Hibble v B - [2012] TASSC 59

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hibble v B

Details

AGLC: Hibble v B [2012] TASSC 59
Case: [2012] TASSC 59
Decision Date: 20 September 2012

CaseChat Overview and Summary

In the matter of Hibble v B, the respondent, a 13-year-old child, challenged the admissibility of a DNA sample obtained from him during a police investigation. The sample was voluntarily provided but the retention and processing of the sample did not comply with the relevant statutory provisions. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether the DNA sample, obtained from the respondent without proper authorisation, should be excluded from evidence under the discretionary powers available to the court. Specifically, the court needed to consider whether the breach of the Forensic Procedures Act 2000 was serious enough to warrant exclusion of the evidence.

The court examined the provisions of the Forensic Procedures Act 2000, which requires that a DNA sample can only be taken from a person if certain conditions are met, including an agreement with the Commissioner of Police regarding the period for retaining the sample. In this case, the sample was taken without such an agreement and there was no delegated authority to take the sample. The court needed to weigh the gravity of the contravention against the public interest in obtaining and using the evidence. The court held that the breach was serious and the gravity of the contravention was significant enough to warrant the exclusion of the DNA evidence. The court found that the breach was not trivial and had a substantial impact on the integrity of the investigation.

The Supreme Court of Victoria exercised its discretion to exclude the DNA evidence, given the breach of statutory provisions and the absence of a proper agreement with the Commissioner of Police. The court determined that the exclusion of the evidence was necessary to uphold the integrity of the judicial process and to ensure that the rights of the respondent were protected. The court's decision was based on a careful assessment of the statutory framework and the specific circumstances of the case, leading to the exclusion of the DNA evidence from the trial.

Orders