Joshua Martin (a pseudonym)[1] v The Queen (No 2)
[2022] VSCA 161
•16 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0079
| JOSHUA MARTIN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN (No 2) | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, NIALL and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 August 2022 |
| DATE OF JUDGMENT: | 16 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 161 |
| JUDGMENT APPEALED FROM: | DPP v Martin (a pseudonym) (Ruling No 1) [2022] VCC 924 (Judge Gaynor) |
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CRIMINAL LAW – Interlocutory appeal – Applicant charged with rape and related offences – Forensic procedure – Trial judge refused to exclude evidence obtained through forensic procedure – Whether applicant gave informed consent – Whether police obtained consent to forensic procedure using language likely to be understood by applicant – Whether failure to inform applicant that forensic procedure could be conducted by medical practitioner of choice rendered the evidence inadmissible – Whether evidence illegally or improperly obtained – Whether evidence should be received despite legislative non-compliance – Leave to appeal refused – Crimes Act 1958 ss 464, 464R, 464S and 464ZE.
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| Counsel | |||
| Applicant: | Mr T R Marsh and Ms T Skvortsova | ||
| Respondent: | Mr J C J McWilliams | ||
Solicitors | |||
| Applicant: | SLKQ Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
NIALL JA
MACAULAY JA:
Introduction
An indictment filed in the County Court charges the applicant with multiple rapes, and a host of other sexual and violent offences, against a female, ‘MN’, in the early evening of 3 December 2019.
The prosecution alleges that, at about 7.00 pm on the day she was attacked, MN, a 25-year-old student, was walking along a trail adjacent to a creek in a northern Melbourne suburb, listening to music. The applicant, a complete stranger, confronted her, and subjected her to a protracted, violent sexual attack. Police arrested the applicant in the early hours of the next day, and charged him with a number of sexual and violent offences against MN.[2]
[2]Police also charged him with an attempted armed robbery, allegedly committed at about 1.00 am on 4 December 2019, unconnected to the attack on MN.
In very brief summary, the prosecution case is that, having encountered her on the walking trail, the applicant dragged MN to the creek and held her head under the water (charge 1 – reckless conduct endangering life); strangled her (charge 2 – reckless conduct endangering serious injury); vaginally raped her with his penis (charges 3, 5 and 13) and fingers (charges 4 and 6); orally raped her with his penis (charge 11); anally raped her with his penis (charges 12 and 14); sexually assaulted her by way of cunnilingus (charge 7); attempted to vaginally rape her with a stick (charge 8); sexually assaulted her by compelling her to touch her vagina (charge 9); and raped her by compelling her to digitally penetrate her vagina (charge 10).
Police arrested the applicant shortly after 1.00 am the next day, 4 December 2019. Later that day, Dr Philippa Brook, a forensic medical officer (‘FMO’), carried out a forensic procedure on the applicant, which included taking both a buccal swab and swabs taken from his body. Forensic samples were also taken from MN at the Royal Women’s Hospital. Based on an analysis of the samples collected from the applicant on the morning of his arrest, scientific evidence establishes that DNA located on the swab taken from the applicant’s penile shaft is 120 million times more likely to be that of MN than another contributor; and the DNA found on the swab taken from one of the applicant’s right fingernails is 4.5 billion times more likely to be that of MN than another contributor.
Furthermore, an earlier DNA sample obtained from the applicant on 8 August 2014 by way of buccal swab was compared with samples collected from MN. The scientific evidence is that the DNA found on the swabs taken from MN’s perioral area, left breast, right hand and left abdomen, are 100 billion times more likely if the applicant is a contributor than another person.
By a ruling dated 15 June 2022,[3] a judge of the County Court refused to exclude evidence of the forensic procedures conducted on the applicant in 2014 and 2019, and the evidence of DNA analysis obtained from them (‘the ruling’ or ‘the interlocutory decision’).
[3]DPP v Martin (a pseudonym) (Ruling No 1) [2022] VCC 924 (‘CC Reasons’).
Pursuant to the judge’s certification,[4] the applicant now seeks the leave of this Court to appeal against the interlocutory decision.
[4]See Criminal Procedure Act 2009, s 295(3)(a).
In our opinion, leave to appeal must be refused. Our reasons follow.
The first appeal
The present application for leave to appeal is the second occasion upon which the applicant has challenged the admissibility of evidence of forensic procedures performed upon him, and of the results of DNA analysis thereby obtained.
By an earlier ruling on 5 April 2022 (‘the first ruling’),[5] another judge of the County Court refused to exclude some of the same evidence which is now impugned.
[5]DPP v [Martin (a pseudonym)] (Unreported, County Court of Victoria, Judge Chambers, 5 April 2022).
The applicant successfully challenged the first ruling in this Court (for convenience, ‘the first appeal’), essentially on the basis that, with respect to the 2019 forensic procedure, the judge reversed the onus of proof on the issue of informed consent.[6] In the result, the Court made orders granting the applicant leave to appeal; allowing the appeal; setting aside the interlocutory decision; and remitting the matter to the County Court for determination.[7]
[6]The judge did not make a separate ruling concerning the 2014 forensic procedure. See ibid [100].
[7]Martin (a pseudonym) v The Queen [2022] VSCA 97, [6] (Priest, Kyrou and T Forrest JJA) (‘CA Reasons’).
The proceeding upon remittal
Upon remittal to the County Court after the first appeal, there was further pre-trial argument before another judge on 1 and 2 June 2022. The applicant’s counsel submitted that the evidence of both the forensic procedures in 2014 and 2019, and the results of DNA analysis obtained as a result of those forensic procedures, was inadmissible.
As we have said, the judge delivered her ruling on 15 June 2022. We will later set out the key aspects of her ruling in some detail.[8] In essence, however, she ruled that:
•the applicant’s informed consent was obtained by police with respect to the taking of the 2014 DNA sample;
•the applicant’s informed consent was not obtained by police with respect to the 2019 forensic, by reason of the failure to inform the applicant – as required by s 464S(1)(c) of the Crimes Act 1958 – that he might require the procedure to be ‘conducted by or in the presence of a medical practitioner … of his … choice’;
•notwithstanding the breach of s 464S(1)(c), the combined weight of factors justified the reception of the evidence under s 464ZE of the Act; and
•the evidence obtained in both 2014 and 2019 procedures should not be excluded pursuant to s138 of the Evidence Act 2008.
[8]See [42] et seq.
Grounds of appeal
By a notice filed on 24 June 2022, the applicant seeks leave to appeal
against the interlocutory decisions made in [the] proceeding on [16] June 2022:
1. Refusing the application to exclude the evidence of the forensic samples obtained from [Joshua Martin] on 4 December 2019, comprising:
a. Reference DNA sample from buccal swab; and
b. Intimate forensic samples taken from [Joshua Martin’s] body.
2. Refusing the application to exclude the evidence of the forensic sample obtained from [Joshua Martin] on 8 August 2014, comprising:
a. Reference DNA sample from buccal swab; …
The proposed grounds of appeal are:
1. Concerning the taking of the 2014 reference sample and its subsequent analysis, the learned trial erred in deciding that:
a. The investigating officers obtained informed consent within the meaning of sections 464R and 464S of the Crimes Act 1958; and
b. That the 2014 reference samples were prima facie admissible.
2. Concerning the taking of the 2019 reference sample and intimate swab and their subsequent analysis, the learned trial erred in deciding that:
a. The investigating officers complied with the requirement to use ‘language likely to be understood by the person’ within the meaning of sections 464S(1) of the Crimes Act 1958; and
b. That the circumstances of the case justified the reception of the evidence despite its inadmissibility pursuant to sections 464R, 464S(1)(c) and s 464ZE of the Crimes Act 1958.
3. In the event that the disputed evidence was either prima facie admissible or admitted pursuant to s 464ZE, the learned trial judge erred in refusing to exclude the evidence under s 138 of the Evidence Act 2008.
Legislative provisions concerning forensic procedures
Before turning to the evidence and the issues raised in the present application, it is necessary once more to set out the provisions of the Act that govern the admissibility of evidence obtained through a forensic procedure. It is convenient to do so by recapitulating part of the Court’s reasons for judgment on the first appeal:[9]
[9]CA Reasons, [25]–[29].
[25]Section 464(2) of the Act defines ‘forensic procedure’ as follows:
forensic procedure means the taking of a sample from any part of the body, whether an intimate or non-intimate sample or any other type of sample, or the conduct of any procedure on or physical examination of the body but does not include the taking of a fingerprint or a DNA profile sample; …
[26]Section 464R of the Act permits a police officer to request that a person undergo a forensic procedure if that person is suspected on reasonable grounds of having committed an indictable offence, and there are reasonable grounds to believe that the forensic procedure would tend to confirm or disprove his or her involvement in the commission of the offence. It is a requirement of sub-s (2) that the suspect give his or her ‘informed consent’ to the forensic procedure, or that the Magistrates’ Court makes an order directing the person to undergo a compulsory procedure. (In circumstances not presently relevant, a senior police officer may also authorise a non-intimate procedure.) So far as relevant, s 464R is in the following terms:[10]
[10]Emphasis added to this and following provisions.
464R Forensic procedure on adult
(1) A police officer may request a suspect to undergo a forensic procedure only if there are reasonable grounds to believe that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence and the suspect—
(a) is suspected on reasonable grounds of having committed the indictable offence; or
(b) has been charged with the indictable offence; or
(c) has been summonsed to answer to a charge for the indictable offence.
(2) A forensic procedure may be conducted on a suspect if—
(a) the suspect gives his or her informed consent; or
(b) the Magistrates’ Court makes an order under section 464T(3) … ; or
(c) a senior police officer gives an authorisation under section 464SA.[[11]]
[11]Section 464SA permits the authorisation of the conduct of a non-intimate compulsory procedure in defined circumstances.
[27]Section 464S sets out the circumstances in which a person gives ‘informed consent’ to a forensic procedure. It provides:
464S Informed consent
(1) A person gives informed consent to a request to undergo a 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 by or 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 or with which the person has been charged or for which the person has been summonsed to answer to a charge; and
(e) that the procedure could produce evidence to be used in a court; and
(ea) that information obtained from 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 Subdivision or under a corresponding law of a 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 section 464SA and the person refuses to consent to the procedure, that a senior police officer may authorise the conduct of the procedure.
(2) A police officer who informs a person of the matters in subsection (1)—
(a) must record the giving of the information and the person’s responses, if any, by audio recording or audiovisual recording or in writing signed by the person; and
(b) must give or send by registered post to the person or his or her legal practitioner, without charge—
(i) if the giving of the information and the responses are recorded by audio recording or audiovisual recording, a copy of the recording as soon as practicable, but not more than 7 days after the information is given, and, if a transcript of the recording is prepared, a copy of the transcript as soon as practicable; and
(ii) if the giving of the information and the responses are recorded in writing signed by the person, a copy of the record forthwith.
(3) A person is taken as having refused consent if—
(a) the person is—
(i) held in a prison, police gaol or youth justice centre; or
(ii) a prisoner in a prison or a person detained in a police gaol who is transferred from the prison or police gaol to a facility or an institution referred to in section 56AB(1) of the Corrections Act 1986; and
(b) within 24 hours after the giving of the information referred to in subsection (1) the person refuses or fails to consent to the request to undergo a forensic procedure.
[28]If a person refuses to undergo a forensic procedure after being requested to do so, or is incapable of giving informed consent by reason of mental impairment, s 464T permits police to apply to the Magistrates’ Court for an order directing the person to undergo a compulsory procedure. The Magistrates’ Court may make the order if satisfied of certain things, including that the person is a relevant suspect, and there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made. Reasonable force may then be used to enable the forensic procedure to be conducted.
[29]Importantly, s 464ZE(1) renders evidence that is obtained as a result of a forensic procedure that was not conducted in accordance with ss 464R and 464S – which requires the suspect to give his or her ‘informed consent’ to the procedure (absent an order of the Magistrates’ Court or authorisation of a senior police officer) – to be inadmissible as part of the prosecution case in proceedings against that person for an offence, subject to succeeding provisions of the section that justify the reception of the evidence notwithstanding that it is ‘otherwise inadmissible’. Hence, s 464ZE relevantly provides:
464ZE Evidence relating to forensic procedures or DNA profile samples
(1) Subject to subsection (4) … , evidence obtained as a result of … a forensic procedure conducted on a person … is inadmissible as part of the prosecution case in proceedings against that person for any offence if—
(a) the requirements of sections 464R to 464ZA … have not been complied with; …
…
(2A) In determining whether the circumstances justify the reception of evidence otherwise inadmissible by reason of subsection (1)(a) or (1)(ab), the court may have regard to the following—
(a) the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
(b) the reasons given for the failure to comply with a provision referred to in subsection (1)(a) or (1)(ab);
(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.
(3) The probative value of the evidence does not by itself justify the reception of the evidence.
(4) If the taking of a DNA profile sample or the conduct of a forensic procedure is recorded by audiovisual recording, the recording is inadmissible as evidence except—
(a) to establish or rebut an allegation that unreasonable force was used to enable the sample to be taken or the procedure to be conducted; or
(b) to determine the admissibility of a confession or admission or other evidence adverse to the accused where the accused alleges that the evidence was induced or obtained by the use of unreasonable force.
(5) If evidence obtained as a result of a DNA profile sample taken from a person or a forensic procedure conducted on a person would be admissible in proceedings against that person for an offence, that evidence is admissible in proceedings against that person for a relevant offence within the meaning of section 464ZG.
(6) Evidence obtained as a result of a physical examination conducted in good faith on a person for the purposes of medical or dental treatment is admissible in proceedings against that person for an offence.
The forensic procedure conducted on the applicant on 4 December 2019
As we have mentioned, the applicant was arrested shortly after 1.00 am on 4 December 2019. He was taken to Melbourne West police station, where he told police he had recently been released from hospital because he had been ‘sick’. The police database reflected that he had previously attracted a diagnosis of schizophrenia.
At 2.08 am, Constable Benjamin Baxter commenced a record of interview with the applicant, which was suspended after two minutes, at 2.10 am. Constable Baxter informed the applicant he was going to be interviewed about an armed robbery, obtained the applicant’s name and age and date of birth, and ascertained that he was a non-Indigenous Australian citizen. Constable Baxter also cautioned the applicant, and informed him that he could contact a friend or relative, and a legal practitioner. The applicant was then placed in a cell.
Police went into the cell at about 3.18 am to interview the applicant, but he complained of having a ‘sore heart’.
By 3.55 am police became aware of the alleged rapes and suspected the applicant’s involvement. Police investigating the rapes alerted the police at Melbourne West of the need to seize the applicant’s clothing. The applicant’s clothing was thus seized by police at about 5.35 am and he was placed in a prisoner’s suit. There is no evidence that his mental state was assessed at the time of that seizure.
A little after 8.00 am, police contacted the Victorian Institute of Forensic Medicine to arrange the attendance of a FMO. Eventually, police spoke to Dr Brook, and arranged for an assessment of the applicant’s fitness to participate in an interview or consent to a forensic procedure.
The applicant was seen by a custody nurse, Kate Viney-Johnson, at about 8.30 am. She told police that she had no concerns about his fitness for custody or for interview.
At 10.05 am, Dr Brook attended the police station and spoke with police. She then carried out a mental state evaluation and limited physical examination of the applicant for about 30 minutes from 10.15 am. During the examination, the applicant reported a history of schizophrenia and bipolar disorder. He told Dr Brook that voices were ‘telling or instructing him to do things’, and that he had recently been admitted to the Royal Melbourne Hospital. Dr Brook formed an ‘initial impression’ that the applicant was not fit to be interviewed. She was also concerned the applicant may have ‘some degree of cognitive impairment’.
As a result of her evaluation, Dr Brook advised police that the applicant required an urgent psychiatric assessment, which she was not qualified to undertake. She told police that if the psychiatric assessment found that the applicant was not acutely psychotic and was fit for interview, it was her recommendation that an independent third person (‘ITP’) be present for the interview, given potential concern about the applicant’s intellectual capacity.
Despite considering the applicant unfit to be interviewed, however, Dr Brook formed the opinion that the applicant was fit to consent to a forensic procedure. Whilst she had concerns about his mental health, Dr Brook nonetheless considered that the applicant was capable of participating in a forensic procedure. She testified that a person’s capacity to consent to a forensic procedure, and his or her fitness to be interviewed, are not synonymous.
Consistently with Dr Brook’s assessment that the applicant was fit to participate in a forensic procedure (but notwithstanding her opinion that the applicant was unfit to be interviewed), at 10.47 am Detective Senior Constable Steven Harvey resumed the audio-visual recorded interview with the applicant, in the company of Detective Senior Constable Greg Langan, for the purposes of securing the applicant’s informed consent to a forensic procedure. We will later set out the relevant part of the resumed interview.[12]
[12]At [88] below.
As the relevant passage from the resumed interview shows, Detective Harvey introduced Dr Brook to the applicant, and the recording of the interview was suspended, at 10.56 am. Dr Brook then undertook an examination of the applicant.
During her examination – which was not electronically recorded – Dr Brook took photographs of the applicant. She identified abrasions on the applicant’s lower back, thighs and knees, and found dirt and debris beneath his foreskin and in his hair. Dr Brook also conducted a forensic procedure, taking the following swabs (and scrapings) from the applicant:
· a reference buccal DNA swab (collection of a DNA profile);
· fingernail scrapings from both hands;
· left fingers and cuticles – wet and dry swabs;
· right fingers and cuticles – wet and dry swabs;
· lips and perioral area – wet and dry swabs;
· penile shaft – wet and dry swabs; and
· penile head and glans – wet and dry swabs.
Analysis of the swabs rendered the results referred to above.[13]
[13]At [4].
The forensic procedure conducted on the applicant on 8 August 2014
The applicant previously committed rape on 24 July 2014, and two attempted armed robberies on 4 August 2014.[14]
[14]On 4 April 2015, the applicant was sentenced in the County Court to five years’ imprisonment, with a three year non-parole period, for rape and two attempted armed robberies.
On 8 August 2014, at the end of a formal record of interview following his arrest, police conducted a forensic procedure, which involved the applicant providing a DNA sample via a buccal swab in the presence of an ITP. In that interview, police read from a form to convey all the information required by s 464S(1) of the Crimes Act 1958. Essentially, all of the required information was put to him at the one time. The applicant gave his consent to the procedure, and carried out the buccal swab himself at police direction.
Evidence on the voir dire
Upon remittal to the County Court after the first appeal, the applicant contended that the evidence of forensic procedures conducted on him on 8 August 2014 and 4 December 2019, and the DNA results obtained from them, was inadmissible. As a result, the trial judge conducted a voir dire on 1 June and 2 June 2022. Police involved in the forensic procedures and formal interviews in 2014 and 2019, and the ITP present at the 2014 record of interview, gave evidence and were cross-examined.
Detective Acting Sergeant Anton Bennett and Detective Leading Senior Constable Jodie Stoll conducted the 2014 record of interview. Detective Bennett was the informant for the rape charge and Detective Stoll was the informant for the attempted armed robberies. They have each been police officers for almost three decades. Detective Bennett oversaw the forensic procedure conducted at the end of the interview, delivering the required cautions and conveying the information required under s 464S(1). He also directed the applicant in taking the buccal swab.
Detective Bennett gave evidence that an ITP was organised as a precautionary measure once police became aware that one had been used in previous police interviews with the applicant, and so as to ensure that the interview was fair, true, correct and admissible. He gave evidence that he read the required s 464S(1) information from an official police form, VP Form F1, which police were ‘required to read for the process’. Detective Bennett said he used the language on the form because that was what police were trained to do. There was nothing about the applicant that indicated he did not understand what was being said.
When asked his impression of the applicant’s ability to understand the questions asked of him and the information provided, Detective Bennett 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’. The applicant had no difficulty following directions and taking the swab from his mouth.
According to Detective Stoll, an ITP was used as a matter of completeness because there was a notation that one was used in previous police interviews with the applicant. It was her understanding that the form used by Detective Bennett in conveying the s 464S information was a ‘legislative document that must be adhered to which was why it was read to suspects in that way’. She said that if a suspect indicated they were not understanding the information, then it would be broken down. She was quite comfortable, however, that the applicant had understood. This was because the applicant had spoken with ITP Morrie Hartman – who had explained the process to him – before the interview, 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’.
The ITP, 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 that time he had many experiences with people with disabilities and mental challenges. Mr Hartman said he viewed his role as ensuring a 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. He said that 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, and, if there was any doubt, would call for an FMO.
As previously mentioned, Detective Senior Constable Steven Harvey conducted the audio-visual recorded interview with the applicant on 4 December 2019, in the company of Detective Senior Constable Greg Langan. They have been police officers for 30 and 23 years respectively.
On the voir dire, Detective Harvey gave evidence that he called for an FMO because an ITP had been used in previous interviews with the applicant – so there might be a fitness issue – and because he wanted forensic samples taken. Detective Harvey did not know when the fitness for interview examination took place but thought it was after the forensic procedure was performed. He assumed that Dr Brook would tell him of any problems with the applicant’s mental capacity, but did not seek advice from her beforehand. In conveying the s 464S information, he read directly from the police form. He usually did this depending on the person he is talking to and the level of intelligence he believed them to have, and to ‘ensure that basically they understand what [he is] saying’. Detective Bennett agreed that information about a suspect’s right to have a medical practitioner of choice to perform the forensic procedure was omitted from the form he used. He described this as an ‘oversight’.
Detective Harvey said that, as an experienced investigator, he judged a suspect’s capacity on conversations with them. He judged the applicant to be ‘of normal or normalish intelligence’, who ‘answered questions freely, openly and showed no sign of major intellectual [impairment] or any major problems’. Detective Harvey said that in the past he had gone through the s 464S information line by line with a severely intellectually impaired suspect, and that he had also undertaken a course about interacting with the cognitively impaired. During his interactions with the applicant in 2014 – as part of the police arresting team for those charges – he formed the impression that the applicant seemed to understand the process and answer questions without major problems of understanding.
Detective Langan gave evidence that police organised the attendance of a FMO both for a fitness assessment and to conduct the forensic procedure. The fitness assessment was considered because of the applicant’s history. Detective Langan said he believed that police were ‘good to go’ with the forensic procedure after Dr Brook had spent half an hour with the applicant. He said that it was after completing the forensic examination that Dr Brook mentioned concerns about the applicant’s fitness for interview. He described the applicant’s answers to the request for a forensic procedure as ‘pretty sharp’.
The ruling
With respect to the 2014 forensic procedure, having regard to the record of interview the judge concluded that it was ‘entirely clear’ that the applicant ‘did indeed understand what police were saying to him’, and had demonstrated that understanding ‘from the start’.[15] Throughout the interview, the applicant ‘was consistently articulate and gave ready and responsive answers to police questions, which were sometimes couched in quite sophisticated or formal language’.[16]
[15]CC Reasons, [104].
[16]Ibid [109].
The judge was of the view that, insofar as the forensic procedure was concerned, the applicant was not only familiar with the process, he also understood what was conveyed to him.[17] The applicant clearly listened to the s 464S information as it was given to him, interrupting Detective Bennett to ask him about a senior officer authorising the taking of a non-intimate compulsory procedure. And, after agreeing to provide the sample, he readily followed Detective Bennett’s directions about taking the swab from his mouth, pressing it to a card, then sealing it up in an envelope.[18] The atmosphere then ‘almost became jovial’, with the applicant saying to police, ‘If it comes back the wrong DNA, then I get off’.[19]
[17]Ibid [110].
[18]Ibid [111].
[19]Ibid [112].
Ultimately, with respect to the 2014 forensic procedure, the judge was satisfied to the requisite standard that, notwithstanding the formal language used, the applicant did understand the information given to him by police and did give informed consent to the forensic procedure that was then carried out; and therefore was ‘satisfied no breach occurred, and that the evidence obtained via use of that DNA sample should be admitted at trial’.
As to the 2019 forensic procedure, the judge noted that the prosecution had conceded that a breach occurred because the applicant was not informed, as required by s 464S(1)(c), that he ‘may request that the procedure be conducted by or in the presence of a medical practitioner … of his … choice’. The judge also noted, however, that Dr Brook considered that the applicant was able to consent to a forensic examination.
With respect to the information provided to the applicant during the record of interview, the judge observed that the applicant ‘did attend to the questions put to him’.[20] In the later interview, the applicant showed ‘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’.[21] The judge canvassed various questions and answers, and was ‘satisfied that [the applicant] understood all that was being said to him by police and again, his answers were made readily and responsively’. The applicant ‘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’,[22] albeit that ‘much of this questioning was highly pressured and improper’.[23]
[20]Ibid [117].
[21]Ibid [121].
[22]Ibid [128].
[23]Ibid [129].
Specifically with respect to the failure to impart the information required by s 464S(1)(c), the judge said:[24]
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.
[24]Ibid [133].
The judge went on to observe that ‘the apparently widespread police practice of reading the provisions verbatim is unwise’, since the language ‘is complex and legalistic’.[25] Police should develop a practice whereby the information is broken down into topics, and ‘the suspect’s understanding by getting them to repeat it back during the process’.[26] But she said:[27]
However, my satisfaction that [the applicant] 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 s 464ZE(2A)(g) In that sense, the gravity of the breach (see s 464ZE(2A)(c)) is accordingly also lessened.
Insofar as the specific failure to put the information contained in s 464S(1)(c) is concerned, it is my view [the applicant] demonstrated no concern at Dr Brook 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, [the applicant] would have said so, even in the absence of his rights in that regard being explained to him.
In 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.
[25]Ibid [135].
[26]Ibid [137].
[27]Ibid [138]–[140].
With respect to s 138 of the Evidence Act 2008, the breach of s 464S(1)(c) ‘was not sufficiently grave … to outweigh other matters’, including ‘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”.[28]
[28]Ibid [141].
The judge made it clear that, had she found that the applicant did not understand the information conveyed to him for the purposes of the 2014 and 2019 forensic procedures, she would still have admitted the evidence. In accordance with s 464ZE(2A) she was satisfied on the balance of probabilities ‘that the circumstances of this case would have justified reception of the evidence notwithstanding such a breach’.[29] The judge said that it 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’.[30] The alleged offending ‘involves a protracted violent sexual assault including multiple alleged rapes of the most heinous kind’, and the DNA evidence linking the applicant to that alleged offending has particular probative value. Both in 2014 and 2019 police carried out their obligations pursuant to ss 464R and 464S in conformity with ‘a general practice developed by Victoria Police and not with a view to denying [the applicant] his rights either intentionally or recklessly’.[31] The judge said:[32]
This 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 s 464ZF(2A)(g).
For the same reasons, applying the provisions of s 138 [of the Evidence Act 2008], in particular paragraphs (a), (b), (c), (d), ( e) and (g) of s 138(3) I would have been satisfied the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way it was.
[29]Ibid [148].
[30]Ibid [149].
[31]Ibid [150].
[32]Ibid [151]–[152].
The applicant’s submissions in this Court
In this Court, counsel for the applicant submitted relevant provisions of the Crimes Act 1958 – in particular, ss 464R(2), 464S(1), 464SC(3), 464SD(2), 464SD(4) and 464T(1) – dictate that admissibility of evidence of a forensic procedure is determined by whether the person upon whom the forensic procedure was conducted gave ‘informed consent’.
The question of whether ‘informed consent’ was obtained is governed by s 464S, which should be interpreted as having the following requirements:
•the person must consent;
•consent must be given after the person is informed by a police officer of relevant matters;
•the relevant matters in paragraphs (a) to (h) of sub-s (1) must be conveyed to the person; and
•the relevant matters must be conveyed in language likely to be understood by the person.
Counsel submitted that informed consent was not given for either the 2014 or 2019 forensic procedures. As to the 2014 procedure, while the relevant matters were communicated to the applicant, they were not conveyed in ‘language likely to be understood’ by him; and as to the 2019 procedure, police both failed to communicate the information with respect to the availability of an alternative medical practitioner required by s 464S(1)(c), and to communicate the relevant matters to the applicant in language likely to be understood.
With respect to the 2014 sample, counsel argued, the trial judge erred in taking into account what she referred to as ‘subjective factors’. The judge extensively analysed the 2014 police interview, noting that the applicant was ‘consistently articulate and gave ready and responsive answers to police questions, which were sometimes couched in quite sophisticated or formal language’.[33] The judge erred by substituting a judgment of the applicant’s capacity to comprehend the evidentiary interview for the question of whether the police used language likely to be understood with respect to the DNA sample procedure.
[33]Ibid [109].
Counsel submitted that the error alleged with respect to the 2014 procedure was repeated with the 2019 procedure. The judge noted that the forensic procedure component of the interview occurred at approximately 10.47 am, with the formal interview about the allegations taking place about seven hours later. Although the later interview was excluded in a previous hearing for other reasons, the trial judge nevertheless placed reliance on the fact that the applicant ‘understood all that was being said to him by police and again, his answers were made readily and responsively’.[34] The applicant’s performance in an interview conducted seven hours after the forensic procedure interview is, counsel submitted, an irrelevant consideration. The question of whether or not police used ‘language likely to be understood’ is a question to be determined at the time of the giving of the caution.
[34]Ibid [128], [138].
While s 464S does not require proof of actual comprehension by a suspect of the relevant matters, counsel argued, it may nevertheless be relevant to an assessment of whether informed consent was obtained, in that it may be a means by which investigators can test the comprehension of a suspect to determine whether the language being used was ‘likely to be understood’. But plainly that is an enquiry that must occur at the time of giving the caution. Section 464S places an unambiguous requirement on investigators to communicate relevant information about forensic procedures in language likely to be understood by a suspect.
Counsel submitted that the conduct of both procedures in this case demonstrates a practice of investigators indiscriminately delivering the information by simply reciting verbatim the wording on the consent form (itself derived directly from the statutory wording). So much is demonstrated by the undisputed fact that the applicant was not told of availability of an alternative medical practitioner because that information was not on the form. For the words ‘in language likely to be understood’ to have any work to do, they must necessarily embrace the possibility that the language of s 464S is not of universal application. That there appears to be a belief on the part of investigators that they are under an obligation simply to read the contents of the form to a suspect is antithetical to the proper discharge of the requirement for police to obtain informed consent.
Having accepted that the 2019 forensic procedure was prima facie inadmissible, the judge placed reliance on the fact that the police conduct was neither a reckless nor intentional omission. Counsel submitted that it was not put that police set out to deliberately mislead the applicant or deny him his rights. What occurred is a more subtle, but more insidious omission: police abnegated responsibility for compliance with the requirements of s 464S to whomever drafts the form from which they read. The mere fact that the conduct complained of is not readily described as either intentional or reckless should not be taken to mean that it is not a serious breach of the requirements of s 464S. Counsel submitted that the fact that there appears to be a systemic failure by police, rather than individual malfeasance, makes the breach more, not less, serious. The judge erred in her consideration of s 464ZE when she identified ‘the inadvertence of the breach, and the lack of intentional or reckless behaviour by police’ among circumstances that justified reception of the evidence despite its initial inadmissibility.[35]
[35]Ibid [133].
Public interests, counsel submitted, support the exclusion of improperly obtained evidence. These include the use of the exclusion of evidence as a means to deter police misconduct generally both through the general effect of that exclusion on other officers and through systemic deterrence: the effect on individual officers of an agency’s institutional compliance with judicially articulated standards. Counsel submitted that the gravity of the misconduct falls to be assessed on broader terms than simply whether the conduct was reckless or intentional, including whether the conduct represents a pattern of misconduct. As was argued before the trial judge, compliance with the requirement to communicate the relevant matters in language likely to be understood is not difficult to achieve. The judge accepted as much.[36]
[36]Ibid [137].
Counsel submitted that DNA evidence often forms a crucial part of the evidentiary matrix of modern criminal prosecutions. It may be a very powerful – even overwhelming – form of circumstantial evidence. The importance of DNA evidence, and police reliance on the powers reposed in them to take samples from a suspect, will only increase. Against that backdrop, counsel submitted that the requirement to obtain informed consent under s 464S should be construed strictly. The judge erred by finding that the police communicated the relevant matters to the applicant in both 2014 and 2019 procedures in language likely to be understood; and in finding that the evidence obtained in 2019 should be admitted pursuant to s 464ZE of the Crimes Act 1958, or, alternatively, s 138 of the Evidence Act 2008.
The respondent’s submissions in this Court
The respondent’s counsel accepted that police officers investigating the applicant’s alleged 2019 offending did not inform the applicant that he may request the forensic procedure be conducted in the presence of a medical practitioner or nurse of his choice. Failure to do so rendered the evidence inadmissible unless the prosecution satisfied the Court, on the balance of probabilities, that the circumstances justified the reception of the evidence. The prosecution did this through evidence led on the voir dire. Having considered the evidence and the matters outlined in s 464ZE(2A) of the Crimes Act 1958, the judge did not err in finding that, despite the omission, the circumstances justified the reception of the evidence.
Counsel for the respondent submitted that the judge did not err in having regard to the fact that the police officers’ failure to advise the applicant of the relevant matter was inadvertent (given that the information was not contained in the form then used by police). Nor was there error in the judge having regard to there being no evidence to demonstrate that the applicant had any concern over the examination by the FMO in circumstances where he had previously, and at that time, shown a capacity to express objections to matters that concerned him.
With respect to the purported failure to inform the applicant of the remaining matters set out in s 464S(1) in language likely to be understood by him, counsel submitted that there was no error by the judge having regard to the following:
•the judge’s impression, having watched the video of the consent process and the subsequent interview, that the applicant was capable of understanding – and did in fact understand – the relevant matters;
•the impression of the police officers explaining the procedures in 2019 that the applicant was capable of understanding, and did appear to understand, what was explained to him;
•Dr Brook’s assessment that the applicant was able to provide informed consent;
•the applicant’s familiarity with forensic procedures and the consent process, having previously been informed of the relevant matters in 2014 and having at that time actively engaged in the process (showing a capacity, at least at that time, to understand the language used); and
•the assessment of the police officers in 2014 that the applicant then had the capacity to understand what was explained to him then (and did appear to understand).
Other than the failure to inform the applicant of what was required under s 464S(1)(c), counsel submitted, there was positive evidence that the applicant was informed in clear, simple language, of each of the required matters:
•As to the purpose for which the procedure was required, this was readily apparent from Qs 29, 30 and 32 of the record of interview. The applicant was asked if he understood these matters and he positively answered that he did.
•The nature of the procedure sought to be conducted was explained to the applicant a number of times, after which the applicant repeatedly expressed that he understood. After consenting, this was reiterated, and he again said he understood.
•The applicant was advised in clear terms of the offences he was suspected of having committed, being also apparent from the information given regarding the purpose and nature of the procedure.
•The applicant was advised in clear terms that the procedure could produce evidence to be used in a court, in the context of the applicant earlier having been informed that he did not need to say or do anything, but that anything he did say or do might be used in evidence. After consenting to the procedure, the applicant was again reminded that he did not have to answer any questions asked by the FMO but that anything he did say might be used in evidence, and again he indicated he understood.
•The applicant was informed that information obtained would be placed on a DNA database, and by later answers indicated that he understood.
•The applicant was told he might refuse to undergo the procedure. This was relayed with other information provided.
•The applicant was also informed that, if he refused, an application might be made to the Magistrates’ Court for an order authorising the conduct of the procedure.
Counsel for the respondent submitted that the information required to be imparted was plainly and simply outlined. The information was conveyed slowly and in a clear, calm manner, and simple words were used. In addition to repeatedly orally expressing his understanding of the information provided and his consent, the applicant nodded appropriately, after making or attempting to make eye contact with the police officer. So much is consistent with the information having been conveyed in a manner likely to be understood by the applicant. In determining whether the language used was likely to be understood, it is relevant to consider whether the applicant actually understood what was conveyed. In that context, regard was properly had to the applicant having previously provided his DNA, the evidence indicating that he was familiar with the process and aware of the outcomes.
In any event, counsel submitted, the judge properly held that, even if she had not found that the language used by police was likely to be (and was) understood by the applicant, the evidence should be admitted at trial because she was satisfied, on the balance of probabilities, that the circumstances of the case justified reception of the evidence. The judge emphasised in particular the high probative value of the evidence, the grave nature of the offences alleged and the inadvertence of any breach by police. Any breach – including the failure to inform the applicant that the procedure could be carried out by or in the presence of a medical practitioner of his choice – was neither deliberate nor reckless. She also observed that, with respect to using language likely to be understood by the applicant, other than further breaking up the information or asking the applicant to repeat back simple terms, it is not clear how the process might here have been improved. The alleged offending plainly fits the description of extremely serious examples of serious offences. As the judge noted, the forensic evidence is what a jury would expect in the circumstances of the allegations, and its absence would create a notable deficit in the prosecution case. Counsel for the respondent submitted that, considering all relevant matters, including those set out at s 464ZE(2A), it was open to the judge to find that that the circumstances justified the reception of the evidence.
The respondent’s counsel made clear that evidence of the 2014 forensic procedure, which led to the obtaining of the DNA reference sample, is not proposed to be led at trial if the 2019 evidence is admitted. But the circumstances in which the 2014 sample were obtained are, to a limited extent, relevant to the assessment of whether the language used in 2019 was likely to be understood by the applicant, and also, more generally in assessing his ability to understand. The following was submitted with respect to the 2014 sample, however, if the 2019 sample were to be excluded:
•In this instance, there was no failure by investigating police to inform the applicant of any matters specified in s 464S.
•It is evident from the recording that investigators conveyed to the applicant what was proposed, and the implications. This was done in simple, clear language.
•There was nothing to indicate the applicant did not understand.
•The investigating officers were of the belief that the language adopted was likely to be understood by the applicant and were of the impression that he did understand.
•Although the ITP had no recollection of the specific interview, his practice was to ensure that a suspect was able to understand and was advised to raise issues with him if there were any difficulties in understanding.
•The applicant actively engaged in the consent process, asking relevant questions and demonstrating an awareness of the procedure and an ability to raise concerns.
Counsel submitted that, given the matters above, there was no basis for the judge to exclude the DNA reference sample provided in 2014. Even if the information was not conveyed in language likely to be understood by the applicant, there was no error in the judge finding that, given the level of any breach and the other matters outlined in s 464ZE(2A), the circumstances of the case would have justified the reception of the evidence.
Acknowledging that, in addition to the matters outlined in s 464ZE of the Crimes Act 1958, the judge was required to have regard to s 138 of the Evidence Act 2008 with respect to the contravention in conducting the 2019 forensic procedure (and, if there had been any contravention or impropriety, with respect to the 2014 DNA reference sample), counsel submitted that it is evident that the judge had regard all relevant matters. No error has been demonstrated in the approach adopted by the judge.
Analysis
The forensic procedure in 2014
With respect to the 2014 forensic procedure, the first proposed ground of appeal contends that the trial judge erred in deciding, first, that investigating police ‘obtained informed consent’ within the meaning of ss 464R and 464S of the Crimes Act 1958; and secondly, that ‘the 2014 reference samples were prima facie admissible’. And ground 3 contends that, if ‘the disputed evidence was either prima facie admissible or admitted pursuant to s 464ZE, the learned trial judge erred in refusing to exclude the evidence under s 138 of the Evidence Act 2008’.
Section 464R(1)(a) permits a police officer ‘to request a suspect to undergo a forensic procedure only if there are reasonable grounds to believe that the procedure would tend to confirm or disprove the involvement of the suspect … in the commission of an indictable offence and the suspect is suspected on reasonable grounds of having committed the indictable offence’; and s 464R(2)(a) permits a forensic procedure to be conducted ‘if the suspect gives his or her informed consent’.
In the present case, there is no issue that, at the time they requested the applicant to undergo the 2014 forensic procedure, police had reasonable grounds to believe that the procedure would tend to confirm or disprove the applicant’s involvement in the offence of rape. Further, there is no issue that the applicant consented to the procedure. The live issue is whether his consent was ‘informed consent’, in the sense that the applicant was informed of the matters in s 464(1)(a) to (h) in ‘language likely to be understood’ by him.
There can be no doubt that the scheme of the legislation, and the text of the relevant provisions, makes it plain that the onus of proving the giving of a suspect’s informed consent to a forensic procedure rests with the prosecution. And clearly, the prosecution bears the onus of proving the giving of informed consent on the balance of probabilities.[37]
[37]See Evidence Act 2008, s 142.
We have no reason to doubt the trial judge’s conclusion in this case that the applicant gave informed consent to the carrying out of the 2014 forensic procedure. In our view, it was well open to the judge to be satisfied on the balance of probabilities that the applicant understood what was conveyed to him in purported compliance with s 464S(1).
The 2014 record of interview with the applicant was commenced at 1.44 pm on 9 August 2014 by Constable Kieren Rogers, in the presence of Detective Anton Bennett. Police informed the applicant that they intended to interview him in relation to a sexual assault committed on 24 July 2014, and two attempted armed robberies, committed on 4 and 6 August 2014. It is clear that, during initial questioning, occupying some 38 questions, the applicant was adequately cautioned. It is also clear that he understood what was being said to him, and was able to, and did, engage with police. The interview was suspended at 1.48 pm.
At 4.25 pm, Detective Jodie Stoll recommenced the interview in the presence of Detective Bennett and the ITP, Morrie Hartman. Again, the applicant was properly cautioned. He was then interviewed over the next two and a half hours – including being asked to take part in a forensic procedure – the interview concluding at 7.00 pm.
In our view, when the applicant’s responses during the interview – containing more than 900 questions and answers – are properly scrutinised, it cannot sensibly be concluded that he was incapable of understanding the questions he was asked or of responding congruently. Indeed, as the portion from the record of interview extracted immediately below amply demonstrates, not only did the applicant have a full understanding of what was required of him, but he demonstrated a capacity to query – if not challenge – aspects of the process by asking relevant questions about the information being conveyed:[38]
[38]Emphasis added.
DETECTIVE LEADING SENIOR CONSTABLE BENNETT
Q 849Looks like the disc is gunna run out, so we’re gunna suspend it here and then I’m gunna go through some paperwork to do with taking a DNA mouth swab. O.K. So - - -
DETECTIVE LEADING SENIOR CONSTABLE STOLL
Q 850O.K. So we’ll suspend while we change discs. Do you agree the time is now 6.30 pm by my watch?
AYeah.
Q 851Interview suspended.
INTERVIEW SUSPENDED
INTERVIEW RESUMED
DETECTIVE LEADING SENIOR CONSTABLE BENNETT
Q 852There’s stuff I've got to read to you, all right, When we go through all the paperwork and then .......... out wherever it is.
DETECTIVE LEADING SENIOR CONSTABLE STOLL
Q 853Sorry.
ADon’t you have to go to court to get a court order to get that - - -
DETECTIVE LEADING SENIOR CONSTABLE BENNETT
Q 854No.
A- - - done?
Q 855No.
…
DETECTIVE LEADING SENIOR CONSTABLE BENNETT
Q 862 This – I’ve just got some paperwork here to do a supervised mouth swab. O.K. This is a request for a forensic procedure from a suspect aged 18 years or more. You’re 20.
A Do I have to do it?
Q 863 Well, I’ll read that to you. If you don’t do it basically we get a court order to do it. Do you understand that?
AWhat, I can – well, what’s the point of getting one when you’ve got my DNA?
Q 864We’re obliged to get it because the offences that we spoke about relate to serious matters that we’re gunna require your DNA for.
AWhy?
Q 865I’ll read that to ya.
AWhy – but you’ve already got my DNA. Can’t – thought you said you can you use your old DNA …
Q 866O.K. So the time by my watch is 6.40. Do you agree with that?
AYeah.
Q 867O.K. I’ve just got to fill this out as I go and I’ll read it to ya. Right. You are suspected of committing the offences of rape and threat to kill as well as the armed robberies – attempted armed robberies. So I’m just writing this in as I go. You are requested to undergo a forensic procedure which would tend to confirm or disprove your involvement in the commission of the indictable offence specified above. The nature of the procedure that we seek to conduct is what we call an intimate sample, which is a supervised mouth swab, which is just a scraping from inside your mouth, ins [scil, inside?] your cheek. You may request that the procedure be conducted by or in the presence of a medical practitioner or nurse of your choice. If the procedure is the taking of a dental impression you may request that the procedure be conducted by or in the presence of a dentist of your choice. As this is not a dental matter, you don’t need a dentist. The procedure or procedures could prove – could produce evidence to be used in court. The information obtained from analysis of forensic material obtained by the procedure will be placed on a DNA database and may be used for the purposes of a criminal investigation or any other purposes for which the DNA database may be used under Part III Division 1 subdivision (30A) of the Crimes Act 1958 or under a corresponding law or participating jurisdiction. You may refuse to undergo the procedure. If you refuse to undergo the procedure – if you refuse to undergo the procedure and the procedure is defined as a compulsory procedure, a member of the police force – like myself or Jodie [Stoll] here – may make application to the Magistrates’ Court for an order authorising the conduct of the procedure, or a senior police officer may authorise a non-intimate compulsory procedure.
AWhat’s that?
Q 868So we can get an inspector or above to authorise a procedure.
AWho’s that?
Q 869Sorry?
AWho’s that inspector?
Q 870It could be just a junior inspector. If you are held in a prison, police gaol or youth training centre or an institution within the meaning of section 56 of the Corrections Act 1986 and within 24 hours of receiving the above information you refuse or fail to consent to – to the request to undergo a forensic procedure, then it will be considered that you have refused consent. Do you understand all this information?
AYeah. I don’t get it, you already got DNA but you don’t need it again. I don’t get it.
Q 871Do you wish to comment on this information – on any of this information?
ANo.
Q 872Do you consent to the request to undergo a forensic procedure?
AI suppose.
Q 873Is that a yes or a no?
AYeah, whatever. I suppose, yeah. But you already got my DNA so I dunno why you’re taking it again.
Q 874We always get a new – a new sample.
ABut why? Can’t you use the old one?
Q 875All right. This is the bit where you sign, “I have understood the information given to me by police. I have received a copy of this form.” So what happens is with your property you’ll get a copy of all these forms that we fill out here. O.K.?
AWhere do you want me to sign?
Q 876Just there. I’ll sign it too. This is your copy, this is suspect copy. So I’ll just fill that out like I’ve done the other one.
ASo where are you driving to after this, Macca’s or home?
Q 877Me or you?
AYou. Are you driving me home or Macca’s?
DETECTIVE SENIOR CONSTABLE STOLL
Q 878 .........
A No, not really.
DETECTIVE LEADING SENIOR CONSTABLE BENNETT
Q 879 Just sign there.
AI’m not gunna eat for another couple of months.
Q 880Have you got the munchies?
ANot really. I don’t eat when I’m stressed. I’m just worried about my girlfriend, man.
Q 881You’ll waste away to nothing, you know that, don’t you?
AHuh?
Q 882You’ll waste away to nothing.
ANo, there’s a – there’s a reason why I’m wasting away.
Q 883All right. This – this – this is another form. This one is called a Caution Before Forensic Procedure. There’s a – there’s a couple of sets of forms that we just got through that all make up part of the – the process. O.K. This won’t take as long as that one. So that’s 0640. As you can see I pre-typed your name in there just to save a bit of time ‘cause my handwriting’s not that good.
AOh, well.
Q 884All right, all right. What this one is, a Caution Before Forensic Procedure under Crimes Act 1958 section 464Y. This is what I’ve got to give – the information I give to you is you have consented ,to undergo a forensic procedure, that procedure being an intimate sample which is a supervised mouth swab, it’s what we call a buccal swab. Before the procedure is conducted, I must inform you that you do not have to answer any questions asked by the medical practitioner, nurse or other person conducting the procedure that’s me but that anything that you say may be given in evidence. Do you understand this?
(NO AUDIBLE REPLY)
Q 885I need a verbal response.
AYeah.
Q 886This bit here says, “Receipt of a person or donor” – that’s you – “undergoing a forensic procedure. I have received a copy of this form.” So donor copy, that’s you, this is your copy and then we’ll do the identical one for me. “I have received a copy of this form, I’ve understood the information given to me by police.” So just sign there. What I’ll get you to do .......... actually – it’s all right it’s just your – just your signature, isn’t it? This is for the independent person. Are you – are you able to sign that?
MORRIE:
Yep.
DETECTIVE LEADING SENIOR CONSTABLE BENNETT
Q 887 You just put, I guess, Morrie and your number and I’ll start filling out the identical one which is the police copy. There’s only one more form to do then we can do the – do the actual sample and then that’s it, we’re finished. …
Given the applicant’s responses to Detective Bennett, we consider that there can be little doubt that the applicant understood the nature of the procedure to be conducted, and its purpose. It is plain that he understood that he was suspected of having committed the offence of rape, and that the procedure might produce evidence for use in a court. Further, the applicant understood that he could refuse to undergo the procedure, and that, should he do so, a court order might be obtained (or, for a ‘non-intimate’ procedure, the conduct of the procedure might be authorised by a senior police officer, such as an inspector). Indeed, the applicant specifically asked police whether a court order was necessary, and was informed that, for the anticipated procedure, a court order was not required. Moreover, it might be expected that, were there any reason to doubt the applicant’s understanding of the information being imparted, the ITP would have intervened. He did not do so.
Properly construed, s 464S(1) does not require the respondent to establish that the applicant actually understood the information given to him, only that he consented to the forensic procedure after police informed him of the requisite matters ‘in language likely to be understood’ by him. But in assessing whether police informed the applicant of the matters in sub-ss (1)(a) to (h) ‘in language likely to be understood’ by him, we consider it to be legitimate to inquire whether the applicant did, in fact, understand the information given to him.
In our view, the record of interview demonstrates that the police gave the applicant all of the information required by s 464S(1), and that he did, in fact, understand it. And we consider that the fact that the applicant understood the relevant information shows that it was provided in language he was likely to understand. The applicant’s submission that his assents, clearly articulated, were unknowing passive responses to the questions asked of him cannot stand with the extent and nature of the responsive exchanges between him and the police. In those circumstances, we consider that the judge was correct to find that the applicant gave informed consent to the 2014 procedure.
Proposed ground 1 is without substance.
The forensic procedure in 2019
Turning to proposed ground 2 – and, given the concession that s 464S(1)(c) was not complied with, proposed ground 3 – it is significant that, in its reasons for judgment on the first appeal, the Court indicated, first, that there was an issue as to whether police had provided the information required by s 464S(1) in ‘language likely to be understood by the applicant’; and, secondly, noted the apparent failure to comply with s 464S(1)(c). The Court observed:[39]
[39]There is, however, another important aspect that invites comment. In oral argument in this Court, counsel for the applicant raised a substantial argument that had not been advanced in the County Court. Hence, counsel submitted for the first time that s 464S had been breached, in that police had not informed the applicant, ‘in language likely to be understood by [him]’, of the various matters spelled out in paragraphs (a) to (h) of sub-s (1). We consider that there is substance in this submission.
[40]Recourse to the record of interview[40] shows that, shortly before Dr Brook carried out the forensic procedure, Detective Harvey told the applicant that he was going to ask for his ‘cooperation in obtaining some forensic samples from [his] body, being fingernail scrapings and some swabs from [his] mouth and [his] penis’. Detective Harvey then told the applicant that he had ‘to read some official information’. What then follows is a cascade of information – consisting of some eight or more separate pieces – which, it might cogently be argued, is not couched in ‘language likely to be understood’ by the applicant.
[41]Thus, the applicant was told: first, that he was being requested to undergo a forensic procedure which would tend to confirm or disprove his involvement in the commission of the indictable offences of both rape and attempted robbery; secondly, the nature of the procedure that police seek to conduct is some swabs in the nature of intimate samples from his penis and fingers, and some scrapings from his mouth; thirdly, the procedure will be conducted by a forensic medical officer;[41] fourthly, the procedure could produce evidence to be used in court; fifthly, the information obtained from analysis of forensic material obtained by the procedure will be placed on a DNA database; sixthly, the information obtained ‘may be used for the purpose of the criminal investigation or any other purpose for which a DNA database may be used under Part III Division 1 (30A) of the Crimes Act 1958 or under a corresponding law of a participating jurisdiction’; seventhly, the applicant could refuse to undergo the procedure; and, eighthly, if the applicant refused to undergo the procedure – which police defined as ‘a compulsory procedure’ – police could make an application ‘to the Magistrates’ Court for an order authorising the conduct of the procedure or a senior police officer may authorise a non-intimate compulsory procedure’.
[42]As we have indicated, the submission that police had not complied with s 464S – in that they had failed to impart the information required by the section to the applicant in language likely to be understood by him – was not one that was put to the trial judge. That being so, we regarded it as doubtful that the judge’s certification was broad enough to embrace the issue raised for the first time in this Court. We therefore declined to decide the issue.
[43]Given that the judge’s ruling has been set aside, however, it will be open to the applicant to reagitate the question of the admissibility of the forensic procedure, including whether s 464S was breached in the posited fashion. Self-evidently, if the judge determines that police failed to impart the information required by s 464S(1) in language likely to be understood by the applicant – so that the evidence of the forensic procedure is on its face inadmissible – the judge will then need to consider the various limbs of s 464ZE(2A).
[39]CA Reasons, [39]–[43].
[40] See [88] below.
[41]We note that the applicant was not informed that he could request that the procedure be conducted by or in the presence of a medical practitioner or nurse of his choice. See s 464S(1)(c) of the Act.
As the passage extracted immediately above makes clear, it was only during the hearing of the first appeal that the applicant’s counsel for the first time made the suggestion that police may not have provided the information required by s 464S(1) to the applicant in language likely to be understood by him. Furthermore, it was the Court that noted in the course of its reasons for judgment that s 464S(1)(c) had not been complied with, given that the applicant was not informed that he could request that the procedure be conducted by or in the presence of a medical practitioner or nurse of his choice.
Moreover, this Court made it clear that, upon remittal to the County Court, it would be open to the applicant to reagitate the question of the admissibility of the forensic procedure, including whether police failed to impart the information required by s 464S(1) in language likely to be understood by the applicant. The Court also made it clear that, if the judge were to determine that s 464S(1) had been breached in the posited fashion – so that the evidence of the forensic procedure is on its face inadmissible – ‘the judge will then need to consider the various limbs of s 464ZE(2A)’.
As we have mentioned, upon remittal to the County Court the prosecution conceded – fairly and properly – that a breach of s 464S(1) had occurred because the applicant was not informed, as required by sub-s (1)(c), that he ‘may request that the procedure be conducted by or in the presence of a medical practitioner … of his … choice’; but that, notwithstanding the breach, the circumstances justified the reception of the evidence. The prosecution also submitted to the trial judge that the balance of the information contained in s 464S(1) had been provided to the applicant in language likely to be understood by him.
As we have also mentioned, the judge was of the view that the applicant understood the information given to him. She was also of the view that, despite the conceded breach of s 464S(1)(c), the circumstances justified the reception of the evidence of the forensic procedure (and the results obtained from it), and s 138 of the Evidence Act 2008 should not lead to its exclusion.
In our opinion, the trial judge was correct to conclude that the applicant understood the information given to him by police for the purposes of obtaining his informed consent to the conduct of the forensic procedure, and that the evidence should not be excluded by reason of s 464ZE(1) of the Crimes Act 1958 or s and s 138 of the Evidence Act 2008.
It is convenient to turn first to that part of the record of interview during which the applicant’s consent to the forensic procedure was requested by police. As previously mentioned, the record of interview with the applicant on 4 December 2019 commenced at 2.08 am and was suspended at 2.10 am. After the FMO, Dr Brook, formed the opinion that the applicant was fit to consent to a forensic procedure, Detective Harvey resumed the audio-visual recorded interview with the applicant, in the company of Detective Langan, at 10.47 am.[42] Plainly, the purpose of resuming the audio-visual recorded interview was to secure the applicant’s informed consent to a forensic procedure, and to comply with s 464S(2)(a) (which provides that a police officer who informs a suspect of the matters in sub-s (1) ‘must record the giving of the information and the person’s responses, if any, by audio recording or audiovisual recording or in writing signed by the person’). The relevant part of the interview is as follows:
[42]See [26] above.
Q 29[Joshua], the reason you’re here today is to assist us in an investigation in relation to an attempted robbery and a rape that occurred last night and this morning. So last night being Tuesday the 3rd of December, and this morning being Wednesday the 4th of December. O.K. Do you understand that?
AYeah.
Q 30O.K. Now in relation to that, I’m going to ask you for your cooperation in obtaining some forensic samples from your body, being fingernail scrapings and some swabs from your mouth and your penis. Do you - - -
AYeah.
Q 31- - - understand that?
AYeah.
Q 32Before I do that, I have to read some official information. You are being requested to undergo a forensic procedure which would tend to confirm or disprove your involvement in the commission of the indictable offence that I specified, rape and attempted robbery.
AYeah.
Q 33The nature of the procedure that we seek to conduct is, as I said, some swabs, intimate samples from your penis and your fingers and some scrapings from your mouth.
AYeah.
Q 34Do you understand all that?
AYeah.
Q 35Now, the procedure will be conducted by a forensic medical officer. Do you understand that?
AYeah.
Q 36And the procedure could be produced – could produce evidence to be used in court. The information obtained from analysis of forensic material obtained by the procedure will be placed on a DNA database and may be used for the purpose of the criminal investigation or any other purpose for which a DNA database may be used under Part III Division 1 (30A) of the Crimes Act 1958 or under a corresponding law of a participating jurisdiction. At this stage you may refuse to undergo the procedure. But if you refuse to undergo the procedure and the procedure is defined as a compulsory procedure, which we do define it as, a member of the police force may make application to the Magistrates’ Court for an order authorising the conduct of the procedure or a senior police officer may authorise a non-intimate compulsory procedure. Do you understand that?
AYeah.
Q 37Do you understand all of this information?
AYeah.
Q 38Do you wish to comment on any of this information?
ANo.
Q 39Do you consent to the request to undergo forensic procedures?
AYeah.
Q 40Now, it is 10.51 and the date is the 4th of the 12th 2019 and we’re at Melbourne West. Sorry, what your date of birth again?
A[A date in mid-1994.]
Q 41You’ll get a copy of these forms. I’ll ask you to sign them later. O.K. [Joshua]. You have consented to undergo a forensic procedure, that procedure being a buccal swab, fingernail scraping and penis swab. Before the procedure is conducted I must inform you that you do not have to answer any questions asked by the forensic medical practitioner, nurse or any person conducting the procedure but anything you do say may be given in evidence. Do you understand this?
AYep.
Q 42O.K. At this time I’m going to leave the room and bring in a forensic medical officer and she’s going to conduct the examination as I’ve just stated. Do you understand that?
AYeah.
Q 43O.K. I’ll just – I’ll be present here in the room.
…
Q 44O.K. It’s 10.55 am and I’m introducing forensic medical officer Pip to Mr [Martin]. She’s got some questions to ask.
DR BROOK
Mm’hm, O.K.
DETECTIVE SENIOR CONSTABLE HARVEY
Would you like us to complete this recording at this stage or leave it running?
DR BROOK
Prefer not to.
DETECTIVE SENIOR CONSTABLE HARVEY
Leave it running?
DR BROOK
No, yeah.
DETECTIVE SENIOR CONSTABLE HARVEY
Q 45We’ll suspend our interview, yes. It’s – do you agree that it’s 10.56 am?
AYeah.
Q 46I’ll suspend the interview.
Before proceeding, there are several things about the passage from interview extracted immediately above that should be noted. First, by Q 29 and Q 32, the applicant was informed – consistently with the provisions of both ss 464S(1)(a) and (d) – ‘of the purpose for which the procedure was required’ and ‘of the offence which the person is suspected of having committed’. Significantly, on their face, the applicant’s answers to those questions tend to show that he understood that he was being ‘requested to undergo a forensic procedure which would tend to confirm or disprove [his] involvement in the commission of the indictable offence’ of a rape committed the previous evening, 3 December 2019. Indeed, there is nothing in the answers themselves that might lead us to doubt that the applicant understood the information that was being provided to him.
Secondly, by Q 30, Q 31, Q 33 and Q 35, the applicant was informed – consistently with s 464S(1)(b) – ‘of the nature of the procedure sought to be conducted’. Once more, on their face, the applicant’s answers to those questions tend to show that he understood that police were seeking ‘forensic samples from [his] body, being fingernail scrapings and some swabs from [his] mouth and [his] penis’, and that those forensic samples would be ‘conducted by a forensic medical officer’. And again, there is nothing in the answers themselves that might lead us to doubt that the applicant understood the information that was being given to him.
Thirdly, the information in ss 464S(1)(e) to (h) – that the procedure could produce evidence to be used in a court; that the information obtained from the procedure will be placed on a DNA database (and used for criminal investigation or other specified purpose); that the applicant may refuse to undergo the procedure; and that, should the applicant refuse to undergo or consent to the procedure, then, depending on the type of procedure, the Magistrates’ Court or senior police officer might authorise it – was conveyed in Q 36. On their face, the applicant’s answers to Q 36, Q 37 and Q 38 indicate that the applicant understood the information given to him; and, taken at face value, the applicant’s answer to Q 39 demonstrates his consent to undergo the anticipated forensic procedures. There is nothing in the answers that might lead us to doubt that the applicant understood the information that was being imparted.
On the first appeal, the Court declined to decide the issue whether the information in s 464S(1) may not have been given to the applicant in language likely to be understood by him, being of the view that the judge’s certification was not broad enough to embrace it. The Court observed, however, that ‘it might cogently be argued’ the ‘cascade of information’ – ‘consisting of some eight or more separate pieces’ – was ‘not couched in “language likely to be understood” by the applicant’. Having now had the benefit of both full written and oral submissions, we are of the opinion that – with the exception of the information in s 464S(1)(c) – the applicant was informed of the matters in s 464S(1) in language likely to be understood by him.
An objective examination of the record of interview reveals that – no matter what might be said of the matters in sub-s (1)(e) to (h) – the information contained in ss 464S(1)(a), (b) and (d) was given to the applicant in relatively simple language that he was likely to understand. Indeed, we consider that his answers to Qs 29 to 35 amply demonstrate that the applicant did, as a fact, understand what police were putting to him.
Although, by way of contrast, Q 36 may appear to contain a ‘cascade of information’ imparted in what the judge referred to as ‘one continuous stream’,[43] none of it was information that was entirely new to the applicant. Forensic procedures for the purposes of collecting his DNA had been performed on him in the past, and his DNA had been harvested. As his badinage with investigators during the 2014 interview abundantly demonstrates, the applicant was well aware that DNA collected from him in the course of a forensic procedure might be used to connect him to the commission of an offence or offences. Given those circumstances, we consider that the applicant is likely to have understood the language used by police when they informed him of the matters in ss 464S(1)(e) to (h). But even were we wrong about that, so that the forensic procedure had not, as s 464R(2)(a) requires, been conducted with the applicant’s informed consent, we would conclude – as did the trial judge – that the circumstances justify the reception of the evidence.
[43]CC Reasons, [38].
Section 464ZE(1)(a) provides in uncompromising terms that evidence obtained as a result of a forensic procedure in which the requirement of s 464R have not been complied with is ‘inadmissible’. By virtue of s 464ZE(2A), however, ‘evidence otherwise inadmissible’ by reason of a breach of s 464R may still be received if the circumstances justify its reception. In determining whether the circumstances justify the reception of the evidence despite its inadmissibility, attention is invited in sub-ss (2A)(a) to (h) to a range of considerations, including ‘the nature of the offence alleged’; ‘the probative value of the evidence’; the reasons for the failure to comply with the legislative requirements; the ‘nature of the requirement that was not complied with’; ‘the gravity of that failure’ (and whether ‘that failure was intentional or reckless’); whether the reception of the evidence would ‘seriously undermine’ the legislative protection given to persons; and any other matters the court considers relevant.
In our view, the circumstances strongly favoured the reception of the impugned evidence despite its inadmissibility.
Neither the extreme seriousness of the alleged offending, nor the powerful probative value of the evidence, can be gainsaid. Those two considerations point strongly towards the reception of the evidence.
Moreover, the alleged non-compliance with provisions of s 464S(1) – in particular, the failure to inform the applicant that the procedure could be conducted by or in the presence of a medical practitioner of his choice – was relatively minor, and did not ‘seriously undermine’ legislative protections. As we have indicated, the applicant was no tyro when it came to forensic procedures. He well understood their purpose and possible ramifications, and had shown himself to be astute in challenging police when he thought that the applicable process was not adhered to. We consider it to be extremely unlikely that, had he been told that he could have a medical practitioner of his choice, the applicant would have availed himself of that opportunity.
Importantly, we consider – as did the trial judge – that any non-compliance with s 464S(1) was neither intentional nor reckless. It is apparent to us that, by following the form provided to them – which purportedly contained the required information – investigating police were endeavouring to comply faithfully with the relevant statutory requirements. And as to any deficiencies in the form used, it could not realistically be contended that so much represented an ingrained systemic failure, let alone a deliberate flouting of the law.
Finally, if it be assumed that the evidence of the forensic procedure was obtained improperly or in contravention of Australian law (or as a consequence thereof) – the respondent, as we have said, conceded non-compliance with s 464S(1)(c) – then, consistently with the provisions of s 138(1) of the Evidence Act 2008, we are firmly of the view – as again was the trial judge – that ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that [was] obtained in the way in which the evidence was obtained’. When the considerations in s 138(3) – many of which closely mirror those in s 464ZE(2A) of the Crimes Act 1958 – are properly taken into account, the desirability of admitting the evidence clearly outweighs any undesirability.
For the foregoing reasons, the applicant has failed to establish that the judge erred in the manner alleged in proposed grounds 2 and 3.
Conclusion
Leave to appeal against the interlocutory decision will be refused.
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