R v Dean
[2006] SADC 54
•25 May 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DEAN
Ruling of Her Honour Judge Shaw
25 May 2006
CRIMINAL LAW
Criminal Law (Forensic Procedures) Act 1998, referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Owen v South Australia (1996) 66 SASR 251; Gerah Imports P/L v Duke Group Ltd (In Liq) (2004) 88 SASR 419; Ousley v The Queen (1997) 192 CLR 69; Orban v Bayliss [2004] NSWSC 428; Stefanopoulos v The Police (2000) 79 SASR 91; George v Rockett (1990) 170 CLR 104; Coco v The Queen (1994) 179 CLR 427; McNamara Business Law v Kasmeridis (2005) 92 SASR 382; Uebergang and Others v Australian Wheat Board (1980) 32 ALR 1; Maddalozzo & Ors v Maddick (1992) 108 FLR 159; The State of Western Australia v Rothmans of Pall Mall [2001] WASCA 25; Al Kateb v Godwin (2004) 219 CLR 562; Williams v The Queen (1986) 161 CLR 278; Dallison v Caffery [1965] 1 QB 348; cf A-G's Reference (No. 3 of 1999) (2001) 2AC91; R v Rowe (2004) SASC 427; Question of Law Reserved (No. 1 of 1998) 1998 70 SASR 281; R v Clarke (2003) 87 SASR 203; Robin v The Police (2002) 81 SASR 253; R Haydon (No 4) [2005] SASC 18; Police v Mercorella (2003) 87 SASR 218; Lobban v The Queen (2000) 77 SASR 24; R v Sarlija [2005] ACTSC 120; Royall v The Queen (1990) 172 CLR 378; Coley v Nominal Defendant [2003] QCA 181; Hillcoat v Northern Territory of Australia and Concepcion [2001] NTSC 114; R v White [2005] NSWSC 60; Richards v Schutt (1978) 18 SASR 421; R v Monks (2001) 122 A Crim R 324, considered.
R v DEAN
[2006] SADC 54
The accused is charged with the offence of aggravated robbery allegedly committed at a Bi-Lo supermarket on 15 March 2004.
The accused applied for exclusion of the evidence of his DNA profile obtained from a forensic procedure carried out on the 26 July 2004 upon his arrest for this offence.
The arrest was made upon the basis of a report of a match between the accused’s DNA profile on the DNA database and the DNA profile obtained from forensic material allegedly located at the crime scene.
The DNA profile of the accused was placed on the database as a result of his arrest on the 28 December 2003 for charges of assault family member.
On the 22 April 2004, the charges of assault family member were discontinued. Section 44C of the Criminal Law (Forensic Procedures) Act 1998 (“the Act”) directs the Commissioner of Police to destroy forensic material including the results of any analysis, as soon as practicable after the discontinuance of a charge. The accused’s forensic material was not destroyed and his DNA profile was not removed from the database until December 2005.
The defence submitted that the arrest was unlawful because police had contravened sections 44C(1) and 46C of the Act. The arrest occurred as a result of a match report which included the DNA profile of the accused where the accused’s forensic material and DNA analysis ought to have been destroyed and removed from the data base as soon as practicable after the 22 April 2004.
On the 9 March 2006, I ruled that the evidence was inadmissible. The prosecution requested that I provide detailed reasons, which I now publish.
Background
To summarise the relevant history, on 28 December 2003, a category 3 DNA sample was obtained from the accused upon his arrest for offences of assault family member pursuant to the provisions of the Act. On 6 February 2004, the accused’s DNA profile resulting from the analysis of the forensic material obtained from the accused, was placed on the DNA database. On 17 February 2004, a complaint and summons for charges of driving unregistered and uninsured were issued out of Holden Hill Magistrates Court. On 22 April 2004, the assault family member charges were dismissed for want of prosecution. Upon the finalisation of those charges, the accused’s DNA profile was required to be removed from the DNA database as soon as practicable, unless one of the exceptions in s44C of the Act applied. South Australian Police Department (“SAPOL”) computer records showed that the police outcomes system reviewed and downloaded the dismissal on 22 April 2004.
Constable Hebbard, the investigating officer for the assault family member charges, destroyed the paperwork relating to that matter after he was notified by the SAPOL Prosecution section in early 2004 that the assault family member charges had been dismissed. Neither the SAPOL Prosecution section nor Constable Hebbard notified the Forensic Science Centre (“FSC") or the DNA Management Section (“DNAMS”) of that dismissal.
On 29 April 2004, a match was made by the FSC between the accused’s DNA profile remaining on the DNA database and the DNA profile obtained from forensic material located at the Bi-Lo supermarket crime scene. On 24 May 2004, Exhibit VDP2, namely a person to crime sample group match report was generated by Melanie Sifis of the FSC. It was transmitted to the DNAMS.
On 30 June 2004, DNAMS generated a bundle of documents, Exhibit VDP3, which was transmitted to the investigating officer, Senior Constable Rae, who was attached to Operation Helix, a section of SAPOL set up to expedite the investigation of DNA match reports. The documents included VDP2 and the SAPOL incident report in relation to the December 2003 offences. On 1 July 2004, Senior Constable Rae received the DNA match report in VDP3.
On 26 July 2004, Senior Constable Rae arrested the accused for the offence of aggravated robbery, upon the basis of the DNA match report in VDP3.
Senior Constable Rae made a number of detailed inquiries prior to the arrest of the accused. He obtained information about the accused’s December 2003 arrest, including a photograph of the accused. He checked the accused’s antecedent history. He searched whether the accused had any pending matters.
The information as to the status of the December 2003 offences was available to Senior Constable Rae in the SAPOL main frame.
Upon the accused’s arrest, Senior Constable Rae obtained a category 3 buccal swab from the accused pursuant to the Act. On 27 July 2004, Senior Constable Rae delivered the accused’s buccal swab to the FSC.
On 13 December 2005, the FSC destroyed the link to the accused’s DNA profile on the database. On 14 December 2005, the FSC destroyed the accused’s forensic material obtained upon his arrest for the charges of assault family member.
The Issues
The defence submitted that Senior Constable Rae relied upon the group match report VDP2 (which identified the accused as a category 3 suspect whose DNA profile was on the database), in order to arrest the accused in circumstances which involved breaches of the provisions of the Act. Therefore, the arrest of the accused was unlawful.
It was conceded by the prosecution that without the DNA group match report - VDP2, Senior Constable Rae would have had no basis to arrest the accused.
Mr Vadasz, who appeared for the accused, argued that upon the dismissal of the December 2003 charges on 22 April 2004, the forensic material of the accused ought to have been destroyed and his DNA profile removed from the DNA database as soon as practicable, pursuant to the provisions of s44C(1) of the Act. He submitted that this ought to have occurred before any comparison was made, and certainly before DNAMS transmitted VDP2, the match report, to Senior Constable Rae on the 30 June 2004.
Mr Vadasz submitted that the severe penalties for non-compliance with the destruction provisions in the Act indicated that Parliament intended that the Commissioner of Police strictly comply with his obligations under the Act.
He submitted that there was a wholesale and deliberate disregard by the Commissioner of Police of the requirements of the Act.
He submitted that the Commissioner of Police was also in breach of s46C of the Act. That section imposed an obligation upon the Commissioner of Police to ensure that DNA profiles remained on the DNA database only as authorised by the Act. It is an offence to intentionally or recklessly breach this obligation.
Mr Vadasz submitted that the evidence was inadmissible and/or alternatively, it ought to be excluded pursuant to the provisions of s45 of the Act.
Alternatively, he submitted that the breaches of statutory obligations enlivened the discretion to exclude the evidence in accordance with the principles in R v Ireland[1] and Bunning v Cross[2].
[1] (1970) 126 CLR 321
[2] (1978) 141 CLR 54
Mr Vadasz acknowledged that the prosecution might point to the cogency of the evidence. He submitted that this was not a significant consideration in the present case where there was unlawful or improper behaviour by those responsible for law enforcement, where that conduct was widespread and where there was a longstanding disregard of statutory duties.
He submitted that although various documents produced to this court by SAPOL referred to the need for legislative compliance, there was no specific expression of concern in those documents that SAPOL may be in breach of the provisions of the Act.
The prosecution submitted that it is the DNA profile obtained from the buccal swab taken from the accused on 26 July 2004 which is to be adduced in evidence, not the DNA profile contained in the match report, VDP2. The prosecution submitted that the obligations of the Commissioner of Police under s44C and s46C of the Act did not arise because there was a “pending proceeding” under s44C(2)(b). The prosecution submitted that if there had been non-compliance with a statutory duty, the court was required to determine whether the evidence should be admitted having regard to the principles enunciated in Bunning v Cross[3]. The prosecution submitted that although section 45 of the Act was relevant to the exercise of the discretion, it did not justify the exclusion of the evidence. The prosecution submitted that there was no evidence of a deliberate or reckless disregard of the legislative requirements. It was submitted that SAPOL was acutely aware of its responsibilities and was endeavouring to implement procedures that would ensure compliance.
[3] Supra
The prosecution pointed to the cogency of the evidence and submitted that upon the accused’s case, any ‘unfairness’ or ‘illegality’ had not affected the cogency of the evidence. Mr Kane who appeared for the prosecution, submitted that the offence was a serious one and any ‘illegality’ by police was ‘not so serious as to outweigh the seriousness of the alleged offence of aggravated robbery’[4]
[4] Prosecution Outline paragraph 5.15
The Obligations of the Commissioner of Police
The Act identifies, inter alia, the circumstances in which police are entitled to obtain forensic material for DNA analysis, the circumstances in which a DNA profile is permitted to remain on a DNA database, the circumstances in which it is permissible to disclose a DNA profile to others[5] and the circumstances in which a DNA profile must be removed from the database.
[5] Section 46D. See Prosecution submission T231
Importantly, s46C directs that the Commissioner of Police must ensure that certain DNA profiles are not retained on the DNA database system after it is practicable to destroy the forensic material and remove the DNA profile from the database system.
Penal consequences attach where information is intentionally or recklessly retained on the database in circumstances not authorised by the Act. In addition, section 45 of the Act provides that evidence obtained in breach of the provisions of the Act is liable to be excluded by a court.
I refer to sections 44C, 46B and 46C of the Act.
44C-Destruction of forensic material obtained by carrying out category 3 (suspects) procedures
(1)The Commissioner of Police must ensure that forensic material obtained from a person by carrying out a category 3 (suspects) procedure is destroyed (as soon as practicable) if-
(a) .....
(b) .....
(ii)are commenced against the person within two years after the material is obtained, but -
(A) the proceedings are discontinued; or
(2) However-
(a) .....
(b) material need not be destroyed under subsection (1)(b)(ii) if there are other proceedings pending against the person.
46B-DNA database system
(4) A person who intentionally or recklessly-
(a) causes the supply of biological material for the purpose of storing a DNA profile on the DNA database system; or
(b) stores a DNA profile on the DNA database system, in circumstances in which that storage is not authorised by this Act (or a corresponding law) is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for two years.
46C-Removal of information from DNA database system
(1)The Commissioner of Police must ensure that a DNA profile derived from forensic material obtained under this Act or a corresponding law is not retained on the DNA database system beyond the time the destruction of the material is required under this Act or the corresponding law.
(2) .....
(3)A person who intentionally or recklessly causes information to be retained on the database system in contravention of this section is guilty of an offence.
Maixmum penalty: $10 000 or imprisonment for two years.
Counsel have provided to the Court relevant Hansard records and have agreed that I am to have regard to those records.[6]
[6] Owen v South Australia (1996) 66 SASR 251; Gerah Imports P/L v Duke Group Ltd (In Liq) (2004) 88 SASR 419
On the 26 February 1998, in his Second Reading speech, the Minister stated that the Bill was concerned with “the ever difficult balance between the rights and liberties of the individual and the coercive powers of the state in the obtaining of scientific samples for the purpose of analysis”[7]. He said:
It cannot be argued with any real plausibility that all suspects’ samples should be retained indefinitely.
[7] Hansard 26/2/1998 at page 1
In relation to Clause 45 governing the effect of non-compliance, the Minister said, inter alia:
Forensic evidence will be inadmissible beyond the time that it is required under the measure to be destroyed.
Clause 49 identified the limited circumstances under which a DNA profile could be stored on the database. The Minister said, inter alia:
If such a person is subsequently acquitted of the offence, the DNA profile must be removed from the database.
At that time, concerns were expressed that it was not an offence ‘for one of the most serious breaches possible on this Bill and this is retaining a DNA profile on the database longer than is authorised by law’.[8]
[8] Hansard 1998 debate
On 20 August 2002, a Bill was introduced to amend the Act in order to introduce legislative requirements that facilitated the interaction between the South Australian legislation and the Commonwealth legislation. The Bill addressed the Crim Trac DNA database. It also incorporated amendments proposed by the South Australian Police Department and the Director of Public Prosecutions.[9]
[9] Hansard 20/8/02 page 1171
In relation to the destruction provisions, the Attorney-General said:
The Model Provisions and the South Australian Act contain a number of important provisions which require the destruction of forensic material if, in general terms, the legal authorisation for retention expires or concludes. This is an important protection for the innocent and for the public.
It has not been and is not the intention of the legislation to build a database of identifiable DNA profiles of all or randomly selected members of the public.[10]
[10] Hansard 20/8/02 page 1172
And further:
It is also necessary to make comprehensive provision for the protection of the integrity of the databases. To this end, it is necessary to enact a series of criminal offences, punishable by a maximum of $10,000 or two years imprisonment for (shortly described):
.......
·not ensuring the destruction of identifying information in the DNA database system where the Act requires it to be destroyed .
The Minister said:[11]
Any legislation that attempts properly to balance the needs and requirements of efficient criminal investigation with the rights and liberties of the subject will not and should not be simple.
[11] Hansard 20/8/02 page 1173
It is also of note that later in 2002, the Act was further amended in response to a SAPOL comment about the proposed Bill, in order to enable the police to check the DNA database for the purpose of determining “whether or not a person sought to be tested was already on the database, in which case the test would, of course, be unnecessary”.[12]
[12] Hansard 20/11/02 page 1910-1911
The Commissioner of Police delegated the responsibility for maintaining the DNA database to the FSC pursuant to a Memorandum of Understanding between the FSC and SAPOL (Exhibit VDD9) dated the 9th day of December 2003. The Commissioner of Police retained the statutory obligation relating to destruction in that the Commissioner of Police was required to provide a notification to FSC of the forensic material and DNA profiles which had to be destroyed. In order to comply with the provisions of the Act, the Commissioner of Police was required to give this notification as soon as practicable, in specified circumstances including after the discontinuance of a charge. It was necessary to comply with these statutory obligations to ensure the integrity of the DNA base. That is, it was the responsibility of the Commissioner to ensure that a person’s DNA profile did not remain on the database in the circumstances specified in the Act, such as where a charge had been discontinued. The DNA Management Section was set up to enable the Commissioner of Police to meet his obligations under the Act. These included the responsibility to notify FSC of forensic material to be destroyed in accordance with the Act. DNAMS also issued match reports to Operation Helix for investigation.
Pending Proceedings
Section 44C(2)(b) of the Act provides that forensic material need not be destroyed if there are other proceedings pending against that person.
The prosecution submitted that the charges of driving unregistered and driving uninsured against the accused,[13] constituted a “pending proceeding” for the purposes of s44C(2)(b) of the Act.
[13] See Exhibit VDP39
Mr Vadasz submitted on behalf of the accused that the charges were traffic and regulatory offences and were not “proceedings” to which the Act was intended to apply. He submitted that the prosecution submission was a belated hypothesis to meet an untenable situation. He pointed out that the evidence demonstrated that it was never a factor in relation to the failure to remove the accused’s DNA profile from the database and he submitted that it could not have been.
As the prosecution conceded, the broad interpretation contended for by the prosecution would mean that following discontinuance of charges against a person, DNA profiles could be retained on the DNA database in respect of summary offences in the nature of traffic offences, perhaps prosecutions under regulatory legislation like the Dog Control Act and even civil proceedings instituted against a person.
The Act is legislation which authorises intrusion into an individual’s privacy. It ought to be strictly construed and applied.[14]
[14] Ousley v The Queen (1997) 192 CLR 69 at 141; George v Rockett (1990) 170 CLR 104; Coco v The Queen (1994) 179 CLR 427
In Orban v Bayliss[15] Simpson J said:
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 co-operate with investigating authorities and the overall interests of the community and 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 traditional civil liberties.
[15] [2004] NSWSC 428
In Stefanopoulos v The Police[16], Martin J said:
The Act authorises the performance of forensic procedures upon persons against their consent. These procedures include invasive procedures. In these circumstances, it is often said that a strict construction should be adopted.
[16] (2000) 79 SASR 91 at para 14
I refer to relevant sections of the Act. Section 3(1) includes the following definitions:
“Forensic material” means material obtained by carrying out a forensic procedure and includes the results of the analysis.
“Criminal offence” means any offence except
(a) a summary offence that is not punishable by imprisonment
(b) a summary offence that is capable of being expedited
“Serious offence” means
(a) an indictable offence or a summary offence listed in the Schedule; or
(b) an offence of attempting to commit such an offence; or
(c)an offence of aiding, abetting, counselling or procuring the commission of such an offence; or
(d) an offence of conspiring to commit such an offence; or
(e) an offence of being an accessory after the fact to such an offence;
(3)If a provision of this Act or an order made under this Act requires the destruction of any forensic material, the forensic material will be taken to have been destroyed, for the purposes of that provision or order, if it is not possible to identify the person from whom the material was obtained or to whom the material relates.
Section 46A provides:
Part 5A-The DNA database system
46A-Intepretation
prescribed offence means-
(a) an indictable offence; or
(b) an offence under the law of a jurisdiction in which a corresponding law is in force for which the maximum penalty is, or includes, imprisonment for two years or more or for an indefinite terms;
I am of the opinion that a “pending proceeding” must be a proceeding to which the Act has application.[17]
[17] Re statutory interpretation see McNamara Business Law v Kasmeridis (2005) 92 SASR 382, 397
Parliament attempted to find a balance between the intrusive nature of compulsory DNA testing and civil liberties.[18] This endeavour to achieve the balance is partly addressed by the destruction provisions in the Act and the limitation upon the offences in respect of which compulsory forensic material can be obtained and retained.
[18] Hansard 20/8/02 p 1172-1173
If “pending proceeding” is to include any proceeding against an accused, as argued for by the prosecution, it would mean that the DNA database would include DNA profiles obtained and retained in respect of those offences identified in the Act and schedule, as well as DNA profiles of persons who had been acquitted of an offence, but who happened to have a court proceeding of any kind instituted against them prior to the acquittal, and which was pending.
I consider that “pending proceedings” in section 44C(2)(b) of the Act ought not be given a meaning broader than those proceedings which are identified in the terms of the legislation itself, namely “criminal proceedings”, “serious offences”, “prescribed offences” and those offences identified on the schedule to the Act.
Inspector Wiescyk, DNA Project Officer at the Forensic Services Branch, said a decision was made by DNAMS, in the implementation of the Act, that “pending matters” would be limited to serious or scheduled summary offences[19]. Inspector Wiescyk said that unfinalised charges of unregistered and uninsured were not regarded as ‘pending proceedings’ by the DNAMS during the time that he was located at DNAMS. He commenced in April 2004. This approach was implemented at DNAMS by Inspector Wiescyk. Insofar as Senior Sergeant Howland’s evidence might be inconsistent with Inspector Wiescyk, or otherwise differ on this point, I prefer the evidence of Inspector Wiescyk.
[19] T581
I find, on the balance of probabilities, that the DNAMS did not regard a charge of unregistered and uninsured as a pending proceeding which impacted upon the obligation of the Commissioner of Police to comply with the destruction provisions of the Act. I find that this was the approach in DNAMS in April 2004.
This was not a matter to which any police officer had regard in relation to the failure to notify the FSC of the legislative requirement to destroy the accused’s forensic material obtained in relation to the discontinued charges.
I find, on the balance of probabilities, that upon the finalisation of the charges of assault family member, the forensic material (including the results of the analysis) obtained upon the accused’s arrest for the offences of assault family member, ought to have been destroyed as soon as practicable.
In fact, the DNA profile of the accused, obtained in December 2003 was not destroyed for approximately 20 months after the discontinuance of the charges.
As Soon As Practicable
Mr Vadasz, on behalf of the accused, submitted that 20 months, the time taken to remove the accused’s DNA profile from the database, could not be regarded “as soon as practicable” as required by the Act. The discontinuance of the December 2003 offences was on the police computer on 22 April 2004 and the DNA profile was not removed until December 2005.
Mr Kane submitted, on behalf of the prosecution, that a determination of what is “as soon as practicable” depended upon the interpretation of the legislation and the factual matrix of the case. Mr Kane submitted that the destruction had occurred after SAPOL had obtained and allocated sufficient resources for this purpose and had introduced computer technology to replace the manual system, and therefore the destruction in December 2005 had taken place ‘as soon as practicable’ for the purposes of the Act.
He referred to Uebergang and Others v Australian Wheat Board[20] where the court referred to the shorter Oxford dictionary meaning, namely “capable of being carried out in action”; “feasible”.
[20] (1980) 32 ALR 1 at para 47
I am of the view that the expression “as soon as practicable” must be construed in the context of the legislative intent and in the light of all the circumstances.[21]
[21] Maddalozzo & Ors v Maddick (1992) 108 FLR 159; The State of Western Australia v Rothmans of Pall Mall [2001] WASCA 25 at para 23-30
It does not mean as soon as possible.[22] In Richards v Schutt,[23] the Court said:
In any case the words “as soon as practicable” must allow for normal factors of police practice and for the lapse of some time, provided it is a short time, whilst any other necessary action is being taken.
[22] Richards v Schutt (1978) 18 SASR 421 at 425
[23] Supra at page 425. Also see R v Monks (2001) 122 A Crim R 324 para 8
The expression “as soon as” provides a temporal element.[24]
[24] Al Kateb v Godwin (2004) 219 CLR 562, 594 [121]
In Williams v The Queen[25] the High Court considered the meaning of the words “as soon as practicable” in relation to the obligations of a police officer upon arrest.
[25] (1986) 161 CLR 278
In the joint judgment of Mason J and Brennan J, their Honours were of the view that the approach of Lord Denning MR in Dallison v Caffery[26] ought not be followed.
[26] [1965] 1 QB 348
Lord Denning MR had expressed the view that the time had come to ensure that justice might be done not only to the person arrested “but also to the community at large”.[27]
[27] cf A-G’s Reference (No. 3 of 1999) (2001) 2AC91, 118; Prosecution Outline para 16
In Williams v The Queen[28] their Honours said:
Those words [as soon as practicable] are not intended to deny the operation of a principle which protects the liberty of the subject, and to construe those words as authorising detention for interrogation and investigation runs counter to the rule that any statute which authorises the detention of a person must be strictly construed.
[28] Supra at page 297
In the context of the arrest power, their Honours said:[29]
Practicability is not assessed by reference to the exigencies of criminal investigation.
[29] Supra at page 299
Their Honours also stated:[30]
But if the suspect has been arrested and the inquiries are not complete at the time when it is practicable to bring [the suspect] before a justice, then it is the completion of the inquiries and not the bringing of the arrested person before a justice which must be delayed as King CJ pointed out in R v Miller.
[30] Supra at page 300
In that case, in relation to the question of whether prior to taking the arrested person before a justice, the police could interrogate the person in order to investigate the offence, their Honours took the view that there was no relevant distinction between the words “forthwith”, “without undue delay” and “as soon as practicable”.[31]
[31] Supra at page 297
The High Court held that a detention beyond the time that it was practicable to bring the arrested person before a justice, was an unlawful detention.[32]
[32] Supra at page 295, 301
A forensic procedure carried out to obtain forensic material from category 3 suspects under the Act interferes with personal liberty. Indeed, s35 of the Act provides that reasonable force may be used, if necessary, to carry out a forensic procedure where there is no consent.
In Stefanopoulos v The Police[33] Martin J said, in relation to the provisions of the Act authorising forensic procedures against suspects:
Protection is provided for the suspect who is not charged or convicted. Section 43 directs that the forensic material obtained must be destroyed if proceedings for the offence to which the material is relevant are not commenced within two years, or having been commenced within that period, the proceedings are discontinued.
[33] Supra at page 93
In my opinion, the destruction requirements and the penal sanctions in relation to non-compliance in the Act, provide a safeguard for persons who are compelled to provide forensic material for a DNA profile upon their arrest, but against whom the charges are discontinued. The interpretation argued for by the prosecution could lead to the result that the time taken to destroy forensic material and remove a DNA profile from the database as required by the Act is at the discretion of the Commissioner of Police depending upon the allocation of resources to the task. If insufficient resources were allocated by the Commissioner, DNA profiles obtained from persons against whom charges are discontinued or who are acquitted could remain lawfully on the database for an indefinite period. Each case will depend upon its particular circumstances.
I am of the view that s44C of the Act means that from the time that it is “practicable” to destroy forensic material where a charge against a suspect has been discontinued, there is no authority under the Act for that suspect’s DNA profile to remain on the database. Section 46C(3) attaches penal consequences where the storage occurs intentionally or recklessly beyond the time authorised by the Act. Further, s45(3) of the Act provides that where forensic material ought to have been destroyed as at the time that the question of admissibility arises, evidence obtained from the forensic procedure is inadmissible. If the authority for a DNA profile to be on the database is governed by the strict requirements of the Act, once a matter is discontinued, and until it is practicable to remove the DNA profile from the database, the DNA profile remains on the database for the purpose of that destruction occurring as soon as practicable.[34] A disclosure of that DNA profile in those circumstances would not be a disclosure in accordance with the Act.[35]
[34] cf Williams v The Queen supra 299-301, 306
[35] s46D of the Act
Lack of Resources of SAPOL
A great deal of evidence was given during the lengthy voir dire hearing about the lack of resources and lack of technology of DNAMS to cope with the task of addressing all court outcomes on an ongoing basis in order to determine whether a court outcome required DNAMS to notify FSC that a DNA specimen and profile needed to be destroyed.
Senior Sergeant Howland the Manager of DNAMS until July 2005, said that DNAMS was not sourcing the information needed to carry out the destruction obligations upon the Commissioner. There were no identifiable time frames within which notifications to FSC and therefore destructions, could or would occur.
Senior Sergeant Howland said that the explanation for this situation, was a lack of funding and the inadequacy of the computer program available to DNAMS. The computer program was incapable of processing court outcomes in such a way that the DNAMS could comply with the destruction provisions of the Act.
Inspector Wiescyk said that as at April 2004, the extent of the backlog in relation to actioning court outcomes requiring destruction was unknown because the systems in place could not determine how many court outcomes required destruction.
As at 7 October 2005, the DNAMS was downloading court outcomes from the system to cover the period from July 1999 to December 2003. As at 7 October 2005, it was estimated that potentially 20,000 actions were needed relating to court outcomes that occurred between July 1999 and December 2003.
As at September 2005, the “guesstimate” of time required to clear the backlog was 52,000 person hours. The potential delay in required destructions was up to 25 years.
According to Inspector Wiescyk, concerns remain that the backlog could include matters going as far back as 2004. At the time of giving evidence, Inspector Wiescyk could not identify the oldest matter in respect of which the destruction requirements under the Act applied. Inspector Wiescyk thought there were matters awaiting destruction that pre-dated April 2003, but there was no record available to him when giving evidence, which could provide information as to how many of such matters remained outstanding.
Knowledge
Senior Sergeant Howland was acutely aware of his responsibilities under the Act.
He was aware that the Commissioner of Police had a statutory duty to ensure that DNA profile information was not retained on the database beyond the time that the destruction of the material was required under the Act.
He knew that it was an offence to intentionally or recklessly cause information to be retained on the database system in contravention of the Act. He knew that such an offence was punishable by the imposition of a fine in the sum of $10,000 or imprisonment for up to two years.
As a police prosecutor with eight years experience, Senior Sergeant Howland knew that there were likely to be many court outcomes which would require DNAMS to comply with s44C of the Act. Destructions were not happening as required by the Act. This fact caused Senior Sergeant Howland great concern.
Senior Sergeant Howland said that there was an awareness amongst everybody from an early stage as to the problems relating to compliance with the destruction requirements.
Senior Sergeant Howland said that the issue of the obligations of the Commissioner of Police in relation to the destruction provisions was raised at meetings with his supervisors.
Senior Sergeant Howland said that his line managers, Superintendent Amoroso and Inspector Wiescyk, were aware that it was impossible for DNAMS to do its job with respect to destructions.[36]
[36] T 446
Senior Sergeant Howland was asked:
"QAt any time that you were there, did anyone try to give advice or notice to the Commissioner that he might be committing an offence pursuant to s.46c(3) of the Forensic Procedures Act, yes or no.
AI know everybody who worked there was acutely aware and I believe that that was passed on, but I didn’t”.[37]
[37] T 412
He was aware that pursuant to s44C and s45 of the Act, non-compliance with the Act might lead to the exclusion by a court of DNA evidence.
Inspector Wiescyk said that at the time he arrived at the DNAMS, it was plain to him that it was impossible to give the necessary destruction notifications to FSC in a timely fashion. He took the view that it was SAPOL’s legislative obligation to destroy samples as soon as practicable.
Inspector Wiescyk was aware that the requirements of the Act were quite strict in relation to the requirement to destroy samples as soon as practicable.
As at April 2004, SAPOL had no idea how long it would take to put systems in place that would address the need to destroy samples as soon as practicable.
Inspector Wiescyk was aware that it was an offence to intentionally or recklessly cause information to be retained on the DNA database system where the Act did not permit it.
From the time of Inspector Wiescyk’s arrival at DNAMS in 2004, there was regular reporting to his supervisors of the backlogs and the fact that he was of the view that there was non-compliance with the Act. Inspector Wiescyk advised the Project Board and the Assistant Commissioner of Crime that there were significant delays in destroying samples.
A business case and a project mandate were prepared in order to address this issue, including the risks of prosecution for non-compliance.
There were concerns expressed that if appropriate information technology systems were` not set up, the court outcome downloads would never take place.
Inspector Wiescyk said that there were concerns held by the Commissioner of Police in relation to compliance with his obligation to destroy forensic material in the circumstances identified by the Act.
Forensic Science Centre
Mr Pearman, Manager of the biology section at FSC, explained that in relation to the destruction obligations under the Act, his section had ongoing discussions with DNAMS between April 2003 and the end of 2004. These included meetings with Senior Sergeant Howland and Inspector Wiescyk.
The FSC had a destruction protocol in place from 10 March 2004. The FPA destruction protocol (Exhibit VDP7) required removal from court reports of “any references to the individual’s matching with scene samples” and also required communication with DNAMS about whether there was any reason why the match reports should not be destroyed
Mr Pearman said that the FSC had sought Crown Law opinions in relation to the destruction provisions. The FSC acted upon the basis that “destruction has occurred if it is not possible to identify the person from whom the material was obtained or to whom the material relates”. This premise was expressed in Exhibit VDD10 which FSC forwarded to SAPOL.
Mr Pearman said that a DNA match group report would be issued to the DNAMS. He understood that one of the functions of DNAMS was to check the validity of a DNA match in relation to whether the sample should remain on the database or not. If such a notification was received from the DNAMS, the FSC protocol would result in the removal of the DNA information from any match group reports that had been issued.
If a notification was received from DNAMS where the FSC was still working on forensic material, they would destroy the material.
There were quality assurance checks in place so that the validity of a match was checked against any destruction requirements under the Act. If a destruction notification was received after the match report was completed, the match report was withdrawn at that stage. Once a notification was received from DNAMS, the accused’s DNA profile could be removed from the database “at the push of a button”.
Findings
The facts as I find them to be on the balance of probabilities, are as follows:
SAPOL Prosecution section discontinued the December 2003 charges on the 22 April 2004.
SAPOL Prosecution did not notify the FSC of the discontinuance of the charges.
The Act makes it patently clear that the accused’s forensic material should have been destroyed and his DNA profile removed from the database as soon as practicable after the discontinuance of the charges.
The Commissioner of Police was clearly aware of Parliament’s intention in relation to the provisions of the Act, namely that the accused’s forensic material and the results of the DNA analysis in respect of which the charges were discontinued or there was an acquittal, had to be removed from the database as soon as practicable.
It is conceded by the Prosecution that the fundamental basis for the accused’s arrest in July 2004 was VDP2, a match report which included the results of the accused’s DNA analysis.
I find that the arrest was unlawful. Whatever might be said about the failure to destroy the accused’s forensic material and remove the accused’s DNA profile from the database between the date of the discontinuance of the charges on 22 April 2004 and the DNA group match made by the FSC on 29 April 2004, by the time the police came to arrest the accused on 26 July 2004, they well knew that they were acting solely upon forensic material (and its analysis) which should have been destroyed.
SAPOL well knew that Parliament had directed that once the December 2003 proceedings against the accused were discontinued, the forensic material, the DNA analysis and all documentation containing that DNA analysis, had to be destroyed. DNAMS knew that. Senior Constable Rae knew that. Despite that, SAPOL did not notify FSC of the need to destroy the accused’s forensic material and the results of the analysis of that material until December 2005.
I find on the balance of probabilities that SAPOL kept the forensic material and DNA analysis because SAPOL well knew it was the basis for the arrest.
I find that at all relevant times, and in particular from at least the time of the arrest until December 2005, SAPOL retained the forensic material and the match report, VDP2 containing the results of the DNA analysis where it was known that they should have been destroyed. SAPOL was in breach of the Act.
Whatever may have been the general situation in relation to the backlog and lack of resources, DNAMS knew of the outcome of the accused’s case on the day that the discontinuance occurred.[38]
[38] T 386
DNAMS was on the SAPOL mainframe and DNAMS had access to police court outcomes and police offender history, which enabled DNAMS personnel to determine whether a destruction notification ought to be made to FSC.[39]
[39] Inspector Wiescyk – T519
I find, on the balance of probabilities, that the match report VDP2 which included the results of the accused’s forensic material, was specifically considered by DNAMS prior to sending the match report and accompanying information in VDP3 to Operation Helix.
A number of checks were made at that time about the accuracy of the match report VDP2. That check must have revealed that the DNA profile of the accused, which was the subject of the group match report VDP2, had to be removed from the DNA database as required by the Act. It was practicable to comply with the Act at that time.
From the time that it was practicable to comply with the Act, the obligation to give the necessary destruction notification to the FSC arose. I find that there was a breach of the provisions of the Act in that the police (DNAMS) failed to notify the FSC of the need to destroy the accused’s forensic material and the results of the DNA analysis, as soon as practicable after the finalisation of the charges of assault family member.
I find that the retention of the accused’s DNA profile on the database beyond the time that it was practicable to remove it from the database and destroy the forensic material, was unlawful.
If I am wrong about that, I find, in any event, that it was improper for the police, in particular the DNAMS, to provide a DNA match report to the investigating officer at a time when and in circumstances in which the results of the DNA analysis from the accused’s forensic material ought not to have been disseminated because of the mandatory destruction requirements under the Act applicable at that time.
The transmission of the DNA match report in VDP3 by DNAMS in all the circumstances constituted a blatant disregard of the mandatory destruction requirements of the Act.
It has not been suggested, that there was any urgency in forwarding the match report to investigating officers as a justification for not ensuring that the destruction requirements of the Act had been complied with.
If DNAMS had made the required destruction notification to FSC instead of sending VDP3 to Operation Helix, the arrest of the accused would not have occurred.
I accept the evidence of Senior Sergeant Howland that it was common knowledge that DNAMS was unable to comply with the destruction provisions. Senior Constable Rae’s supervisor was involved in ongoing discussions with DNAMS[40].
[40] T 628 - 629
I find on the balance of probabilities, that Senior Constable Rae must have been aware of the fact of backlogs occurring in the DNAMS in relation to the destruction provisions of the Act.
Senior Constable Rae knew that subject to legislative exceptions, the provisions of the Act, required removal of a DNA profile from the DNA database where a matter was discontinued.
Senior Constable Rae had nine years experience as a police officer. He was well aware of the responsibility of SAPOL to ensure compliance with the Act. In any event, in considering the lawfulness of an arrest, a police officer is assumed to know the law.[41]
[41] Dallison v Caffery [1965] 1QB 348, 370-371
Senior Constable Rae admitted that prior to arresting the accused, he checked to see whether the assault a family member matter was still pending. He admitted that the outcome in that case would have been seen by him. His explanation for failing to act in accordance with the destruction requirements of the Act, was that when it came up, “he did not recognise it” or “didn’t see it on there”.
I find, on the balance of probabilities, that Senior Constable Rae knew that the match report in VDP3 disclosed that the accused was a category 3 suspect whose DNA profile was on the database, although the charges had been withdrawn in April 2004. He knew that the Act imposed destruction obligations upon the Commissioner of Police as a result of that withdrawal. He could have notified DNAMS of the obligation to remove the DNA profile from the database and destroy the forensic material.
Instead, he arrested the accused upon the basis of the group match report in VDP3.
Lack of resources did not impact upon the practicability at that time of Senior Constable Rae complying with the Act.
Upon his arrest, the accused was subjected to a compulsory forensic procedure from which a buccal swab was obtained for DNA analysis, resulting in the evidence that is proposed to be led in this case.
Sections 14(2)(b) and 15(1)(c) of the Act, provide that a forensic procedure is authorised where a person is “under suspicion of having committed a serious offence”.
Section 4 of the Act provides inter alia, that a person is “under suspicion” if the police officer, by or on whose instructions a forensic procedure is to be carried out on the person, suspects the person on reasonable grounds of having committed a criminal offence. It is not necessary for a “reasonable suspicion” to be based on evidence that is admissible in court.[42]
[42] R v Rowe (2004) SASC 427
The accused was a person “under suspicion” as a result of the match report, exhibit VDP2. Again, the holding of that suspicion depended upon DNAMS transmitting VDP2 to Operation Helix. If DNAMS had complied with the destruction obligations under the Act, the forensic procedure would not have taken place.
I find that prior to the arrest of the accused, Senior Constable Rae knew that the Act required destruction of the accused’s forensic material and removal of his DNA profile from the database. I find that it was practicable for Senior Constable Rae to comply with the obligation of the Commissioner of Police to make the necessary notification to FSC or DNAMS. He knowingly and wilfully ignored that obligation.
As I have said, I find that the non-compliance by police with the destruction provisions of the Act had the result that the accused was unlawfully arrested. At the very least, the arrest was accompanied by circumstances of serious impropriety. I find that the accused was not in lawful custody in July 2004 at the time of the taking of the forensic material, and that the taking of the forensic material in all the circumstances, was unlawful. At the very least, it occurred in circumstances of serious impropriety.
I can understand that a police officer might have believed that it was advantageous to police investigations to retain forensic material for an extended period of time even if the retention was in contravention of the Act. However the period during which the Commissioner of Police was entitled to retain forensic material was raised specifically with the legislature, during the introduction of the 1998 Bill, at the time of the 1992 amendments and as late as August 2004.
During the second reading speech in 1998, the Minister referred to criticisms by the law enforcement authorities of the strict rules of admissibility that applied in relation to breaches of the Act and to the issue of time limits in relation to the retention of forensic material of suspects.
In the second reading speech of 26 February 1998, the Minister said (at page 3):
Law enforcement authorities were critical of the strict rule of inadmissibility that is contained in the Model Provisions. The approach taken there and in the Bill is, however, consistent with the current law. It requires the prosecution to satisfy the court that, despite the fact that the standards set down by Parliament have been broken, the evidence should still be admitted. It is also provided that the probative value of the evidence is not by itself sufficient to warrant admission.
The reason for this is that the Bill deals with real evidence and the temptation to break the rules in order to get the vital piece of hard evidence must be high. In reality, it is no defence to breaking the law to say that the evidence actually obtained proves guilt. The end does not justify the means.
It was acknowledged that the requirement for destruction upon the discontinuance of a charge was to protect individual liberties. Rather than giving the Commissioner of Police any discretion in relation to the retention of DNA material where a charge was discontinued, the 2002 amendments made non-compliance with the destruction provisions an offence. In August 2004, SAPOL made a legislative submission that s44C of the Act be amended to provide for DNA profiles to be retained on the DNA database by default unless there was a request to the contrary.[43] This submission was not accepted.
[43] EX VDR28 para 34.5 page 11
The Commissioner of Police was well aware of the policy considerations, which Parliament reflected in the destruction provisions. In particular, the civil liberties of persons who were not convicted, were intended to be safeguarded by these provisions.
The Discretion
There was non-compliance by DNAMS and by Senior Constable Rae with a statutory duty.
Applying the principles in the High Court decisions of Bunning v Cross[44] and Ridgeway v R[45], the court has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police.
[44] Supra
[45] (1995) 184 CLR 19
I have regard to what the High Court said in R v Ireland[46], in this context, in particular, that convictions obtained by means of unlawful conduct may be obtained at “too high a price”.
[46] R v Ireland (1970) 126 CLR 321 at p 335.
As their Honours Stephens and Aickin JJ said in Bunning v Cross[47], I must engage in a balancing process to resolve “the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”.
[47] supra at page 74
I have had regard to the joint judgment of Mason CJ and Dean J in Bunning v Cross[48] where their Honours said: “The discretion to exclude evidence extends to circumstances where evidence has been obtained as a result of the improper, although not unlawful conduct on the part of the authorities”.
[48] Supra at p. 30
Mr Kane, on behalf of the Prosecution, referred me to the various considerations discussed in Bunning v Cross[49] which are relevant to the exercise of my discretion. I have had regard to Mr Kane’s written and oral submission in relation to each of those considerations. I have had regard to the declarations upon which the prosecution rely in relation to this charge.[50]
[49] Supra
[50] Exhibit VDP37
I find that there was at least “a reckless disregard of the law by those whose duty it is to enforce it”.[51]
[51] Bunning v Cross supra at page 78
I bear in mind that it is not every case in which law enforcement officers have engaged in unlawful or improper conduct that the discretion to exclude evidence arises.[52] In the present case I find that the illegal or, alternatively, at the very least, improper conduct by the police, vested with responsibilities under the Act, enabled the prosecution to obtain the evidence which is the subject of objection. It was crucial to the accused’s arrest and to the carrying out of the forensic procedure upon him.
[52] Question of Law Reserved (No. 1 of 1998) (1998) 70 SASR 281, 288 see also R v Clarke (2003) 87 SASR 203 at para 48
The destruction provisions provide safeguards to persons who are obliged to submit to forensic procedures for DNA testing. The responsibility for ensuring that those safeguards are complied with is placed upon the police.[53]
[53] Robin v The Police (2002) 81 SASR 253, 264
I accept the prosecution submission as to the seriousness of the offence with which the accused is charged. I have regard to the cogency of the evidence.
I find in the present case, a number of police officers were knowingly not complying with their statutory duty. The non-compliance was not an isolated instance, but part of the practices adopted.
It was common knowledge amongst the relevant SAPOL personnel, including senior officers.
As at April 2004, DNAMS could not identify, even as an estimate, the time that would be required to destroy a forensic specimen and remove a DNA profile from the database in respect of which the charge had been discontinued. This was well known to those in senior positions in SAPOL.
I find that the non-compliance with the mandatory destruction provisions of the Act could readily have been addressed in the same way that the issue was being addressed by the FSC.
If DNAMS and Operation Helix had adopted the FPA destruction protocol and/or the quality control practices or checks conducted by the FSC in this respect, this systemic non-compliance would not have occurred.
I consider that it is appropriate for me to exercise my discretion to exclude the evidence of the arrest of the accused for the offence before this court and of the forensic procedure undertaken at that time (including the buccal swab), on public policy grounds. I am of the opinion that the applicable consideration of “high public policy” relating to the administration of criminal justice outweighs the legitimate public interest in the conviction of the guilty.
I consider that to admit the evidence in the circumstances, particularly having regard to the policy of the Act, would involve the court in appearing to condone an illegality or impropriety that would not be compatible with the functions of the court, and the need to maintain the integrity of the judicial process.
I have also considered the exercise of my discretion to exclude the evidence upon the basis that it is unfair to admit the evidence in all the circumstances. In R v Haydon (No 4)[54] Sulan J said :
The unfairness the Court is considering is whether the impropriety is such that the authority has taken advantage of its illegal conduct in gaining the evidence relevant to the commission of the offence.
[54] [2005] SASC 18 at para 51
In the present case, as a result of the non-compliance with the provisions of the Act, the evidence subject to objection, was obtained. The failure of the police to comply with the destruction provisions has deprived the accused of fundamental safeguards.[55]
[55] Robin v The Police supra at page 274 [58]
The provisions requiring destruction “as soon as practicable” are part of a legislative scheme to ensure that the DNA profiles on the database are limited to those identified in the legislation. They provide a legislative safeguard with a penal consequence to ensure compliance.[56]
[56] Police v Mercorella (2003) 87 SASR 218 at para 16
If this safeguard had been complied with by either DNAMS or by Senior Constable Rae, the accused’s arrest and the obtaining of another buccal swab for DNA analysis would not have occurred. The objective impact of the non-compliance with the Act is to deny the accused the benefit of a legislative safeguard. Together with the public policy considerations, I consider that this also provides a proper basis to exercise my discretion to exclude the evidence.[57]
[57] Robin v The Police supra at page 272; Lobban v The Queen (2000) 77 SASR 24, 33-34
Section 45 of the Act
Mr Vadasz has submitted that the evidence in question ought to be excluded pursuant to s45(1) and (2) of the Act.
Section 45 provides:
45-Effect of non-compliance on admissibility of evidence
(1)If a police officer or other person with responsibilities under this Act (other than a person acting as an appropriate representative of a protected person under this Act) contravenes a requirement of this Act in relation to-
(a) a forensic procedure; or
(b) forensic material obtained from a forensic procedure; or
(c) a DNA profile derived from such forensic material,
evidence obtained as a result of the forensic procedure is not admissible in evidence against the person on whom the procedure was carried out unless-
(d) the person does not object to the admission of the evidence; or
(e) the court is satisfied that the evidence should be admitted in the interests of the proper administration of justice despite the contravention.
(2)In deciding whether evidence should be admitted in the interests of the proper administration of justice, the court must have regard to the following matters:
(a) the probative value of the evidence (which however cannot, by itself, justify admission of the evidence); and
(b) the seriousness of the contravention and, in particular, whether it was intentional or reckless; and
(c) the extent to which the defendant has been prejudiced by the contravention; and
(d) any other relevant factors.
(3)Evidence obtained by a forensic procedure is inadmissible if, by the time the question of its admissibility arises, the forensic material obtained from the procedure should have been destroyed.
Mr Vadasz submitted that the contraventions of the provisions of the Act requiring destruction of the forensic material obtained upon the accused’s December 2003 arrest, and the DNA profile derived from such forensic material, enabled the obtaining of the second forensic specimen from the accused upon his arrest in July 2004. Therefore, the second buccal swab and DNA profile was evidence obtained “as a result of the forensic procedure”, carried out in December 2003.
Mr Kane, on the other hand, submitted that it is the Bunning v Cross[58] considerations which are raised by the accused’s arguments on the voir dire, although the court is entitled to have regard to the provisions of s45 of the Act.[59]
[58] Supra
[59] see para 5.3 of Prosecution outline
As I have said, I have decided to exercise my discretion to exclude the evidence in question by applying the principles in Bunning v Cross.[60] Therefore, it is not necessary for me to consider whether I would have excluded the evidence pursuant to section 45(1) and (2) of the Act.
[60] Supra
Nevertheless, I have considered Mr Vadasz’s submissions and Mr Kane’s submissions in relation to the application of the provisions of s45 of the Act, to the issues on the voir dire.
I have been referred to R v Sarlija.[61]
[61] [2005] ACTSC 120
That case concerned the obligation of the Commissioner of Police to destroy finger prints obtained from an accused pursuant to the Victorian Crimes (Forensic Procedures) Act. A failure to destroy as required, made the use of the finger prints a summary offence. Further, such evidence was inadmissible unless the prosecution was able to persuade the court that exceptional circumstances justified the reception of the evidence.
In that case, Gray J said:
The requirement to destroy finger prints in the absence of a conviction for an offence is a safeguard to ensure a balance between effective law enforcement and the protection of fundamental freedoms. (see second reading speech)
(22) This view is reinforced by the subsection permitting an application for an extension to be made.
Looked at in that way, there is also no real room for it to be said that there are exceptional circumstances which could justify the admission of this evidence.[62]
[62] See Gray J supra
In relation to the question of whether the second DNA profile was obtained “as a result of” the forensic procedure in respect of which there were contraventions of the Act, that is a question of fact for this court.[63]
[63] Royall v The Queen (1990) 172 CLR 378, 387; Coley v Nominal Defendant [2003] QCA 181, [17]-[20]; Hillcoat v Northern Territory of Australia and Concepcion [2001] NTSC 114 [9]-[12]
I have found that DNAMS and Senior Constable Rae contravened the requirements of the Act in relation to the forensic material obtained upon the accused’s arrest in December 2003.
I have found that for the purposes of the accused’s arrest and the forensic procedure carried out in July 2004, the accused was a person who was under suspicion as a result of the DNA profile obtained from the forensic procedure conducted in December 2003.
The prosecution concede that absent the evidence obtained from the forensic procedure in December 2003, Senior Constable Rae would not have been able to arrest the accused and obtain the forensic material and DNA profile to which objection is taken.
I find on the balance of probabilities that the forensic material and DNA profile from the second forensic procedure in July 2004, was obtained “as a result of” the forensic procedure in December 2003.
I have had regard to each of the separate matters in s45(1) of the Act.[64] I have already discussed the seriousness of the contraventions of the Act, and the wilful nature of the breaches. In relation to the question of prejudice, and any other relevant matter, I am of the view that the conduct of SAPOL in failing to comply with the destruction provisions of the Act has deprived the accused of legislative safeguards and enabled the prosecution to obtain the evidence. I have had particular regard to the probative value of the evidence in the prosecution case.
[64] R v White [2005] NSWSC 60
I am satisfied on the balance of probabilities that the breaches of the provisions of the Act requiring destruction as soon as practicable, of the forensic material obtained from the accused on the 28th of December 2003 which I have identified earlier in my reasons, resulted in the accused’s arrest on the 26th of July 2004 and the second forensic procedure. I find that the evidence obtained as a result of the second forensic procedure, namely the accused’s DNA profile from the forensic material, is not admissible.
For reasons which I have already identified,[65] I am not satisfied that the interests of the proper administration of justice ought to result in the admission of the evidence despite the contraventions of the Act.
[65] paras 149-169
Mr Vadasz submitted that pursuant to s45(3) of the Act, the DNA profile obtained as a result of the forensic procedure undertaken at the time of the accused’s arrest for the current offence was inadmissible and that there was no residual discretion to admit the evidence. He argued that there was a direct link between the DNA profile of the accused which ought to have been destroyed upon the discontinuance of the December 2003 charges, and the second forensic specimen taken in July 2004 so as to fall within the terms of s45(3) of the Act. It is not necessary for this ruling to determine whether those circumstances fall within the terms of s45(3) of the Act.
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