Kerr v Commissioner of Police

[2001] NSWSC 637

CITATION:	Kerr v Commissioner of Police & Ors [2001] NSWSC 637
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 10407/01
HEARING DATE(S):	23 July 2001, 26 July 2001
JUDGMENT DATE:	27 July 2001
PARTIES :	Nathan Anthony Kerr (Plaintiff) Commisioner of Police for the State of New South Wales (1st Defendant) State of New South Wales (2nd Defendant) Director of Public Prosecutions (NSW) (3rd Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	A.C. Haesler (Plaintiff) P.F. Singleton (1st & 2nd Defendants) M.C. Grogan (3rd Defendant)
SOLICITORS:	Nikola Velcic & Associates (Plaintiff) I.V. Knight (1st & 2nd Defendants) S.E. O'Connor (3rd Defendant)
CATCHWORDS:	EVIDENCE - Summons for declaration and orders - forensic samples taken from suspect - suspicion of crime of murder - whether forensic procedure undertaken illegally - whether court should now make order restraining testing of samples - whether court should now order destruction of samples - exercise of discretion - Crimes (Forensic Procedures) Act 2000 considered.
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000
CASES CITED:	Ousley v The Queen (1997) 94 ACrimR 195 George v Rockett (1980) 170 CLR 104 Coco v The Queen (1994) 179 CLR 427 Sankey v Whitlam (1978) 142 CLR 1 Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198 Yates v Wilson (1989) 168 CLR 339 Sergi v DPP (unreported, NSWCA, 10 September 1991) Tye v The Commissioner of Police (1995) 84 ACrimR 147
DECISION:	See para 66

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

STUDDERT J

Friday 27 July 2001

10407/01 NATHAN ANTHONY KERR v COMMISSIONER FOR POLICE FOR THE STATE OF NEW SOUTH WALES & ORS

JUDGMENT

1   HIS HONOUR: The plaintiff, Nathan Anthony Kerr, has applied to this court by way of summons for the following orders:

“1. An order restraining the First Defendant from testing or subjecting to any form of scientific examination all forensic samples obtained from the Plaintiff over the period 6 February 2001 to 9 February 2001.
2. A Declaration that the order for under the Forensic procedure Crimes (Forensic Procedures) Act 2000 issued by G. O’Rourke on 7 February 2001 in relation to the Plaintiff is contrary to Law and invalid.
3. An order that the forensic samples obtained from the Plaintiff over the period 6 February 2001 to 9 February 2001 be destroyed.
4. [By amendment allowed on the hearing] An order that the proceedings seeking confirmation of the interim Order (O’Rourke) be remitted to Magistrate Russell to be dealt with according to Law.”

2   The defendants named in the summons are the Commissioner for Police (the first defendant), the State of New South Wales (the second defendant) and the Director of Public Prosecutions (the third defendant).

3   The affidavit evidence placed before the Court on the hearing of the summons consisted of an affidavit of Nicola Velcic sworn on 12 February 2001 and the affidavit of Stephen John Irvin sworn on 19 July 2001. Neither deponent was required for cross examination. One of the annexures to the affidavit of Stephen John Irvin was a record of an ERISP conducted with the plaintiff. In addition to the affidavits, there was also placed before the Court transcript concerning the proceedings before the magistrate, Ms Russell, on 8 and 9 February 2001.

4   The Court has had the benefit of written and oral submissions from counsel for the parties.

5   The forensic samples referred to in the summons were samples taken from the plaintiff on 7 February 2001. Swabbing of the plaintiff’s hands and body was undertaken and fingernail scrapings were taken from him. In addition, hair was removed from his head and an external examination of the plaintiff’s body was conducted. Photographs were taken of his person. The plaintiff’s clothing was collected for the purpose of examination.

6   The evidence discloses that the various procedures I have identified were undertaken at Parramatta Police Station on 7 February 2001 at about 2.00 pm. There has as yet been no form of scientific examination of the samples and this Court has made orders restraining the first defendant from testing them or subjecting them to any form of scientific examination. An order to such effect remains in place presently.

7   I draw on the affidavit of Stephen John Irvin, and in particular Annexure A of that affidavit, to record the following:

8   On 6 February 2001 the body of Melissa Miller was found inside premises in which the plaintiff was residing at Kogarah. Examination of the deceased disclosed significant head wounds and stab wounds to the body. Indeed, a knife was found protruding from the body. Evidence revealed the death as having occurred on the morning of 5 February 2001.

9   The plaintiff was arrested at about 2.30 am the following day on matters unrelated to the death of the deceased. At the time the samples were taken later in the day, the plaintiff had not been charged with the murder of the deceased but was suspected by the investigating police of being responsible for her death. I shall not record here what appears in the facts sheet as supporting the suspicion. Evidence implicating the plaintiff was circumstantial and the plaintiff had made no admissions upon being interviewed. Nevertheless, whilst the circumstantial evidence remained unexplained, it disclosed reasonable grounds for the suspicion seemingly entertained by the police when the samples were taken.

10 At 6.30 am on 7 February 2001 a police officer involved in the investigations into the death made application to a justice for an order under s 33 of the Crimes (Forensic Procedures) Act 2000. (I shall refer to this Act as “the Statute”.) The application made sought an interim order authorising the carrying out of a forensic procedure of the type that was undertaken later that day. An interim order was made by a justice at 7.40 am on 7 February 2001 directing that the procedure be carried out at the police station at Parramatta within two hours, that is by 9.40 am. Reasons for the making of the order, addressing statutory requirements, were stated by the justice:

“Satisfied s.23 is applicable - suspect not under arrest & not provided consent. Satisfied as to all matters in section 25. Reasonable grounds believe suspect committed prescribed offence. Indictable offence. Procedures might produce evidence tending to confirm or disprove that the suspect committed the offence. That it is justified in all the circumstances. See facts in application.”

11   On 8 February 2001 application was made to the Local Court for a final order to test the forensic samples, and there was some hearing on the application that day and the following day, but the application was ultimately withdrawn and the magistrate, Ms Russell, made no formal ruling. It was common ground that her Worship neither confirmed nor disallowed the interim order.

12   It was submitted by the plaintiff before this Court that the samples were obtained irregularly because there had been non-compliance with the requirements of the Statute and with the terms of the interim order:

(a) the samples were taken outside the period of two hours set by the justice and indeed by the Statute itself;

(b) the application for the interim order was not made by an authorised applicant within the meaning of the Statute.

13   Counsel were agreed that should this Court refuse the relief sought by the plaintiff in paras 1, 2 and 3 of the summons, I should make the order sought in para 4 but I shall consider this later.

14   However, Mr Haesler’s primary submission was that this Court should grant the relief sought in paras 1, 2 and 3 of the summons.

15   In advancing that submission, Mr Haesler acknowledged it was necessary to address the submission advanced by Mr Singleton on behalf of the first and the second defendants and by Mr Grogan on behalf of the third defendant that there was evidence that the plaintiff had consented to the forensic examination that was undertaken and that as a consequence of this any irregularity that may be established in relation to the making of the interim order or conduct of the police pursuant to it became irrelevant.

16   It is appropriate that I now consider this issue of consent.

17   This calls for attention to the transcript of the police interview conducted with the plaintiff, being Annexure B to Mr Irvin’s affidavit. In the course of the interview conducted on 7 February 2001 concerning the death of Melissa Miller, the plaintiff was invited to read the interim order made by the justice earlier that day and when he had done so, a police officer other than those who had been conducting the interview thus far was introduced and the interview continued:

“Q74 All right. What I will do is hand you over to Sergeant Kendell and he will explain the process to you and find which, find, and the process involved in taking your clothes, we have replacement clothes here for you, which you can put on.
SENIOR CONSTABLE KENDELL
Q74 Is your name Nathan Kerr?
A (NO AUDIBLE REPLY)
Q76 All right. My name is Senior Constable Tony Kendell, spelt K-E-N-D-E-L-L, from Parramatta Crime Scene Section. I am here to perform a number of forensic procedures upon your person. Do you understand that?
A. ………….
Q77 Right. What it is going to entail, I have got your rights and obligations that I have read out to you and I will, if you don’t understand anything, just stop me and I will explain it to you.
A. O.K.
Q78 O.K. For the purposes of the Forensic Procedures Legislation you are informed of the following: the giving of this information and your consent you have given is being recorded electronically. You have the right to hear or view the recording. The procedure is needed for forensic matching and D.N.A. profiling. The offence the procedure relates to is alleged murder. The procedure will be carried out by an appropriately qualified police officer or person in the following manner: taking a hair sample, hand swabs, fingernail scrapings, and you will also be photographed, as well as clothing will be removed. The procedure might produce evidence which may be used against you in court. You may refuse to consent to the procedure. You may have a legal practitioner of your choice present before deciding to consent. The carrying out of the procedure will be recorded electronically and you or your legal representative have the right to view the recording. If you object to the video recording of the procedure, the procedure must be carried out in the presence of an independent person unless you expressly and voluntarily waive your right to have an independent person present. For…forensic procedures and for the taking of non intimate impression of cast of a wound you have a right to have a medical practitioner or dentist present of your choice while this procedure is carried out. Do you understand that?
A. Mmm.
Q79 The forensic material obtained from the procedure is to be used to derive your D.N.A. profile. Information obtained from analysis of the forensic material may be placed in the D.N.A. database system. Only a person authorised may access information in the D.N.A. database system for one or more of the following purposes: forensic matching, making information available to you, administering the D.N.A. database system, under arrangement between New South Wales and other state or territory or the Commonwealth to provide access to other law enforcements officers or other prescribed persons. Four: and in accordance with the Mutual Assistance in Criminal Matters Act 1987 or Extradition Act 1988. For review of or inquiry into a conviction or sentence under part 13A of the Crimes Act 1900, investigating complaints about police conduct under part 8A of the Police Services Act 1990, a coronial inquest or inquiry, investigation of the complaint by the Privacy Commissioner or any other purpose which has been prescribed in the regulations. Persons…disclose information stored on the D.N.A. database for one or more of the following purposes: forensic comparison in the course of the criminal investigation by a police officer or other person prescribed by the regulations or to make it available to you, to administer the D.N.A. database system, under arrangements between New South Wales and other state or territory or the Commonwealth to provide access to other law enforcement officers or other prescribed persons, review of or inquiry into conviction or sentence under part 13A of the Crimes Act 1900, investigation of a complaint by the privacy commissioner, any other person which has been prescribed by the regulations. A person may only disclose information revealed by the carrying out of the procedure on you to yourself, the information is already publicly known in accordance with any other provision of the Act in accord with the Mutual Assistance in Criminal Matters Act 1987, the Extradition Act 1988 to investigate any offence or offences generally, decide to institute proceedings for an offence or proceedings for any other offence or coronial inquest or inquiry, for civil proceedings relating to the way the procedure was carried out including part 9 of the Police Services Act 1990, your medical treatment, medical treatment of the victim of an offence that there are reasonable grounds to believe it was committed by you, if you consent in writing to disclosure, investigating complaints about the conduct of police officers under section part 8A, Police Services Act 1990, for scrutiny by the ombudsman under section 121 of the Act, for any other purpose which is prescribed in the regulations. If you do not consent to the procedure the consequences will be that an application may be made to a magistrate for an order authorising the taking of the sample by mucul swab or some other forensic procedure. That relates to the document that you were shown before that was granted by a magistrate, an order. Do you understand that?
A. Mmm.
Q80 Would you like to read through these three sheets of paper that I just read out?
A (NO AUDIBLE REPLY
Q81 That is a copy for you to keep.
A ……
Q82 All right. As I have already informed you, I am Senior Constable Kendell. I am going to ask you questions, I am going to ask you to consent to the carrying out of a forensic procedure.
Q. Yes.
Q83 That being a hair root sample, swabbing of the hands, scraping of fingernails, taking a number of photographs and taking part or all of your clothing. Do you agree that I informed you orally of the matters set out in section 30 of the Crime, Forensic Procedures Act 2000, which is these three sheets that I have just read out to you?
A. ……….
Q84 Do you agree that you have been given the opportunity to communicate or attempt to communicate with a legal practitioner of your choice?
A What do you mean?
Q85 Have you been afforded the opportunity to contact a solicitor?
A. ……….
Q86 Sorry?
A Yes.
Q87 Do you consent to the procedure?
A What did the other sheet of paper say about it?
Q88 This, are you referring to this sheet of paper?
A No, there’s another…
Q89 That’s an order made by a magistrate, that if you don’t consent to the procedure carried out it will be carried out anyway.
A Well in that case then, I consent.
Q90 You do?
A Yeah.”

18   Presumably, the paper referred to in Qs87 and 88 above is the interim order made by the justice, Mr O’Rourke, which document is Annexure C to Mr Velcic’s affidavit. Plainly Q89 does not accurately state the effect of the document.

19   Part 3 of the Statute deals with the conducting of forensic procedures by consent.

20   Section 7(1) (in Pt 3) provides:

“ (1) A person is authorised to carry out a forensic procedure on a suspect with the informed consent of the suspect. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.”

21   “Informed consent” in relation to a suspect is defined in s 9 (see s 3).

22   Section 9(2) provides:

“A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer:
(a) asks the suspect to consent to the forensic procedure under section 11, and
(b) gives the suspect a written statement setting out:
(i) the information that the suspect must be given under section 13 (1) (a), (e), (f), (g), (i), (j) and (k), and
(ii) the nature of the information that the suspect must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and
(c) informs the suspect about the forensic procedure in accordance with section 13, and
(d) gives the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect's choice and, subject to subsection (3), to do so in private.”

23   The requirements of s 13(1) to which s 9(2) (b) refers are as follows:

“ (1) The police officer must (personally or in writing) inform the suspect of the following matters:
(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording as provided by section 100,
(b) the purpose for which the forensic procedure is required,
(c) the offence in relation to which the police officer wants the forensic procedure carried out,
(d) the way in which the forensic procedure is to be carried out,
(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law,
(f) that the forensic procedure will be carried out by an appropriately qualified police officer or person,
(g) if relevant, the matters specified in subsection (2),
(h) if the police officer believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander---that the suspect's interview friend may be present while the forensic procedure is carried out,
(i) that the suspect may refuse to consent to the carrying out of the forensic procedure,
(j) the consequences of not consenting, as specified in subsection (3), (4), (5), (6) or (7) (whichever is applicable),
(k) if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect - that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use.”

24   The defendants here submit that in the absence of any evidence from the plaintiff to the contrary, this Court should not determine that there was lacking informed consent for the purposes of Pt 3. The extract from the ERISP, it is submitted, shows that the plaintiff was given the written statement referred to in s 9(2)(b), that the plaintiff was instructed and informed as required by s 13 (however complex and verbose such instruction may be considered to have been), and that the plaintiff acknowledged he had been afforded the opportunity to obtain the assistance of a solicitor. The defendants submitted that there was evidence upon which it was open to a court to conclude that the samples were taken in compliance with the requirements of Pt 3 and once consent was given the samples were taken promptly and within the time-frame prescribed by s 16 of the Statute.

25   In submitting to the contrary, Mr Haesler argued that any consent by the plaintiff was flawed and this was so principally for two reasons. Firstly, s 8 of the Statute provides that an “incapable person” cannot consent to a forensic procedure, and it was for Constable Kendell to satisfy himself that the plaintiff was not an incapable person: s 12(b). Section 3 of the Statute defines “incapable person” as meaning:

“an adult who:
(a) is incapable of understanding the general nature and effect of a forensic procedure, or
(b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.”

26   The annexures to the affidavit of Nicola Velcic disclose that the plaintiff is a schizophrenic who may have been unfit to be interviewed at the time the samples were taken.

27   Secondly, the extract from the ERISP I have set out above, and in particular s 89, disclose that the plaintiff was misled before he expressed his consent.

28   In seeking the relief claimed, Mr Haesler drew my attention to what was said in Ousley v The Queen (1997) 97 ACrimR 195 and in particular in the judgment of Kirby J at 253 as requiring that legislation authorising intrusion into an individual’s privacy should be strictly construed and applied. I was referred also to George v Rockett (1980) 170 CLR 104 and Coco v The Queen (1994) 179 CLR 427. Those submissions by Mr Haesler warrant careful consideration but I remind myself that the nature of the relief which Mr Haesler seeks involves the exercise of the court’s discretion.

29   If I were to make the orders sought this would have the practical consequence of interfering with the course of the criminal process following the charging of the plaintiff with the most serious crime of murder. I am asked to make an order that would prevent testing and scientific examination of available evidence. I am asked to order the destruction of evidence. Testing and/or scientific examination of the samples may produce evidence of significant probative value for the purposes of any trial that may take place. For this Court, in its civil jurisdiction, to make orders, the practical consequence of which would be to eliminate the possibility of significant evidence being made available for the consideration of this court in its criminal jurisdiction, is a course which should only be taken in exceptional circumstances.

30   It is important to bear in mind that before any evidence concerning the samples or tests and/or scientific examination in relation to them, could be introduced at any trial of the plaintiff, the trial judge would have to consider any submissions such as those voiced here by Mr Haesler. Should it be determined at any trial, or for the purposes of any trial, that there was any failure to comply with the statute in relation to the taking of the samples and/or their testing and examination, the operation of s 82 would be enlivened:

“82. (3) This section applies:
(a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and
(b) to evidence of any results of the analysis of the forensic material, and
(c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:
(a) the person does not object to the admission of the evidence, or
(b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act , or
(c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child.”
(Emphasis added)

31   Section 82(5) identifies the matters which are to be taken into account by the trial judge:

“(5) The matters that may be considered by the court for the purposes of subsection (4)(b) are the following:
(a) the probative value of the evidence,
(b) the reasons given for the failure to comply with the provision of this Act,
(c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,
(d) whether the failure to comply with the provision of this Act was intentional or reckless,
(e) the nature of the provision of this Act that was not complied with,
(f) the nature of the offence concerned and the subject matter of the proceedings,
(g) whether admitting the evidence would seriously undermine the protection given to suspects by this Act,
(h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,
(i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,
(j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law,
(k) any other matters the court considers to be relevant.”

32   Section 82(6) provides:

“(6) The probative value of the evidence does not by itself justify the admission of the evidence.”

33   It is implicit from s 82 that the legislature contemplates that the evidence with which the section is concerned remains in existence at the time of trial.

34   On the limited evidence before me on this summons, I do not find myself able to determine those factual issues that arise in this case and which are better left to a trial judge. Before considering whether or not to admit evidence challenged, the trial judge would have the advantage, not enjoyed by me on this summons, of a voir dire hearing, at which the judge could expect to hear from the relevant police officers including Constable Kendell to explain what is attributed to him in question 89 of the ERISP, and to hear from the plaintiff and any other witness whose evidence may bear upon the question of the plaintiff’s consent and whether he was an incapable person for the purposes of the relevant provisions of the Statute. I do observe here that the Statute defines an incapable person somewhat narrowly for relevant purposes: it requires either an incapacity to understand the nature and effect of the forensic procedure or an incapacity to indicate whether he consents or does not consent to its being carried out (see s 3).

35   There are many statements of principle to be found in the authorities to the effect that a civil court will be and should be reluctant to make declarations or orders that have the effect of interfering with the course of criminal proceedings.

36   In Sankey v Whitlam (1978) 142 CLR 1 at 26 Gibbs CJ said:

“For these reasons I would respectfully endorse the observations of Jacobs P (as he then was) in Shapowloff v Dunn ((1973) 2 NSWLR 468 at 470) that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.”

37   In Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198 Kirby P said at 200:

“The jurisdiction of the Court to make a declaration of the law applicable to the indictment against the claimant was not disputed by the Attorney General. However, the courts’ disinclination to do so in criminal cases, particularly in circumstances where proceedings are in the charge of a judge who at this very moment is beginning the trial, has been frequently stated. Courts such as this will limit their intervention to special cases. They will intervene only in the ‘most exceptional’ circumstances: see Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 25, or for ‘some special reason’ (ibid, Mason J at 82); see also Bacon v Rose [1972] 2 NSWLR 793 at 797; Bourke v Hamilton [1977] 1 NSWLR 470 at 479; Barton v The Queen (1980) 147 CLR 75 at 104 and Lamb v Moss (1983) 49 ALR 533 at 545.”

38   See also Yates v Wilson (1989) 168 CLR 339 where, in refusing special leave to appeal in relation to a review by the Federal Court of a magistrate’s decision to commit a person for trial, Mason CJ said:

“The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us.”

39   See also Sergi v DPP (unreported, NSWCA, 10 September 1991, per Kirby P at 7) and Tye v The Commissioner of Police (1995) 84 ACrimR 147 at 155.

40   Having regard to the principles so consistently and repeatedly expressed in the authorities to which I have referred, and recognising the nature of the criminal trial process, I have decided that I should not make the orders sought in paras 1 and 3 of the summons, and I decline to do so.

41   This brings me to the second of the matters addressed in the summons and to the submissions made by Mr Haesler which I recorded earlier in para 12 of this judgment. The Court is asked to make a declaration that the order made by the justice, Mr O’Rourke, was contrary to law and invalid.

42   Whether or not the samples were taken in the time fixed by Mr O’Rourke does not bear upon the legality and validity of the order made by the justice. What was the status of the applicant who sought the interim order and what is the significance of that status?

43   This Statute recognises that forensic procedures may be carried out:

(i) with the informed consent of the suspect, and Pt 3 provides for this;

(ii) by order of a senior police officer, if the procedure contemplated is of a non-intimate nature, and Pt 4 provides for this;

(iii) by order of a magistrate, and Pt 5 provides for this.

44   Part 5 Div 3 provides for the making of interim orders and Div 2 for the making of final orders. The order made by Mr O’Rourke was an interim order to which Div 3 applies. Provision for the making of an interim order is contained in s 32, which is in these terms:

“ (1) An authorised justice may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:
(a) section 23 applies, and
(b) the authorised justice is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure, and
(c) the authorised justice is satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied of the existence of the matters referred to in section 25 when the application is finally determined.
(2) An interim order may authorise the carrying out of an intimate forensic procedure on a suspect only if the person is a suspect in relation to a prescribed offence.
(3) An interim order operates as provided by this Division until a Magistrate, at a hearing held under Division 2, confirms the interim order or disallows the interim order.
(4) Division 2 applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 24, and an order confirming the interim order is taken to be an order under section 24.”

45 Section 33 provides for the making of an application for an interim order:

“(1) An authorised applicant may, without bringing a suspect before an authorised justice and without obtaining an order under section 24, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.
(2) An application seeking an interim order authorising the carrying out of an intimate forensic procedure on a suspect may be made only if the person is a suspect in relation to a prescribed offence.
(3) An application for an interim order must:
(a) be supported by evidence on oath or by affidavit dealing with the matters referred to in section 32 (1), and
(b) specify the type of forensic procedure sought to be carried out.
(4) An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, telex, facsimile or other means of transmission.
(5) If the suspect who is in the presence of the authorised applicant when an application for an interim order is made is:
(a) a child, or
(b) an incapable person,
an interview friend or legal representative of the suspect must also (if reasonably practicable) be in the presence of the authorised applicant.
(6) If the authorised applicant believes on reasonable grounds that a suspect who is in the presence of the authorised applicant when an application for an interim order is made is an Aboriginal person or a Torres Strait Islander who is not covered by subsection (5), an interview friend or legal representative of the suspect must also (if reasonably practicable) be in the presence of the authorised applicant.
(7) If a suspect who is in the presence of the authorised applicant when an application for an interim order is made is not covered by subsection (5) or (6), the suspect's legal representative (if any) must also (if reasonably practicable) be in the presence of the authorised applicant.
(8) Despite subsections (5) and (6), the suspect's interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.”

46   The words “authorised applicant” referred to in s 33 are defined in s 3:

“‘ authorised applicant’ for an order for the carrying out of a forensic procedure on a suspect means:
(a) the police officer in charge of a police station, or
(b) a custody manager within the meaning of section 355 of the Crimes Act 1900 , or
(c) the investigating police officer in relation to an offence, or
(d) the Director of Public Prosecutions.”
(Emphasis added)

47   “Investigating police officer” is also defined:

“‘investigating police officer’ means the police officer in charge of the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.”

48   The person who sought the interim order in this case was Det. Snr Const. Darren Sly. He was not the officer in charge of the investigation into the murder but one of the officers investigating it. Evidence which Const. Sly gave in the Local Court on 8 February 2001 makes this plain. According to that evidence, Det. Snr Const. Tuckerman was the officer in charge of the investigation, not Const. Sly.

49   In presenting his affidavit supporting the application for the interim order, Const. Sly asserted he was an “authorised applicant under the Crimes (Forensic Procedures) Act”. He was not. Does this invalidate the interim order which was made? What was done constituted an irregularity in the making of the application. The assertion by the deponent in his affidavit that he was an authorised applicant was incorrect. The justice considering the application was entitled to assume the accuracy of the asserted status but, regrettably, the affidavit was misleading.

50   However, when the provisions of the Act are considered it does not seem to me that the irregularity in the application for the interim order affected the order that was made.

51   The provisions of s 32 require of the justice that he consider the various matters addressed in the section before making an interim order:

(i) the application of s 23;

(ii) whether he was satisfied that the probative value of the evidence was likely to be lost or destroyed if the procedure was delayed;

(iii) whether the plaintiff was suspected of a prescribed offence.

52   Section 23 provides:

“An order may be made by a Magistrate under section 24, or by an authorised justice under section 32, for the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not under arrest and has not consented to the forensic procedure, or
(b) the suspect is under arrest and has not consented to the forensic procedure, or
(c) under section 8, the suspect cannot consent to the forensic procedure.”

53   In the short reasons stated by the justice and which I recorded earlier (para 10 of this judgment), it is apparent that the matters addressed in s 32 were all taken into account before the order was made. Indeed, Mr Haesler has not submitted otherwise. His challenges were to the authority of the applicant for the order and to the time at which the procedure was conducted after the order. Nor has it been contended that Mr O’Rourke was other than “an authorised justice” for the purposes of s 32.

54   I read nothing in Pt 5 of the Statute which leads me to the conclusion that the irregularity in the making of the application has affected the validity of the interim order in this case. I do observe that in Div 2, concerning final orders, there is a provision that relates to an application for a second forensic procedure. Section 27(1) provides for this. Such a procedure is to be applied for by “an authorised applicant (but no other person)”: s 27(1). In this respect s 27 is to be contrasted with s 33 where the bracketed words are not to be found. This difference in the language in these two sections is by no means conclusive but consideration of all of the provisions of Pt 5 has led me to the conclusion I have reached.

55   The application for the declaration is refused.

56   This brings me to the application for the last of the orders sought in the summons. I am asked to make an order remitting to the magistrate, Ms Russell, for her determination the proceedings seeking confirmation of the interim order made by Mr O’Rourke. I referred earlier to what occurred before the magistrate on 8 February 2001.

57   By s 32(3) of the Statute the interim order which was made operates “until a magistrate, at a hearing held under Division 2, confirms [it] or disallows [it].” In fairness to the learned magistrate, it is understandable that in the events that happened on 8 February last the interim order was neither confirmed nor disallowed. What the court below did on that occasion was to accede to the application for withdrawal. However, the legislative scheme does not contemplate that an interim order should stand indefinitely. Its status is to be determined; it is to be confirmed or disallowed after a magistrate has had the opportunity for due consideration of the matters to be considered under s 25, which provides:

“The Magistrate must be satisfied that:
(a) the person on whom the procedure is proposed to be carried out is a suspect, and
(b) if the forensic procedure concerned is an intimate forensic procedure, on the evidence before the Magistrate there are reasonable grounds to believe that the suspect committed:
(i) a prescribed offence, or
(ii) another prescribed offence arising out of the same circumstances as that offence, or
(iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(c) if the forensic procedure concerned is a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:
(i) an indictable or a summary offence, or
(ii) another indictable or summary offence arising out of the same circumstances as that offence, or
(iii) another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and

(d) if the forensic procedure concerned is the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:
(i) a prescribed offence, or
(ii) another prescribed offence arising out of the same circumstances as that offence, or
(iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(e) if the forensic procedure concerned is the taking of a sample by buccal swab, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed:
(i) a prescribed offence, or
(ii) another prescribed offence arising out of the same circumstances as that offence, or
(iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and
(f) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence, and
(g) the carrying out of the forensic procedure is justified in all the circumstances.”

58   What is the utility value in this Court now making the order sought? The interim order required that the procedure be carried out by 9.40 am on 7 February 2001, and the evidence before this Court discloses that the procedure was not conducted until 2.00 pm that day. The defendants have submitted here that the plaintiff consented to the procedure and if this be so, Pt 5 of the Statute assumes no relevance. What is relevant is Pt 3.

59   Mr Haesler wants the determination of the magistrate as the plaintiff will seek to persuade the magistrate to disallow the interim order. If the order is disallowed then s 86 would impose an obligation on the investigating police officer to ensure that:

“(a) any forensic material obtained as a result of carrying out the forensic procedure is destroyed as soon as practicable after the disallowance, and
(b) a copy of the results of any analysis of the forensic material are made available by the person who conducted the analysis to the suspect.”
(Section 86(1))

60   Whilst the prosecution may seek to justify the preservation and testing of the evidence resulting from the procedure under Pt 3, it was Mr Haesler’s submission that at least a successful application by the plaintiff to disallow the interim order would narrow the possible basis for the introduction of such evidence at a trial.

61   On the other hand, Mr Grogan and Mr Singleton submitted that the magistrate may be persuaded to confirm the order, notwithstanding the delay in testing, having considered the various matters raised in s 25.

62   In the event that the order is confirmed, then when evidence resulting from the forensic procedure conducted on 7 February 2001 is sought to be introduced at any trial, the prosecution may be able to rely upon the making of the order as a further factor to be weighed by the trial judge before deciding whether or not the evidence then in question ought to be admitted.

63   This Court is not presently in a position to determine what evidence would be placed before the magistrate directed to the matters identified in s 25, and in particular in s 25(g), which, it is to be observed, is expressed in very broad terms. This Court does not know why there was the delay in carrying out the procedure between 7.40 am and 2.00 pm.

64   Having reflected on the submissions of counsel, I am persuaded that I should make the order sought in para 4 of the amended summons.

Costs

65   Each of the defendants has submitted that the plaintiff should pay the costs of the summons if unsuccessful and Mr Haesler did not seek to argue otherwise. Since the plaintiff has failed to obtain the orders and the declaration which prompted the summons, he must pay the costs thereon.

Formal orders

66   1. I make the order sought in para 4 of the amended summons.

2. The orders sought in paras 1 and 3 and the declaration sought in para 2 of the summons are refused.

3. I order the plaintiff to pay the costs of each of the defendants.

4. The order of this court restraining the first defendant from testing or subjecting to any form of scientific examination the forensic samples obtained from the plaintiff until further order is terminated forthwith.

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Last Modified: 07/30/2001