LK v Commissioner of Police

[2011] NSWSC 458

Supreme Court

New South Wales

Medium Neutral Citation:

LK v Commissioner of Police & Anor [2011] NSWSC 458

Hearing dates:

25 March 2011

Decision date:

20 May 2011

Jurisdiction:

Common Law

Before:

Fullerton J

Decision:

1. The appeal is allowed.

2. The final order made on 26 May 2010 in the Children's Court at Queanbeyan under s 24 of the Crimes (Forensic Procedures) Act 2000 be set aside.

3. Any evidence resulting from the said application or the undertaking of the subject forensic procedure be destroyed.

Catchwords:

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed - whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA - whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act - whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

Legislation Cited:

Bail Act 1978
Crimes (Appeal and Review) Act 2001
Crimes (Forensic Procedures) Act 2000
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Firearms Act 1996

Cases Cited:

Alessi v SE and Anor [2008] NSWSC 909
Walker v Bugden [2005] NSWSC 898

Category:

Principal judgment

Parties:

LK (Plaintiff)
Commissioner of Police (1st Defendant)
Senior Constable Adrian Seal (2nd Defendant)

Representation:

Counsel:
P Winch (Plaintiff)
P Butterfield (Defendant)
Solicitors:
Fitzgerald Naylor Lawyers (Plaintiff)
Office of the General Counsel (Defendants)

File Number(s):

2010/374084

Publication restriction:

Name of plaintiff not to be published

Judgment

1. The plaintiff appeals under Part 5 of the Crimes (Appeal and Review) Act 2001 against a final order that issued from the Children's Court at Queanbeyan on 26 May 2010 under s 24 of the Crimes (Forensic Procedures) Act 2000 ("the Act") providing for the taking of a buccal swab and hair sample

1. The following grounds of appeal were relied upon:

1. The learned Magistrate erred in law in finding that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act 2000.

2. The learned Magistrate erred in law by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act 2000.

3. The learned Magistrate erred in law by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act 2000.

1. On the hearing of the appeal the parties agreed that the Court should be made aware that following further investigation by police there was no DNA material retrieved from the crime scene capable of being compared with the plaintiff's DNA and, for that reason, the results of the forensic procedure would not be tendered by the prosecution in the criminal proceedings. While that would ordinarily result in the appeal not being prosecuted, Mr Winch of counsel, who appeared for the plaintiff on the appeal instructed by the Legal Aid Commission, submitted that I should hear the appeal in order to settle what he submitted was a residual question concerning the content of the statutory test in s 24(3)(b) of the Act arising from the consideration given to operation of the section in a number of recent cases in this Court (see Walker v Bugden [2005] NSWSC 898 and Alessi v SE and Anor [2008] NSWSC 909). The defendants did not seek to be heard to the contrary.

1. Both parties approached the appeal on the implicit understanding that it was brought pursuant to s 115A of the Crimes (Forensic Procedure) Act . That section has the effect of conferring jurisdiction on this Court under s 52(1) of the Crimes (Appeal and Review) Act as if the order were a sentence imposed in the Local Court arising from an offence prosecuted under a Court Attendance Notice dealt with under Part 2 of the Criminal Procedure Act 1986. Section 52(1) is limited to appeals as of right where it involves a question of law. Under s 53(1) leave to appeal is required where the appeal involves a mixed question of fact and law or a question of fact alone.

1. Mr Winch did not apply for a grant of leave apparently content that neither of the grounds of appeal raised a question of fact or involved a mixed question of fact and law. The defendants submitted that in developing the first ground of appeal it should have been obvious that at the least a mixed question of fact and law was involved. Since the time for making an application for a grant of leave had long since expired, the defendants submitted that I should refuse to consider the first ground of appeal.

1. It was common ground that whether the Magistrate undertook the analysis mandated by s 24 of the Act before making the final order (as comprehended by the second and third grounds of appeal) is a question of law which would justify granting the relief sought in the summons if made out.

1. There is some force in the defendants' submission that I should confine myself to considering the second and third grounds of appeal. However, after having heard detailed argument from both parties directed to the first ground of appeal, and having resolved to the settled view that error of the kind contended for in that ground has been made out, although not for the reasons advanced by the plaintiff, I propose to give reasons for so finding.

Background

1. At approximately 11am on 22 April 2010 police attended a unit complex in Queanbeyan as a result of information received from anonymous members of the public concerning the movement of a plasma television, baskets full of DVDs and computer games late at night into the unit complex by several young males. Upon arrival, police saw the plaintiff in company with three other young persons, JB, GS, KK and CC (aged 18) standing within and near the ground level entry to a storage room in the complex. CC informed police that he was living at the premises with his girlfriend and that the plaintiff and JB were visiting him. He was holding an electric angle grinder which he said he was using to undertake repairs to his girlfriend's car. A small quantity of cannabis in a bowl, a vegetable grinder capable of cutting up cannabis and a glass cylinder with a pipe attached used for smoking cannabis were located within the storage room. JB admitted to owning the cannabis. The young persons GS and KK were allowed to leave the premises.

1. While Senior Constable Seal was collecting the cannabis and the other implements he saw what appeared to be the tip of the barrel of a rifle concealed behind a piece of cardboard. He also detected what he described as a burnt odour in the air. Upon closer inspection he saw that the barrel of the firearm had been cut into two pieces and that they were lying next to the severed butt and the wooden body of a rifle. He also observed that there was sawdust and metal shavings near the various rifle parts, consistent with the rifle having been in the process of being altered with an electric grinder, and that the wooden components gave off a residual smell of burnt wood.

1. According to police records the rifle was registered to a person in Orange who reported it lost in May 2009.

1. Police seized the four rifle parts, the cannabis and associated paraphernalia and a number of photographs stored on what was said to be a stolen computer. The plaintiff was arrested (together with CC and JB) and taken into custody. Later that evening Court Attendance Notices issued for the following offences:

1) Possession of an unauthorised firearm; s 7A(1) Firearms Act 1996;

2) Possession of a prohibited drug; s 10(1) Drug Misuse and Trafficking Act 1985;

3) Possession of a shortened firearm (not pistol) without being authorised by permit; s 62(1)(A) Firearms Act 1996.

1. CC and JB were also issued with Court Attendance Notices for the same offences.

1. Upon receiving legal advice all three declined to be interviewed. However, after Senior Constable Seal advised that he intended to make an application for a forensic procedure JB is alleged to have said, "It's our gun ... It's mine and [the plaintiff's] gun, CC doesn't own it".

The application for an interim non-intimate forensic procedure

1. Later that afternoon Senior Constable Seal applied for and was granted an interim order authorising a non-intimate forensic procedure (namely the taking of a buccal swab and hair sample from the plaintiff) under s 33 of the Crimes (Forensic Procedure) Act . The interim order was in terms that the forensic sample taken from the plaintiff not be analysed until a final order was made.

1. Pursuant to s 32(2) of the Act, an application for an interim forensic procedure can only be made in relation to a "prescribed offence". Section 3 of the Act defines a prescribed offence as "an indictable offence" or "any other offence under a law of the State prescribed by the regulations...". Possession of an unauthorised firearm and possession of a shortened firearm (not pistol) without permit are both indictable offences as defined.

1. On the evidence before me it is not clear whether the amount of the cannabis was sufficient to result in its being classified as an indictable offence. No submissions were directed to whether it was a prescribed offence under the regulations. Since it appears that it was the firearm which prompted police to make the application for the forensic procedure, and despite the Magistrate confirming the terms of the interim order which included reference to drug packaging (which I note was not seized in any event), I propose to ignore the drug offence for the purposes of the appeal.

1. Section 4A of the Firearms Act defines "possession" as:

(1) Without restricting the meaning of the word possession , for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c) on the evidence before it, the person was not in possession of the firearm.

(2) In this section, premises means any place, vehicle, vessel or aircraft.

1. It was common ground on the appeal that at the time of making the application the plaintiff was a suspect despite the fact that he was not formally charged until later that evening. It was also common ground that the prosecution case is that the plaintiff was in joint possession of the rifle and that he was party to a joint criminal enterprise to shorten it.

1. Section 23(c) of the Act provides that a Magistrate or authorised officer may order that an order for a forensic procedure be carried out on a "suspect" if the suspect is a "child":

(23) An order may be made by a Magistrate under section 24, or by an authorised officer 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) the suspect is a child or an incapable person.

1. Section 32 of the Act provides:

(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, whether or not the suspect consents to the carrying out of the forensic procedure after the interim order is made but before it is confirmed or disallowed.

(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. Accordingly, a Magistrate may make an order confirming the interim order only if the Magistrate is satisfied as referred to in section 24 (1). An order confirming the interim order is taken to be an order under section 24.

1. Section 32 sets out the criteria that an authorised officer must consider when assessing an application for an interim order. Section 32(1) provides:

(1) An authorised officer 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 officer 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 officer is satisfied that there is sufficient evidence to indicate that a Magistrate is reasonably likely to be satisfied, as referred to in section 24 (1), when the application is finally determined.

1. Section 24 sets out the criteria that must be met before a Magistrate may order the carrying out of a forensic procedure:

(1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities:

(a) that the circumstances referred to in subsection (2) or (3) exist, and

(b) that the carrying out of such a procedure is justified in all the circumstances.

(2) In the case of an intimate forensic procedure...

(3) In the case of a non-intimate forensic procedure:

(a) there must be reasonable grounds to believe that the suspect has committed an offence, and

(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).

(4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following:

(a) the gravity of the alleged offence,

(b) the seriousness of the circumstances in which the offence is alleged to have been committed,

(c) the degree to which the suspect is alleged to have participated in the commission of the offence,

(d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known,

(e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person,

(f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive,

(g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned,

(h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section,

(i) such other matters as the Magistrate considers relevant to the balancing of those interests.

Ground one:

Did the Magistrate err in law in finding that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act

1. The plaintiff conceded that the evidence before the Magistrate was capable of satisfying the test in s 24(3)(a), that is, that on the balance of probabilities there were reasonable grounds to believe that he had committed a prescribed offence. That evidence consisted of:

(a) his presence in the premises at the time the firearm was located in circumstances where it had recently been shortened;

(b) a photograph which depicts CC holding what appears to be the rifle before it was shortened;

(c) a second photograph which, by reference to the first photograph, depicts a person having at least similar clothing to that worn by CC in the first photograph pointing what appears to be the same rifle at the plaintiff;

(d) a third photograph which appears to show the firearm with the slide pulled back and a person inserting a bullet.

(There was no evidence as to when the photographs were taken.)

1. Over objection the Magistrate also took into account what JB said in the presence of the police after the arrest where he claimed possession of the rifle jointly with the plaintiff. The objection was taken on the basis that what JB said was inadmissible against the plaintiff, it being an admission by a co-offender which was not adopted by him and not otherwise admissible under s 83 of the Evidence Ac t 1995.

1. His Honour appears to have regarded the proceedings as either analogous to bail proceedings or as interlocutory proceedings and for that reason the rules of evidence did not apply leaving open for him to have regard to JB's admission in considering the application of the tests in s 24(3)(a) and (b). Mr Winch submitted that the Magistrate was in error in this approach and the rules of evidence do apply to proceedings under the Act. He then submitted that because the Magistrate took inadmissible evidence into account when applying the test in s 24(3)(b), that was an error of law which was comprehended by the first ground of appeal.

1. The primary submission advanced in support of the first ground of appeal was that there was no evidence at all to support the Magistrate's finding under s 24(3)(b) in the absence of crime scene DNA being available for the purpose of comparison with the plaintiff's DNA. In the somewhat unusual circumstances of this appeal I do not regard it as appropriate that I deal at any length with the submission that some aspect of the evidence upon which the Magistrate relied was inadmissible or express a final view about the matter. I do, however, observe that the Bail Act 1978 specifically provides that a court is not bound by the rules of evidence, which under s 8 of the Evidence Act displace s 4(1)(b) of the Evidence Act which provides that the Act does apply to proceedings relating to bail. In addition, although the Crimes (Forensic Procedure) Act makes no express provision that the rules of evidence apply to proceedings under the Act (or for the rules of evidence to be dispensed with), s 33 of the Act, which deals with applications for interim orders, refers expressly to the need for an application made in person to be supported by evidence on oath or affirmation, and s 26 provides that an application for a final order must also be supported by evidence in relation to the matters in s 24 to which the Magistrate needs to be satisfied before a final order is made. I also note that s 4 of the Evidence Act provides that the Act applies to all proceedings in a New South Wales court including interlocutory proceedings or proceedings of a similar kind. Assuming that the proceedings are civil proceedings (as defined in the Evidence Act ) the applicant did not apply for waiver of the rules of evidence under s 190(3) of the Evidence Act . On this analysis it would appear that proceedings under the Act (or at least the proceedings the subject of the appeal) are governed by the rules of evidence and that the challenged evidence ought to have been disregarded by the Magistrate.

1. I turn then to consider the plaintiff's primary submission in support of the first ground of appeal. Mr Winch submitted that it was not open for the Magistrate to find on the evidence before him that on the balance of probabilities there were reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff had committed the firearm offences. He submitted that the evidence relied upon to make out the first limb of the statutory test in s 24(3)(a) (with or without the admission by JB) was not available to be considered on the second limb in s 24(3)(b). This was said to follow from the fact that the second limb involves a different test and, in the absence of evidence that there was (or was likely to be) DNA material on the rifle capable of being compared to the plaintiff's DNA, there was simply no evidentiary basis for a belief that the forensic procedure might produce DNA evidence tending to confirm or disprove the involvement of the plaintiff in either possessing the rifle or shortening it.

1. Mr Winch submitted that properly construed, the test in the second limb necessitates that at the time of the application for a final order there must be something either in the form of crime scene DNA, or an opinion from a suitably qualified person that DNA will in all probability be retrievable from a crime scene, otherwise there is nothing against which a meaningful assessment of what the forensic procedure might produce for comparative DNA testing can be made. For a Magistrate to simply assume that there will be, or might be, crime scene DNA to enable a comparison to be made with a forensic sample from a suspect, either because the police think or hope that will be the result, is not enough to induce the reasonable belief to which the section refers. That is plainly correct.

1. The defendants accepted that there was no evidence before the Magistrate that DNA material was on or likely to be retrieved from the parts of the rifle seized at the crime scene. At the hearing of the application the rifle parts had merely been lodged in the crime scene laboratory for the purposes of determining whether DNA could be recovered. There was no evidence that a laboratory technician had considered the viability of DNA being recovered or even asked that question. In those circumstances, Mr Winch submitted that the prospect that the procedure might produce evidence of the kind with which s 24(3)(b) is concerned was at best a theoretical possibility and at worst simply speculative, neither of which are capable of grounding a reasonable belief. That is also plainly correct.

1. Mr Winch relied upon Walker v Bugden as authority for the proposition that without evidence of a DNA deposit obtained from a crime scene, the test under s 24(3)(b) could not be made out as a matter of law. He also submitted that the Magistrate misdirected himself by relying on what Hall J said at [52] to give collective weight to the various matters of fact I have set out in [24] above to ground the reasonable belief to which s 24(3)(b) refers when as a matter of law he was limited to considering that evidence for the reasonableness of the suspicion to which s 24(3)(a) refers.

1. I am not persuaded that Walker v Bugden is authority for the blanket proposition for which the plaintiff contends. A careful reading of his Honour's reasons for judgment suggest otherwise. That is not to say that in some cases the absence of a crime scene might not be fatal to an application under s 24. In Walker v Bugden Hall J concluded that the absence of a DNA sample was fatal to the success of the application because without it there was an insufficient factual basis to induce a reasonable belief that a DNA comparison could be undertaken which might provide evidence of the kind to which the section refers. Although at [45] his Honour correctly identified that the technique of DNA identification is employed on the basis that there in fact exists forensic material upon which identification of a suspect can be made or disproved, I do not understand his Honour to have held that a crime scene DNA sample is a necessary precondition to a successful application for an order that a forensic procedure be undertaken.

1. His Honour's insightful analysis of the operation of the section in Walker v Bugden at [45]-[52] does however serve to emphasise that each application must be considered by reference to an assessment of existing facts and whether, in the particular case, they are sufficient to induce a reasonable belief in the mind of a Magistrate that the prospective outcome or result of the forensic procedure, if undertaken, might produce evidence of the relevant kind. As I see it, it is not impossible to conceive of a case where, despite the fact that the results of a crime scene analysis are not available at the time of the application, other evidence collected during the course of the investigation might be sufficient to support a submission by an applicant police officer that there are reasonable grounds for a belief that a DNA comparison might be productive of evidence tending to prove or disprove that the suspect had committed the offence. Photographic or electronic evidence establishing a suspect's presence at the scene of a crime at a relevant time and/or a suspect's physical contact with an item or items in some way involved with the commission of an offence, or perhaps admissions by a suspect to similar effect, are examples of evidence that may carry sufficient weight on an application for final orders under s 24 of the Act despite the fact that crime scene DNA evidence is unavailable.

1. In the present case, after referring to what Hall J described at [52] as "a chain of facts which, in some way and to some extent, link the suspect to crime scene material" as the principle for which Walker v Bugden is authority, the Magistrate said as follows:

The crime scene material is the discovery of the apparently shortened firearm, that when it was discovered LK was there. There is some conversation allegedly had with the co-accused which implicates LK. There are photographs which may implicate LK with the - perhaps with the cannabis but also more importantly with the shortened firearm. There is evidence at this stage to say that the firearm had been shortened and there was evidence around it which suggests that it had been.

Notwithstanding the opposition of Mr Fitzgerald on behalf of his client, the court is of the view that on the balance of probabilities it is satisfied that there are reasonable grounds to believe that the suspect has committed an offence, that is, being involved allegedly in either possession or the shortening of a firearm, and the court is of the view that there are reasonable grounds to believe the procedure might produce evidence to confirm or disprove that the suspect has committed the offence, for example, DNA on the firearm consistent with the DNA, if it were to be supplied by LK, for example, although the court is not limiting it to that. (emphasis added)

1. In my view, this reasoning exposes an error in the Magistrate's approach to the test in s 24(3)(b) and its application. The crime scene material to which Hall J referred in [52] must be interpreted as a DNA deposit at a crime scene, or the prospect that DNA will be retrieved from a crime scene or upon an exhibit recovered from a crime scene, whether by reference to other evidence (perhaps of the kind to which I have referred) or the opinion of a suitably qualified technician. Rather than the Magistrate isolating the identifiable facts or chain of facts which linked the plaintiff to possession of the rifle and/or the shortening of it such as might support the reasonable belief that the taking of a buccal swab might provide evidence of his involvement in those offences, in the underlined phrase in the above extract the Magistrate appears to have assumed that there was a DNA deposit on the firearm and because the plaintiff was present when the rifle was found by police in circumstances where it had been recently shortened, he was likely to be the source of that DNA which would be either confirmed or not after a comparison with the plaintiff's DNA thus warranting the granting of the final order.

1. I am satisfied that the first ground of appeal is made out. I wish to emphasise, however, that I do not accept the plaintiff's submission that the recovery of crime scene DNA is a necessary precondition to the making of an order under s 24(3)(b) or that the evidence the Magistrate took into account (subject perhaps to the co-offender's admission) was not available to be considered as part of the chain of events of the existing facts. There is nothing either in Walker v Bugden to support either proposition. Rather error is revealed in the analysis the Magistrate gave that evidence.

The second and third grounds of appeal:

The learned Magistrate erred in law by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act

The learned Magistrate erred in law by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

1. The plaintiff submitted that despite the plaintiff's legal representative urging the Magistrate to consider matters referred to in s 24(4) of the Crimes (Forensic Procedures) Act , and then to undertake the balancing exercise required by that section before making the final order, he failed to do so.

1. On any fair reading of the Magistrate's reasoning there was no reference to the matters listed in s 24 or the balancing exercise that is entailed before final orders are made. In particular, he made no reference to the plaintiff being a child as in s 24(4)(e). Whilst I readily accept that it was entirely appropriate for his Honour to have given an ex tempore judgement and, as has been often acknowledged in this Court, imperfections in expressions used in the delivery of ex tempore reasons ought not be the subject of trenchant criticism, the failure to undertake any analysis at all as to whether the forensic procedure "was justified in all the circumstances" was a clear error of law. The Magistrate was obliged to balance the invasiveness of a compulsory forensic procedure against the anticipated evidence to be obtained by employing it and this he failed to do.

1. Accordingly, I am satisfied the second and third grounds of appeal are also made out.

1. Orders

1. The appeal is allowed.

2. The final order made on 26 May 2010 in the Children's Court at Queanbeyan under s 24 of the Crimes (Forensic Procedures) Act 2000 be set aside.

3. Any evidence resulting from the said application or the undertaking of the subject forensic procedure be destroyed.

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Decision last updated: 20 May 2011