Kelly v Shoesmith

[1998] VSC 120

SUPREME COURT OF VICTORIA

PRACTICE COURT

Not Restricted

No. 7426 of 1998

CHRISTOPHER J. KELLY

Applicant

v

ADAM J. SHOESMITH

Respondent

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JUDGES:	CHERNOV, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 1998
DATE OF JUDGMENT:	6 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSC 120

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PRACTICE AND PROCEDURE -- Stay of Magistrate's order pending review - Compulsory procedure - Crimes Act 1958 (Vic), s.464T - "Scene of the offence" - Interests of justice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. M. Amad (Solicitor)
Detective-Sergeant G.F. Davies was present with the Respondent

HIS HONOUR:

1. This is an oral application to restrain the respondent, a police officer, from implementing a compulsory procedure in relation to the applicant. The respondent applied today to the Melbourne Magistrates' Court for an order directing the applicant to undergo a compulsory procedure pursuant to s.464T of the Crimes Act 1958 (Vic) (the Act). The procedure which the respondent wished to implement was to take a blood sample from the applicant.

2. So far as is relevant, the section provides, in sub-s.(3), that a Court may make an order directing a person to undergo a compulsory procedure, in this case the taking of a blood sample, if the Court is satisfied on the balance of probabilities that (a) the person is a relevant suspect; and (b) there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and (c), so far as is relevant, there is material reasonably believed to be from the body of a person who committed the offence which has been found - (A) at the scene of the offence.

3. I was told by Mr Amad, who appeared for the applicant, that there was no issue between the parties so far as the requirements contained in sub-paras. (a) and (b) are concerned, during the hearing of the matter before the Magistrate. There was, however, a dispute between the parties as to whether there was material reasonably believed to be from the body of the applicant, which had been found at the scene of the offence.

4. The Magistrate heard the application and granted the order that was sought by the police.

5. The brief background to the application is as follows. The alleged offence was said to have occurred on 6 September 1998 at 6.15 p.m. at a video shop in Toorak Road, South Yarra. It is alleged that the applicant entered the shop and produced a syringe with a needle which contained a red liquid and threatened the shop assistant with it, and thereby extracted $80 from that assistant. It is alleged that the applicant then fled the shop, and it seems that he was pursued. He ran across Toorak Road in the direction of Yarra Street, nearly colliding with a taxi, and shortly after that entered a vehicle and was driven off. The police apparently made a search of the area either at the point where the applicant nearly collided with a taxi or where he was picked up by the waiting vehicle, being at or around the intersection of Yarra Street and Toorak Road, where they found a syringe with a red liquid, the syringe and the liquid appearing to be similar to those that were used in the video shop offence.

6. On 22 September 1998, the applicant was charged with one count of robbery, theft and assault in relation to another alleged offence, which was said also to have taken place on 6 September 1998, in Albert Park. Notwithstanding police opposition, the applicant was granted bail, and it would appear from the material that was presented to me, that a committal mention will take place on 23 December 1998. There was a status hearing, I am told, that took place yesterday, at which the applicant appeared. Similarly, pursuant to a prior arrangement, the applicant attended on the police to be interviewed in relation to, inter alia, three other armed robberies in which he was allegedly involved. The applicant exercised his right to make no relevant comment and he also refused to take a blood test, which led to the application being made to the Magistrates' Court.

7. The applicant now seeks to review the decision of the Magistrate under Order 56 of the Rules of this Court, principally on the basis that the Magistrate erred in construing s.464T, in that the syringe was not found "at the scene of the offence" within the meaning of that section. It is the contention of the applicant that the "scene of the offence" is the location where the offence actually occurred, or very close to it, and it may go so far as the front door of the shop or shortly thereafter, but, in the context of this case, the syringe was found at too great a distance from the shop at which the offence allegedly occurred, to make that location the "scene of the offence" for the purpose of s.464T. I should say that the Magistrate took the view that the syringe was found at the scene of the offence, bearing in mind that the applicant allegedly escaped or ran from the shop towards the waiting car, and up to that point, one could reasonably describe the area as the "scene of the offence".

8. Mr Amad pointed out that if the stay is not granted, the blood sample will be taken from his client forthwith. There is probably little doubt about that. Mr Amad also pointed out that if the stay is granted, however, no prejudice would befall the police or the public interest which it represents. He therefore seeks an order that the police be restrained from taking a blood sample from his client for a period of 48 hours or thereabouts to enable him to bring the matter before the Court and obtain a more permanent injunction pending the hearing and determination of the review process. I indicated in discussion with Mr Amad, that he would be making an application to the Court of Appeal for such a stay but, on reflection, that is not likely to occur; his application would be made to a single Judge for a review; but, in my view, that is not relevant to the application before me.

9. The respondent submits that there is a reasonable basis for believing that the syringe contains material from the body of the applicant, not only by reason of the liquid within the syringe but also material that is excreted from the pores or the sweat glands of the hand that held the syringe. The respondent said that the DNA testing would be conclusive identification of the applicant, who has already been identified by the video store assistant through photographs. The respondent, not surprisingly, contended that the Magistrate was correct in his conclusion as to whether the syringe was found at the scene of the offence; and, most importantly for the purpose of this application, the respondent expressed a concern that the applicant may not attend for a blood sample, if after the review, the decision of the Magistrate was upheld.

10. It is, of course, unlikely that a review would literally take place in the next day or two, but I have every reason to believe that it would be held shortly thereafter. What the applicant may succeed in doing once he issues the proceeding, is to persuade a Judge that the matter should be stood over, that is to say, the proposed taking of the blood sample could be stood over until the hearing and determination of the application.

11. Coming back to the concern that the police have in relation to the possibility or likelihood of the applicant not turning up for the blood sample should the applicant fail in the review process, there are three other offences, so I am told, in respect of which allegations have been made against the applicant, so there is a total of four such offences alleged against him, each of which concerns the use of a syringe with a needle and the extraction of money by the threatened use of it. The police also point to the fact that the applicant is apparently from Sydney; he has been here for a short time. But equally the police say, he has no prior convictions. Mr Amad for the applicant, pointed out that the applicant turned up at the police station at the appointed time; he turned up at the Court for the purpose of the status hearing; he has no history of offences; he is living with his father and has a job with him, and is unlikely to take off, so to speak, if he loses the review process.

12. There are two principal matters which, in my mind, I must consider. One is whether the decision of the Magistrate is attended with sufficient doubt to warrant such a stay, and the second is to balance the rights of the parties in relation to this application. There is the critical and important right of the applicant not to provide any blood sample against his wish unless the law clearly compels him to do so. There is also the competing right of the public to ensure that there is a proper administration of justice.

13. In my view, I should say, I am not satisfied that the decision of the Magistrate on the question of whether the syringe was found at the scene of the offence, is attended with sufficient doubt as to warrant a virtual disregard of that decision. It is, of course, arguable that he was wrong, but in my view it is not attended with such a sufficient doubt as to lead me by reason of that, to accede to the application. However, I think it is essential that the rights of both parties, as I have said, are preserved, and in my view, it would be appropriate if a blood sample was taken, but only on the undertaking by the respondent that, when taken, it would be kept separately and in safe keeping at the Victorian Forensic Institute and not used in any way save by order of the Court. If I receive an undertaking from the respondent to that effect, I will not make an order staying the operation of the Magistrate's order in this case.

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