R v Rowe
[2004] SASC 427
•17 December 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROWE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
17 December 2004
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Appeal against conviction – Aggravated Serious Criminal Trespass and Assault Police – Two buccal swabs taken of the appellant by police officers - DNA evidence taken from the swabs admitted at trial – whether trial Judge erred in admitting DNA evidence – previous ruling of another court that evidence of conversation relating to taking of the swab inadmissible – relevance of previous ruling – consideration of requirement for forensic procedures pursuant to Criminal Law (Forensic Procedures) Act 1988 – consideration of requirement for forensic procedures pursuant to Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002 – whether the police complied with the forensic procedure requirements – whether an abuse of process – whether the conviction was unsafe and unsatisfactory – no miscarriage of justice – appeal dismissed.
Criminal Law (Forensic Procedures) Act 1998 s 4, s 7(1), s 7(2) and s 15; Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002 s 4, s 14(2), s 15 and s 45; District Court Rules 1992 r 8 and r 9; Summary Offences Act 1953 s 74D and s 74E, referred to.
Hussien v Chong Fook Cam [1970] AC 942; Police v Beck (2001) 79 SASR 98; Iskar v Police (2003) 84 SASR 586, applied.
R v MDR (2002) 223 LSJS 405, considered.
R v ROWE
[2004] SASC 427Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ
DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by Bleby J. There is nothing that I wish to add to those reasons.
BLEBY J:
Introduction
The taking of a buccal swab from a person by a police officer is and has at all material times been a forensic procedure as defined in the Criminal Law (Forensic Procedures) Act 1998 (“the Act”). By means of a buccal swab a sample of the person’s DNA may be taken and analysed for forensic purposes.
This case concerns the taking of two buccal swabs from the appellant, the admission into evidence of the DNA profile of each sample taken and its matching with the DNA profile from a blood stain on the shirt of a police officer the subject of one of the offences with which the appellant was charged.
The proceedings
The appellant was initially charged, on 26 March 2002, with the offences of aggravated serious criminal trespass in a place of residence, assaulting a police officer and assault occasioning actual bodily harm. He was committed for trial on those charges on 21 June 2002. On 9 February 2004, the DPP filed a fresh information alleging two charges of aggravated serious criminal trespass in a non-residential building and assaulting a police officer. The trial began in the District Court on 10 February 2004.
At about 6 am on 14 May 2001, the occupants of a house at Torrens Park became aware of a light and movement in a granny flat and shed in the back yard of their house. Police were called. It was still dark when they arrived. A police officer went towards the shed, the occupant of the house following him. The officer shone a torch in the direction of the shed and called out, “Don’t move, it’s the police”. A man ran from the shed, carrying a metal bar in his hand. He ran at the police officer and struck him a severe blow on the right side of the face. A struggle ensued. The police officer was struck again with his own torch and the officer used a capsicum spray after his assailant threatened to stab him. He separated himself from the assailant, drew his service revolver and told the man to remain where he was. The assailant jumped a fence and ran off. He was pursued by other police officers but not apprehended.
The police officer and the occupant of the house could only give general descriptions of the man. Both were unsure if they would be able to recognise him again. The only evidence identifying the appellant as the assailant was the blood stain on the police officer’s shirt which was not the blood of the police officer.
On 6 July 2001 a buccal swab was taken from the appellant by Detective Senior Constable Yeomans and Senior Constable Merrett at the Christies Beach Police Station. It will be necessary to return to the circumstances of the taking of that swab.
A second buccal swab was taken from the appellant on 1 July 2003 by Detective Sergeant Williams. Evidence of the DNA profiles obtained from the two samples, both identical, was admitted into evidence. Expert evidence was led to show that the DNA profile from each of the buccal swabs matched the DNA profile from the blood stain on the police officer’s shirt.
The appellant appeals against his conviction, alleging that the DNA evidence was wrongly admitted.
Requirements of the Act
As at 6 July 2001, s 7(1) of the Act relevantly provided that a forensic procedure could be carried out on a person who is not under suspicion if that person consented to the procedure. By s 7(2) a forensic procedure could be carried out on a person who is under suspicion if the person consented to the procedure under the Act. Section 4 of the Act provided 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”.
At the time of the taking of the first buccal swab s 15 of the Act relevantly provided:
“15. A police officer may only ask a person who is under suspicion to consent to a forensic procedure if –
(a) there are reasonable grounds to suspect that the forensic procedure may produce evidence of value to the investigation of the suspected offence; and
(b) …”
Section 16 provided a set of requirements which had to be observed before the obtaining of informed consent. The Act also contained a procedure whereby an order authorising a forensic procedure could be obtained from a Magistrate in circumstances where a person did not consent.
The Act was amended by the Criminal Law (Forensic Procedures) (Miscellaneous) Amendment Act 2002 which came into effect by proclamation on 4 April 2003, before the taking of the second buccal swab. The appellant did not consent to the taking of the second buccal swab. Therefore, it is only necessary to refer to those parts of the Act as amended which are relevant to that situation.
By virtue of s 14(2) of the Act as amended, a forensic procedure of this type could only be authorised if the person on whom the procedure was to be carried out was “under suspicion” and there were reasonable grounds to suspect that the forensic procedure might produce evidence of value to the investigation of the suspected offence.
Section 4 was also amended to provide 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 suspected the person, on reasonable grounds, of having committed a criminal offence (whether or not the person has been charged with the offence).”
The words in italics were added by the amending Act of 2002.
By virtue of s 15 of the Act as amended, a forensic procedure of the type carried out in this case could be carried out against the wishes of the person on whom it was to be carried out without recourse to an order from a Magistrate.
Section 45 of the Act presently provides:
“(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.”
Admissibility – the first buccal swab
On 18 July 2003 the appellant made application pursuant to r 8 and r 9 of the District Court Rules. As amended at the hearing on 10 February 2004 the application sought orders:
(a)That the proceedings be permanently stayed as an abuse of the process of the court;
In the alternative:
(b)That the taking of buccal swabs from the (appellant) on 6 July 2001 and 1 July 2003, and their subsequent analysis at the Forensic Science Centre, and the results of the analysis be ruled inadmissible.
For the purpose of that application the trial Judge had before her a signed statement of Senior Constable Merrett dated 24 April 2002. Mr Merrett had died since making this statement. She also had the transcripts of two video taped records of interview involving Detective Senior Constable Yeomans, Senior Constable Merrett and the appellant. The first of those records of interview was identified as “SM5” and the second as “SM7”. SM5 concerned a record of interview which took place between 12.40 pm and 1.25 pm on 6 July 2001. In the course of that interview the appellant was asked questions about a number of alleged offences which had occurred in May and June 2001, including the alleged offences which had taken place on 14 May 2001 at Torrens Park. In relation to those matters the appellant declined to answer any questions and made no admissions. He made admissions in respect of certain other offences.
The interview represented by SM7 commenced at 1.50 pm the same day. That was a record solely concerning the procedures required under the Act for the obtaining of the buccal swab which was subsequently taken. According to that record of interview, all the procedures required under the Act for the obtaining of the appellant’s consent and for the taking of a buccal swab from a person under suspicion were followed. There was evidence that the police officers suspected the appellant, on reasonable grounds, of having committed a number of criminal offences in respect of which the swab might produce evidence of value to the investigation of the offences. During the course of the interview the appellant unreservedly and without qualification consented to the forensic procedure.
The appellant had earlier been charged with shooting at a person with intent to do grievous bodily harm on 19 June 2001. Those proceedings were heard before a Judge of this court commencing on 2 September 2002. The appellant applied for an order excluding evidence of all conversations which had allegedly taken place between the appellant and the police on and from 30 June 2001 up to and including 24 July 2001.
As a result of that application the Judge in that case found that there had been a breach by the police of s 74D of the Summary Offences Act 1953, and the following orders were made (R v MDR (2002) 223 LSJS 405; [2002] SASC 336):
“(1)evidence of any interview or conversation between police officers Yeomans and Merrett and the accused or with either of those police officers and the accused from the arrival of police officers Yeomans and Merrett and the accused at Christies Beach Police Station from Adelaide on Friday 6 July 2001 until 12.40 pm and from 1.25 pm to 1.50 pm on that date be excluded from evidence to be given at the trial of these proceedings; and
(2)the evidence of the video/audio tape recorded interview between police officers Yeomans, Merrett and the accused conducted at the Christies Beach Police Station on Friday 6 July 2001 between 12.40 pm and 1.25 pm and 1.50 pm until the interview was completed (with or without interruption) on 6 July 2001 be excluded from the evidence to be given at the trial in these proceedings.”
The record of interview which commenced at 1.50 pm on 6 July was that which related to the taking of the first buccal swab. Subsequently, on 17 October 2002, the Judge extended his ruling to provide that the video tape recording of the actual procedure itself was part of the series of conversations or interviews and was excluded by his earlier ruling. The implication seems to have been that evidence of the taking of the first buccal swab was inadmissible in those proceedings, as was any evidence based on the DNA analysis of that material.
I return to the proceedings before the District Court Judge. Counsel for the DPP made it clear that the only relevance in these proceedings of the record of interview SM7 was to prove the consent of the appellant to the procedure. He argued that all the requirements of the Act had been complied with, whether or not the appellant was a person under suspicion. It was therefore not relevant to inquire whether, for the purposes of s 4 of the Act, Senior Constable Merrett suspected the appellant, on reasonable grounds, of having committed a criminal offence.
Counsel for the appellant argued before the Judge that the earlier ruling by the Judge of this court that the record of interview and the video tape of the procedure were inadmissible in the other case necessarily extended to the District Court proceedings. That was because, as the Judge of this Court had found in the other case, there had been a breach of s 74D of the Summary Offences Act 1953 which tainted the evidence and rendered it inadmissible in any proceedings.
The trial Judge in this case correctly rejected that submission. The evidence had been rejected in the previous proceedings under s 74E of the Summary Offences Act 1953. That involved a finding that the investigating officer had not complied with s 74D and the court not being satisfied for the purpose of that case that the interests of justice required the admission of the evidence despite that non-compliance. The exercise of such a discretionary power is not binding on a Judge hearing a retrial where the ruling is given in the first trial: R v Edwards (1997) 94 A Crim R 204. It cannot be binding on a Judge hearing a separate charge in quite different proceedings where the issues themselves will be quite different and where the only relevance of the conversation is for determining whether evidence obtained as a result of the forensic procedure is admissible under s 45 of the Act. The appellant’s reliance before the trial Judge on the previous ruling of a Judge of this court in different proceedings was misconceived.
If the appellant wanted to challenge the admissibility of the evidence of the taking of the first buccal swab in these proceedings, he had to do it by requiring the deponents to be produced for cross-examination on the voir dire, by leading evidence on the voir dire to show that it was inadmissible or simply by challenging the admissibility before the jury at trial. He did none of those things, and subject to what is said below, the Judge was entitled to act on the declaration before her in order to decide whether to admit evidence of the taking of the buccal swab and of the DNA analysis obtained. There was nothing on the face of the material before the Judge to indicate that the appellant’s consent was other than genuine. Her Honour made an order excluding from evidence at the trial the video and audio record of the interview commencing at 1.50 pm on 6 July 2001 and during which the first buccal swab was taken from the appellant, but having decided to admit evidence that the buccal swab was taken and of the analysis which followed, the evidence of the conversation became irrelevant.
Although counsel for the appellant had relied entirely on the previous ruling of the Judge of this court as justification for the exclusion of the evidence, it became apparent during the course of his submissions before the Judge that he wished to raise grounds which might, independently, result in the evidence being inadmissible. He indicated that he wanted to challenge the existence of the suspicion on reasonable grounds on the part of Senior Constable Merrett that the appellant had committed a criminal offence. He was unable to do that because Senior Constable Merrett had since died. Whether or not a suspicion on reasonable grounds was held probably did not matter if consent was genuinely given, because the procedures followed, as evidenced by the statement of Merrett and the record of interview, complied in all respects with the Act whether or not the appellant was under suspicion.
What was more significant, however, was that counsel indicated in a rather indirect way that he wanted to challenge the validity of the consent of the appellant to the procedure. As I have said, that could not be done merely by relying on the previous ruling of the Judge of this court. Nevertheless, the appellant was entitled to require witnesses to be presented for cross-examination on the voir dire and to lead evidence himself going to the validity of that consent. There were other witnesses to the procedure and the events which preceded it besides Senior Constable Merrett. It is conceivable that there may have been evidence of some form of pressure or inducement placed on the appellant to consent to the procedure which was not the subject of the record of interview and which vitiated his consent. He was entitled to lead evidence of that on the voir dire if so advised. However, it seems that counsel, and as a result of this, the Judge, were so focussed on the previous ruling and the reasons for it, which had no necessary application to the admissibility of the evidence in these proceedings, that no attempt was made to lead the evidence before the Judge in this case in order to obtain her ruling. On the material that was before the Judge there was no basis for excluding the evidence. It is not possible to say at this stage what the result would have been if other evidence had been called, and whether the evidence of the taking of the first buccal swab would have been admitted. However, even if a basis for its rejection had been established and the evidence of the taking of the first buccal swab had been wrongly admitted, for reasons which follow that would not have mattered, as there would have been no miscarriage of justice.
Admissibility – the second buccal swab
At a directions hearing before another Judge of the District Court on 27 February 2003, counsel for the DPP advised the court that the prosecution would not be seeking to lead evidence of the interviews conducted on 6 July 2001 and that the police intended to apply to the Adelaide Magistrates Court for an order authorising the obtaining of a buccal swab from the appellant in accordance with the provisions of the Act. It was intended that that would be done in the near future. However, no application was made to the Magistrates Court. Instead, the second buccal swab was obtained by the police in purported compliance with the requirements of the Act as it was amended from 4 April 2003.
The second buccal swab was taken by Detective Sergeant Williams. At no time has it been suggested that Mr Williams did not comply with the requirements of the Act as amended in carrying out the procedure, even though the appellant did not consent to it. The basis of Mr Williams’ suspicion that the appellant had committed a criminal offence was the result of the taking of the first buccal swab and the DNA analysis which followed, matching the DNA of the sample to the DNA of the blood on the police officer’s shirt.
Counsel for the appellant before the trial Judge and before us argued that, the first buccal swab having been obtained unlawfully, it could not be used to justify the taking of the second buccal swab. I reject that argument.
In the first place, it has not been shown that the taking of the first buccal swab was unlawful or that evidence of its taking was inadmissible in these proceedings.
Secondly, notwithstanding the earlier decision of the Judge of this court in the other proceedings, I am not satisfied that s 74D and s 75E of the Summary Offences Act has any effect on the admissibility of a discrete interview related solely to the carrying out of the requirements under the Act for the undertaking of a forensic procedure. Section 45 of the Act makes its own provision for the exclusion of evidence obtained as a result of a forensic procedure where there has been a contravention of the Act. On the face of it, the interview relating to the taking of the first buccal swab was a discrete interview, separate from any others which may have been governed by the provisions of the Summary Offences Act. We did not hear full argument on the question, and I would want to reserve any final decision on the matter to another day. Nevertheless, there would appear to be a reasonably strong case that that evidence was not rendered inadmissible in any proceedings by s 75E of the Summary Offences Act.
However, even if the obtaining of the first buccal swab was tainted in some way and evidence of the first swab and evidence obtained as a result of its taking were inadmissible in these proceedings, that cannot affect a police officer entertaining a suspicion on reasonable grounds, based on the taking of that swab, that an offence has been committed. There are many cases where the taking of particular police action depends on the officer holding a suspicion on reasonable grounds or some similar criterion. However, it is not the law that a reasonable suspicion can only be based on evidence that is admissible in a court. Section 4 of the Act requires that the police officer “suspects the person, on reasonable grounds …”. As Lord Devlin said in Hussien v Chong Fook Cam [1970] AC 942 at 948:
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’.”
Proof requires reliance on admissible evidence. Suspicion does not.
I respectfully agree with decisions of single Judges of this court in Police v Beck (2001) 79 SASR 98 (Martin J) and Iskar v Police (2003) 84 SASR 586 (Perry J) that for the purposes of the Act to suspect on reasonable grounds does not require the person entertaining the suspicion to act on material that is only admissible in accordance with the rules of evidence. Neither public policy nor considerations of a fair trial require a conclusion that the police were not entitled to act on the knowledge they gained from the first swab, even if the requirements of the Summary Offences Act would have rendered evidence relating to that swab inadmissible.
Abuse of process
The appellant argued that the failure to apply to a Magistrate for an order for carrying out the forensic procedure deprived the appellant of a right which he had under the Act before it was amended and was therefore an abuse of process. There was no undertaking given to the court that such a procedure would be followed. The prosecuting authorities were entitled to rely on the provisions of the Act as they were in force from time to time for the taking of a buccal swab from the appellant. The second swab was taken in accordance with the requirements of the Act. There is nothing in this ground of appeal.
Unsafe and unsatisfactory
The appellant sought to argue that because the DNA evidence was the only evidence of identification of the appellant, the conviction was somehow unsafe and unsatisfactory. The evidence was the subject of expert opinion. It was subjected to close scrutiny by the trial Judge who directed the jury that they must be satisfied beyond reasonable doubt as to the reliability and accuracy of the DNA analysis. It probably founded a safer basis for a conviction than the frailty often attending the evidence of a single eye-witness who gives evidence of identification of an offender. There is no substance in this ground.
Conclusion
In my opinion the appeal should be dismissed.
GRAY J: I agree with the orders proposed by Bleby J. There is nothing I wish to add to his reasons
4
3
1