Police v AH

[2008] NSWLC 6

Local Court of New South Wales

CITATION:	Police v AH [2008] NSWLC 6
JURISDICTION:	Children's Court
PARTIES:	Police AH
FILE NUMBER:
PLACE OF HEARING:	Albury
DATE OF DECISION:	05/02/2008
MAGISTRATE:	Magistrate G Lerve
CATCHWORDS:	Forensic Procedure – suspect – suspicion on reasonable grounds
LEGISLATION CITED:	Crimes (Forensic Procedures) Act 2000 Crimes Act 1900
CASES CITED:	Fawcett –v- Nimmo & Anor [2005] NSWSC 1047 Jawansher –v- Johnson [2004] NSWSC 872 Maguire –v- Beaton (20050 162 A Crim R 21 Mullins –v- Lillyman [2007] NSWSC 407 Orban –v- Bayliss [2004] NSWSC 428 R –v- Fleming [2007] NSWSC 328 R –v- Jung [2006] NSWSC 660 R –v- Rondo (2001) 126 A Crim R 562
TEXTS CITED:
REPRESENTATION:	Sgt. A. Seccull, Police Prosecutor for the applicant Mr. C. Halburd, Solicitor for and with the respondent
ORDERS:

Reasons for Decision

1. By way of application pursuant to the provisions of the Crimes (Forensic Procedures) Act 2000 Detective Senior Constable Jon Irving of the Albury Detectives seeks an order authorising the carrying out of a forensic procedure on AH whose date of birth is [date]. The respondent is a juvenile and therefore cannot consent to the application. In any event, the application is opposed. The principal (and seemingly only significant) basis for the objection is the submission that the prosecution are unable to satisfy the Court that the respondent is a suspect within the meaning of that word within the legislation.

2. The application does not specify the type of forensic procedure that is sought, however, in the course of the hearing of the application the Police Prosecutor amplified that a buccal swab and no other procedure was sought. This did not appear to surprise the solicitor for the applicant. The application was heard with the only evidence for the applicant being the affidavit sworn by Detective Irving on 24 April 2008. Although the affidavit was sworn on the date of the hearing it is my understanding the solicitor for the respondent had previously been served an “unsworn” copy of the affidavit. No objection was taken to the affidavit by the solicitor for the respondent, nor was the deponent required for cross-examination.

Factual background

3. Before proceeding to the relevant legislation I will recite in these reasons the relevant part of the affidavit sworn by Detective Irving that is said to ground this application:

“On the 1st January 2008 around 1.30am DR was walking to a friends place along a cycle path that runs between Stanley Street and Wyse Streets, Albury. He had approached this path from Stanley Street. Whilst walking along that path he was approached by around five young people, not further described and one of these persons has struck him with an unopened beer bottle. This beer bottle has smashed on the right side of the victim’s face above his right ear and caused severe lacerations along the jaw line. The victim has walked back in the direction of Stanley Street and sought assistance at the Commercial Club Albury. He was taken from that location to Albury Base Hospital and underwent surgery the following day.

A crime scene examination revealed that there were two (2) blood trails leading away from the scene of the assault. One (1) being the victim’s which returned towards Stanley Street. The other leading towards Wyse Street. It is believed that the offender has been injured also when the glass bottle smashed on the victim’s head. This injury to the offender has bled and this person has left the scene towards Wyse Street.

A short time after this incident occurred a male person who wished to remain anonymous contacted Probationary Constable Richards at Albury Police Station and stated that he had overheard the young person/suspect AH at the Northside Hotel, Lavington on 5th January 2008 claiming that he was responsible for the attack on the person pictured in the paper that day. New South Wales Computerised Policing System (COPS) Intelligence report I32922171 refers to this information.

The Border Mail on that date (5/1/08) carried a front page picture of the victim DR depicting the injuries that he received as a result of the assault on New Year’s morning (01/01/08) under the headline “Luck(y) to be alive”.

Detective Senior Constable Irving has spoken to RH the father of AH in relation to the matter. (R)H has informed police that he has sought the advice of a legal practitioner (Chris Halburd) and been advised not to present his son to the police and to make no comment in relation to the matter.

Police have attended the home address (address stated in original) on numerous occasions to speak with the young person to confirm this stance but on each occasion have found no person present.

On 12th February Detective Senior Constable (presumable Irving) contacted the Division of Analytical Laboratories in relation to material relative to the assault that had been forwarded to them. These samples consisted of a DNA buccal swab with a reference sample of the DNA of DR. Also samples of blood located at the scene were forwarded. Samples expected to match those of the victim were confirmed. An unidentified profile was also identified at the crime scene from swabs obtained from the blood trial leading towards Wyse Street. These samples had been checked by the DNA database but were unknown (to) that system. The DNA of the young person is not on the DNA data base”.

4. The applicant maintains in the application that he believes the offence that was committed was Recklessly Inflicting Grievous Bodily Harm with Intent to Cause Grievous Bodily Harm contrary to section 33 of the Crimes Act, or Recklessly Wounding Another Person, contrary to section 35 of the Crimes Act. Both offences are serious, and indeed both are indictable. The offence contrary to section 33 is a “Serious Indictable Offence” within the meaning of that expression in the Children (Criminal Proceedings) Act 1987.

Legislation

5. Relevantly, sections 22 to 24 of the Crimes (Forensic Procedures) Act 2000 provide:

Forensic procedure may be carried out by order of Magistrate or other authorised officer
A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised officer under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.
23 Circumstances in which Magistrate or other authorised officer may order forensic procedure
An order may be made by a Magistrate under section 24, or by an authorised officer under section 32, for the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not under arrest and has not consented to the forensic procedure, or
(b) the suspect is under arrest and has not consented to the forensic procedure, or
(c) the suspect is a child or an incapable person.

(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.

(2) In the case of an intimate forensic procedure:

(a) there must be reasonable grounds to believe that the suspect has committed a prescribed offence, and
(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).

(3) In the case of a non-intimate forensic procedure:

(a) there must be reasonable grounds to believe that the suspect has committed an offence, and
(b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a).
(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.

6. “Suspect” is defined in section 3 (the definition section) as:

“suspect” means the following:

(a) a person whom a police officer suspects on reasonable grounds has committed an offence,
(b) a person charged with an offence,
(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person.

The authorities

7. The respondent to the application has not been charged with the offence nor has he been “summoned” to appear. I take the expression “summoned” to mean that the person has had served on them a Court Attendance Notice requiring attendance at Court. Accordingly, in order for the Court to make the order that is sought, the applicant must satisfy the Court in accordance with paragraph (a) of that definition, namely that a “police officer suspects on reasonable grounds that the respondent has committed an offence”.

8. Simpson J. in Orban –v- Bayliss [2004] NSWSC 428 at [30]-[31] admonished:

“The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to cooperate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties.

31 The conditions that must be met before an order can be made demonstrate that the purpose of the legislation is not to enable investigating police (or other authorised persons) to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect”.

9. Her Honour’s admonition was repeated with approval by Latham J. in Maguire –v- Beaton (2005) 162 A Crim R 21; [2005] NSWSC 1241 at [20].

10. In the course of argument I raised with the solicitor for the applicant the decision of the Court of Criminal Appeal in R –v- Rondo (2001) 126 A Crim R 562, and in particular that part of the judgment of Smart AJ at [52]- [53], namely:

“In Streat v Bauer; Streat v Blanco (16 March 1998, CLD, unreported) I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects", namely Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266 at 303 per Kitto J, George v Rocket (1990) 170 CLR 104 at 115-116, R v Armstrong (1989) 53 SASR 25 at 27; O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1 at 5 and 11 and Anderson v Judges of the District Court (1992) 27 NSWLR 701.

53. These propositions emerge:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s.357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances”.

11. Mr. Halburd, solicitor for the applicant had a copy of Rondo with him, and as I understand the submissions made by him, maintained that the decision was apposite to the question I need to determine in the present application. Further, as I understood Mr. Halburd’s submission he maintained that although the applicant police officer may well suspect that the respondent committed offences contrary to sections 33 or 35 of the Crimes Act 1900 there are no reasonable grounds for that suspicion.

12. My researches have since hearing initial argument on 24 April 2008 revealed that Latham J. in Maguire –v- Beaton (at [18]) referred to the decision in Rondo. My researches since hearing argument on 24 April 2008 have also revealed the decision of Grove J. in Fawcett –v- Nimmo & Anor [2005] NSWSC 1047, in which his Honour said at [15]:

“15 Before exercising power to oblige a person to undergo any forensic procedure, a magistrate must be satisfied that the person on whom the procedure is proposed is "a suspect". In order for a person to be categorized as a "suspect" there must rationally be conceived by the person holding the suspicion an underlying offence of which the person is suspected. In the context of this case, although it is apparent that such an initial suspicion would first exist in the mind of the investigator, the statute explicitly requires the magistrate be satisfied, on the evidence before the Court , before an order can be made for the taking of a sample by buccal swab, that there are reasonable grounds for suspecting that the person committed a prescribed offence. All indictable offences are prescribed offences”.

13. I have read a number of other decisions including Mullins –v- Lillyman [2007] NSWSC 407, R –v- Fleming [2007] NSWSC 328, R –v- Jung [2006] NSWSC 660,and Jawansher –v- Johnson [2004] NSWSC 872. It seems to me that none of these decisions are of particular use in determining the question that I need to determine.

14. On 29 April 2008 I provided both the prosecution and Mr. Halburd with copies of the decisions in Maguire –v- Beaton and Fawcett –v- Nimmo & Anor and indicated that I would hear further argument or submissions on 2 May 2008, the date on which I had indicated I would announce my decision in this matter. The prosecutor did not wish to make any further submissions. Mr. Halburd maintained that the hearsay material upon which the prosecution relies in this matter is analogous to the signature on the lease in the decision of Latham J. in Maguire –v- Beaton.

Consideration of the issues

15. Applying the authorities it is my opinion that the real question I need to determine is whether the applicant police officer has reasonable grounds for suspecting that the respondent was involved in the commission of the offences contrary to either sections 33 or 35 of the Crimes Act.

16. The only information available to the officer is information from an anonymous source who is alleged to have overheard the respondent admitting to his involvement. The information is apparently that the respondent was “overheard”. It is not even to the extent of the anonymous source speaking directly with the respondent, nor the respondent making any direct admission to the anonymous source”. It was conceded in the course of argument before me on 24 April 2008 that the anonymous source is going to remain precisely that and no further information will be forthcoming. There is no name of the anonymous source, nor is there likely to be one. There are no observations of the respondent at or about the time of the commission of the alleged offences. For example, if the respondent was observed to have lacerations on either of his hands shortly after the alleged incident involving the victim R that would have been a very significant matter. Likewise, the position would be entirely different if the information obtained by police was an account from a named person. The anonymous source maintains that it was at licensed premises that he overheard the respondent admit to his involvement. As Smart AJ pointed out in Rondo “regard must be had to the source of the information and its content”.

17. The anonymous source is said to have overheard the respondent in the Northside Tavern, i.e. licences premises. The respondent is a juvenile, and is therefore not permitted in licensed premises. I am not so naïve that I do not accept that underage persons enter licensed premises and consume liquor therein, however, this is yet another albeit minor matter to be taken into account. In the matter presently under consideration it is perfectly conceivable that the “anonymous” information could well have been given by someone with a grudge against the respondent.

18. Given the paucity of information held by the applicant, it is my opinion, considering the various authorities set out above that it is a mere possibility that the respondent was involved in the offences involving DR. The information entitled the police to begin an investigation. There is no evidence before me of any investigation or part thereof that has been conducted into the allegation that the respondent was involved in the incident in the early hours of 1 January 2008. Information used to ground a reasonable suspicion does not have to amount to admissible evidence (see Smart AJ in Rondo at [53(b)]), however, it has to have some probative value. It is my opinion that the information held by the applicant lacks that probative value.

Conclusion

19. For these reasons, I am not satisfied on the balance of probabilities that the respondent is a “suspect” within the meaning of the relevant legislation. As Simpson J. held in Orban –v- Bayliss (at [31]) the purpose of the legislation is “not to enable investigating police to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who is already a suspect”. It is my opinion that in reality in the matter presently under consideration the application is directed towards confirming that the respondent is a suspect.

20. For the sake of completeness, I observe that the incident that gave rise to this application is very serious. Further, if there had been some further information or material, e.g. lacerations on the hand of the respondent, or that the source had given a name and more detailed account of what the respondent had allegedly said, it is very likely that my decision would be different. Further, had I been able to find on the balance of probabilities that the respondent was indeed a suspect, taking into account section 24 of the relevant legislation, and the authorities to which I have referred, I would have had little hesitation in making the order. I note that Mr. Halburd on behalf of the respondent indicated on 24 April 2008 that if I were to find that his client is a suspect then there was only a “formal” objection to the application. Indeed, I am constrained to comment that if there was material sufficient for me to find that the respondent was a suspect it seems to me that little could have been put against the making of an order that the respondent submit to a buccal sample being taken.

Decision

21. The application is refused.

Gordon Lerve

Children’s Magistrate – Albury Children’s Court

2 May 2008.