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

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.
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.
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.
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.
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.
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.
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.
It is important when considering that question to note that there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MB v The Queen

Details

AGLC: MB v The Queen [2019] NSWDC 58
Case: [2019] NSWDC 58
Decision Date: 14 March 2019

CaseChat Overview and Summary

The appeal was brought by a young person, MB, against a conviction in the Local Court for various offences. The primary issue in the appeal was whether the trial judge had erred in allowing a police officer to give evidence about the circumstances in which a buccal swab was taken from MB. The appellant argued that the swab was obtained without proper consent and that the officer’s evidence about how the swab was taken should not have been admitted. The respondent, The Queen, maintained that the procedure was lawful and that the officer’s evidence was relevant to the circumstances of the arrest and the subsequent charges.

The court examined whether the procedure for obtaining the buccal swab constituted an intimate search and, if so, whether it required the approval of a justice of the peace. The court noted that the buccal swab was not considered an intimate search under the applicable legislation and, therefore, did not require such approval. The court also found that the officer’s evidence was relevant to the circumstances of the appellant’s arrest and the charges that followed. The court held that the officer’s evidence was properly admitted and that there was no error in the trial judge’s decision.

Given the above findings, the court dismissed the appeal. The conviction in the Local Court was upheld. The court concluded that the trial judge had not erred in admitting the officer’s evidence about the buccal swab and that this did not affect the fairness of the trial. The appeal was accordingly dismissed, and the original conviction stood.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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