In the Application of Senior Constable Bathgate for an order for the carrying out of a forensic procedure on an untested former offender

[2014] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation:	In the Application of Senior Constable Bathgate for an order for the carrying out of a forensic procedure on an untested former offender [2014] NSWLC 4
Hearing dates:	13/01/2014, 18/01/2014
Decision date:	28 January 2014
Jurisdiction:	Civil
Before:	Magistrate Dare SC
Decision:	See [12]
Catchwords:	FORENSIC PROCEDURES - Part 7A Crimes (Forensic Procedures) Act 2000 - DNA backcapture - testing of 'untested former offender' - application not conviction-based - provisions operate on service of a Court Attendance Notice for an indictable offence
Legislation Cited:	Crimes (Forensic Procedure) Act 2000 Local Court Act 2007
Category:	Principal judgment
Parties:	Senior Constable Bathgate (Applicant) X (Respondent)
Representation:	Sgt D Middleton for the Applicant Respondent in person
File Number(s):	2014/3656

Judgment

1. This is an application brought before the Local Court pursuant to section 45 of the Local Court Act 2007 by Senior Constable Bathgate of Tumut Police Station. The application seeks an Order authorising the carrying out of a forensic procedure to which Part 7A of the Crimes (Forensic Procedures) Act 2000 (the Act) applies on the Respondent pursuant to section 75L of the Act.

1. The Application was served on the Respondent by delivery of a copy to the Respondent's Solicitor. Correspondence within the Court file shows a letter from the Solicitor to the Applicant advising that the Respondent did not consent to the taking of the non-intimate forensic procedure applied for. As will be seen, that is not the end of the matter.

1. It will be a helpful exercise to look, first, at the statutory basis for what, on the face of it, might seem to be an unusual application. Part 7A of the Act was outlined to the New South Wales Legislative Assembly in the Second Reading Speech of the Crimes (Forensic Procedures) Amendment Bill on 28 September 2006. The Hon. Paul McLeay (on behalf of the Attorney-General, Mr Bob Debus), introduced the Bill as follows:

The bill proposes a significant number of amendments to the Crimes (Forensic Procedures) Act 2000. Those amendments do three things: first, clear the way for New South Wales to participate in the national DNA database; secondly, enable DNA backcapture, meaning that Police can take a sample from a person who has previously served a gaol sentence for a serious offence but is not yet on the DNA database, if the person is subsequently charged with another indictable offence; and thirdly, implement a wide range of reforms to the [Act] arising from reviews of that Act.

1. Relevantly, and instructively for present purposes, Hansard records the following as to what is there referred to as DNA backcapture:

The second major reform of the bill is to make provision for DNA backcapture by incorporating a new part in the Crimes (Forensic Procedures) Act. This reform represents the fulfilment of a promise by the Government to allow DNA samples to be taken from offenders who were released from prison in respect of a serious offence before testing began in January 2001, if they are charged with another indictable offence. This process is known as DNA backcapture. Community protection dictates that prior serious offenders should provide a DNA sample that will allow any subsequent offending to be detected and prosecuted more easily. Persons who have served terms of imprisonment have been proven to have significantly higher rates of subsequent offending that the general community. However, at the moment, the Act only allows for persons currently serving a sentence to be ordered to provide a sample.

This limitation creates a gap, which DNA backcapture will fill. The reform works in a reasonable and proportionate way, so that those who have finished their sentences, have been fully rehabilitated, and pose no further risk to society will not be affected. DNA backcapture will only require a former serious offender to provide a sample when that person is charged with a fresh indictable offence. Police cannot simply walk up and demand a DNA sample from a former offender who is not suspected of any further wrongdoing. In this way, the DNA backcapture scheme strikes an appropriate balance between protecting the community and promoting the rehabilitation of former offenders. It is proposed that DNA backcapture be implemented by inserting a new Part 7A into the Act.

1. Section 75A of the Act is in the following terms:

Forensic procedures and offenders to which Part applies

(1) Intimate forensic procedures to which Part appliesThis Part applies to the following intimate forensic procedures:

(a) the taking of a sample of blood,

(b) the carrying out of an other-administered buccal swab.

(2) Non-intimate forensic procedures to which Part appliesThis Part applies to the following non-intimate forensic procedures:

(a) the taking of a sample of hair other than pubic hair,

(b) the carrying out of a self-administered buccal swab.

(3) This Part applies to any person:

(a) who has served a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention, and

(b) who is served with a court attendance notice in respect of an indictable offence,

if it appears that the person's DNA profile is not contained in the offenders index of the DNA database system (an untested former offender).

1. The Affidavit of Senior Constable Bathgate asserts that the Respondent was, on 30 November 1998, convicted of the serious indictable offence of cultivate a prohibited drug and served a sentence of periodic detention of fifteen months. The timing of that sentence in a place of detention was before DNA testing began in January 2001. That establishes the first pre-requisite under subsection 3(a). The Affidavit next asserts that the Respondent was served with a Court Attendance Notice in respect of the indictable offence of aggravated sexual assault on 5 July 2012. That establishes the second pre-requisite. The Affidavit next asserts that after appropriate inquiry, the Respondent's DNA profile is not contained in the offenders index of the DNA database system. That establishes the third pre-requisite.

1. The correspondence from the Respondent's solicitor to the Applicant points out that the client has not been convicted of the sexual assault allegation. Accepting that that is correct for present purposes, in neither the Second Reading Speech nor the section itself does there appear any requirement for a conviction to have been recorded. In my opinion, the operation of the section is therefore not conviction-based. The operation is triggered by the service of a Court Attendance Notice simpliciter.

1. The Respondent appeared in Court this morning and agreed that he had served a fifteen-month sentence by way of periodic detention for cultivation of a prohibited drug in 1998. He also agreed to having been served with a Court Attendance Notice for aggravated sexual assault which matter has yet to be dealt with before the Court.

1. He said that he did not consent to the forensic procedure applied for because he had served his time on the drug charge. Having heard my reasons, the Respondent said he now understood that the law had been changed to permit what was set out in the Application - but he disagreed with its operation. I said earlier that this might seem an unusual application, however, disagree or not, that is now the law.

1. I am satisfied that Senior Constable Bathgate is a Police Officer within the meaning of section 3 of the Act and is a proper Applicant. I am also satisfied that the carrying out of the forensic procedure is justified in all the circumstances for reasons which follow.

1. The Respondent is an untested former offender within the meaning of the Act and the Order is necessary for DNA backcapture for inclusion in the National DNA Database, and it is in the interests of community protection that prior serious offenders should provide a DNA sample that will allow any subsequent offending to be detected and prosecuted more easily.

1. In accordance with sections 75L and 75M of the Act, I make an Order that the Respondent attend at Tumut Police Station at a time to be arranged with either Senior Constable Bathgate of Tumut Police Station or Senior Constable Matthew O'Neil of Batlow Police Station and in any case within seven days of the making of this Order and submit to the taking of a non-intimate forensic procedure, namely, the taking of a sample of hair other than pubic hair and the carrying out of a self-administered buccal swab.

1. I am required to warn the Respondent that any failure to comply with this Order may result in his arrest. Reasonable force may be used to ensure that he complies with the Order for the carrying out of the forensic procedure.

Magistrate P S Dare SC

Tumut Local Court

28 January 2014

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Publication note: The Respondent is not identified in light of non-publication restrictions that apply in respect of other proceedings referred to in this decision.

Decision last updated: 19 June 2014