R v Farrell

[2024] NSWDC 547

District Court

New South Wales

Medium Neutral Citation:

R v Farrell [2024] NSWDC 547

Hearing dates:

8 October 2024

Decision date:

09 October 2024

Jurisdiction:

Criminal

Before:

Hopkins DCJ

Decision:

The DNA evidence relating to the sample taken from the applicant while he was in custody on 22 November 2023 is excluded.

Catchwords:

Police informed applicant did not consent to forensic procedure by Custody Notification Scheme solicitor - vulnerable person - whether subsequent request for consent justified - informed consent - express and voluntary waiver of right to presence of an interview friend - undermining of legislative safeguards - evidence obtained in contravention of Crimes (Forensic Procedure) Act 2000 (NSW)- desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence

Legislation Cited:

Crimes (Forensic Procedures) Act 2000 (NSW)

Evidence Act 1995 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Law Enforcement (Powers and Responsibilities) Regulations 2016

Cases Cited:

R v Coombe (NSWCCA, 24 April 1997, unrep)

R v Ryan and Fitzhenry (NSWDC, English DCJ, 19 October 2011, unrep)

R v Greenaway (NSWDC, Lerve DCJ, 12 April 2013, unrep)

R v Hookey (NSWDC, Marien DCJ, 3 October 2013, unrep)

R v Phung and Huynh [2001] NSWSC 115

Mann v R [2023] NSWCCA 256

Category:

Procedural rulings

Parties:

Rex (Crown)
Ethan Farrell (Accused)

Representation:

Solicitors:

Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service NSW/ACT (for the applicant)

File Number(s):

2023/00422769

Publication restriction:

Nil

Judgment

1. In the matter of Ethan Farrell, the defence make application to exclude the expert certificate sought to be relied on by the Crown, being a certificate from the forensic and analytical science service which analysed the applicant’s buccal sample, which was taken from him while he was in custody on 22 November 2023.

2. The application is made pursuant to s 82 of Crimes (Forensic Procedures) Act 2000 (NSW) on the grounds that there has been a breach of or a failure to comply with the legislation and the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence.

3. Should the Court refuse the application under the Crimes (Forensic Procedures) Act 2000, the applicant brings an application under s 138 of the Evidence Act 1995 (NSW) to exclude the DNA evidence obtained in consequence of breaches of provisions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) and the Law Enforcement (Powers and Responsibilities) Regulations 2016.

4. The Applicant is charged with three counts of aggravated break and enter, the victims of the offences all being residents of the Caroona Nursing Home in Goonellabah. The Crown case relies solely on the applicant’s DNA being located inside one of the complainant’s dwellings allegedly broken into on 25 - 26 October 2024. On 22 November 2023, the applicant was arrested for unrelated offending. While in police custody, a search was conducted of the police system which indicated his DNA was a match for the break and enter offences.

Chronology

5. The chronology of events as set out in written submissions of the applicant is agreed to by the Crown. Where applicable, it is supported by the evidence of the police officers who gave evidence on the voir dire. I make the addition of the evidence of the Custody Notification solicitor from the Aboriginal Legal Service Ms Bridges, who was not required for cross examination.

6. The chronology is then as follows:

Time in custody before transfer to Lismore Base Hospital

3:10am

Mr Farrell arrives at Lismore Police Station. Senior Constable Adam Parlby is acting as custody manager.

3:33am

Senior Constable Parlby completes a ‘visual assessment’ of the applicant and records “OC Spray effected eyes and face. PIC is complaining of pain”, “head butting dock door”.

Senior Constable Parlby records “yes” to the assessment for “injury” and “yes” to the assessment for “pain”.

3:33am

Senior Constable Parlby records PIC is “too violent” to be read caution or for support person to be present.

3:47am

Ambulance officers arrive on scene.

4:13am

The applicant is sighted in dock 4 and is “still erratic and kicking door”

4:23am

Ambulance officers give the applicant 80mg of Ketamine which is “partially effective”

4:40am

Ambulance officers give the applicant a further 10mg of Ketamine which is “partially effective”

4:50am

Ambulance officers give the applicant a further 10mg of Ketamine which is “effective”

4:54am

The applicant is transported to Lismore Base Hospital. Police record that he was “sedated by paramedics due to aggressive behaviour and self-inflicted head knocks while in custody”

Time at Lismore Base Hospital

4:53am	Arrival at Lismore Base Hospital.
5:00am	Senior Constable Parlby contacts “Aboriginal Legal Aid [sic]” and advises them that the applicant was being conveyed to Lismore Base Hospital
5:12am	Ambulance officers give the applicant a further 10mg of Ketamine which is “effective”
5:12am	Dr McLennan administers the applicant a further 20mg of Ketamine after he is “transferred to the ED bed”
5:40am	The applicant is given a further 40mg of Ketamine after he is “transferred to the ED bed”
5:45am	Dr McLennan administers 10mg of droperidol to the applicant
6:22am	Louise Davis, a Registered Nurse administers 5mg of droperidol to the applicant “with good effect”
7:38am	The applicant is observed by hospital staff as being asleep and the plan is “when the pt awakes medical clearance to return to custody with police”
10:40am	The applicant is discharged to the custody of police.

Time in custody preceding the forensic procedure

11:01am

The applicant returns from Lismore Base Hospital and “appears calm and compliant”. SC Simpson is now acting as the custody manager.

11:15am

Senior Constable Simpson contacts “Aboriginal Legal Aid [sic]” and records the contact as “Jenni UNKNOWN ALS”. No further records of the conversation are made.

Ms Jenni Bridges, the on-call solicitor for the ALS Custody Notification Service affirmed that at around 11:10am:

1. She answered a call from Officer Simpson and spoke to him before speaking with the applicant.

2. She provided advice to the applicant that he should not consent to the forensic procedure.

3. The applicant accepted this advice.

4. She then instructed Officer Simpson that the applicant did not consent to any forensic procedures and asked Officer Simpson to record these instructions on the custody management record.

11:34am

The applicant is moved to the Forensic Procedure Room and remains there for approximately nine minutes.

11:34am

Senior Constable Aslin commences filling out the Forensic Procedure Consent Form.

11:45am

The applicant is back in Cell 1.

The Legislation

7. Section 11 of the Crimes (Forensic Procedures) Act 2000 relevantly provides:

(1)  A police officer may not ask a suspect to undergo a forensic procedure unless satisfied—

(a)  that section 8, and section 9 or 10, as the case requires, have been complied with, and

(b)  that the circumstances referred to in subsection (2) or (3) exist, and

…

(d)  that the request for consent is justified in all the circumstances.

…

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

(a)  the act or omission in respect of which the suspect is a suspect must constitute an offence, and

(b)  there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove—

(i)  that the suspect has committed the offence referred to in paragraph (a), or

(ii)  that the suspect has committed some other offence.

8. Section 10 of the Crimes (Forensic Procedures) Act 2000 deems a suspect who identifies as Aboriginal as having given “informed consent” in circumstances in which:

(2) A police officer:

(a)  asks the suspect to consent to the forensic procedure; and

(b) gives the suspect a written statement setting out the information that the suspect must be given under section 13; and

(c) informs the suspect about the forensic procedure in accordance with section 13, and

(d)  complies with the rest of this section.

9. The matters which a suspect must be informed of before giving consent are set out in s 13(1) of the Crimes (Forensic Procedures) Act 2000 and relevantly include:

(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording as provided by section 100,

(b)  the purpose for which the forensic procedure is required,

(c)  the offence in relation to which the police officer wants the forensic procedure carried out,

(d)  the way in which the forensic procedure is to be carried out,

(e)  that the forensic procedure may produce evidence against the suspect that might be used in a court of law,

…

(h)  if the suspect identifies as an Aboriginal person or a Torres Strait Islander—that the suspect’s interview friend may be present while the forensic procedure is carried out,

(i)  that the suspect may refuse to consent to the carrying out of the forensic procedure,

(j)  the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable),

(k)  if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect—that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use, including that the information may be compared with information from the DNA database systems of other participating jurisdictions.

10. Section 13(3) of the Crimes (Forensic Procedures) Act 2000 provides that the police officer must inform the suspect that if the suspect does not consent, a senior police officer may order the carrying out of the procedure if he or she is satisfied of certain matters.

11. Section 10 of the Crimes (Forensic Procedures) Act 2000 sets out further requirements that must be met before a suspect is asked to consent to a forensic procedure, being:

1. That an interview friend is present, or the suspect has expressly and voluntarily waived the right to have an interview friend present (s 13(3)), and

2. The suspect is informed that a representative of an Aboriginal Legal Aid organisation will be notified that the suspect is to be asked to consent to a forensic procedure and the representative is notified accordingly (s 10(4)). This is not required where the suspect has expressly and voluntarily waived his or her right to have a legal representative present (s 10(5)).

12. Section 55 of the Crimes (Forensic Procedures) Act 2000 applies to any person who identifies as an Aboriginal person or Torres Strait Islander and relevantly provides that:

(2) Either an interview friend or a legal representative of the suspect must, if reasonably practicable, be present while the forensic procedure is carried out, unless the suspect voluntarily waives his or her right to have an interview friend present.

13. Section 15 of the Crimes (Forensic Procedures) Act 2000 requires the giving of information about the proposed forensic procedure and the suspects responses be recorded by electronic means.

14. Section 100 of the Crimes (Forensic Procedures) Act 2000 requires the recording of the procedure be available to the suspect and their legal representative for viewing.

15. In terms of the waiver of a right under s 10(3), s 15(3), s 55(3) by a person who identifies as an Aboriginal person or a Torres Strait Islander, the burden lies on the prosecution to prove there has been such a waiver, this burden not being discharged “unless the Court is satisfied on the balance of probabilities that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing” (s 106(1)(b) Crimes (Forensic Procedures) Act 2000).

16. Section 82 of the Crimes (Forensic Procedures) Act 2000 mandates that where there has been any breach or failure to comply with any provision of the Crimes (Forensic Procedures) Act 2000, evidence of forensic material taken from a person and analysis of that material is not admissible unless the Court is persuaded that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.

17. The burden is on the prosecution to satisfy the Court that the evidence should be admitted despite non-compliance: see R v Coombe (NSWCCA, 24 April 1997, unrep) at page 25.

18. The matters that may be considered for the purposes of the balancing exercise are set out in s 82(5) and are as follows:

(a)  the probative value of the evidence,

(b)  the reasons given for the failure to comply with the provision of this Act,

(c)  the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,

(d)  whether the failure to comply with the provision of this Act was intentional or reckless,

(e)  the nature of the provision of this Act that was not complied with,

(f)  the nature of the offence concerned and the subject matter of the proceedings,

(g)  whether admitting the evidence would seriously undermine the protection given to suspects by this Act,

(h)  whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,

(i)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,

(j)  the difficulty (if any) of obtaining the evidence without contravention of an Australian law,

(k)  any other matters the court considers to be relevant.

Submissions

Applicant submissions

19. The applicant submits there are a number of failures to comply with the Crimes (Forensic Procedures) Act 2000, including:

1. Senior Constable Aslin could not have been satisfied that the applicant had given informed consent under sections 11(1)(a) and (d); and/or

2. The applicant did not have an interview friend present during the forensic procedure contrary to section 55(2); and/or

3. If the applicant is said to have waived his right to an interview friend, the prosecution cannot prove that he voluntarily waived that right with full knowledge and understanding of what he was doing; and/or

4. The investigating officer, Senior Constable Parlby, has not made the forensic procedure recording available for viewing.

20. The applicant submits, in accordance with the chronology of events, that there were no steps taken to obtain a senior police officer order which should occur when there is no consent to a non-intimate forensic procedure. Instead, the applicant was taken to the forensic procedure room at 11:34am and asked to provide consent to Senior Constable Aslin. This is in circumstances in which the applicant was never provided with a caution and summary of Part 9 prior to the forensic procedure taking place and there being no attempts recorded in the custody management record to contact a support person or “interview friend” after his return from Lismore Base Hospital.

21. With regard to any waiver of rights and noting the burden on the prosecution to demonstrate any waiver is made with “full knowledge and understanding of what he is doing” (s 106(b) of the Crimes (Forensic Procedures) Act 2000), the applicant directs the Courts attention to the fact that over the course of two hours, the applicant was administered with 170 milligrams of ketamine and 15 milligrams of droperidol. Within four hours of the last administration of the sedative, the applicant is brought back to the police station where he was never read or provided with a copy of his rights under Part 9 of LEPRA. He then spoke to a solicitor who he instructed he did not want to consent to the forensic procedure and these instructions were provided to the custody manager. Further, the video of the forensic procedure is not available, thus limiting the Court’s ability to assess the applicant’s demeanour and functioning at the time he gave “consent” to Senior Constable Aslin and necessitating reliance on extraneous material, including the affidavit of Jenni Bridges and the medical and custody records.

22. It is submitted that given his physical and mental state and sedation in the lead up to the forensic procedure, the applicant would not have had full knowledge or understanding to waive his right to a support person.

23. The applicant further submits the police breached the mandatory obligation pursuant to s 100 of the Crimes (Forensic Procedures) Act 2000 to ensure the recording is available to a suspect and the legal representative.

24. Turning to the balancing exercise in s 82(5), the applicant firstly directs the Court to the examples of decisions of this Court in finding that in spite of evidence having very significant probative value, the evidence was excluded in the balancing exercise: her Honour Judge English in R v Ryan and Fitzhenry (NSWDC, English DCJ, 19 October 2011, unrep), his Honour Judge Lerve R v Greenaway (NSWDC, Lerve DCJ, 12 April 2013, unrep) and his Honour Judge Marien SC in R v Hookey (NSWDC, Marien SC DCJ, 3 october 2013, unrep). While I am not bound by them I am assisted by the reasoning contained in the decisions

25. The applicant further submits as follows:

1. The gravity of the failures are extremely high, the legislature having specifically outlined significant protections for Aboriginal persons. The applicant was a 21-year-old Aboriginal man in police custody who had been OC sprayed to the face and eyes and had self-harmed by banging his head against the cell while in custody. He had been heavily sedated during his detainment. He had never had his rights under Part 9 of LEPRA read or provided to him. It is submitted the gravity of the failures to comply are increased by the multiplicity and variety of the breaches and failures by multiple police officers under the Crimes (Forensic Procedures) Act 2000 and LEPRA and its regulations.

2. The provisions that have not been complied with serve to protect the most vulnerable members of society, ensuring a defendant has a comprehensive level of understanding of their rights to allow them to make a conscious and informed decision. The contraventions would not have occurred if there had been appropriate care and consideration given by the police to their obligations under the Crimes (Forensic Procedures) Act 2000 in carrying out a forensic procedure.

3. In terms of the nature of the offending, the evidence relates to three counts of aggravated break and enter and steal offences which are not the most serious of matters heard in this Court’s jurisdiction, nor are these allegations the most serious examples of such offences.

4. The protective provisions were enacted to appropriately address the balance between the rights of the individuals and interests of the community. It is submitted that admitting the evidence could be seen as judicial approval of the police foregoing their obligations that have been statutorily enshrined to ensure fairness sin the process.

5. With respect to any difficulty in obtaining the evidence without the contravention, it is submitted that as soon it was indicated that the applicant would not be consenting to the procedure, a senior officer order should have been sought. The evidence could have been obtained lawfully, while maintaining the rights of the applicant.

Crown submissions

26. With respect to the breaches identified by the applicant, the Crown submits that:

1. Senior Constable Aslin’s evidence is supported by her contemporaneous completion of the forensic procedure consent form which accords with the requirements of s 10 of the Crimes (Forensic Procedures) Act 2000, thereby satisfying s 11(1)(a). In terms of s 11(1)(d), requiring the request for consent to be justified in all the circumstances, the Crown submits that there is no evidence as to the lack of justification for the request.

1. With respect to the requirement the applicant have an interview friend present during the forensic procedure pursuant to s 55(2) or waiver of this right voluntarily with full knowledge and understanding of what he was doing, the Crown submits that equally the forensic procedure consent form completed by Senior Constable Aslin includes a section which confirms whether the suspect was offered an opportunity to have an interview friend present and if not, confirmation of their waiver by signature. In this case, both are complete.

2. Further, the Crown submits that the applicant was taken through the forensic procedure information sheet which provides more detail than the form, this occurring after he had received advice from the ALS through the Custody Notification Scheme. The Crown notes that the ALS solicitor Ms Bridges recorded that the applicant’s welfare was discussed and further, that nothing had been communicated regarding concerns as to his mental or physical state to indicate he was not able to provide informed consent and waive his rights. With respect to his hospitalisation and level of sedation, the Crown submits there is no evidence of its ongoing impact or any direct evidence from the Applicant as to his state of mind at the relevant time.

3. With respect to the fact that Senior Constable Parlby has not made the forensic procedure recording available for viewing, the Crown submits that all records relating to Senior Constable Aslin’s involvement were provided to Constable Jay De Zubicaray. No records have been located by New South Wales Police. While it is conceded the section is technically breached, there is evidence that the recording was provided to the applicant, and it is submitted that the breach has no serious bearing on the application.

27. In terms of the balancing exercise, if the Court finds there has been a failure to comply with any of the relevant provisions, ultimately it is submitted that the prosecution can establish the desirability of admitting the evidence outweighs the undesirability of admitting it and the DNA evidence should be ruled admissible. In this regard, the Crown submits the probative value of the evidence is high and that while the offences are at the lower end of matters of this type, they are still serious offences. Any breaches of the legislation should be seen in the context of what happened that morning with the Part 9 summary unable to be read or provided to the applicant when taken into custody, his subsequent hospitalisation, and the fact that within half an hour he was taken to the forensic procedure room and taken through the information sheet. The failure of Senior Constable Simpson to read the applicant and provide him with the Part 9 summary was negligent and not intentional.

28. The Crown submits in terms of the difficulty of obtaining the evidence without contravention of an Australian law, it would have been “quite easy” which weighs in favour of admitting the evidence.

Consideration

29. In terms of my assessment of the evidence, I found Senior Constable Simpson, Senior Constable Aslin and Senior Constable Parlby to be honest witnesses with limited independent recollection of events. The evidence of Constable Jay De Zubicaray was not consistent with the objective evidence or the evidence of Senior Constable Aslin, whose evidence I preferred over that of Constable De Zubicaray’s. I accept the evidence of Ms Bridges of the Aboriginal Legal Service whose affidavit was prepared in reliance on her contemporaneous notes and who was not required for cross examination.

30. The evidence before the Court that the applicant spoke with the ALS solicitor and instructed her that he did not consent to the procedure, and that the solicitor confirmed this with the custody manager and requested it be recorded, is not disputed.

31. The Crown submit that pursuant to s18 of the Crimes (Forensic Procedures) Act 2000 the refusal to consent to the procedure needed to be confirmed with the applicant and recorded before the order could be sought from the Senior Police Officer pursuant to the Crimes (Forensic Procedures) Act 2000, such that the Senior Police Officer could be satisfied the suspect did not consent in accordance with s 18(1)(b). That may well be. What followed, however, was that Senior Constable Aslin was directed to conduct the procedure without being provided with the information as to the applicant’s refusal to consent to the procedure. Nor was she provided with information as to his period in custody and at the Lismore Base Hospital, including the number of times he had needed to be sedated throughout that period. Nor does it seem was she provided with any information by Constable Jay De Zubicaray beyond the name of the applicant and the fact the procedure needed to be undertaken. That was her evidence: that was “all he said”. When asked if she was informed as to the charges being investigated, she stated she had no recollection of that.

32. When the officer undertaking the procedure themselves has such limited information, it is difficult to see how the suspect can be said to be subsequently properly informed when providing consent or be said to have the requisite knowledge when waiving his rights.

33. The officer herself indicated that had she known about the medication he had been administered she may have formed the view “further questions need to be asked” that is, it can be inferred, questions outside of the proforma questions she had asked of him.

34. When consent has been expressly refused, and the view is taken confirmation is needed – which appears to be the position as submitted of the Crown - it is incumbent on police that such confirmation is sought in a way such that the suspect understands what is happening and what they are doing, that is in a way that is simple and direct and in its proper context. That context is the refusal to provide consent as communicated to his lawyer, the confirmation of the refusal with the custody manager and the recording of the refusal on the custody management record.

35. Rather, what followed was a failure of communication and what can only be seen, in effect if not intent, as a process of obfuscation. Having spoken to the Aboriginal Legal Service solicitor, and expressly refused consent, the applicant was taken to the Forensic Procedure room and according to Senior Constable Aslin, first taken through the information sheet which provides that he has a right to an interview friend present in addition to a legal representative and then, notably in the future tense:

“A representative of an Aboriginal Legal Aid organisation will be notified that you will be asked to consent to a forensic procedure, unless you have already arranged for a legal representative to be present or you voluntarily waive your right to have a legal representative present.”

And then:

“You may communicate with an Australian legal practitioner of your choice and or have such practitioner present before deciding whether to consent to the procedure. Do you wish to try to contact a legal practitioner, or to have a legal practitioner present before I ask you to consent?”

36. While according to Senior Constable Aslin, his responses to these questions would have been recorded, the document is not able to be located, nor is the recording of the procedure.

37. Following this, when taken to the Forensic Procedure Consent Form itself, the applicant is asked whether he “has been given the opportunity to communicate or attempt to communicate with a legal practitioner of your choice in relation to this forensic procedure?” to which he replies “Yes.”

38. There is no evidentiary basis for me to find other than that Senior Constable Aslin adhered to the content of the form – or to use the vernacular, “stuck to the script”. She had not been provided with any information that would divert her from it.

39. In the context of what had preceded it, the questions were confusing and non-sensical, this occurring in circumstances in which the applicant was a significantly vulnerable person, being a 21 year old Aboriginal man who had self-harmed in custody and been hospitalised and sedated on six occasions with ketamine and a further two occasions with droperidol and in circumstances in which at no stage had he been read or provided with his Caution and Summary of Part 9 of LEPRA.

40. The observations of Wood CJ at CL in R v Phung and Huynh [2001] NSWSC 115 at [63] when considering the exclusion of admissions and the legislative obligations of police, are apposite:

“…police should not automatically assume that their obligations under the legislation can be met by a rote reading of the requisite cautions and advice, or by the handing over of printed forms for an accused to read for himself or herself. Nor should they assume that compliance can be proved by the securing of a simple signature or initial on the custody management report… The regulations give rise to a positive obligation to assist a vulnerable person in exercising his or her rights.”

41. Applying my assessment to the legislative requirements, in all of the circumstances I find that Senior Constable Aslin acting on the limited information she was given could not have informed the applicant of the matters of which she was required to inform him pursuant to s 13 of the Crimes (Forensic Procedures) Act 2000 – including the offences in relation to which she wanted the forensic procedure carried out. The utility of any information provided as to his right not to consent and the consequences of such a refusal was to a significant extent nullified in circumstances in which the applicant had already refused to provide consent. If there was a change to the position previously communicated, he should have been informed he had the right to obtain legal advice in relation to that change.

42. With the limited information she was acting on, Senior Constable Aslin could not have been satisfied that the applicant had given informed consent in any meaningful sense and in accordance with ss 10 and 13 of the Crimes (Forensic Procedures) Act 2000. Her reading of the information sheet, while strictly compliant in form with the legislative requirement in s 10(4) of the legislation, speaks of the fact that she was operating in a vacuum in terms of the relevant background information such that in substance the intended safeguard was undermined. The submission with regard to s11(1)(a) is made out.

43. Further, operating on that limited information, I find the Crown is unable to establish to the requisite standard that Senior Constable Aslin was satisfied the request for consent was justified in all the circumstances, pursuant to s 11(1)(d). On the evidence provided it would appear Senior Constable Aslin could not be satisfied of the matters in subsection (3) otherwise than on the basis of the direction from then Constable De Zubicaray that the procedure was required.

44. With regard to the requirement as to the presence of an interview friend or the express and voluntary waiver of that right pursuant to s 10(3), I am unable to find on balance in the circumstances as I have outlined that the applicant did so with full knowledge and understanding of what he was doing in accordance with s 106(1)(b).

45. While I accept the failure to provide the recording of the forensic procedure is of less significance it is a matter that highlights the importance of the ability to access such a recording, providing an important procedural safeguard to the suspect.

46. Having found a number of breaches of the legislations established, I am to find the evidence is not admissible unless I am persuaded the desirability of admitting the evidence outweighs the undesirability of admitting the evidence pursuant to s 82 of the Crimes (Forensic Procedures) Act 2000.

47. The evidence has very significant probative value and while at the lower end of the scale in terms of offending of this kind, the offences are serious, involving breaking and entering into the home of elderly residents of a nursing home in circumstances of aggravation, being that the victims were home.

48. The failures to comply with the provisions are serious and deprived the applicant – a young and vulnerable Aboriginal man in police custody who had required hospitalisation and a protracted period of sedation – of significant protections under the Act in circumstances in which he had not been read or provided with a Caution and Part 9 Summary. While I accept that the breaches were more negligent than deliberate, they are important provisions, providing critical safeguards to ensure that criminal suspects are informed and supported in such a way that they can meaningfully exercise their rights.

49. I find in the circumstances that admitting the evidence would seriously undermine the protection given to suspects by the Act. In this regard, I note the evidence of Senior Constable Parlby to the effect that it is common practice when a custody manager is advised that a suspect does not consent to the forensic procedure, that the suspect is then escorted into the Forensic Procedure room and taken through the information sheet and the Forensic Procedure Consent Form. This is concerning, as in my view, to do so undermines the safeguards provided by the legislation and involves an unnecessary and potentially confusing process, in circumstances in which all that is required at that stage would be a simple additional question as to confirmation of the refusal, preferably being asked directly after the initial refusal to provide consent has been recorded. That would then trigger the process by which an order must be made by a senior police officer.

50. There is a very real risk that admission of the evidence could be viewed as curial approval of conduct amounting to a subversion of important legislative safeguards.

51. While I accept the ease with which that process could have occurred weighs in favour of the admission of the evidence – and in this regard I refer to the recent decision of Kirk JA in Mann v R [2023] NSWCCA 256 at [103] - in light of the gravity of the breaches as outlined and the significance of the safeguards in question I find it has only limited bearing on my determination.

52. In all of the circumstances and having careful regard to the submissions of the parties and the evidence before the Court, I do not find the Crown has established the desirability of admitting the evidence obtained in contravention of the Crimes (Forensic Procedures) Act 2000 outweighs the undesirability of admitting the evidence.

53. It is unnecessary for me to determine the application brought pursuant to s 138 of the Evidence Act 1995.

Orders

54. Pursuant to s 82 of the Crimes (Forensic Procedures) Act 2000, the DNA evidence relating to the sample taken from the applicant while he was in custody on 22 November 2023 is excluded.

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Decision last updated: 22 November 2024