Legal Research
Cases
Police v Beck

Police v Beck

Case [2001] SASC 81 23 March 2001

Statutory Interpretation

Burden of Proof

Criminal Law

Type to search within this case.

POLICE v BECK
[2001] SASC 81

Magistrate’ Appeal

1................ MARTIN J......... This is an appeal against a decision of a Magistrate in which his Honour refused an application for an order pursuant to the Criminal Law (Forensic Procedures) Act 1998 (“the Act”) authorising the performance of a forensic procedure upon the respondent by way of taking a buccal swab.

Proceedings Before the Magistrate

On 24 November 2000 the respondent was charged with three counts of non-aggravated serious criminal trespass and one count of illegal use of a motor vehicle. On 6 December 2000 bail was refused by a Magistrate in respect of those charges. On 19 December 2000, in very blunt terms the respondent refused to consent to a forensic procedure. By application dated 25 January 2001, supported by an affidavit dated 5 January 2001, the investigating officer sought an order authorising the performance of a forensic procedure pursuant to the Act. The Magistrate refused that application on 25 January 2001 and gave the following reasons for that refusal:
“The refusal is on the basis that it is my view that there are no reasonable grounds to suspect that the respondent has committed the offence. Therefore, the public interest in obtaining the evidence to prove or disprove his guilt is not outweighed by the public interest in ensuring that private individuals are protected from unwanted and invasive procedures.”
The affidavit of the investigating officer established that a supermarket premises in Mount Gambier was broken into at about 11.15 pm on Thursday, 23 November 2000. Forty cartons of cigarettes, a cigarette display unit and a cash register were stolen. Approximately 15 minutes later, a stolen Commodore sedan used in the commission of the offence was located in the driveway of 48 Telford Street, Mount Gambier. The cash register was found in the boot of the vehicle. A subsequent examination revealed traces of blood on the cash register.
The Magistrate was informed by the prosecutor that two cartons of cigarettes believed stolen from the supermarket were found on the back verandah of the premises where the stolen Commodore was located. Police spoke to three occupants of the premises who denied involvement. One of those persons gave information to the investigating officers concerning the respondent. The affidavit of the investigating officer stated that “information from an informant led police to suspect that Beck was involved” in the offence under investigation.
The prosecutor said that when police attended at the home of the respondent they could not rouse any person. At about 7 am on 24 November 2000 they located the respondent on Lake Terrace East at Mount Gambier where he was arrested. The affidavit stated that a carton of cigarettes found in the respondent’s motor vehicle at the time of his arrest was identified as having come from the supermarket. The prosecutor informed the Magistrate that a full carton of cigarettes of the type stolen from the supermarket was located in the console of the respondent’s car.
The prosecutor informed his Honour that…

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 Police v Beck

Details

AGLC: Police v Beck [2001] SASC 81
Case: [2001] SASC 81
Decision Date: 23 March 2001

CaseChat Overview and Summary

The appeal in this matter was brought by the Police against a decision of a Magistrate who had refused to grant an order under the Criminal Law (Forensic Procedures) Act 1998 authorising the performance of a forensic procedure on the respondent. The respondent had been charged with non-aggravated serious criminal trespass and illegal use of a motor vehicle. The respondent had refused to consent to a forensic procedure and the investigating officer sought an order authorising the procedure under the Act. The Magistrate refused the application and the Police subsequently appealed to the Supreme Court of South Australia. The appeal was allowed and the order of the Magistrate set aside. A final order authorising the carrying out of a forensic procedure on the respondent by way of the taking of a buccal swab was made. The court found that the Magistrate had misapplied the test for determining whether reasonable grounds existed to suspect that the respondent had committed a criminal offence. The court also found that the Magistrate had misunderstood the operation of s 26 of the Act. The court concluded that the criteria identified in s 26(2) strongly favoured the granting of the application and that the public interest in obtaining evidence outweighed the public interest in ensuring that the respondent was protected from unwanted interference.

Orders