence alleged against the person and the subject matter of the proceedings” Mr Dickie there submitted the allegations were of the utmost seriousness and carried the potential of significant consequences.
77Regarding par (g) “Whether reception of the evidence would seriously undermine the protection given to persons under this sub-division.” Mr Dickie pointed out that Mr Martin had been assessed by an FMO and later had an ITP present at the formal record of interview. He was taken through the consent forms for the procedure both by the FMO and then by police which he then signed. The omission did not, in Mr Dickie's submission, amount to a serious undermining of the protection afforded by the legislation.
78Insofar as the language employed in conveying the required information was concerned, Mr Dickie submitted police were in a difficult position where they were required to convey all of it, and the exercise in breaking it down could result in an accusation that they had not therefore complied with the provision. He referred to the Record of Interview transcript where police first explained that they wanted Mr Martin's cooperation in obtaining fingernail scrapings and swabs from his mouth and penis, and submitted that Mr Martin interrupted them saying, 'Yeah, understand that, yeah' and appeared quite actively engaged in the process.
79Ultimately Mr Dickie submitted that the words of the legislation were plain and readily understood and therefore had been properly conveyed. In relation to the 2014 procedure where the complaint by defence is that language likely to be understood was not employed by police, Mr Dickie submitted the Record of Interview transcript revealed use by the accused of quite complex and sophisticated language, a capacity to question officers to answer questions selectively and in a manner which did not suggest any difficulties in comprehension.
80Without denying Mr Martin had a form of cognitive disability Mr Dickie submitted there was nothing to indicate he was unwilling or incapable of providing informed consent in 2014.
Defence:
81Mr Marsh submitted that in 2019 police breached the provisions of s464R and S by failing to tell Mr Martin of his right to a medical practitioner of his choice to perform the procedure and by failing to convey the information contained in s464S2(A) (a) to (g) in language likely to be understood by the suspect. He submitted that in 2014, police also failed to use language likely to be understood by Mr Martin in conveying those rights. Accordingly, the evidence obtained on both occasions were inadmissible at trial.
82In summary he submitted that s464S should be interpreted as requiring:
(i)the suspect's consent;
(ii)consent given after being informed by police of relevant matters;
(iii)the contents of paragraphs a-g being conveyed to the suspect; and
(iv)delivery of those matters being couched in language likely to be understood by the suspect.
83Mr Marsh submitted that in both 2014 and 2019 police were on notice that an ITP had been used in previous police interviews which could indicate he had a mental illness or cognitive impairment and in such a case, the language of s464S (1) required more than a verbatim recitation of the relevant matters.
84Mr Marsh submitted the prosecution could only prove its case if police either had expert opinion suggesting Mr Martin understood the statutory language or if police made enquiries to test if he did. He submitted that evidence of simply reading out a cascade of information and asking 'do you understand' at the conclusion did not discharge the prosecution onus of proof. Mr Marsh pointed out that the 2019 procedure was carried out after an FMO assessment but before her complete opinion as to Mr Martin's mental state was given to police and no ITP was present for the procedure but was for the later interview.
85He submitted Dr Brooke's opinion as to Mr Martin's capacity to understand was irrelevant as the obligation is on the police officer to appropriately inform the suspect of the relevant matters. Mr Martin's response of 'yeah' to the tranche of providing information gave no evidence as to his level of understanding.
86He said that in 2014, the ITP was not asked to confirm if Mr Martin understood the uninterrupted block of information conveyed to him. There was no attempt in either case to break that information down, use simple language, ask Mr Martin if he understood it piece by piece or check this by asking him to repeat back his understanding of it in his own words, measures which Mr Marsh said could easily be employed.
87He submitted that in 2014, while giving consent to the procedure, Mr Martin had also appeared preoccupied with the question of why he needed to provide a further sample when police already had his 2011 DNA sample on database.
88In relation to each of the provisions of s464ZE(2A) (a) –(h) Mr Marsh submitted the following:
89Paragraph (a) He conceded the probative value of the evidence was high but said equivalent evidence of the reference samples from Mr Martin could be obtained by other means even today. He conceded that no alternative source existed for the 2019 samples.
90Paragraph (b )- Police evidence revealed the reasons for non-compliance were their belief that Mr Martin understood what was conveyed to him and oversight insofar as the medical practitioner requirement was concerned.
91Paragraph (c)- Mr Marsh submitted a serious breach occurred in 2019 when his client was subject to a full body examination and swabs taken from his genitals by a stranger. Rationally at such a time a suspect may well have a preference for a medical practitioner of their choice. He submitted the failure to use language likely to be understood was very significant and went to the heart of informed consent.
92Paragraph (d)- Mr Marsh conceded police actions were neither intentional or reckless.
93Paragraph (e)- He, like Mr Dickie, essentially relied on the arguments he had raised in relation to Paragraph ( c).
94Paragraph (f)- Mr Marsh conceded the offences charged were serious examples of serious charges.
95Paragraph (g)- Mr Marsh submitted reception of the evidence would seriously undermine the protection afforded to others under the section because of evidence that police were trained to simply read from a preprepared form without proper regard to the fundamental requirement that they must also use language likely to be understood. The required information he said was serious and complex and related to a medico-legal procedure with potential serious consequences for the suspect. Reception of the evidence in this case, he said, would render the required use of appropriate language nugatory.
96Paragraph (h)- In terms of any other matters the court think fit, Mr Marsh submitted the solution to this problem was simple. Police simply had to break down the information into digestible passages and test the suspect's understanding by asking them to repeat back in their words what had been conveyed to them.
S138 of the Evidence Act
97In relation to s138 of the Evidence Act neither counsel expanded greatly on their submissions as to those provisions. However, Mr Marsh did make submissions about the balancing act required of courts in the face of highly probative but improperly obtained evidence to be undertaken and the undermining impact reception of it could have on the integrity of the administration of justice. He also submitted that the impugned actions of police were contrary to a person's rights under the International Covenant on Civil and Political Rights (see S 138 (f), specifically points 9, 10 and 17 of the Covenant which prohibit arbitrary arrest, require treatment of those deprived of liberty to be dignified and humane, and prohibit arbitrary and unlawful interference with such a person's privacy.
Conclusions
2014 Forensic Procedure
98It is clear in my view that in conveying the required s464S(1) information, police essentially read out an official form, although some effort was made to clarify it a little during the delivery, (see Question 867). It was also preceded by a passage at Questions 862-866, where Detective Bennett explained the police were making, 'a request for a forensic procedure from a suspect of 18 years or more. You're 20'.
99He went on to say that if Mr Martin, '…didn't do it - basically, we get a court order to do it - do you understand that?' He told Mr Martin that police were obliged to, …'get it because the offences that we spoke about relate to serious matters that we're gonna require your DNA for'. Throughout this passage, Mr Martin asked (see Answer 862) why police needed his DNA when they already had it. (See also Answers 863 and 865). Then the s464S(1) information was read to him. Mr Martin interrupted to ask, 'What's that?' after being told information that senior police could authorise a non-intimate compulsory procedure. (See Answer 867.)
100Detective Bennett explained that to him, and immediately in the same question, completed that required information and asked Mr Martin if he understood at all. Mr Martin said, 'Yeah' and immediately went back to saying he, 'didn't get' why police needed his DNA again, when they are already it. (See Answer 870).
101Det Bennett then asked Mr Martin if he wanted to comment on the information, Mr Martin replying, 'No'. (See question and Answer 871) and was then asked if he consented. Mr Martin said, 'I suppose'. Then in Answers 873 and 874 he specifically consented stating, 'Yeah, whatever' but continued to ask why he had to supply DNA again.
102At first blush, it may have appeared that Mr Martin was more concerned about having to give DNA again, than actually attending to and understanding the information and giving consent to the procedure as submitted by Mr Marsh. Although they were admirably presented, I did express concern during the hearing, that Mr Marsh's submissions involved a wholly objective assessment of the forensic procedures carried out. Ultimately, Mr Marsh did concede that an examination of the subjective elements was also warranted, although he urged caution on my part in so doing.
103In my view, the problem with the approach urged by Mr Marsh was that if there is clear evidence that a suspect does understand the rights put to him, even if couched in formal terms, and there is evidence that police did believe the suspect was capable of such understanding, then it cannot be said that such a breach has occurred. This is by having reference to subjective, rather than objective elements.
104Examination of the record of interview transcript, and in particular viewing the filmed interview, made it entirely clear in my view that throughout Mr Martin did indeed understand what police were saying to him. That he had a ready understanding was demonstrated from the start, when Detective Bennett asked him to explain in his words what the right to silence meant. Mr Martin immediately replied, 'You don't say anything you don't wanna', (Question and Answer 6.)
105He repeated the exercise at Question 44 after a break, and the Record of Interview was resumed. He was again asked to explain this right, immediately replying, 'Anything I say or do will be used against me in court'. When first told of his contact rights, Mr Martin immediately said he wanted to contact his girlfriend and then his uncle. There was no evidence before me as to the nature and extent of Mr Martin's cognitive disability, although in both records of interview he referred to having an acquired brain injury from an accident.
106Throughout the 2014, 952- question Record of Interview, Mr Martin appeared fully engaged and paid attention to all questions put to him. His answers were made readily and responsively, and he maintained eye contact, particularly when animated. He had no hesitation in arguing with police or maintaining his denials to what they put to him. During one passage when the rape allegations were put to him, Mr Martin dropped his eyes and refused to answer questions, but continued thereafter to deny that allegation.
107He had no trouble coming up with alternative scenarios when police asked him where he was at the time of that alleged offending, or of naming people he said would confirm that. He demanded to see any footage police had of his alleged whereabouts. Ultimately, he admitted to two attempted armed robberies, but continued despite quite some police pressure, to deny the rape allegation and a third armed robbery committed at a FoodWorks store.
108Even when admitting the attempted armed robberies, he was indignant about having been struck on the head with a hockey stick by a milk bar owner, complaining the man should have struck him in the kneecap instead, and stating that it was unfair that this man was not also charged with assault of him. At one stage, he became quite angry insisting that he was being set up by someone going around dressed up as him, and said that when police found out who in fact it was they should apologise to him. (See Question and Answer 807.)
109Throughout the interview, Mr Martin was consistently articulate and gave ready and responsive answers to police questions, which were sometimes couched in quite sophisticated or formal language. For example, at Question 885, when Detective Bennett read out the caution relating to the forensic procedure and asked if he consented, Mr Martin nodded only. Detective Bennett then said at 885, 'I need a verbal response' and Mr Martin immediately replied, 'Yeah', indicating a full comprehension of what had been said to him.
110Insofar as the forensic procedure was concerned, I am also of the view that Mr Martin was not only familiar with the process, he did understand what was conveyed to him. In a passage following Question 835, when informed police would be taking a swab from his mouth, he argued that his previous DNA could not be used against him. At Question 840, he also told police that, 'Once you've been charged with something, they cannot your DNA, they have to ask the court to renew your DNA and get new DNA. New, new DNA' which seems to refer to the forensic sample ordered by a court in 2011.
111On the recording, he clearly listened to the s464S information as it was conveyed to him, interrupting Detective Bennett to ask him about a senior officer authorising the taking of a non-intimate sample saying, 'What's that?' After agreeing to provide the sample, he readily to my observation, followed Detective Bennett's directions about taking the swab from his mouth, pressing it to a card, then sealing it up in an envelope.
112The atmosphere then almost became jovial with Mr Martin saying to police at Question 925, 'If it comes back the wrong DNA, then I get off'. Soon after, he could be seen jokingly taking the sealed envelope and pretending to place it under his jacket, before handing it back to Detective Bennett. It is therefore readily understandable, given the way that record of interview ran, well before the issue of the forensic procedure arose, that Detectives Bennett and Stoll formed the view that they did about Mr Martin's level of intelligence, and that satisfaction that he could and did understand the s464S (1) matters.
113The continual flow of the interview also made it unnecessary in my view for them to check with Mr Hartman as to Mr Martin's evident comprehension, or for Mr Hartman to intervene. The record of interview did confirm Mr Hartman had had an interview with Mr Martin beforehand, and I am also satisfied that Mr Hartman was an experienced and conscientious independent third person, despite his lack of memory about this particular Record of Interview.
114I am therefore satisfied to the requisite standard that notwithstanding the formal language used, Mr Martin did understand the information given to him by police and did give informed consent to the forensic procedure that was then carried out. In other words, I am satisfied no breach occurred, and that the evidence obtained via use of that DNA sample should be admitted at trial.
The 2019 forensic procedure
115The prosecution has conceded as I have said several times, that a breach occurred in the failure by police to convey to Mr Martin his right to have the forensic procedure conducted by a medical practitioner of his choice. ( s464S(1)( c) ) The asserted breach by the alleged failure to use language likely to be understood by the suspect is not conceded. In determining that latter issue, I again refer to the 2019 record of interview, the difference there being that Mr Martin was interviewed about the forensic procedure at 10.47 am and formally interviewed about the allegations about seven hours later.
116That latter portion of the interview has been ruled inadmissible, however, again in my view it was relevant to my task in determining whether Mr Martin did understand the matters put to him pursuant to s464S(1) and I have regard to it pursuant to s464ZE (2A)(h) – “any other matters the court considers relevant.”
The Forensic Procedure Interview
117This was conducted without the presence of an ITP, following a half hour interview with Dr Brook who explained the procedure, and who did not find Mr Martin to be drug-affected, answered questions appropriately, and followed directions easily. She concluded he was fit for a forensic examination. Her concerns about his mental state were based on self-reporting by Mr Martin of his psychiatric history, and her lack of expertise in that area. In my view, it was likewise evident that apart from appearing dejected, Mr Martin did attend to the questions put to him.
118It was first explained that police were seeking forensic samples, “….being fingernail scrapings and some swabs from your mouth and your penis', Question 30. Detective Harvey continued, 'Understand that?' Mr Martin answered, 'Yeah'. That request was explicitly repeated at Questions 32, 33, and 34 and Mr Martin, again being asked if he understood and again answering, 'Yeah'.
119At Question 35, he was told the procedure would be conducted by a forensic medical officer, and he was asked if he understood that, replying, 'Yeah'. At Question 35, the rest of the required information was read out by Detective Harvey, Mr Martin saying, 'Yeah' when asked if he understood that and, 'No' when asked if he wanted to comment on any of the information.
120At Question 40, he was again informed explicitly about where the samples would be taken from on his body, and cautioned about answering questions from the FMO, and again asked if he understood. Again he replied in the affirmative, this time, 'Yep'.
121Turning to the formal Record of Interview later conducted, Mr Martin displayed, although in more subdued fashion, the same characteristics as seen in the 2014 interview. That is, a steadfast capacity to resist all suggestions put by police to come up almost immediately with an exculpatory, sometimes fairly easily disproved scenario, covering his movements at the time of the alleged offending, including an alleged assault on him in Preston, where he fell down.
122He denied all the alleged sexual offending and the attempted robbery. At Question 214, police confronted Mr Martin with the fact they had CCTV footage of he and the complainant walking along Nicholson Street, he holding her arm. Mr Martin responded by saying that someone was making it up, and then said in answer to Question 218, 'I don't recall doing that. Like, to be straightforward, I don't'.
123He went on to say that while he might have been going to “Macca's”, he was thinking, 'Like, why would a girl that I raped hold my hand and walk all the way to McDonald's or wherever you said?'. In answer to Question 223, Mr Martin told police that if they were saying they had evidence, 'I want to see it, at least if I'm able to. If that's what you're saying is true, then I want to see the evidence'.
124At Answer 224, he said, 'What about all the other evidence though? Like, you know, like the cop said'. At Answer 231, he said, 'They - a guy did a robbery, I matched the description. Where's the - where's the picture of my face. Show me a picture of my face'. He also said in that answer that he wasn't going to, 'lag' himself in for something that he had done or had not done.
125When confronted with a description of the clothing worn by the offender which matched that he was arrested in - a hoodie, beanie, tracksuit pants and runners of a particular colour -, Mr Martin said he had been wearing denim shorts and a short sleeved shirt, saying at Answer 256, 'I'm not going to sit here and lie and say yeah, I was wearing this, yeah, I was wearing that when I wasn't'. He was able to return several times to a consistent description of the alleged assault on him in Preston.
126Shown a still from the attempted robbery, Mr Martin denied it was him noting the person did not have a weapon, and therefore it could not have been an armed robbery, as police arresting him had told him it was ( See Answer 369.) He denied being the man in the still from the CCTV footage, and said the complainant walking along Nicholson Street, '…looks like she's drunk', ( Answer 380.)
127He then claimed he could not see the picture properly, and he could not see the face of the man depicted therein, (Answers 385 and 386.) He also spoke of people who could, 'verify' where he was and what he was wearing at the relevant time. (For example, Answer 256.)
128Again, I am satisfied that Mr Martin understood all that was being said to him by police and again, his answers were made readily and responsively. He was also able to maintain his denials in the face of insistent questioning by police, who expressed disbelief at his answers throughout, framed allegations in stark terms such as, 'You did this' and then 'You did that', asked questions such as, 'How do you think she felt?' when referring to the complainant and in the face of Mr Martin's denials, and urged him to, 'be a man', and to explain why he had offended in that way.
129In other words, much of this questioning was highly pressured and improper. It had to my observation no effect on Mr Martin's stance. At the same time, he also demonstrated the capacity to alter his version of events, to provide an innocent explanation which covered further information given by police as the interview went on. For example, he expanded his original version of spending the evening going to two pokies venues and “chilling” in between at home, then waiting for a friend who did not turn up, and then walking to Carlton to look at renovations on Lygon Street Public Housing where he was arrested by police, he said, at about 10 pm.
130On being told he was in fact arrested several hours after that, Mr Martin then added the detail of being assaulted in Preston, and expanded on that, saying he was assaulted by a man who had a woman with him, and that he had previously met this person through his missing friend. He said he owed this person money for drugs, and that after all of this, he walked through the backstreets towards the city.
131When shown a CCTV still of himself allegedly at the Coles Express in Carlton and asked by police what it was, Mr Martin said it looked like a robbery, although it apparently showed no more than a still of a man (allegedly Mr Martin) standing at the counter and nothing more. When asked by police how he knew it was a robbery, Mr Martin said it was because he had seen coins on the floor in the photograph.
132The Record of Interview was excluded on a number of understandable bases, but insofar as this ruling is concerned, in my view it had great relevance in determining the critical questions of Mr Martin's understanding and informed consent. I am satisfied that Mr Martin understood what police said to him and did so at all stages of the interview. Additionally, this information had been delivered to him previously, albeit five years before. Again I have regard to this material pursuant to S464ZE(2A)(h).
133However, obviously Mr Martin was only informed so far. While I accept the possible significance of that information given the intimacy of the proposed forensic examination, in my view the circumstances involving the combined weight of the high probative value of the evidence, the grave nature of the offences alleged, the inadvertence of the breach, and the lack of intentional or reckless behaviour by police do amount on the balance of probabilities, to circumstances which justify reception of this evidence, despite the breach initially rendering it inadmissible.
Police Procedure
134Having said that, I certainly accept that the legislative aim to protect persons in a vulnerable position when being asked by police to provide material which could be used against them via intimate sample is an important one. The increased use of forensic procedures in criminal investigations does mean as Mr Marsh said, that police compliance with s464R and S will be increasingly scrutinised in the courts.
135In my view, the apparently widespread police practice of reading the provisions verbatim is unwise. The language used in the provisions particularly in the latter paragraphs is complex and legalistic, and the prevalence of cognitive deficits and mental health impairment among the criminal suspect cohort is high. Even without these deficits, often the levels of education, literacy and comprehension among offenders are low.
136A police officer, no matter how experienced, cannot necessarily accurately gauge a suspect's comprehension skills or expect they will make that known by querying information, especially if delivered in one cascading form.
137In my view, in order to invariably meet the requirements of the section, police should develop the practice suggested by Mr Marsh. That is, by breaking down the information delivery into topics, verifying the suspect's understanding by getting them to repeat it back during the process. It is my view that this should be done as a matter of prudence, whether or not there is an indication of cognitive disability or mental health issues. This practice is already common amongst police conducting Records of Interview after the right to silence is administered - twice in fact in the 2014 Record of Interview with Mr Martin.
138However, my satisfaction that Mr Martin did understand confines this case to its facts. It means that reception of the evidence does not undermine the protection generally afforded to persons, specifically persons who do have difficulty with comprehension or suspects generally. (See S464ZE(2A)(g) In that sense, the gravity of the breach (see S464ZE (2A)(c)) is accordingly also lessened.
139Insofar as the specific failure to put the information contained in s464S(1) (c) is concerned, it is my view Mr Martin demonstrated no concern at Dr Brooks examining his body and taking intimate samples. It is also my view, likely, given the attitude he consistently displayed to questioning both in 2014 and 2019, that had he objected to a stranger and/or a woman performing the intimate procedure, Mr Martin would have said so, even in the absence of his rights in that regard being explained to him.
140In any event, the combined weight of the factors going to the admission of the evidence does in my view on the balance of probabilities justify the reception of this evidence.
S138
141S138(3) a), b), c), d), and e), largely overlap with the provisions of s464ZE(2A). Insofar as paragraph f) is concerned, for the reasons I have already given, in my view the International Covenant was not breached in 2014. In 2019, the breach occasioned by the omission of the S464S(1)(c) information was not sufficiently grave in my view to outweigh other matters I have referred to – they being the probative value of the evidence, its admitted importance in the proceeding, the serious nature of the offence, and the omission not being due either to reckless or intentional action by police.
142Under paragraphS138 (3) ( g), no other proceeding has or is likely to be taken in relation to that admission. Looking at paragraph h), there was clearly no difficulty in obtaining the evidence without impropriety. But again, when considered against the other factors to be taken into account, pursuant to s138(3), this should not on balance result in exclusion of this evidence.
143Ultimately in my view on balance, pursuant to the provisions S138(1) and (3) the desirability of admitting the evidence outweighs the undesirability.
144Overall, therefore my finding is that the evidence obtained from the 2019 forensic examination should also be led by the prosecution at trial.
145Addendum to Ruling.
146In revising this ruling I realised I had neglected to include the following observations which I now make.
147Notwithstanding my finding that Mr Martin did understand the S464S(1) information as conveyed to him by police in 2014 and 2019, I should make it clear that even had I not so found and the breach asserted by defence established, I would have ruled the evidence should be admitted at trial.
148Pursuant to the provisions of S464ZE(2A) I am satisfied on balance that the circumstances of this case would have justified reception of the evidence notwithstanding such a breach.
149It was undisputed between the parties that the probative value of the evidence was high, the nature of the alleged offending grave and comprising serious examples of a serious crime, and that any failure by police was neither intentional nor reckless.
150In my view defence properly conceded these matters. The alleged offending involves a protracted violent sexual assault including multiple alleged rapes of the most heinous kind. The DNA evidence linking Mr Martin to that alleged offending has particular probity, especially the 2019 material which cannot now be replicated or obtained by other means. Both in 2014 and 2019 police carried out their obligations pursuant to S464R and S464S due to a general practice developed by Victoria Police and not with a view to denying Mr Martin his rights either intentionally or recklessly.
151This set of factors is in my view singular and the combined force of them such that, as I have said, on balance the circumstances of this case would have justified reception of this evidence otherwise rendered inadmissible. That singularity again would confine this case to its facts and therefore have a more limited impact on the legislative protection afforded to suspects generally. (See S464ZF(2A)(g).
152For the same reasons, applying the provisions of S138, in particular paragraphs (a), (b), (c), (d), ( e) and (g) of S138(3) I would have been satisfied the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way it was.
153Finally, Mr Marsh urged I distinguish between the types of evidence obtained in the 2019 forensic procedure – that is between the DNA material and other forensic material such as dirt and debris discovered in Mr Martin’s hair and on his body including his genitals, along with observations of marks on his body. The argument was not greatly developed in submissions – I assume it related to the issue of probative value.
154I would also have admitted this evidence. It supports the contention that the alleged offending occurred in wet muddy conditions and as Mr Dickie said, that Mr Martin’s penis was out and exposed. It is evidence which would be expected in the circumstances of the alleged offending, and its absence would create a notable deficit in the prosecution case.
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