MB v The Queen

[2019] NSWDC 58

District Court

New South Wales

Medium Neutral Citation:	MB v R [2019] NSWDC 58
Hearing dates:	14 March 2019
Decision date:	14 March 2019
Jurisdiction:	Criminal
Before:	Berman SC ADCJ
Decision:	Appeal dismissed.
Catchwords:	Buccal Swab - Non Intimate Forensic Procedure - Young Person - Appeal from Local Court - Suspicion can arise from material not admissible as evidence at trial
Legislation Cited:	Crimes (Forensic Procedures) Act 2000 Evidence Act 1995 Local Court Act 2007
Cases Cited:	Lewis v Sergeant Riley [2017] NSWCA 272 R v Ponfield [1999] NSWCCA 422
Category:	Principal judgment
Parties:	MB (Applicant) NSW Police Force (Respondent)
Representation:	Solicitors: Mr Song (Applicant) Mr Matthew Price (Respondent)
File Number(s):	2018/00352629

Judgment

1. HIS HONOUR: On 26 October 2018 the Mitre 10 store in Orange was the subject of a break enter and steal offence. Whoever committed that offence used a brick to smash a window before entering and removing two Stihl whipper snippers.

2. Less than a month later the same store was the subject of another break enter and steal offence. Again a brick was used, this time to smash a glass sliding door to gain access to the building. On this occasion a Motorola GPS Truck Tracker and an Apple PalmPilot were taken.

3. When police were investigating these matters they spoke to the young person MB. He admitted committing the 15 November offence. Police suspect him of committing the earlier offence too. They wished to obtain from him a self-administered buccal swab to obtain his DNA, whoever committed the earlier offence left some of his or her DNA behind, in the form of blood located at the point of entry of the break enter and steal.

4. Police therefore made an application to the Children’s Court for an order by a Magistrate allowing a forensic procedure to be carried out. The magistrate made that order.

5. The young person has a right of appeal to this court pursuant to section 70 of the Local Court Act, see Lewis v Sergeant Riley [2017] NSWCA 272, and also the Supreme Court under section 115A Crimes (Forensic Procedures) Act 2000. The young person appeals to this Court. The matter has been conducted as a re-hearing on the basis of the evidence admitted in the Court below. It is my job to make up my own mind as to whether the forensic procedure should be ordered.

6. Attention during this appeal has focused on s 24(3) of the Crimes (Forensic Procedures) Act, subs (3) which concerns non intimate forensic procedures such as that sought by police in this case. Under that provision, before I can conclude that the order should be made I have to be satisfied of a number of things.

7. Firstly there must be reasonable grounds to believe that the young person has committed the offence. It is that issue which has been the focus of submissions by Mr Song who appears on behalf of the young person.

8. It is important when considering that question to note that there is a difference between material indicating that a person might have committed an offence, that is that they are a suspect, and material which may be admissible at trial. There are many things which point in the direction of a person being a suspect which would not or could not be put before the tribunal of fact at any criminal trial, for example information from a confidential informer or, more relevantly to this case, a criminal history which falls short of establishing a tendency under section part 3.6 of the Evidence Act. In deciding whether a person is a suspect I am entitled to look at that person’s criminal history even if that would never be put before a tribunal of fact at any later trial.

9. In my view there are reasonable grounds to believe that the young person has committed the criminal offence, consisting of the break enter and steal on 26 October. They are as follows and of course these are to be considered not only individually but also in combination.

10. Firstly, there is the similarity between the way access was gained to the same store on both the occasion where the young person admits that he committed the offence, and the occasion the subject of this appeal. A brick was used to smash through some glass to gain access to the building. As Mr Song points out this is not an unknown method of entering a building in order to commit a criminal offence. But it is a factor which I take into account.

11. Secondly, there is the finding of the whipper snipper. On the occasion of the offences subject to this appeal two Stihl whipper snippers were stolen. When police went to the young person’s home address in Orange, a Stihl whipper snipper was hidden in the garage. I know that the address is an care home and presumably the appellant does not live there by himself. However, the appellant did indicate a connection between him and the whipper snipper when he told police that he had stolen it from a shipping container at an unknown address in the Glenroi area. Again it is a factor which I will take into account that found in the appellant’s home is an item identical to one taken from Mitre 10 on 26 October 2018.

12. Then there are the young person’s antecedents. The application before the magistrate says that the young person, “Has had a long string of breach of bail and now break enter and steal offences”. This much was not challenged in the Local Court nor in this Court today.

13. In my view when those matters are looked at in combination there are reasonable grounds to believe that the appellant has committed the offence of break enter and steal on 26 October 2018.

14. Although not the subject of any submissions I will briefly examine the remaining matters that I am required to consider under section 24. Firstly, I am satisfied there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the appellant has committed the offence. As I mentioned before some blood was found at the point of entry. It is almost inevitable that analysis of that blood will reveal a DNA profile which can be compared to any DNA profile recovered as a result of the forensic procedure.

15. I must also determine whether the forensic procedure is justified, balancing the public interest in obtaining evidence as to whether or not the appellant committed the alleged offence against the public interest in upholding his physical integrity having regard to the number of matters set out in s 24(4).

16. Firstly, the gravity of the offence. Break enter and steal offences are serious matters, even when committed upon commercial premises. The maximum penalty is 14 years imprisonment. It is also to be noted that this offence represented a second occasion within a short time that the same premises had been broken into, see R v Ponfield [1999] NSWCCA 422.

17. Next, the seriousness of the circumstances in which the offence is alleged to have been committed. I have already referred to those.

18. The degree to which the appellant is alleged to have participated in the commission of the offence is somewhat unknown.

19. I also take into account his age, cultural background and physical and mental health. He is 14 years of age, an Aboriginal young person, who appears to be in good physical and mental health, although of course the circumstance that he is living in care premises may suggest that he is in need of more care than might usually be the case for a 14 year-old boy.

20. I certainly do take into account his best interests and in saying this it is in his interests that if he did commit this offence then he is identified as having done so. It is not in the interest of anyone, and certainly not a juvenile who will one day reach the age where offending will see him sent to an adult jail, that he or she gets the impression that he or she can go around committing criminal offences and not be held responsible for what they have done.

21. There are no other practical ways of obtaining a DNA profile from the appellant which are less intrusive than the already not very intrusive method of a self-administered buccal swab. I have not heard anything as to what he the young person may have said about consenting to carrying out that forensic procedure. Nor is there any suggestion that there has been any delay in making the application.

22. I take all those matters into account as I am required to do. I am satisfied of the matters set out in s 24. I therefore dismiss the appeal.

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Decision last updated: 18 March 2019