Hibble v B
[2012] TASSC 59
•20 September 2012
[2012] TASSC 59
COURT: SUPREME COURT OF TASMANIA
CITATION: Hibble v B [2012] TASSC 59
PARTIES: HIBBLE, Kim (Senior Constable)
v
B
FILE NO/S: 334/2011
DELIVERED ON: 20 September 2012
DELIVERED AT: Hobart
HEARING DATE: 25 November 2011
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law - Evidence - Judicial discretion to admit or exclude evidence – Illegally obtained evidence - Particular cases – Whether breach of Forensic Procedures Act 2000 – DNA sample taken from 13 year old as a volunteer – No agreement with the Commissioner of Police regarding period for retaining the DNA – No delegated authority – Gravity of the contravention.
Forensic Procedures Act 2000 (Tas), ss3, 29, 30.
Police Service Act 2003 (Tas), s8.
Evidence Act 2001 (Tas), s138.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, referred to.
Aust Dig Criminal Law [2686].
REPRESENTATION:
Counsel:
Applicant: J Ransom
Respondent: C J Gibson
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Zeeman Kable & Page
Judgment Number: [2012] TASSC 59
Number of paragraphs: 83
Serial No 59/2012
File No 334/2011
KIM HIBBLE (SENIOR CONSTABLE) v B
REASONS FOR JUDGMENT WOOD J
20 September 2012
The respondent was charged with burglary and stealing with respect to a hair salon in George Town, alleged to have been committed on 20 March 2009. He pleaded not guilty and, on various dates in 2010 and 2011, a hearing was conducted before Magistrate Marron in the Youth Justice Division of the Magistrates Court held in Launceston. At the conclusion of the hearing his Honour dismissed the complaint. He provided oral reasons for concluding that the charges were not proved beyond reasonable doubt. Critical to his conclusion was a determination made pursuant to the Evidence Act 2001, s138, that evidence of a DNA match regarding a blood sample taken from the scene of the burglary, and a sample taken from the defendant, should not be admitted. Without the evidence of the DNA match, there was insufficient evidence linking the respondent to the crimes.
The effect of his Honour's determination was that the evidence of the match was obtained in consequence of a breach of the Forensic Procedures Act 2000 ("the Act"). He assessed the gravity of the contravention for the purpose of the Evidence Act, s138(3)(d), as "significant".
The State has brought a motion to review the order dismissing the complaint. It is asserted that the magistrate made errors of fact and law with regard to the application of the Act, whether the Act had been breached and if it had, the significance of the breach. It is my conclusion that the applicant has not demonstrated error warranting upholding the motion to review. These are my reasons.
The evidence: the DNA match
The evidence before the magistrate concerned DNA samples taken from the respondent on two separate occasions. The first sample was taken in 2007 and the second in 2010. A chronology of the key events is as follows.
On 21 November 2007, Sergeant Radosavljevic arranged for the respondent to attend the police station at George Town in relation to a significant number of offences. The offences involved burglaries with respect to various properties in George Town and theft of items including copper wire and a motor cycle. He attended voluntarily in the company of his father. The respondent was 13 years of age. An interview was conducted with his father present. The respondent was very co-operative and provided information regarding the conduct of others. At the conclusion of the interview he was not charged with any offences. Afterwards police took a DNA sample using a buccal swab and also took fingerprints.
Before the DNA sample was taken, the respondent and his father signed a form with the title "Informed Consent to Forensic Procedure on a Volunteer". It made provision for consent to be given for forensic material to be placed on the DNA database system. The respondent and his father signed the form permitting the material to be placed on the "volunteers (unlimited purposes) index" for 700 days. It was this procedure, followed with respect to the taking of this first sample, that was held by the magistrate to be flawed and conducted in breach of the Act.
On approximately 20 March 2009, the offences of burglary and stealing with respect to the hair salon in George Town were committed. To gain entry a window to the side of the main entry doors was smashed. Jewellery valued at approximately $5,000 was stolen. Police officers examining the scene took a sample of blood from inside the window sill. It was sent to Forensic Science Service Tasmania for analysis and a DNA profile was obtained from the sample.
On 30 June 2009, the respondent's DNA profile from the database was compared with the profile from the window sill. A match was obtained. A report by a forensic scientist tendered at the hearing contained the opinion that the chance of a second person, unrelated to the respondent, matching the DNA profile was less than one in 1.5 million. That match was obtained within the period of 700 days, 540 days after the DNA sample was entered on the volunteers' index and 587 days after it had been taken from the respondent.
On 27 November 2009, the respondent was interviewed by police and charged with burglary of, and stealing from, the hair salon.
On 2 December 2009, the reference sample was destroyed and the DNA profile removed from the database 695 days after it had been loaded onto the database.
On 13 May 2010, a second sample of the respondent's DNA was obtained by order of a senior police officer. That was placed on the database and later matched to the DNA profile from the crime scene.
It is apparent that the first DNA sample taken in 2007 produced the match which led to the 2010 sample being taken. The implications of this are that the prosecution could not avoid any problem of illegality with respect to the taking of the first sample by relying on the 2010 DNA sample. If the first sample was taken in contravention of the law, then the evidence of the match in 2010 was obtained "in consequence" of a contravention of an Australian law (Evidence Act, s138(1)(b)).
The 2007 DNA sample
I mention some of the evidence regarding the taking of the first sample in 2007. It is not necessary to do so in detail because the applicant's argument may be considered by proceeding on the basis of the prosecution evidence and without dwelling on matters of factual dispute.
Sergeant Radosavljevic described his reasons for taking the DNA sample. He stated that he requested a DNA sample from the respondent as "a deterrent effect" and that the sample was taken as a volunteer sample. He explained his reasons for taking the sample as a deterrent:
"WITNESS: I wanted to take his fingerprints and his DNA sample and make him fully aware that we had those samples to try and deter him from committing any offences down the track. So basically if he was to commit any offences he would know that police had his samples and could probably charge him with it."
Sergeant Radosavljevic said he spoke to the respondent and his father at length before taking the sample. He used a form with the heading "Informed Consent to Forensic Procedure on a Volunteer" which records that Sergeant Radosavljevic requested the respondent and his father to consent to the carrying out of a forensic procedure, being a non-intimate forensic procedure, "buccal swab, fingerprints". It was recorded on the form that the information from the forensic material may be placed on the "volunteers (unlimited purposes) index".
The consent part of the form, with signatures removed, provides as follows:
Sergeant Radosavljevic's account of his discussion with the respondent and his father about the form was as follows:
"… I spoke to [the respondent] and his father at length and explained the form to them, your Honour, and my reasons for taking the sample. I had to explain in detail the way the sample was to be taken, why the sample was to be taken, how it was to be taken and I also requested it to be retained on the database for a period of seven hundred days, which they consented to, and that they could withdraw consent at any time. They both agreed to this and both signed the form. I then arranged for Constable Spencer to take a DNA sample and fingerprints from [the respondent] in the presence of his father. The form was filled out as per section 30 of the Forensic Procedures Act in relation to volunteer samples, and that it was to be placed on the unlimited purpose index."
He explained that on the same day he interviewed the respondent's brother who was charged with serious offences and his DNA was taken as a suspect or charged person. Sergeant Radosavljevic was asked whether he had reasonable grounds to suspect the respondent had committed a serious offence, and he said:
"… At the time I took the sample, your Honour, I did not believe that … [reference to the respondent] … was involved in any serious offences. My reasons for taking the DNA sample on the day was I was concerned that … [the respondent] … was hanging around people that he shouldn't be, that he might travel down the same path as his brother, who was charged by me. I was concerned about this and as a deterrent effect I took [the sample] …"
During cross-examination Sergeant Radosavljevic said that the sample was taken for "elimination purposes" as well. When pressed he said that the respondent had already been eliminated from his enquires and, in any event, he had no forensic samples from the offences. Sergeant Radosavljevic said that he was the person who came up with a figure of 700 days. He was asked what made him choose a figure such as 700 days. He stated that it was "just a figure that popped" in to his head, describing it as a lengthy time.
Constable Spencer took the DNA sample from the respondent using a buccal swab. He gave evidence that when he took the sample the respondent's father was not present. There was evidence that at that stage he was sitting in on the interview with the respondent's brother.
The respondent gave evidence that he recalled the policeman talking to him about giving fingerprints and a DNA sample. At first, he refused and then his "Dad tried to con [him] into doing it" and he did it to get it over with so he could clear his name. He said he was told that it would be destroyed in 300 days.
The respondent's father gave evidence. When the police first raised taking DNA and fingerprints, his son objected strenuously at first. He understood the main purpose was to clear his son of the offences being investigated. The police told him they would keep records of his DNA for up to three months. He did not recall 700 days having been mentioned.
Two procedural pathways under the Act
The Act provides the procedure for the carrying out of forensic procedures on people. It distinguishes between suspects and volunteers and persons older or younger than 15 years of age.
In the circumstances of this case there were two procedural pathways open to the police depending on whether the respondent was a suspect or volunteer. The Act provides for discrete forensic procedures attaching to each category of person, whether they be volunteers or suspects, undergoing a forensic procedure.
Relevant provisions of the Act
Various definitions contained in the Act, s3(1), are relevant. Forensic procedure is defined:
"forensic procedure means –
(a) an intimate forensic procedure; and
(b) a non-intimate forensic procedure; …"
The taking of a sample by buccal swab falls within the definition of "non-intimate forensic procedure".
The terms "suspect" and "volunteer" are defined, as well as other words mentioned in each of those definitions:
"suspect means a person whom a police officer suspects on reasonable grounds has committed a serious offence but who has not been arrested and charged with the serious offence; …"
Relevant to the definition of "suspect" is the definition of "serious offence" in the Act which includes an offence:
"(a)under the law of this State or of a participating jurisdiction that is punishable on indictment even though in some instances it may be dealt with summarily; or …"
The word "volunteer" is defined and means "a person who volunteers to a police officer to undergo a forensic procedure; …".
The term "volunteers (unlimited purposes) index" is defined and means an index of DNA profiles derived from material taken:
"(a) in accordance with Part 4 or under a corresponding law of a participating jurisdiction from volunteers who have been informed under section 30 or under a provision of that corresponding law that has substantially the same effect as section 30 that information obtained may be used for the purpose of a criminal investigation or any other purpose for which the DNA database system may be used under Part 8 or under that corresponding law; and
(b) from deceased persons whose identity is known."
The forensic procedures to be followed with respect to suspects and charged persons are set out in Pt2. Section 8(3) of that Part applies to suspects or charged persons under the age of 15 years and provides:
"(3) Where a suspect or charged person is under the age of 15 years, a forensic procedure may be carried out on the suspect or charged person in accordance with this Act –
(a) if both the suspect or charged person and his or her parent have given informed consent to the carrying out of the forensic procedure; or
(b) on the order of a magistrate."
Section 8(4) relates to informed consent and provides in part:
"(4) For the purposes of this section, a suspect, charged person or parent gives informed consent to the carrying out of a forensic procedure if the suspect, charged person or parent consents to the carrying out of the forensic procedure after a police officer has –
(a)requested the suspect, charged person or parent to consent to the procedure; and
(b) informed the suspect, charged person or parent about the procedure –
(i) in accordance with section 10; and…"
Section 9 provides that a police officer may request a suspect, charged person or parent to consent to the carrying out of a forensic procedure on that suspect or charged person.
Section 10 set outs the information that a police officer must provide about the procedure necessary for informed consent relevant to suspects or charged persons. The information includes matters such as the way in which the forensic procedure is to be carried out; that the forensic procedure may produce evidence relating to the suspect or charged person that might be used in a court of law; and that information obtained from the analysis of forensic material obtained from the forensic procedure may be placed on the DNA database system.
Part 4 covers forensic procedures carried out on volunteers. Section 29(2) relates to volunteers under the age of 15 years:
"(2) Where a volunteer is under the age of 15 years, a forensic procedure may be carried out on the volunteer in accordance with this Act if both the volunteer and the volunteer's parent have given informed consent to the carrying out of the forensic procedure on the volunteer."
Section 29(3) relates to the giving of informed consent by volunteers. The subsection provides in part:
"(3) For the purposes of this section, a volunteer or parent gives informed consent to the carrying out of a forensic procedure on the volunteer if the volunteer or parent gives consent after a police officer has informed the volunteer or parent about the forensic procedure –
(a) in accordance with section 30; and …"
Section 30 sets out the information that must be provided by a police officer in order that consent amounts to informed consent in the case of volunteers:
"30 Informing volunteer or parent of forensic procedure
On a volunteer volunteering to a police officer to undergo a forensic procedure, a police officer must inform the volunteer and, if the volunteer is under the age of 15 years, the volunteer's parent of the following matters:
(a) the way in which the forensic procedure is to be carried out;
(b)that the forensic procedure may produce evidence that might be used in a court of law;
(c) to the extent that they are relevant, the following matters:
(i) that information obtained from the analysis of forensic material taken from a volunteer and as to the identity of the volunteer may be placed on the DNA database system on the volunteers (limited purposes) index or the volunteers (unlimited purposes) index and the purposes for which that index may be used;
(ii) that information placed on the DNA database system will be retained for the period agreed between the Commissioner of Police and the volunteer;
(iii) any other prescribed matter;
(d)that the volunteer or parent may at any time withdraw consent to one or more of the following:
(i) the forensic procedure;
(ii) retention of the forensic material taken or information obtained from the analysis of that material."
Consent can be withdrawn expressly or by the person behaving in such a way that it can reasonably be inferred that consent is withdrawn: s38(2). In such a case the forensic procedure is not to proceed: s38(2)(b).
Section 44(2) requires that if a forensic procedure is carried out on a person under the age of 15 years, the person's parent, or if unavailable, an independent witness, must be present during the procedure.
Section 46 provides that the rules of evidence relating to illegally, unfairly or improperly obtained evidence apply to evidence obtained under the Act.
There is provision for destruction of forensic material taken from a suspect or charged person. The material must be destroyed as soon as practicable if a period of 12 months has elapsed since the material was taken, if the proceedings in respect of all offences for which the forensic material was obtained have not been instituted, and if a warrant has not been issued for their apprehension, s51(2).
In the case of volunteers, the time-frame for retaining the material is capped by the period agreed with the Commissioner, subject to withdrawal by consent in writing, and subject to the procedure for an application for an order that the material be retained.
There are penalty provisions which apply if forensic material is retained after the agreed period has expired in the case of volunteers, or, in the case of suspects, after the period of 12 months: s55.
The ruling
The magistrate determined that the DNA sample was taken from the respondent as a "suspect" in an ongoing investigation. He reasoned that the respondent was in fact a suspect at the time he was being questioned by police in relation to a considerable number of offences and it was evident from the interview conducted by the police that they held reasonable grounds within the meaning of the Act for regarding him as a suspect. He further reasoned that the respondent would have believed that he was a suspect. He approached the matter on the basis that a person could only be a volunteer or a suspect and not both. He asked, "How would it be possible for a volunteer, not allegedly under investigation for any particular matter, to have that sample taken and retained?" He acknowledged that the police dealt with the respondent as a volunteer, but found that the police followed incorrect procedure, as he was a suspect.
The learned magistrate considered the provisions of the Act that applied to the taking of samples from suspects. He noted that had correct procedure been followed, the sample would have been destroyed after 12 months. He found a contravention of the Act. As previously mentioned, he found that, for the purposes of the Evidence Act, s138(3)(d), it was a significant contravention.
The grounds of review
The grounds of review assert that the magistrate erred by ruling that the DNA sample taken in 2010 was not to be admitted, and erred in applying s138 of the Evidence Act. The grounds are set out below. Particulars of error in applying s138 are set out in respect of ground 3.
"1 The Learned Magistrate erred in law in dismissing complaint 36414/09.
2 The Learned Magistrate erred in fact and law in ruling that the DNA sample taken from the respondent on the 13th of May 2010 was not admissible in the proceedings.
3 The Learned Magistrate erred in fact and law in the application of Section 138 of the Evidence Act 2001 by
Particulars
(a) Finding the terms 'suspect' and 'volunteer' as defined in the Forensic Procedures Act 2000 are mutually exclusive and
(b) Finding that the respondent was a 'suspect' rather than a 'volunteer' when no reasonable view of the evidence could ground that finding and
(c) Finding that the DNA sample taken from the respondent on the 13th of May 2010 was illegally or improperly obtained when it was obtained in compliance with the Forensic Procedures Act 2000 and
(d) Finding that any illegality or impropriety 'must be considered significant'."
At the hearing of the review the applicant relied upon ground 3, the first two grounds not raising any additional matters. The applicant contended that forensic procedures were correctly followed in that the police lawfully took the forensic sample from the respondent as a volunteer. It was submitted that the police had correctly followed the statutory requirements regarding volunteers. Attention was drawn to the fact that the statutory requirement to destroy the information after 12 months did not apply to volunteers, and that the match was obtained within 700 days, the agreed period, according to the prosecution case.
During the hearing of the motion a question arose as to whether there had in fact been compliance with the requirements for forensic procedures regarding volunteers in that the Act referred to an agreement between the Commissioner of Police and the volunteer with respect to the period for which the information would be retained on the DNA database (s30(c)(ii)). There was no evidence before the magistrate of an agreement with the Commissioner or delegated authority to Sergeant Radosavljevic to reach agreement. Counsel for the applicant provided written submissions with respect to this question. The defence did not take up the opportunity to do so.
It was submitted on behalf of the applicant that there had been compliance with the Act, but in the event of non-compliance it was not significant. The grounds of review are wide enough to permit the applicant to ventilate arguments concerning contraventions of the statutory procedure for volunteers as well as suspects.
Discussion
It is clear from the evidence that when the police took the DNA sample from the respondent in 2007, the respondent was treated as a volunteer. The procedure the police invoked was that set out in the Act governing volunteers. On the evidence before the magistrate that was the only view of the approach taken by the police that was open. The form used by police was the form used for volunteers. Sergeant Radosavljevic's decision to treat him as a volunteer was deliberate, and contrasted with the way he treated the respondent's brother.
The learned magistrate found that the respondent was in fact a suspect and gave consideration to the legislative requirements regarding the taking of forensic samples from suspects. While those requirements had some relevance, the correct focus was the procedure that was actually adopted by the police to ascertain if there was a contravention of the law or any impropriety in their approach. Otherwise, the enquiry inevitably leads to the conclusion that the police have failed to comply with a statutory procedure that they were not following.
I mentioned that the issues of whether a person was in reality a suspect and whether the procedure regarding suspects was complied with would still be relevant. They would be relevant to whether the police followed correct procedure by treating the person as a volunteer. If the police should have rightly regarded the person upon whom the forensic procedure was carried out to be a suspect and not a volunteer, then that may have a bearing on whether the person qualified as a volunteer under the Act. Being a volunteer is an essential requirement of the procedures regarding volunteers. Further, if the police were disingenuous in dealing with someone as a volunteer, rather than a suspect, that would be relevant to whether there was impropriety by the police in the procedure they followed in treating someone as a volunteer. For example, if it was shown that they treated someone as a volunteer in order to avoid the requirement that samples be destroyed after 12 months, that might give rise to an argument that any evidence obtained was obtained improperly.
It follows that the question for the magistrate was whether there had been a failure to correctly follow the legislative requirements involving volunteers. The procedure for giving informed consent as a volunteer requires that a police officer inform the volunteer and the parent "that information placed on the DNA database will be retained for the period agreed between the Commissioner of Police and the volunteer" (s30(c)(ii)). The prosecution case was that the period agreed was 700 days. This was the period recorded on the form and signed by the respondent and his parent. As mentioned, the argument can be appropriately considered on the basis of the prosecution version of events.
Sergeant Radosavljevic's evidence was that the specific period of 700 days "popped" into his head. As previously noted, there was no evidence before the magistrate that that was a period agreed with the Commissioner of Police, and no evidence of an instrument of delegation. The written submissions drew attention to the Police Service Act 2003, s6(1), providing that a person is appointed by the Governor as "Commissioner of Police", and s7 setting out the Commissioner's responsibilities. The power of delegation is set out in s8 which provides in part:
"8 Delegation
The Commissioner, by instrument in writing, may delegate to a police officer, or an employee or officer within the meaning of the State Service Act 2000, any power, duty or responsibility of the Commissioner under this Act or any other Act, other than – …"
By virtue of this provision, the Commissioner may delegate his power pursuant to the Act, s30(c)(ii), to an individual officer, ie Sergeant Radosavljevic, or also it seems, to officers of a particular category, such as those above a particular rank.
In the written submissions filed by the applicant it is conceded that there is no instrument of delegation in existence with respect to the power in the Act. It is argued that nonetheless there is no illegality or impropriety flowing from the absence of a written instrument of delegation. The submission for the applicant was that the Act does not require agreement between the Commissioner and a volunteer.
One of the submissions advanced by the applicant is that the obligation to inform the volunteer and the parent only arises if there is a finite period agreed with the Commissioner. If the volunteer were to agree to an unlimited time-frame, the obligation of the police officer to inform the volunteer and his/her parent in this regard would not arise. It was submitted that it would be open for a volunteer to agree to an unlimited period of time, subject to the right to withdraw in s31. Thus the consent to the retention of the material may be ongoing until withdrawn by a volunteer, or it may be limited in advance by agreement. The argument for the applicant relied upon the words of s30(c), which provide "to the extent that they are relevant …". The penalty provisions in s55 were adverted to and it was submitted that these provisions do not establish a requirement, they merely fix a liability.
These submissions do not seem to assist the applicant. There is no suggestion that there was an agreement for an indefinite period. Still, I will consider the submissions and whether it is an essential aspect of the forensic procedure regarding volunteers that there be a period agreed with the Commissioner, and that the volunteer be informed accordingly.
The Act provides that for there to be informed consent the police officer must inform the volunteer and his/her parent that the information will be retained for the period agreed between the Commissioner and the volunteer, but does not require an agreement with the Commissioner as a precursor to informed consent. The informed consent procedure rests on an assumption that an agreement with the Commissioner has already been entered into with the volunteer.
Notwithstanding this oblique drafting style, the Act may be interpreted as requiring, as an implied aspect of the procedure with regard to volunteers, that there be an agreement with the Commissioner as to the period for which the information on the DNA database will be retained. If it is necessary that the information provided by the police officer for the purposes of informed consent include a reference to an agreement with the Commissioner, then the only sensible interpretation of the provision is that an agreement is essential. The Act would not require a police officer to inform a volunteer about a matter of agreement that did not exist. I turn to consider the question of whether an agreement with the Commissioner is essential by reference to the words of s30, and also the broader legislative scheme with respect to volunteers.
The words of s30 are consistent with a mandatory requirement of agreement in all cases and not just in cases of agreements for finite periods. The words "to the extent that they are relevant" do not suggest otherwise as they apply globally to subpars(a), (b) and (c)(i), (ii) and (iii). It is entirely feasible that these qualifying words apply to some subparagraphs of the section and not others which are invariably relevant, and that reference to the period agreed with the Commissioner is always required as an aspect of the informed consent procedure because there must always be an agreement.
Looking beyond s30, it is evident that agreement with the Commissioner as to the period underpins the legislative scheme with respect to volunteers:
· Section 31 enables a volunteer to withdraw consent to retention of forensic material by providing the withdrawal to the Commissioner of Police expressly and in writing. This section is a clear indication that an agreement with the Commissioner is an essential aspect of the procedure regarding volunteers.
· Agreement with the Commissioner is pivotal to the definition of the period in s55, referred to as the "identifying period", for retaining forensic material taken from a volunteer, that if exceeded, gives rise to offences.
· In the case of volunteers, there is no alternative provided by the Act in fixing the period for retaining forensic material other than the period agreed with the Commissioner of Police.
· The consequence of not implying a requirement of an agreement would leave an hiatus in the procedures and the offence provisions. That consequence would be at odds with and undermine the carefully circumscribed powers of taking and retaining DNA material set out in the Act.
The applicant's arguments would mean that there would be a requirement for an agreement with the Commissioner for a finite period, and yet no agreement needed for the more concerning situation of retention of DNA material for an indefinite period. There is no support for this interpretation to be found in the terms of the Act. The Act does not recognise a distinction between finite and indefinite periods. It provides simply for periods that are agreed with the Commissioner. In fact, an indefinite period is a "period" and would attract s30(c)(ii) just as a finite period would.
It is concluded that an agreement with the Commissioner is an essential requirement of the legislative procedure regarding volunteers.
It was submitted that Sergeant Radosavljevic was able to act as an agent of the Commissioner and therefore the absence of express delegated power did not give rise to a breach of the Act. It was submitted that as a matter of "practical administrative necessity" the Commissioner of Police could not be expected to personally enter into an agreement with each volunteer under s30(c)(ii). The applicant relied upon Carltona Ltd v Commissioner for Works [1943] 2 All ER 560 at 563 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, and pointed to the possibility of an implied power to act through the agency of others.
However, given the express power of delegation in the Act, there is no warrant for an implied power to act through the agency of others. The question of an implied power gives rise to consideration of the nature, scope, and purpose of the function vested in the repository: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, per Mason J at 38. The nature, scope and purpose of the function vested in the Commissioner would indicate that the function would be expected to be exercised by the Commissioner's delegates and the Commissioner personally, rather than any police officers without expressly delegated power. There is no argument that the Commissioner's express power of delegation is wide enough to permit him to delegate his powers in this regard by instrument in writing to officers of a particular category, such as officers of a specified rank and above.
In this case, the police informed the respondent and his father, and recorded in the consent form that an agreement had been reached with the Commissioner for retention of the forensic material for a period of 700 days. The agreement was with Sergeant Radosavljevic, not the Commissioner. In view of the fact that there was no instrument of delegation in existence, there was a clear breach of the implied requirement for there to be an agreement with the Commissioner. This means that informed consent for the purpose of the Act, s29(3)(a), falls away. The forensic procedure is not permitted to be carried out by virtue of s29(2), and by the carrying out of the procedure a contravention of the Act has occurred.
It was submitted that the contravention should not be regarded as being grave for the purpose of the Evidence Act, s138(3)(d). I note that if the contravention qualifies as significant then that conclusion would coincide with the magistrate's ruling with respect to a breach of the procedural requirements of the Act regarding suspects. He held that the breach was significant. There is no argument raised by the applicant that if there was a significant contravention, as found by the magistrate, that the determination pursuant to the Evidence Act, s138(1), as to whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence, correctly weighed in favour of not admitting the evidence. I turn to consider whether the contravention of the Act was significant.
It was submitted that in this case, the rank of the officer purporting to act on behalf of the Commissioner, and the non-invasive nature of the procedure, are relevant matters to be taken into account in determining whether the breach was significant. I take these factors into consideration; the breach is not as significant as it would be otherwise. However, aspects of the procedure that were followed in this case give rise to concerns and justify treating the breach as significant.
Sergeant Radosavljevic purported that the period of 700 days was a period agreed to by the Commissioner. Not only was that completely untrue, because there was no such agreement with the Commissioner, but there was a real risk that a child of 13 would find the proposition that the Commissioner of Police had agreed that his DNA information should be kept for 700 days to be daunting and for that reason give his consent to that period.
One of the findings made by the magistrate on the undisputed evidence was that the respondent's parent was not present when the forensic procedure was carried out. The magistrate treated the absence of the parent as relevant to the gravity of the breach, noting the respondent's age and that he was "under the cloud of an ongoing investigation". I agree with his Honour in that regard. Furthermore, the fact that the respondent's parent was not present gave rise to another contravention of the Act, s44(2). The absence of the respondent's parent, in contravention of the Act, compounds the gravity of the breach regarding the procedure of informed consent. The respondent was entitled under the Act to withdraw his consent at any stage, s30(d). Indeed, so was his parent, s30(d). If the respondent wished to do so while the forensic procedure was about to be, or being carried out, there was a real risk that, as a 13 year old, he would not speak up if his father was not present.
It was submitted that there was no evidence that the illegality was other than unconscious and that it was neither deliberate nor calculated. Before giving consideration to this submission, it is to be noted that whether the breach or contravention was deliberate is identified in the Evidence Act, s138(3)(e), as a separate factor to that of the gravity of the breach.
In this case, the evidence does not suggest that the contravention, with respect to an agreement with the Commissioner, was deliberate. Indeed, it is consistent with the evidence that Sergeant Radosavljevic was ignorant of his absence of authority for the purpose of the Act, s30(c)(ii), and ignorant that, absent delegated authority, the Commissioner had to personally enter into an agreement with a volunteer.
Nevertheless, such ignorance related to a requirement that was clearly set out in the Act and that should at least have prompted an enquiry about his authority. It was submitted that Sergeant Radosavljevic could not be reasonably expected to know of the absence of his authority. I am unpersuaded by that submission. If he had looked at the section he would have known that it was the Commissioner who had to agree to the period, and he would have known that he did not have authority unless it was delegated to him. Senior police officers would know that delegated authority is reduced to writing and is ascertainable. He was not careful about a matter where the policy of the legislation expects substantial care to be taken particularly in the case of a child under 15 years of age. This is not a case where, as a breach of the law carried out in ignorance, it should be seen as insignificant.
In determining the gravity of the breach, a relevant consideration is that the police used the DNA procedure not just for the purpose of excluding the child's involvement in the crimes under investigation, but for the purpose of "deterrence". In fact, this was the principal reason for the procedure and why such a lengthy period of retention was selected. Evidently, Sergeant Radosavljevic's motivation was in the best interests of the respondent. Sergeant Radosavljevic was seeking to deter the respondent from committing crimes in the future. However, he did so acting on his own initiative without consultation and without consideration of countervailing concerns.
The rationale that the procedure was to be used as a deterrent or pre-emptive measure raises substantive concerns. These concerns include whether an adult would have been asked to agree to providing a DNA sample in the same situation, and whether the respondent was being dealt with more severely than an adult would have been dealt with. This is a principle recognised in the Youth Justice Act, s5(1)(b), governing the exercise of police powers regarding youths under that Act and is, at least, a valid consideration with regard to the exercise of police powers with respect to youths in the wider policing context. Another concern relates to whether the approach taken by Sergeant Radosavljevic amounted to an arbitrary intrusion in terms of privacy. For an expression of this concern see the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), for example at 16.1, "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, …"; and 16.2, "The child has the right to the protection of the law against such interference or attacks". See also the International Covenant on Civil and Political Rights, at 17, in the same terms. It is noted that the Covenant receives specific consideration in the Evidence Act, s138(3)(f).
The fact that the Sergeant acted on a rationale of deterrence which raises these concerns, underscores the importance of the procedure in the Act with regard to the supervisory role of the Commissioner. The Sergeant's approach to the procedure, regarding the taking of the DNA sample, presuming delegated authority, and in pursuing a purpose of deterrence without reference to the Commissioner or the concerns I have identified, flies in the face of the care and attention the legislature expected to be taken with respect to forensic procedures. However, it does not mean he was not well intentioned and endeavouring to act in the child's interests.
A fundamental matter which has not been addressed in submissions is whether the purpose of deterrence falls within the purpose of the "volunteers (unlimited purposes) index" as set out in the Act. The definition of this index provides that the information is used for the purpose of a criminal investigation, as well as any other purpose for which the DNA database system may be used under Pt8 or under that corresponding law. It appears that the purpose of deterrence is not a purpose for which the DNA database may be used under Pt8. This matter has not been addressed in submissions and it is not necessary for it to be decided in this case; there already exist ample reasons why the contravention is to be seen as significant.
The breach of the Act is a significant contravention of the law, noting the matters I have referred to, including the age of the child, the absence of his parent at time the sample was taken, the lengthy period advanced for retaining the DNA information, and the reason for the lengthy period being an arbitrary period for the purpose of deterrence.
The magistrate found that the police had breached the statutory procedure that governed the taking of the DNA sample from the respondent and that the breach was significant. There was error in the reasoning that led to that conclusion. The magistrate had reference to the procedure regarding suspects when that was not the procedure followed by the police. However, the magistrate's conclusion that there had been a contravention of the Act, and that it was a significant contravention, coincides with the decision that should have been reached with respect to the procedure followed by the police in treating the respondent as a volunteer. He reached the correct conclusion but for the wrong reasons.
As previously noted, the first two grounds of review stand or fall with ground 3 and do not raise any additional matters. Ground 3 asserts that the learned magistrate erred in fact and in law in the application of s138 of the Evidence Act, by reference to various findings that are particularised. It is the magistrate's conclusion with respect to s138, that there had been a contravention of the Act and that it was a significant contravention, which is the subject of the notice to review. The particularised findings are relied on as demonstrating error with respect to that impugned conclusion.
The first particular of ground 3 gives rise to the question of whether "suspect" and "volunteer" are mutually exclusive terms. That does not need to be decided. At best, it leads to a consideration of the procedure regarding volunteers, and for the reasons I have given, that procedure has been considered. The applicant's position could not be advanced by deciding the question raised by this particular.
The second particular, that the respondent should have been found to be a volunteer, again, is a particular of the ground that asserts error in the magistrate's conclusion as to the application of the Evidence Act, s138. While the magistrate ought to have had regard to the procedure regarding volunteers, his conclusion stands for the reasons I have identified. The third and fourth particulars of error are not substantiated. The magistrate was correct to find there had been illegality or impropriety in obtaining the DNA sample in 2010, and in finding that the illegality or contravention was significant. The conclusion under review relating to the Evidence Act, s138, stands as correct. The ground must fail. An order will be made dismissing the motion to review.
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