Mckenzie v. Coffey

[2002] QDC 370

DISTRICT COURT OF QUEENSLAND

CITATION:	McKenzie v Coffey [2002] QDC 370
PARTIES:	DET. SGT. DAVID CRAIG McKENZIE (Appellant) JOHN LAWRENCE COFFEY (Respondent)
FILE NO/S:	42 of 2001
DIVISION:	District Court Appellate Jurisdiction
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mareeba
DELIVERED ON:	24 May 2002
DELIVERED AT:	Cairns
HEARING DATE:	13 February 2002
JUDGE:	White DCJ
ORDER:	The appeal is dismissed
CATCHWORDS:
COUNSEL:	Mr. Winn for the appellant Mr. Wren for the respondent
SOLICITORS:	Director of Public Prosecutions Respondent self represented

[1] The respondent appeared before the Magistrates court at Mareeba charged with the following offence:-

“That on the 5^th day of March 2001 in Mareeba in the Magistrates Court District of Cairns in the State of Queensland he without reasonable excuse contravened a requirement by a police officer namely Ron Mientjes under the Police Powers and Responsibilities Act 2000 namely to provide a DNA sample by using a mouth swab.”

The charge was brought pursuant to subsection 445(2) of the Police Powers and Responsibilities Act 2000 as amended. So far as is relevant s 445 provides as follows:-

(1) This section applies if a person is given a requirement or direction under this Act and no other penalty is expressly provided for a contravention of the requirement or direction.

(2) A person must not contravene a requirement or direction given by a police officer under this Act unless the person has a reasonable excuse.”

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[2] At the commencement of the trial counsel for the respondent submitted to the Magistrates Court that the particular offence charged was not an offence provided for under the Act because the officer concerned was not empowered by the Act to give the respondent such a requirement. This submission was upheld and the court ordered that the complaint be dismissed. This is an appeal against that decision.

[3] The facts which were relied on by the appellant were that at the material time the respondent was a prisoner at the Lotus Glen Correctional Centre serving a term of imprisonment for an indictable offence (namely doing grievous bodily harm) imposed by the District Court on 6 December 2000. On 1 March 2001 police from the DNA Implementation Unit attended the Lotus Glen Correctional Centre for the purpose of taking DNA samples from prisoners. The process was being undertaken with the approval of the General Manager of the correctional centre and in accordance with powers under the Police Powers and Responsibilities Act. The defendant was given a requirement by a member of the police sampling unit to supply a DNA sample by using a mouth swab. The defendant did not comply with the requirement. The defendant was subsequently given a period of time to seek legal advice in relation to the matter. On 5 March 2001 the defendant was given a requirement by Senior Constable Ron Mientjes to provide a DNA sample by using a mouth swab and did not comply, his excuse being that he did not believe it was a legal thing. A direction to comply with the taking of hair samples was then given by Sergeant Gregory Smith. The defendant did not comply with the direction and began to struggle. The defendant was restrained by correctional officers and Sgt. Smith obtain hair samples from him.

[4] In my view in order to sustain a complaint pursuant to s 445 there must be, as a starting point –

(i) A requirement or direction;

(ii) It must be given by a police officer

(iii) It must be given to a person;

(iv) The police officer must be authorised by the Act to give the requirement or direction to that person.

[5] For the purposes of the present discussion, items (i), (ii) and (iii) are not in contention. The basis for His Worship’s ruling was that there was no authority under the Act for a police officer to give the requirement alleged in the charge.

[6] Throughout the Act there are numerous instances of express authority given to police officers to give a direction or requirement to persons. For example subsection 32(1) provides:-

“(1) A police may require a person to state the person’s correct name and address in prescribed circumstances.”

The prescribed circumstances are set out in s 33.

[7] There are other instances giving a police officer more general authority which would include the authority to give a requirement to a person. Section 39 provides as follows:-

“(1) a police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.”

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Section 42 provides as follows:-

“(2) It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing or the conduct that is the breach of the peace again happening even though the conduct prevented might otherwise be lawful.
Examples for subsection (2) –

(2) A person who pushes into the front of a queue may be directed to go to the end of the queue.”

In my view it is noteworthy that the relevant authority is expressly given to “a police officer”. It is also clear that if a person failed to comply with any such direction or requirement the person would be guilty of an offence against subsection 445(2) provided all other necessary requirements are proved.

[8] In this case counsel for the appellant expressly relies on ss 229(1)(b) and 303. However before considering those provisions it is useful to examine the scheme of that part of the Act dealing with the taking of DNA samples. It is contained in Part 4 of the Act. Division 1 deals with the application and purpose of Part 4 and has no particular relevance to the question under consideration. Division 2 contains preliminary provisions about the taking of DNA samples for DNA analysis. Section 297 makes it lawful for certain persons described as a “DNA sampler” to take DNA samples. Section 298 specifies places at which DNA samples may be taken by DNA samplers. Section 299 specifies how DNA samples may be taken. It provides as follows:-

“(1) A DNA sampler may take a DNA sample from a person only –

(a) By requiring the person to use a mouth swab; or

(b) By collecting from the person hair including roots of the hair.”

[9] Division 3 deals with taking DNA samples with consent and sets out provisions regulating the taking of DNA samples with consent. So far as is relevant to the issue under consideration s 303 provides as follows:-

“(1) To enable a person to give an informed consent a police officer must explain the following –
…

(h) that if the person refuses to consent the person may be required under Division 4 to provide a DNA sample.”

[10] Division 4 deals with the taking of DNA samples without consent. Obviously it has the most direct application to the case under consideration because the laying of the charge against the respondent arose because of his failure to consent to the taking of the DNA sample. Section 305 provides as follows:-

“This division states the circumstances in which a person may be required to provide a DNA sample for DNA analysis.”

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Sections 307, 308, 309, 310, 311 and 312 deal with specific circumstances in which DNA samples may be taken without consent and, read with s 305, they also limit the circumstances in which DNA samples may be taken without consent. However, perhaps strangely, only s 308 makes any provision for a police officer to require a person to do something. Section 308 does not apply in this case. The basis for the taking of a DNA sample from the respondent in this case arises out of s 311 which provides as follows:-

“(1) this section applies to a prisoner who is serving a term of imprisonment for an indictable offence.

(2) A DNA sampler may in accordance with an arrangement between the Commissioner and the person in charge of the corrective services facility –

(a) enter the facility where the person is held and

(b) detain the prisoner and take the prisoner to an appropriate place in the facility for the purpose of taking a DNA sample for DNA analysis from the prisoner and

(c) take the DNA sample from the prisoner.”

As may be observed this section contains no provisions entitling a police officer to give a direction to a prisoner to provide a DNA sample to a DNA sampler. It seems that upon the refusal of a person who is required by law to provide a DNA sample to do so, the DNA sampler and any person assisting him is authorised to use reasonably necessary force for the taking of the sample (see subsection 314(3)).

[11] Reading the provisions of Division 4 as a whole, in my view, the word “required” in s 305 is used in the sense that it imposes a legal obligation on persons in the various circumstances described in the following sections to provide a DNA sample. However it does not authorise a police officer or any other person to make a requirement of the person to provide a DNA sample in any such circumstances.

[12] I do not consider that the provisions of s 299(1)(a) give rise to any offence under s 445. Section 299 regulates and limits the way in which a DNA sampler may take a DNA sample. It applies equally to the taking of DNA samples with consent and without consent. If a DNA sample is being taken with consent it would be quite inconsistent for the person from whom the sample was being taken to be subject to conviction for an offence under s 445 if he refused a requirement of a DNA sampler to provide the sample by using a mouth swab. Further, the power to “require” pursuant to subsection 299(1)(a) is given to a DNA sampler and not to a police officer. It is true that some police officers, duly authorised by the Commissioner, may be appointed as a DNA sampler. However, doctors and nurses are also appointed DNA samplers by s 297. It would be a strange state of affairs if a DNA sampler who happened to be a police officer could make a requirement under subsection 299(1)(a) the refusal of which gave rise to the commission of an offence under s 445, but such consequences would not follow if the DNA sampler making the requirement was a doctor or nurse. In my view, the use of the word “requiring” in subsection 299(1)(a) is unfortunate. The section is designed to limit and regulate the means by which a DNA sampler may take a DNA sample. It is not intended to give a power to DNA samplers to make a requirement, the refusal of which would give rise to the commission of an offence.

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[13] In my view also there is no basis in subsection 303(1)(h) to suggest that it gives rise to a power in a police officer to give a requirement to a prisoner the refusal of which gives rise to the commission of an offence. Section 303 specifically sets out the obligations of a police officer to explain certain things to a person from whom a DNA sample is being sought. Sub-paragraph (h) does nothing more than inform a person of his possible legal obligations under Division 5 to provide a DNA sample irrespective of whether he consents or not.

[14] In summary, therefore, I am of the view that the learned Stipendiary Magistrate was correct in his ruling. I propose to order that the appeal be dismissed.