Martin (a pseudonym) v The Queen
[2022] VSCA 97
•20 May 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0049
| JOSHUA MARTIN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | 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, KYROU and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May 2022 |
| DATE OF JUDGMENT: | 20 May 2022 |
| DATE OF REASONS: | 26 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 97 |
| JUDGMENT APPEALED FROM: | DPP v [Martin (a pseudonym)] (Unreported, County Court of Victoria, Judge Chambers, 5 April 2022) |
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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 trial judge reversed the onus of proof on issue of informed consent – Whether police officer obtained consent to forensic procedure using language likely to be understood by applicant – Appeal allowed – Crimes Act 1958 ss 464, 464R, 464S and 464ZE.
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| Counsel | |||
| Applicant: | Mr T Marsh | ||
| Respondent: | Mr J Dickie | ||
Solicitors | |||
| Applicant: | SLKQ Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KYROU JA
T FORREST JA:
The applicant is charged with violent sexual offences
During the early evening of 3 December 2019, ‘MN’, a 25-year-old female student, was listening to music as she walked along a trail adjacent to a creek in a northern Melbourne suburb. At about 7.00 pm, she was confronted by a man – the prosecution case is that it was the applicant, a complete stranger to MN[2] – who subjected her to a protracted and violent sexual attack.
[2]As it presently stands, in the Defence Response to Summary of Prosecution Opening required by s 184 of the Criminal Procedure Act 2009, the applicant ‘does not dispute that he was the person that the Complainant encountered on the [creek trail] in the evening of 3 December 2019’. During pre-trial argument, however, counsel for the applicant informed the trial judge that if the DNA evidence is excluded, the applicant may seek to file an amended Defence Response, requiring the prosecution to prove that the applicant ‘was the person who was identified as the perpetrator or the offender by the complainant’.
Police arrested the applicant in the early hours of the next day, and charged him with multiple rapes and a number of other sexual and violent offences against MN.[3] He now faces trial on indictment in the County Court.
[3]Police also charged him with an unconnected attempted armed robbery, allegedly committed at about 1.00 am on 4 December 2019.
In essence, the prosecution case is that, having encountered her on the 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).
The trial judge refuses to exclude evidence obtained from a forensic procedure
During pre-trial argument, the applicant’s counsel (among other things) sought exclusion of certain DNA evidence obtained as a result of a forensic procedure carried out on the applicant following his arrest. Whether the applicant gave ‘informed consent’ within the meaning of ss 464R and 464S of the Crimes Act 1958 (‘the Act’) was pivotal to the determination of the application to exclude the evidence. Counsel contended that the requirements of s 464S had not been adhered to, so that the DNA evidence obtained as a result of the forensic procedure was inadmissible under s 464ZE. On 5 April 2022, however, the judge refused the application to exclude the evidence (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to the trial judge’s certification given on 13 April 2022 under s 295(3)(a) of the Criminal Procedure Act 2009,[4] the applicant sought leave to appeal against the interlocutory decision on three grounds as follows:
1.The trial judge erred by finding (at [80]) that the applicant bore the onus of establishing that he was incapable of giving informed consent at the relevant time and proceeding to determine whether s 464ZE of the Crimes Act 1958 (Vic) was engaged on the basis that he bore that onus.
2.The trial judge erred by finding (at [95] and [97]) that there was no evidentiary foundation to conclude that the applicant was incapable of providing informed consent to the forensic procedures by reason of his mental impairment.
3.The trial judge erred by finding (at [95] and [97] to [100]) that the evidence of (and arising from) the forensic and DNA samples obtained by Dr Phillipa Brook on 4 December 2019 was admissible.
[4]The judge’s orders include the following:
The interlocutory decision concerns the admissibility of evidence that if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
Details of interlocutory order subject to application:
1 Refusal of the application to exclude the evidence of the forensic samples obtained from the accused on 4 December 2019, and resulting analysis; and
2 Refusal to exclude the results of the analysis of the alternative DNA sample obtained in 2014.
On 20 May 2022, following oral argument, we 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.[5] These are our reasons for those orders.
[5]See Criminal Procedure Act 2009, s 300(2)(b)(ii).
The evidence concerning the forensic procedure conducted on the applicant
Following his arrest at about 1.00 am on 4 December 2019, the applicant was taken to West Melbourne police station, where he told police he had recently been released from hospital because he had been ‘sick’ (the police database reflecting that he had previously attracted a diagnosis of schizophrenia). At some point his clothing was seized by police. There is no evidence that his mental state was assessed at the time of seizure.
Constable Benjamin Baxter commenced a record of interview with the applicant at 2.08 am, which was suspended after two minutes, at 2.10 am. In that two minute period 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.
Following a welfare complaint – he said he had a ‘sore heart’ – the applicant was seen by a custody nurse, who recommended to police that the applicant needed to be seen by a Forensic Medical Officer (‘FMO’) before he could be declared fit for interview. As a result, a little after 8.00 am police contacted the Victorian Institute of Forensic Medicine to arrange the attendance of a FMO. Ultimately, police contacted Dr Phillipa Brook, FMO, to arrange an assessment of the applicant’s fitness to participate in an interview or consent to a forensic procedure.
Upon first attending at 10.05 am, Dr Brook spoke with police, before carrying out a mental state evaluation and limited physical examination of the applicant for about 30 minutes from 10.15 am. Dr Brook found that the applicant was unfit to be interviewed.
During Dr Brook’s assessment, the applicant reported a history of schizophrenia and bipolar disorder. He told Dr Brook of ‘command auditory hallucinations’ – that voices were ‘telling or instructing him to do things’ – and that he had recently been admitted to the Royal Melbourne Hospital. She formed an ‘initial impression’ that the applicant was suffering acute psychosis and was not fit to be interviewed. Based on her preliminary assessment, Dr Brook was also concerned the applicant may have ‘some degree of cognitive impairment’.
Dr Brook accordingly advised police that the applicant required an urgent psychiatric assessment, and that she was not qualified to undertake that assessment. 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 party (‘ITP’) be present for the interview, given ‘some potential concern’ about the applicant’s intellectual capacity.
Significantly, despite Dr Brook’s finding 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. After its resumption, the interview included the following questions and answers:
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.
As may be gleaned from the passage extracted above, Detective Harvey introduced Dr Brook to the applicant, and the recording of the interview was suspended, at 10.56 am. At that point, Dr Brook undertook an examination of the applicant.
During Dr Brook’s examination – which was not electronically recorded – she took photographs of the applicant, and took the following swabs (and scrapings):
·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.
Dr Brook also had the applicant sign consent forms relating to the forensic procedure she carried out. Once more, the process leading to the signing of those forms was not recorded by audio or audio-visual means. In a statement dated 1 March 2022 tendered on the voir dire, Dr Brook said (among other things):[6]
My recommendations to police then were if the psychiatric review did not find the symptoms I raised to be acute or a major issue impacting Mr [Martin’s] mental state, then as an additional condition I suggested it was reasonable to attempt an interview with an independent third person present. This is because I also was concerned there was a degree of intellectual impairment (again, my assessment was not diagnostic but merely to flag factors which might make him vulnerable). From my assessment, I also did not find this significant enough to consider him clearly unfit.
In summary, Mr [Martin’s] FFI [fitness for interview] assessment was certainly not straightforward, it was borderline and as such, I suggested conditions outlined above be placed upon this. Nonetheless, he may have proceeded to interview some hours later and not been fit for any number of reasons.
Mr [Martin] signed the consent forms before the photographs and forensic swabs were taken. This is standard practice, to obtain consent prior to any procedure. Consenting for something such as swabs and photos is a completely different assessment to determining whether someone can withstand the rigorous, often prolonged, and stressful process of police interview, with serious criminal charges. Therefore, if someone is not fit for interview, they do not automatically lack capacity to consent for forensic procedures such as collecting swabs and photos.
Consent is situation specific, can vary with time and the presence of a mental health condition or intellectual impairment does not automatically preclude someone from having the capacity to consent. As such, whilst I considered Mr [Martin’s] FFI to be borderline, I did not have any concerns regarding his capacity to consent to these procedures; throughout my entire assessment, he was able to follow my directions, respond to my questions appropriately and communicate his choices.
[6]Emphasis added.
The importance of the evidence obtained during the forensic procedure carried out by Dr Brook is this. Forensic samples were also taken from MN at the Royal Women’s Hospital. Evidence from a forensic scientist is that, based on an analysis of the samples collected from the applicant on 4 December 2019, the DNA found 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 of the applicant’s right fingernail is 4.5 billion times more likely to be that of MN than another contributor.
It should also be noted that an earlier DNA sample obtained from the applicant in 2014 was compared with samples collected from MN on 6 December 2019. The evidence of a forensic scientist 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.
Returning to the narrative, at about 12.45 pm Dr Brook contacted a registered nurse, Benjamin Gorrie, of the Custody Health Advice Line Service (‘CHALS’) and informed him that the applicant was unfit to be interviewed as a result of concerns over his mental health. Dr Brook recommended psychiatric assessment. Mr Gorrie did not have the requisite qualifications or experience to conduct such an assessment himself. As a result, at 12.49 pm, he spoke with Forensicare and was told that the service was unable to assess the applicant at Melbourne West, but would give priority to his assessment once he was charged and processed at the Melbourne Custody Centre.
It appears that Mr Gorrie obtained further information regarding the applicant, including a 2014 Forensicare report in which the applicant had been diagnosed with a pervasive developmental disorder and an adjustment disorder. Mr Gorrie also discovered that the applicant had contact with the Inner West Area Mental Health Service on 20 and 24 November 2019, a fortnight prior to being taken into custody, but had no other information about the nature of the applicant’s contact with that service. He also obtained information from the Royal Melbourne Hospital that the applicant recently had been admitted with ‘pseudo seizures’, and that he had a history of self-harming behaviours.
At 3.28 pm, Mr Gorrie checked on the applicant and found him to be ‘unresponsive to verbal commands’. A little later, at about 4.15 pm, Mr Gorrie conducted an assessment of the applicant for approximately 10 minutes. He did not purport to conduct a psychiatric assessment, however, as that is not his role. His was a general health assessment in response to concerns that the applicant was unresponsive to questioning.
Despite the fact that he had no psychiatric training, Mr Gorrie was then asked by police whether the applicant was fit to be interviewed. Mr Gorrie told police it was not his role to determine if the applicant was fit to be interviewed, but said he would speak with Dr Brook and ask her to speak further with police. Dr Brook’s evidence at committal was that she was told by one of the custodial nurses that ‘they had done an assessment and found there was no acute psychosis or anything that they found on their assessment’. On voir dire, Dr Brook gave evidence that she was contacted by Mr Gorrie at approximately 4.00 pm. With respect to that conversation, Dr Brook stated that she ‘assumed’ that a psychiatrist had reviewed the applicant – she did not specifically ask – because she had requested that a psychiatric review would be done. Based on Dr Brook’s incorrect assumption that the accused had undergone a psychiatric assessment and had been found to have no acute mental health issues, Dr Brook made a subsequent suggestion to police that they could attempt to interview the applicant in the presence of an ITP. Detective Harvey resumed the record of interview in the presence of Detective Langan, and an ITP, at 5.57 pm.
No expert evidence was given by a suitably qualified psychiatrist or other mental health practitioner as to the state of the applicant’s mental health at the time when Dr Brook carried out the forensic procedure, or at any time throughout 4 December 2019 (including when the record of interview was resumed at 5.57 pm).
Provisions governing the admissibility of evidence obtained from forensic procedures
Before turning to consider the submissions of the parties, it is necessary to set out the provisions of the Act that govern the admissibility of evidence obtained through a forensic procedure.
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; …
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:[7]
[7]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.[[8]]
[8]Section 464SA permits the authorisation of the conduct of a non-intimate compulsory procedure in defined circumstances.
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.
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.
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 judge’s ruling
It was common ground in this Court that the judge’s ruling was infected by error in that she reversed the onus of proof with respect to the issue of ‘informed consent’. The prosecutor had submitted to the trial judge – correctly – that the prosecution bore the onus of satisfying the court that the applicant gave informed consent under s 464S, yet the judge ruled that the applicant bore the onus of establishing a lack of informed consent. Notwithstanding the judge’s error, however, counsel for the respondent submitted in effect that the error was not material, and did not vitiate the interlocutory decision.
It is necessary to set out key aspects of the ruling. Thus, having summarised the provisions of ss 464R and 464ZE, the judge said:
[80] The defence bear the onus of establishing the [applicant] was incapable of giving informed consent by reason of mental impairment at the relevant time. If the defence does so, the prosecution must then satisfy the court on the balance of probabilities, that the circumstances justify the reception of the evidence pursuant to s 464ZE(2A).
A little later, the judge said:
[84] The issue for determination is whether the [applicant] was, in fact, incapable of providing informed consent to undergo the forensic procedure.
Having then summarised the evidence of Dr Brook bearing on the issue of consent, the judge observed:
[89] No further evidence, including expert evidence, was led by the defence as to the [applicant’s] capacity (or otherwise) to provide informed consent to these procedures.
The judge noted Dr Brook’s evidence drawing a distinction between the applicant’s fitness to participate in an interview, and his capacity to give informed consent to a forensic procedure, and stated:
[94] There is no basis upon which I can conclude that the distinction drawn by Dr Brook between Mr [Martin’s] capacity to consent to a forensic procedure as opposed to his fitness to participate in a [record of interview] is ill-founded or inherently contradictory. Dr Brook’s evidence is that she held concerns as to the [applicant’s] fitness based on his mental health given the nature of an interview, but did not form the same conclusion as to his capacity to consent to participate in a forensic procedure or to provide a DNA sample.
[95] The legislation requires a nexus between the [applicant’s] incapacity to provide informed consent to such a procedure by reason of their mental impairment. Here, there is no evidentiary foundation for me to conclude that the [applicant] was incapable of providing informed consent to the forensic procedures by reason of his mental impairment. The evidence of the forensic and DNA samples obtained by Dr Brook on 4 December 2019 is therefore admissible and may be adduced by the prosecution at trial.
…
[97] For these reasons, I am satisfied there is no basis to conclude that s 138 of the [Evidence Act 2008] applies to exclude the evidence in the exercise of a discretion to exclude improperly or illegally obtained evidence. In reaching this conclusion, there is no evidence that Dr Brook acted improperly or illegally in obtaining the samples at that time. Nor can I conclude that the police acted in any way to subvert the provisions of the Crimes Act 1958 in arranging for Dr Brook to obtain the forensic samples from the [applicant] without seeking a court order. The evidence does not establish that the [applicant] was incapable of providing informed consent due to mental impairment at that time.
Finally, the trial judge held that s 137 of the Evidence Act 2008 did not dictate that the evidence garnered from the forensic procedure should be excluded on the basis that its probative value was outweighed by the risk of unfair prejudice.
Analysis
In written submissions, counsel for the applicant submitted that ss 464R and 464S do not place an onus on an accused person to show the absence of informed consent. Rather, the prosecution bears an onus of proving that a forensic procedure was conducted on a suspect after the suspect had given his or her informed consent. The evidence obtained from the forensic procedure was inadmissible under s 464ZE because the applicant’s informed consent was not obtained.
Counsel for the applicant submitted that the determination of whether the evidence was inadmissible pursuant to s 464ZE did not require the applicant to prove that he was not capable of giving informed consent. There was evidence suggesting that the applicant may have been incapable of giving informed consent due to mental impairment. In those circumstances, counsel submitted, it was not incumbent on the applicant to positively establish the absence of informed consent. Furthermore – and in any event – the applicant was incapable of giving informed consent by reason of mental impairment.
In our opinion, 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 proponent of the evidence. It is therefore plain, in our view, that the trial judge misdirected herself as to the burden of proving the existence of informed consent. The error was fundamental, and clearly had the capacity to influence her decision as to the admissibility of the relevant evidence. So much is enough to vitiate the interlocutory decision.
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.
Recourse to the record of interview[9] 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.
[9]See [13] above.
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;[10] 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’.
[10]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 464(1)(c) of the Act.
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.
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).
Finally, we should indicate that, so far as the relevant onus is concerned, the prosecution bears the onus of proving the giving of informed consent on the balance of probabilities.[11]
[11]See Evidence Act 2008, s 142.
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