NW v George; SW v George

[2016] NSWSC 296

Supreme Court

New South Wales

Medium Neutral Citation:

NW v George; SW v George [2016] NSWSC 296

Hearing dates:

1 March 2016

Decision date:

24 March 2015

Before:

Fullerton J

Decision:

1. In proceedings 2015/238619 and 2015/238628, the summonses are dismissed.

 

2. The plaintiffs are to pay the defendant’s costs.

 

3. The orders of Wahlquist LCM made on 11 August 2015 are confirmed save only for the following amendment:

Pursuant to s 24 of the Crimes (Forensic Procedure) Act 2000 at a mutually convenient time but in any event within 14 days of today’s date, 24 March 2016, NW and SW are to present to the Professional Standards Command, 55 Renwick St, Redfern, NSW, for the carrying out of a non-intimate forensic procedure, being a self-administered buccal swab.

Catchwords:

APPEAL FROM LOCAL COURT – forensic procedure – appeal against order that a non-intimate forensic procedure be performed – whether Magistrate erred in determining that the forensic procedure was justified in all the circumstances – delay

Legislation Cited:

Crimes Act 1900 (NSW), s 177BB (since repealed)
Crimes (Appeal and Review) Act 2001 (NSW), s 52
Crimes (Forensic Procedures) Act 2000 (NSW), ss 24, 115A
Evidence Act 1995 (NSW), s 177

Cases Cited:

House v The King [1936] HCA 40; 55 CLR 499

Category:

Principal judgment

Parties:

NW (Plaintiff - 2015/238619)
SW (Plaintiff - 2015/238628)
Ralph George (Defendant)

Representation:

Counsel:
T Gabrial – Solicitor (Plaintiffs)
R Bhalla (Defendant)

  Solicitors:
Michael Vassili Barristers & Solicitors (Plaintiffs)
Crown Solicitor for NSW (Defendant)

File Number(s):

2015/2386192015/238628

Publication restriction:

Non-publication order re the names of the plaintiffs, plaintiff NW’s child and any police officer other than the defendant

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

10 August 2015

Before:

Wahlquist LCM

File Number(s):

2015/238619
2015/238628

Judgment

1. HER HONOUR: By separate summonses, NW (a police officer) and her father, SW, seek orders, in identical terms, setting aside orders made by Wahlquist LCM on 11 August 2015 that they each submit to a non-intimate forensic procedure pursuant to s 24 of the Crimes (Forensic Procedures) Act2000 (NSW) ("the Forensic Procedures Act"), being a self-administered buccal swab, after presenting themselves to the Professional Standards Command for that purpose.

2. Consistent with the way the contested applications for the orders under the Forensic Procedures Act were heard and determined in the Local Court, including the evidence relied upon in support of the application, the summonses were heard together in this Court.

3. The proceedings are brought pursuant to s 115A of the Forensic Procedures Act and are limited to challenging the orders of the learned Magistrate on a question of law alone (see also s 52 of the Crimes (Appeal and Review) Act2001 (NSW)).

4. Eleven grounds of appeal were specified in each summons. The grounds were further refined in advance of the hearing upon the plaintiffs filing an amended statement of grounds pursuant to Part 51B Rule 16(1) of the Supreme Court Rules 1970 (NSW).

5. At the hearing of the appeals, only two of the amended grounds were pressed. This relieved the Court of the need to review the evidence relied upon by the defendant in the Local Court for the granting of the applications including, in particular, the evidence to which her Honour referred in concluding that there were reasonable grounds to suspect that both NW and her father, SW, had committed a prescribed offence.

6. The first ground of appeal contended that her Honour erred in law by applying the wrong test when determining, pursuant to s 24(1) of the Forensic Procedures Act, that the forensic procedure was justified, in all the circumstances, by her failure to address the matters in s 24(1)(b) of the Forensic Procedures Act by reference to s 24(4) of that Act.

7. Those sections provide:

24 Final order for carrying out 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.

…

(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.

8. The error the subject of this ground of appeal was said to be the fact that because police had possession of the confirmed DNA results in the analysis by Melanie Marty, senior scientist at Genetic Technologies, it was not open to her Honour to conclude that a buccal sample should be provided by either of the plaintiffs and, further, that her Honour relied upon inadmissible hearsay evidence and inadmissible opinion evidence (namely, Ms Marty’s report and what was said to be its failure to comply with the requirements of an expert certificate under s 177 of the Evidence Act 1995 (NSW)) in concluding that, in all the circumstances, the non-intimate forensic procedure was justified.

9. It was also submitted that because NW is a serving police officer, she should not be subjected to the indignity of being subject to an order under the Forensic Procedures Act and that her Honour failed to take that matter into consideration in the exercise of the discretionary judgment required under s 24(4) of the Act. As to that submission, it is entirely unclear to me why NW’s status as a serving police officer should for some reason have weighed in her favour. If the submission is that she would suffer some greater embarrassment than another member of the public because of her employment, a submission that has a questionable factual premise in any event, it would be an entirely irrelevant consideration for her Honour to have taken into account in the discretionary exercise mandated by s 24(4) of the Forensic Procedures Act and may itself, were the application refused, have grounded an appeal by the defendant.

10. The defendant submitted, and correctly in my view, her Honour’s reasons for finding there were reasonable grounds to suspect that both NW and SW had committed a prescribed offence does not oblige her, for the purposes of an order under the Forensic Procedures Act as an investigatory step in the process of the criminal investigation, to be satisfied that the offence is proved, or might be proved, to the criminal standard or that the offences suspected of having been committed are the subject of admissible evidence in proof of that fact.

11. What the Court is obliged to be satisfied of, and on the balance of probabilities, is that there are reasonable grounds to believe that the person in respect of whom the order is sought has committed the offence. I am satisfied, having reviewed the evidence myself, that the composite body of material which the defendant collated for the purpose of the application well supported her Honour’s conclusion that there were reasonable grounds to submit that both NW and SW had committed the offence and that her Honour’s exhaustive reasons for making that finding of fact well support that conclusion.

12. In the course of oral submissions, it was further submitted that there were no reasonable grounds for her Honour to have found that it would be more appropriate for the purposes of the criminal investigation into the plaintiffs’ conduct for a forensic sample to be taken under the Act.

13. This was said to be an error in the category of a House v The King error of law. House v The King [1936] HCA 40; 55 CLR 499 at 504-505 provides:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

14. The second ground of appeal contended that her Honour erred in law in finding that the defendant’s delay in making the application under the Act was acceptable, also framed as a House v The King category of error.

15. In order to give consideration to the issues raised by those two grounds of appeal it is necessary to set out, in summary, the history of the criminal investigation into the offences the plaintiffs are suspected of having committed, including events predating the formal commencement of that investigation on 28 March 2014.

Contextual history

16. On 24 July 2007, NW gave birth to her daughter, MW. NW claimed that CH (another police officer) was MW’s father. CH did not accept that he was the child’s father and agreed with NW that the issue should be resolved by paternity testing.

17. On 6 August 2007, NW commissioned a report from Paternity Testing Laboratories, a company based in Victoria. Two DNA samples – one sample labelled as that of her daughter, MW, and the other sample labelled as that of CH – were supplied to the laboratory by NW for that purpose. CH provided NW with a buccal swab sample for submission to the laboratory together with, as he understood it, a DNA sample from NW and her daughter. The sample CH provided to her was not labelled or signed by him.

18. On 15 August 2007, a report entitled “DNA Parentage Laboratory Report” was generated by the laboratory. It identified CH as MW’s biological father.

19. After being informed of the report, CH provided a confirming sample to the same Paternity Testing Laboratories and commissioned an Individual DNA Profile Report.

20. On 1 September 2007, CH received an email indicating that the DNA profile obtained from the sample labelled “CH” submitted for the purposes of the (earlier) DNA Parentage Laboratory Report did not match the DNA profile submitted by him for the purposes of the preparation of the Individual DNA Profile Report.

21. On 4 September 2007, CH lodged an internal complaint with the New South Wales Police Service against NW, alleging that she had deliberately submitted a DNA sample for paternity testing falsely labelled as a sample he had provided, with the intention of obtaining financial support for her child and that her conduct constituted an offence under s 178BB of the Crimes Act 1900 (NSW) (since repealed).

22. On 17 September 2007, the internal police investigation into CH’s complaint against NW was suspended because of what was then considered to be a lack of evidence verifying the origin of the DNA samples NW provided to Paternity Testing Laboratories. The investigating officer’s statement provides as follows:

… The reason that the Lab tests are not recognised by the Family Law Act is that there was no independent third party verifying the identity of the parties, or collecting and transporting the samples.

Until such time that a lawfully recognised test establishes paternity of the child, there is insufficient evidence to establish whether such an offence has been committed by either party.

23. As I understand the views of the investigating officer, although it was clear by September 2007 that CH was not MW’s father, until her paternity was settled the identity of the person whose sample NW submitted (and by inference falsely labelled as CH’s sample) was unknown.

24. On 1 June 2012, during Family Court proceedings in which another man was said to be MW’s biological father, a Parentage Testing Procedure Report was generated, this time by Sonic Clinical Institute (the “Sonic report”), which confirmed that the biological father of MW was that man.

25. On 18 February 2013, a formal police investigation commenced into NW’s allegations of sexual assault against that person. During the course of that investigation, the Sonic report was provided to police. This re-enlivened the internal investigation into the complaint made by CH in 2007 that NW had labelled someone else’s DNA sample as his for the purposes of obtaining financial support from him.

26. On 28 March 2014, a formal police investigation was initiated into what is suspected to be NW’s criminal conduct for the purposes of the application the subject of these proceedings, namely a breach of s 178BB of the Crimes Act.

27. On 3 July 2014, at the request of police, Melanie Marty, senior scientist at Genetic Technologies, produced an expert certificate in which she reported that the DNA profile obtained from the sample labelled “MW” in the 15 August 2007 report matched the DNA profile obtained from the sample labelled “NW” in the Sonic report of 1 June 2012. The certificate also indicated that if the sample labelled “MW” in the 15 August 2007 report originated from NW, then the sample labelled “CH” could only source from the biological father of NW or her son.

28. The evidence before the Magistrate established that NW did not have a son. SW is her father.

29. On 14 January 2015, the defendant met with NW and sought her consent for carrying out the forensic procedure. Correspondence between NW’s legal representation and the defendant commenced on 26 January 2015. It indicated that NW refused to give consent for the carrying out of the forensic procedure.

30. On 14 January 2015, the defendant met with SW and requested his consent for carrying out the forensic procedure. SW refused to give consent for the carrying out of the forensic procedure.

31. On 8 April 2015, an application to the Local Court was lodged under s 26 of the Forensic Procedures Act for NW to present to the Professional Standards Command for the carrying out of the forensic procedure. On 27 April 2015, an application to the Local Court was lodged under s 26 of the Forensic Procedures Act for SW to present to the Professional Standards Command for the carrying out of the forensic procedure.

The first ground of appeal: Error in determination of s 24(1)(b) of the Crimes (Forensic Procedures) Act

32. The plaintiffs submitted that the order made by the Magistrate that they each submit to the forensic procedure was unjustified in all the circumstances, and that accordingly her Honour erred in her application of s 24(1)(b) of the Forensic Procedures Act by reference to s 24(4) of the Act.

33. Her honour’s reasons for making the orders (delivered ex tempore) addressed her obligations under s 24(4) of the Forensic Procedures Act as follows:

… Now I am also pointed to the requirement under s 24 that I have to be satisfied that the procedure is justified in all of the circumstances, and subs 4 of s 24 sets out the matters that the Court is required or the magistrate is required to consider in determining whether it is justified, and that is a balance of the public interest in obtaining the evidence as to whether or not the suspect, and I am satisfied that they are both suspects, committed the alleged offence against the public interest in upholding the suspects physical integrity having regard to the following.

Now the gravity of the alleged offence, well I think the alleged offence is serious. I mean potentially to could have involved a lot of money being required to be paid by [CH], but not only that, obviously the greater damage undoubtedly would have been the potential emotional damage that could have been occasioned, both to the child itself and also to [CH], in believing that in fact he was the father and for the child’s sake that he was the father as well. Obviously I think the public would regard intentionally deceiving someone about their paternity, which is effectively what she was doing, is extremely serious and significant emotional damage could have been occasioned to both the child and the father, so the gravity is serious. The seriousness of the circumstances, well the circumstances are serious for the same reasons that I have just spoken of, the amount of money that potentially could have been obtained and also the emotional harm that could have been done, both to [CH] and to the child.

The degree to which the suspect is alleged to have participated in the commission of the offence, well certainly she would have and both of them, the offence could not have occurred without SW being involved and NW obviously the architect of the offending. There is nothing in relation to (d) age, cultural background that would bring me to be concerned that that is a matter that I could consider important in not requiring the test; (e) also does not apply. Are there other practical ways of obtaining the evidence? Well there are not. This is the most practical way. The test itself is not intrusive, it only requires the giving of a buccal swab from the mouth. The reasons the suspect may have given for refusing to consent, well there is nothing been put to me in relation to that; (h) is not relevant and other matters.

34. Her Honour then turned to consider the issue of delay, which I will address below.

35. For reasons set out in [9]-[11] above, I consider that her Honour had appropriate regard to the considerations listed in s 24(4) and that in her application of s 21(1)(b) she exercised the discretionary judgment involved in the balancing exercise to which the section refers, free of any error.

Delay

36. Her Honour noted that eight years had elapsed between the complaint against NW in 2007 and the application made by the defendant for the obtaining of forensic samples from NW and SW which gave rise to the proceedings before her in 10 August 2015. Her Honour noted the views of the investigating officer on 17 September 2007 that CH’s complaint lacked a sufficient evidentiary basis for the investigation to proceed at that time and, importantly, as I read her Honour’s reasons, that there was insufficient evidence to ground the necessary reasonable suspicion that NW (or SW) had committed a criminal offence to ground an application under the Forensic Procedures Act at that time. Of course, it was not until July 2014 when the expert certificate of Ms Marty was obtained, that SW was implicated as being a suspect, being complicit, so it was suspected, in NW’s offending.

36. Once the Sonic report was provided to the police in the course of their renewed investigation into NW’s conduct and what was suspected to be her father’s complicity, a stronger evidentiary basis was available to progress the investigation.

37. Her Honour noted that an application for a forensic procedure could have been made in 2007 but considered (and in my opinion, quite properly) that there was an acceptable explanation for not pursuing the application at that time. She said:

But in the circumstances from June 2012 when the tests were first given, the paternity test involving and indicating who the father actually was, according to that, until today there is some delay but in the circumstances I think there has been explanation that I think is acceptable as to why it has taken until earlier this year for the application to actually be made. So I am not satisfied that they delay is such that would be a reason why I would not think it was justified…

39. The reasons for the delay in making the application under s 24 of the Forensic Procedures Act were supported by the evidence before the Magistrate. In my view, it was open to her Honour to find the delay was justified and there is no discretionary error in the House v The King sense as contended by the plaintiffs.

40. Accordingly, the plaintiffs have failed to identify any error of law which would justify the relief sought in the summonses.

41. Orders:

1. In proceedings 2015/238619 and 2015/238628, the summonses are dismissed.

2. The plaintiffs are to pay the defendant’s costs.

3. The orders of Wahlquist LCM made on 11 August 2015 are confirmed save only for the following amendment:

Pursuant to s 24 of the Crimes (Forensic Procedure) Act 2000 at a mutually convenient time but in any event within 14 days of today’s date, 24 March 2016, NW and SW are to present to the Professional Standards Command, 55 Renwick St, Redfern, NSW, for the carrying out of a non-intimate forensic procedure, being a self-administered buccal swab.

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Decision last updated: 31 March 2016