Sambastian v Police - [2024] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SAMBASTIAN v POLICE
[2024] SASC 26
Judgment of the Honourable Justice Kimber
6 March 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - MISCELLANEOUS ROAD RULES - FAILURE TO OBEY DIRECTIONS
This is an appeal against a finding of guilt by a Magistrate of failing to comply with a requirement to submit to drug screening contrary to s 47EAA(9) of the Road Traffic Act 1961 (the Act). The appellant sought to impose a condition that he be able to keep the drug screening test if it returned a negative result. The appellant’s primary position is that the condition did not amount to a refusal. At trial and on the appeal, the appellant put an alternative position that if the condition did amount to refusal, he had established the defence of good cause in s 47EAA(1)(c) of the Act.
Before the appeal was heard, the appellant filed an interlocutory application seeking that this Court should not hear the appeal on the ground of bias or a reasonable apprehension of bias.
As for the appeal against conviction, at the hearing of the appeal, the substantive effect grounds of appeal maintained by the appellant were as follows:
1. There is a reasonable apprehension that the Magistrate was biased.
2.The Magistrate should not have accepted the evidence of a police officer called by the prosecution that the drug screening was not for the purpose of obtaining the appellant’s DNA profile.
3.The trial should not have occurred because it was the second trial of this offence and breached the double jeopardy principle.
4.The Magistrate erred in finding the offence proved as the appellant had not refused the drug screening test. In the alternative, the Magistrate should have found the appellant had established good cause.

Held:
1.The appellant has not established that a fair-minded lay observer might reasonably apprehend that this Court might not bring an impartial and unprejudiced mind to the appeal. The interlocutory application is dismissed.

In dismissing the appeal:
2.The evidence does not establish a reasonable apprehension of bias on behalf of the Magistrate.

3.      It was open for the Magistrate to accept the relevant aspect of the police officer’s evidence.
4.      There was no breach of the principle of double jeopardy.
5.      The Magistrate was correct to find that the applicant had refused the drug swipe.
6.While the Magistrate erred in an aspect of her approach to whether the appellant had established good cause, the evidence at trial did not establish that defence. Irrespective of the error, the offence was clearly proven.

Road Traffic Act 1961 (SA) s 47EAA(1), (9)–(11); s 47E(4); Magistrates Court Act 1991 (SA) s 42, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; CNY17 v Minister for Immigration (2019) 268 CLR 76; Johnson v Johnson (2000) 201 CLR 488;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] SASC 26
Decision Date: 6 March 2024

CaseChat Overview and Summary

Sambastian appealed against a conviction for refusing to comply with a direction to provide a sample of his DNA. The matter was heard in the Supreme Court of South Australia. The appeal was based on the argument that the drug screening test administered was being used to obtain a DNA profile, contrary to the officer's evidence. This argument was rejected by the trial Magistrate, and the appellant sought to overturn this decision on appeal.

The primary legal issue was whether the appellant's belief that the drug screening test was being used to obtain a DNA profile was objectively reasonable. This belief formed the basis for the appellant's refusal to comply with the direction to provide a DNA sample. The court needed to determine if this belief was a good cause for refusal under the relevant legislation. The court also considered whether the evidence supported the appellant's belief and whether the Magistrate's decision was correct.

The Supreme Court found that the appellant's belief was not based on objectively reasonable grounds. The court examined the evidence provided by Senior Constable Lumsden, who testified that the drug swipe was not used for obtaining DNA and that the common method for taking DNA was a buccal swab. The court found that the evidence did not support the appellant's belief that the drug swipe was being used to obtain a DNA profile. As a result, the court upheld the Magistrate's decision that the appellant's belief did not amount to a good cause for refusal.

The Supreme Court dismissed the appeal, finding that the conviction was clearly proven and that the Magistrate would have inevitably found the appellant guilty of the offence. The court concluded that the error in the Magistrate's reasoning did not affect the outcome of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On the hearing of the appeal, the appellant relied upon the following matters which he said should have led to a finding that Senior Constable Lumsden was unreliable about the drug screening test being used to obtain DNA. First, that while speaking on the day of the accident, the appellant contends Senior Constable Lumsden was recorded as saying the following: ‘I’m very curious to see what it’s going to upload’. The appellant submits that being said by Senior Constable Lumsden is consistent with him expecting the drug swipe to be used to obtain a DNA profile from the appellant. Second, that the refusal of Senior Constable Lumsden to give the appellant the test if it was negative gives rise to an inference that it was to be kept for the purpose of DNA. Third, that the appellant believes that collecting DNA is a reason for police retaining the drug swipe even in the event of it returning a negative result. Fourth, a matter in New South Wales in which police used a ‘random’ breath test to obtain a DNA profile. The evidence of Senior Constable Lumsden Already set out above are some of the relevant parts of the evidence of Senior Constable Lumsden. As already set out, he said that the drug swipe was considered hazardous waste and that the practice of police was to place the used swipe into a hazardous waste bin once back at the police station. Senior Constable Lumsden said the most common method for taking DNA was using a buccal swab and he described the appearance of that swab and his understanding of how it would be handled if submitting to the Forensic Science Centre (SA) where there was a desire to obtain a DNA profile from a person. An aspect of the evidence of Senior Constable Lumsden was: QHave you administered any buccal swabs.AYes.QWhat’s the process in that, what’s the procedure.AYour Honour, if a person has committed a, suspected of committing a prescribed offence —QCan I ask what a prescribed offence is.AThere are offences under regulation that require a person’s DNA to be taken. If a police officer has reasonable cause to suspect that an offence has been committed, they’re then required to take a sample of the person’s DNA. It can be done by different methods, but the most common method that is used is a buccal swab and the buccal swab is then used to obtain the person’s DNA. QWhat do you do with the buccal swab once you’ve wiped the mouth of the accused. AThe buccal swab is put into a specially sealed bag. QA hazmat bag like the drug kit.ANo. There are two smaller bags as part of the buccal swab kit. To describe the actual item, it takes a bit. If you can imagine a lollypop-shaped dome with a sponge at the end that takes the sample. That is then placed into a bag, that bag is then taken to the Forensic Science Centre and the DNA is then removed from that swab and then the physical swab itself is destroyed and the DNA is uploaded on the Forensic Database. QCan you legally take DNA without suspicion of a crime. AThere are a variety of different reasons to take DNA, but, like I said, the most common one is that there is reasonable cause to suspect a crime has been committed under Act, you are then required to take a sample of that DNA. There are other categories though. QBut if a person refuses a DNA swab, you can only take it if there’s a reasonable suspicion a crime has been committed. ANo, there are other reasons to take DNA, a wide variety, an example of which would be, if you are in prison, for example, for offences and your DNA for some reason hasn’t been taken, then a buccal swab will be taken at that point. It can also be taken to remove people as suspects as well as using it as evidence. There’s a variety of reasons. HER HONOUR: Mr Sambastian, there’s been long answers about that, what is the relevance of that line of question.DEFENDANT: I am suggesting that the — HER HONOUR: Suggest it then.QI am suggesting that the drug swipe can be used to collect DNA.AI will never, I would say no, it’s — DEFENDANT: Well, you wouldn’t know cause you just hand it in to the police station.HER HONOUR:QYou have asked the question, so you have to allow him an opportunity to answer. First you started saying, no an (sic) then you said about your experience.AYes, your Honour. There would be no lawful authority to take the DNA in the first place and if there was an authority, then we use the appropriate kit. Using a drug wipe to take DNA, a. is illegal, and b. would be pointless, you would have not way of uploading it to the Forensic Science Centre.QIn your experience, have you —ANever seen it your Honour, not once. QWhat about you, have you ever done it.ANever your Honour, not once. The findings of the Magistrate about Senior Constable Lumsden

Decision

Reasons for decision

The evidence does not support that the appellant’s belief at the time of refusal was based on objectively reasonable grounds. In this case, the appellant’s belief that the police were using the drug swipe test to obtain a sample of his DNA does not amount to a good cause for refusal. I am therefore satisfied, irrespective of the error identified above in the Magistrate’s reasoning, the charge is so clearly proven that the Magistrate would have inevitably found the appellant guilty of the offence. Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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