R v UD (No 4)
[2020] ACTSC 226
•10 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v UD (No 4) |
| Citation: | [2020] ACTSC 226 |
| Hearing Date: | 10 August 2020 |
| Decision Date: | 18 August 2020 |
| Before: | Murrell CJ |
| Decision: | Evidence admitted. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence law – Pre-trial application –DNA evidence obtained covertly – Whether covert procedure tainted DNA evidence obtained later – “improperly or in contravention of an Australian law” – “in consequence of” an impropriety or |
| contravention | |
| Legislation Cited: | Crimes (Forensic Procedures) Act 2000 (ACT) pts 2.3, 2.4, 2.5, 2.7; ss 7, 8, 23, 92, 99, 107 Evidence Act 1995 (NSW) s 138 Evidence Act 2011 (ACT) s 138 |
| International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) | |
| Cases Cited: | Cornwell v The Queen [2010] NSWCCA 59 Director of Public Prosecutions v Yerbury [2020] NSWSC 905 Fleming v The Queen [2009] NSWCCA 233; 197 A Crim R 282 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 R v Kane [2004] NSWCCA 78; 144 A Crim 496 R v White [2005] NSWSC 60 |
| Ridgeway v The Queen (1995) 184 CLR 19 | |
| Texts Cited: | Model Criminal Code Officers Committee, Model Forensic |
| Procedures Bill and the Proposed National DNA Database | |
| (Discussion Paper, May 1999) | |
| Parties: | The Queen (Crown) UD (Accused) |
| Representation: | Counsel |
| R Christensen (Crown) | |
| B Morrisroe (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Legal Aid ACT (Accused) | |
| File Number: | SCC 282 of 2019 |
| MURRELL CJ: | |
| Introduction |
1. The accused is charged with offences of aggravated robbery committed at the Weston Raiders Club on 14 May 2017 and 6 February 2018. The charges are to be tried together. The trial is fixed for 31 August 2020.
2. Each robbery was committed by two male offenders. The issue is whether the accused was one of the offenders.
3. Relying on s 138 of the Evidence Act 2011 (ACT) (Evidence Act), the accused seeks
to exclude all evidence associated with DNA profiles of KN (the accused’s then partner)
that were obtained by police on 14 February and 9 August 2018. On 14 February 2018, the police used covert means to obtain a DNA sample from KN. On 9 August, they followed the procedure in the Crimes (Forensic Procedures) Act 2000 (ACT) (Forensic Procedures Act).
4. The Crown seeks to tender the evidence obtained on 9 August 2018, rather than that obtained on 14 February 2018.
5. The Crown says that DNA obtained on 14 February and 9 August 2018 matches DNA obtained from the scene of the 14 May 2017 robbery and must have been left at the scene by way of transfer from the accused. The Crown says that the offence was committed by two males and the Crown will call KN to say that she was not present at the scene. The Crown says that the DNA evidence is circumstantial evidence placing the accused at the scene of the robbery.
Issues
6. The issues on the application are:
(a)
Was the DNA evidence obtained on 9 August 2018 obtained in consequence of an impropriety or a contravention of an Australian law, contrary to s 138(1) of the Evidence Act?
(b)
If so, considering the matters in s 138(3) of the Evidence Act and any other relevant matter, does the desirability of admitting the evidence outweigh the undesirability of admitting evidence obtained in that way?
How the DNA evidence was obtained
7. In 2018, police were investigating numerous aggravated robberies of clubs.
8. Following the aggravated robbery of the Western Raiders Club on 14 May 2017, a DNA profile of an unknown female was obtained from the counter in a money changing room, an area of the Club that was not accessible to the public. This DNA sample matched a sample taken from a toy gun used during an aggravated robbery at the Calwell Club on 18 December 2016.
9. CCTV footage of the robbery at the Weston Raiders Club on 14 May 2017 showed an offender who was apparently wearing latex gloves (and whom the Crown says was the accused) touching the bench in the money changing room.
By 28 July 2017, police had the “crime scene to crime scene” match between the DNA
evidence at the scenes of the two robberies
11. The accused was a suspect in relation to both robberies. Later, he was charged with the robbery of the Calwell Club on 18 December 2016, but those proceedings have been discontinued.
After the accused’s DNA was matched to DNA on a fragment of latex glove seized at
the scene of a robbery of the Mawson Club on 24 December 2017, at about 6:30 PM on 13 February 2018, the accused was arrested and charged with aggravated robbery of the Mawson Club. Commencing at 7:11 PM, police interviewed the accused, who made no admissions. Police expressed reluctance to allow the accused to speak to KN; they feared that he may instruct her to destroy evidence located at their mutual premises.
13. By this stage, because she was in a relationship with the accused, KN was a “person of interest” in relation to the female DNA samples taken from the Calwell Club and the
Weston Raiders Club. However, as it was understood that the robberies had been committed by male offenders, KN was not a suspect in those robberies. Consequently, police had no power to request a DNA sample under the Forensic Procedures Act.
14. After the accused was arrested on 13 February 2018, First Constable Wilson-Smith spoke by telephone with KN about the arrest of the accused. KN did not want police to attend her residence to further discuss the matter and said that she would come to the police station. She was upset and concerned about what would happen to the accused.
15. After the phone conversation and before KN arrived at the police station, First Constable Wilson-Smith, First Constable Dick and Detective Sergeant Saunders (the team leader) discussed the possibility that the DNA from the unknown female was that of KN. They agreed that, when KN attended the police station, a cup of water would be placed in the interview room and made available to her in the hope of covertly obtaining a saliva sample that would enable her DNA to be compared to that of the unknown female. Consequently, from a police perspective, the purpose of meeting KN at the
police station was twofold: to provide her with information about the accused’s arrest
and to try to obtain a saliva sample from her by covert means.
16. At the time, the three officers in question did not consider KN to be a “suspect” in the
robberies at the Calwell Club or the Weston Raiders Club; they did not think that she
had committed the offences. Rather, they classified her as a “person of interest”, i.e.
someone who may be “linked” to, or associated with, the offences, but not necessarily
as an offender. If they learned that KN’s DNA did not match that of the unknown female,
police would focus on other females associated with the accused. As they did not want
to “[tip their] hand” and compromise the ongoing investigation and they were concerned
about disclosing police procedures, they decided that they would not ask KN to
volunteer a sample.17. The three officers did not consider that it was illegal or improper to obtain a saliva sample in this way as KN was not a suspect and the Forensic Procedures Act related only to suspects and volunteers. Based on his understanding of the law, Detective Sergeant Saunders instructed First Constables Wilson-Smith and Dick that they should not force or encourage KN to provide a saliva sample; any sample that was deposited must be left voluntarily.
18. First Constable Dick placed clean nitrile gloves on his hands and removed a foam cup from an unopened package. He filled the cup with water and placed it in the statement room. As KN had been upset on the phone, First Constable Wilson-Smith placed a box of tissues in the room.
19. At about 12:13 AM on 14 February 2018, First Constable Wilson-Smith met KN and her friend in the foyer of Woden Police Station and escorted them to the statement room, where KN chose a seat near the cup of water. At one point during the conversation, KN became upset and First Constable Wilson-Smith pointed out that tissues and water were available if she wanted them. At no point did the officers direct KN to drink from the cup or attempt to persuade her to do so. However, she drank from the cup voluntarily on at least three occasions. Her friend did not touch the cup. When the meeting ended, First Constable Dick put nitrile gloves on his hands and placed the empty cup into an AFP exhibit bag.
20. Later on 14 February 2018, police executed a search warrant at KN’s home for the
purpose of seeking latex gloves (among other things) and she directed them to latex
gloves, which she kept with her hair dye.21. On 23 February 2018, the female DNA profile located at the site of the robberies at the Calwell Club and Weston Raiders Club was compared to and matched with the DNA sample obtained from the cup used by KN.
22. Detective Sergeant Callaghan became involved in the investigation in February 2018, but he was not involved in obtaining the saliva sample on 14 February 2018. On 2 March 2018, he obtained surveillance and telecommunications warrants in relation to KN. He listened to conversations between the accused and KN. They furnished no
further evidence against the accused or KN but—according to the officer’s evidence—
they made him more suspicious about KN’s involvement.23. On 9 August 2018, Detective Sergeant Callaghan conducted a search at KN’s
residence. At Q53 of the recorded search warrant conversation, he stated that he wished to speak to her about her involvement in the attempted aggravated robbery of the Calwell Club and an aggravated robbery at the Weston Raiders Club on 14 May 2017. She said that she did not wish to say anything.
24. Illicit drugs were found. KN was placed under arrest for her suspected involvement in the two robberies (at Q298).
25. Commencing at 9:32 AM, Detective Sergeant Callaghan obtained a buccal swab from KN, following the requirements of the Forensic Procedures Act. A record of conversation was conducted for the purpose of requesting and conducting the
procedure. Detective Sergeant Callaghan requested KN’s consent to the procedure. At Q32, he told her that the purpose of the procedure was “to prove or disprove your involvement” and that the DNA that she provided was “just going to either confirm or
disprove what we already know” (Q43) and for “usability for court” (Q45). She
consented to the procedure.
26. Thereafter, during a very lengthy interview (from 10:15 AM to 12:58 PM), KN was questioned about many matters, including her residential circumstances, her friendship network, and her boyfriends. She identified the accused as her romantic partner up to the time of his arrest. She was questioned about his appearance and any distinguishing features, his movements, his finances, his associates, and any offences that he may have disclosed to her. Finally, from Q790 to Q820, she was asked about her involvement in the attempted aggravated robbery of the Calwell Club and she denied any knowledge of it. From Q821 to Q847, she was questioned about her involvement in the aggravated robbery of the Weston Raiders Club and she denied any involvement. She was also questioned about other robberies.
27. At Q917, she was informed that her DNA had been found on a replica handgun used in connection with the Calwell Club robbery and she was unable to assist in relation to how that had come about. At Q940, she was told that, during the robbery of the Weston Raiders Club, her DNA had been deposited on the counter bench inside the safe room. She was unable to provide any information about how that had occurred. She told police that, if the accused had committed those robberies, he had told her nothing about them and she had had nothing to do with them: at Q954.
28. The record of interview concluded at 12:58 PM. At 1:07 PM, KN was “un-arrested” (to
adopt the expression used by Detective Sergeant Callaghan).
29. Detective Sergeant Callaghan denied that he had arrested KN to facilitate the obtaining of a legitimate forensic sample. He said that, as soon as he had learned of the crime scene to crime scene match in March 2018, he had developed a suspicion concerning
KN’s involvement in the robberies (at [24] of his statement) and had regarded her as a
“suspect” in the robberies (evidence in Court).
30. First Constable Dick said that, as at August, the police had “more information” regarding KN’s involvement beyond what had been known in February 2018. He said that
intercepted telecommunications had suggested that she knew the whereabouts of cash obtained from a robbery or robberies. However, this assertion must be questioned, as no such information was disclosed by police to the Director of Public Prosecutions (DPP).
31. As anticipated, when the DNA from KN’s buccal swab was compared to that of the
unknown female, there was a strong match.
32. Material concerning the obtaining of saliva in February 2018 was not included in original police statements and was redacted from police notes that were provided to the DPP and the accused.
Statutory provisions
33. Section 138 of the Evidence Act provides:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
…
(3) Without limiting the matters that the court may take into account under subsection (1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)
the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and (f)
whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)
whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or
contravention of an Australian law.
34. The Forensic Procedures Act enables forensic procedures to be undertaken on a
“suspect”. Section 8 defines “suspect” as a person who, at least, is “a person
suspected by a police officer, on reasonable grounds, to have committed an offence”:
s 8(a). “Suspect” also includes persons charged or summonsed to appear in court.
Section 107 states that the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds.
35. The Forensic Procedures Act addresses both “intimate forensic procedures” and “non- intimate forensic procedures”. It provides that “the taking of a sample of saliva or a sample by buccal swab” is a “non-intimate forensic procedure”: s 7(d). In certain
circumstances, a non-intimate forensic procedure may be undertaken on an adult suspect in custody by order of a police officer in accordance with pt 2.4. A non-intimate forensic procedure may be undertaken with informed consent under pt 2.3 or by order of a magistrate in accordance with pt 2.5.
36. Under pt 2.3, a suspect must give informed consent. Section 23 provides:
23 Matters to be considered by police officer before requesting consent to forensic procedure
(1) The police officer must be satisfied on the balance of probabilities that—
(a) the person on whom the forensic procedure is proposed to be carried out is a suspect; and (b) if the forensic procedure is a procedure other than the taking of a handprint, fingerprint, footprint or toeprint—the offence in relation to
which the person is a suspect is a serious offence and there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect
committed—
(i) that offence; or
… (c) if the forensic procedure is the taking of a handprint, fingerprint, footprint or toeprint—…there are reasonable grounds to believe that
the forensic procedure is likely to produce evidence tending to confirm
or disprove that the suspect committed—
(i) that offence; or
… (e)
the request for consent to carry out the forensic procedure is justified in all the circumstances.
37. Section 107 states that the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds. Section 23(2) says:
(2) In deciding whether a request is justified in all the circumstances, the police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
38. Section 23(3) sets out matters to which the police officer must have regard when
balancing the public interests, including “the degree of the suspect’s alleged
participation in the commission of the offence”: s 23(3)(b).
39. The Forensic Procedures Act does not address the taking of forensic samples from
persons who are not a “suspect”, “volunteer”, or “serious offender” (person convicted of a “serious offence”, as defined). Part 2.7 relates to the carrying out of forensic
procedures on “serious offenders” after they have been convicted. The DNA of such
persons may be placed on the ACT DNA database and used for “permissible
matching”, including matching with data taken from crime scenes.
If a forensic sample is taken from a “suspect” and they have not been prosecuted within
a year or they have been acquitted, then they may apply for the forensic material to be
destroyed: s 92.41. Section 99 of the Forensic Procedures Act provides:
99 Application of other Acts
(1) This Act is not intended to limit or exclude the operation of another territory law relating to— …
(c) the taking of forensic samples, including samples not mentioned in this Act; or …
42. The commentary to cl 87 of the Model Forensic Procedures Bill (which s 99 of the Forensic Procedures Act follows) says (Model Criminal Code Officers Committee, Model Forensic Procedures Bill and the Proposed National DNA Database (Discussion Paper, May 1999) at 111):
Clause 87 preserves the right for police or other officials to ask people to undergo forensic procedures for other purposes. So, for example, there might be separate legislation dealing with the reception of prisoners into prison where fingerprints are required for identification
purposes. …
Was the evidence of 9 August 2018 obtained in consequence of a contravention of an Australian law?
Submissions
43. The accused submitted that the procedure adopted on 14 February 2018 was contrary to an Australian law in that it was contrary to the Forensics Procedures Act or, alternatively, it was improper. The buccal swab that was taken on 9 August 2018 was
taken “in consequence of” the illegality or impropriety of 14 February 2018. As at 14
February 2018, KN was only a “person of interest”; the Court would infer that it was the
matching of the crime scene DNA with that covertly obtained from KN that had elevated
her from “person of interest” to “suspect”. In that way, the evidence of 9 August 2018 was obtained “in consequence of” an illegality or impropriety associated with the testing
on 14 February 2018.
44. The Crown contended that the Forensic Procedures Act did not apply to the procedure
adopted on 14 February 2018 as, at that time, KN was neither a “suspect” nor a
volunteer and the Forensic Procedures Act does not cover the obtaining of covert evidence. Further, the evidence obtained on 9 August 2018 was obtained voluntarily
and legally; at that time, KN was a “suspect” within the meaning of the Forensic
Procedures Act.
Consideration
45. I accept the evidence of the police officers who said that, as at 14 February 2018, KN
was a “person of interest” who had not acquired the status of a “suspect”. Their
assertion in that regard is supported by the fact that, even when they obtained a match
between the crime scene DNA and KN’s DNA, they did not arrest her. The offenders
were said to be two males and it was one of those males who was apparently responsible for depositing the DNA on the counter in the money changing room. Apart from the DNA and the relationship between KN and the accused, there was nothing to link her with the offence committed on 14 May 2017.
A “contravention” involves “doing that which is forbidden by law or failing to do that
which is required by law to be done”: Parker v Comptroller-General of Customs [2009]
HCA 7; 83 ALJR 494 (Parker) per French CJ at [30].
47. As KN was not a “suspect” on 14 February 2018, the Forensic Procedures Act did not
control the manner in which a saliva sample must be taken. Nor did it prohibit the taking of a sample in circumstances other than those mentioned in the Act. Consequently, the
sample that was taken on 14 February 2018 was not taken “in contravention of an Australian law”. Even if the evidence obtained on 9 August 2018 was obtained “in
consequence of” the taking of the sample on 14 February 2018, it was not obtained in
consequence of a contravention of an Australian law.
However, the sample that was taken on 9 August 2018 was not taken “in consequence
of” the taking of the sample on 14 February 2018.
For something to occur “in consequence” of a contravention, there must be a chain of
causation between the contravention and the obtaining of the evidence: Cornwell v The
Queen [2010] NSWCCA 59 per McClellan CJ at CL at [178] and Simpson J at [292].50. By 9 August 2018, Detective Sergeant Saunders was on extended leave and Detective Sergeant Callaghan had assumed the role of team leader. I find that little, if any, additional material implicating KN had emerged between 14 February 2018 and 9 August 2018. Nevertheless, as at 9 August 2018, Detective Sergeant Callaghan clearly
harboured a high level of suspicion in relation to KN’s involvement in the robberies
because, on that day, he conducted an extensive interview that traversed every
conceivable matter before he “un-arrested” KN in relation to the robberies. In fact,
Detective Sergeant Callaghan said that, simply because of the crime scene DNA match
and the relationship between KN and the accused, he regarded her as a “suspect”.
51. The burden of proving that evidence was obtained improperly or in consequence of the contravention of an Australian law lies on the accused: Parker per French CJ at [28];
Director of Public Prosecutions v Yerbury [2020] NSWSC 905 at [22]–[23].
52. Given the high level of suspicion that Detective Sergeant Callaghan had long held about KN, I am far from satisfied that, but for the testing on 14 February 2018, he would not have taken a buccal swab on 9 August 2018. On the contrary, once he was elevated to the role of team leader, he was concerned to pursue every possible channel of inquiry that might tie KN to the robberies of the Calwell Club and the Weston Raiders Club.
53. Further, regardless of what had occurred on 14 February 2018, on 9 August 2018 KN consented to a buccal swab procedure; her conduct disrupted any causal connection that might otherwise have existed between the events on the two days.
Was the evidence of 9 August 2018 obtained in consequence of an impropriety?
Submissions
54. The accused submitted that, while the Forensics Procedures Act does not deal with the obtaining of covert forensic material from persons who are not suspects, volunteers or serious offenders, it was intended to cover the field in relation to the proper procedure for obtaining forensic samples. Impliedly, if the Act does not expressly allow a procedure, the procedure is improper.
55. The accused distinguished cases like R v Kane [2004] NSWCCA 78; 144 A Crim 496 (Kane) and R v White [2005] NSWSC 60 (White) where police had obtained a DNA sample from a discarded cigarette butt, on the basis that those cases did not involve a
“procedure” for the obtaining of DNA evidence but the collection of evidence once it
had been abandoned. The accused pointed out that, in the present case, on 14
February 2014, the police implemented a “procedure” whereby they deliberately
provided an opportunity for KN to unwittingly deposit her saliva and they ensured the
integrity of the sample by using sterile gloves.56. In Kane, after the accused was arrested for a robbery, he discarded a cigarette butt and a hair sample was taken. These samples were compared with DNA obtained from remnants of skin attached to a balaclava that had been thrown away by the robber. Sully J (with whom Studdert and Dunford JJ agreed) found that the NSW forensic procedures legislation did not address such circumstances but was concerned with procedures that were actually undertaken on a specific individual: at [13].
57. In White, the police used covert means to obtain DNA samples from six persons of interest, including the accused, for the purpose of comparing it with DNA found under the fingernails of a murder victim. When under arrest for a different offence, the accused discarded a cigarette butt from which a DNA sample was later extracted and matched to the DNA found on the murder victim. The police did not request a voluntary sample from the accused because they considered that such a request might compromise their investigation. At [28], Studdert J rejected a submission that Kane was distinguishable and found that the NSW forensic procedures legislation did not apply.
Consideration
I accept the accused’s submission that Kane and White are distinguishable on the basis
that, in those cases, the police did not institute a “procedure” for the purpose of
recovering evidence but were simply vigilant to collect material that had been abandoned and which may provide evidence. However, that point of distinction does not seem to have been important to the outcome in Kane; the decision seems to have turned on the fact that, at the time that the cigarette butt was collected, the accused
was a “person of interest” rather than a “suspect”.
59. It is well accepted that police may engage in the covert collection of evidence when investigating a crime. In Ridgeway v The Queen (1995) 184 CLR 19, Mason CJ, Deane and Dawson JJ said (at 37):
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by
a suspect of a criminal offence … the stage of impropriety will be reached in the case of
conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, and the difficulty of effective investigation or prevention and any imminent danger to the community.
60. In Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 (Robinson), the Court held that the principles in Ridgeway should be applied to s 138 of the Evidence
Act 1995 (NSW). Basten JA pointed out that the concept of “harassment” and “manipulation” suggested “some level of encouragement, persuasion or importunity”:
at [23].
61. In Fleming v The Queen [2009] NSWCCA 233; 197 A Crim R 282, NSW police had obtained a partial DNA profile of the offender from the body of the deceased. They suspected the appellant but had no DNA sample. They devised a pretext for the Victorian police to speak to him as he was located in Victoria. The Victorian police asked the appellant to draw a sketch regarding an unrelated matter. His spittle fell onto the sketch paper. A DNA profile was recovered and matched to the partial DNA profile recovered from the deceased. The appellant was arrested and extradited to NSW, where a buccal swab was obtained and matched with much greater certainty to the partial profile obtained from the body of the deceased. It was submitted that the trickery
amounted to an impropriety and that the NSW buccal swab result was the “fruit of the
initial impropriety” and should be excluded under s 138: at [16]. The trial judge accepted
that the appellant had been tricked into providing a DNA sample but found that the trickery was not an impropriety within the meaning of s 138. The ground of appeal
challenging the s138 finding failed because the trial judge’s conclusion was “clearly open” and the appellant had established no relevant error in the exercise of the trial
judge’s discretion: see House v The King (1936) 55 CLR 499.
62. In this case, the accused has not established that there was an impropriety associated with the covert procedure undertaken on 14 February 2018. KN may have been tricked
into providing saliva, but such trickery was not associated with “encouragement,
persuasion or importunity” such that it was “clearly inconsistent with minimum standards of acceptable police conduct”, considering that the police were investigating
very serious offences and did not want to compromise their ongoing investigation.
63. Further, for the reason given at [49] – [53] above, I am not satisfied that the evidence that was obtained on 9 August 2018 was obtained “in consequence of” any impropriety
on 14 February 2018. I am not satisfied that there was a relevant causal connection
between the two events.
Discretionary considerations
64. If I am wrong and the evidence obtained on 9 August 2018 was obtained in consequence of an impropriety or contravention of an Australian law, in the exercise of my discretion I would admit it. For the following reasons, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the manner in which it was obtained.
(a) The evidence has significant probative value; although it is only circumstantial evidence it tends to place the accused at the scene of the crime. (b) The evidence is of importance because there is limited other evidence placing the accused at the scene of the crime. (c) The offence is a serious offence. (d) If the conduct on 14 February 2018 amounted to an impropriety at all, it was not a grave impropriety. (e) The conduct of police on 14 February 2018 was deliberate but I accept the evidence of Detective Sergeant Saunders that he believed that the conduct was consistent with the law. Later, Detective Sergeant Saunders thought that the sample taken on 14 February 2018 may have been tainted, and that may also have been the view of other police because they failed to include information concerning 14 February 2018 in statements and redacted reference to it from police notes that were provided to the DPP, but that does not mean that they understood their conduct to be improper or illegal at the time that it occurred. (f) No argument was advanced to the effect that the conduct of the police on 14 February 2018 was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, signed 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). (g) I am not aware that any other proceeding has been or is likely to be taken in relation to the conduct of police on 14 February 2018. (h) The police had reasons for operating covertly; they did not want to “show their hand” and jeopardise the ongoing investigation and did not want to reveal covert
police procedures. With the benefit of hindsight, these reasons are not
particularly convincing, but I accept that they were genuinely held at the time.(i) KN consented to the procedure that was undertaken on 9 August 2018.
(j) Finally, the prosecution does not seek to admit the evidence to establish criminal conduct on the part of KN, the person whose “rights” to privacy and to
avoid self-incrimination were primarily impacted by any impropriety.
65. The evidence will be admitted.
I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
Associate:
Date: