Smyth v AM - [2021] VSC 492

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0054

LEIGH SMYTH	Applicant
v
AM	Respondent

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2021
DATE OF JUDGMENT:	12 August 2021
CASE MAY BE CITED AS:	Smyth v AM
MEDIUM NEUTRAL CITATION:	[2021] VSC 492

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CRIMINAL LAW – Application for an order permitting retention of a forensic sample following conviction – Respondent a child at time forensic sample taken – Now aged 19 – Serious offending – Criminal history – Making of retention order justified in the circumstances – Crimes Act 1958 ss 464U, 464ZFB.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Gibson QC with Ms S Lenthall	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr T Marsh	Victoria Legal Aid

HIS HONOUR:

Introduction

Following the conviction of the respondent on a charge of robbery, the applicant, Detective Leading Senior Constable Smyth, applies for an order pursuant to s 464ZFB of the Crimes Act 1958 (‘the Act’) permitting the retention of a forensic sample taken from the respondent on 8 November 2019 (‘retention order’). The application is opposed by the respondent.

Background

The robbery to which the respondent pleaded guilty occurred on 28 September 2019 in circumstances dealt with fully in the sentence I imposed upon him on 2 July 2021.[1] It is unnecessary to detail those circumstances here. Suffice to say that the respondent and another male, Chol Kur (‘Kur’), along with a third male named Joshua Horton (‘Horton’), were in a motor vehicle being driven by a young female and containing two other young females in the Kings Park area. The respondent and Kur decided to carry out a robbery upon two young males they observed at a bus stop, the particular focus of their intended crime, it seems, being a cap being worn by one of the victims. During the course of the robbery, Horton got out of the vehicle and stabbed both of the victims. One of them died. The other was seriously injured. The respondent and Kur completed the robbery by the removal of a cap from one of those who had been stabbed.
[1]The Queen v AM [2021] VSC 397.

The respondent was arrested and charged with murder and other offences on 13 October 2019. On 4 November 2019, the respondent then being a child, an application was made by the police to the Children’s Court for an order under s 464U(7) of the Act that the respondent undergo a compulsory procedure. Such an order was made, and the respondent provided a buccal swab four days later on 8 November 2019. I anticipate that a DNA profile was obtained from the forensic sample provided by the respondent. What is now sought by the applicant is an order permitting the retention of the sample taken and the material and information derived from it.

Long after the respondent was charged with murder, the prosecution accepted a plea of…

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.

Continue reading Smyth v AM

Details

AGLC: Smyth v AM [2021] VSC 492
Case: [2021] VSC 492
Decision Date: 12 August 2021

CaseChat Overview and Summary

The case of Smyth v AM involves an application for an order allowing the retention of a forensic sample following a conviction. The respondent, AM, was a child at the time the sample was taken but is now aged 19. AM has a history of serious offending, and the application was made under sections 464U and 464ZFB of the Crimes Act 1958. The court was tasked with determining whether the making of a retention order was justified in the given circumstances.

The legal issues before the court were whether the respondent's age at the time of the sample collection and their current age, combined with their criminal history, warranted the retention of the forensic sample. The court had to consider the relevant provisions of the Crimes Act 1958, which allow for the retention of forensic samples from individuals convicted of serious offences. The court also had to weigh the respondent's age and criminal history in its decision-making process.

The court found that the respondent's criminal history and the seriousness of the offences were significant factors in favour of making a retention order. The court determined that the retention of the forensic sample was justified in the circumstances. The court emphasised that the respondent's age at the time of the sample collection was not a decisive factor, given the respondent's current age and criminal history. The court concluded that the retention of the forensic sample would assist in the investigation and prosecution of future criminal activity by the respondent.

The court made an order permitting the retention of the forensic sample under sections 464U and 464ZFB of the Crimes Act 1958. The order was made in light of the respondent's criminal history and the seriousness of the offences committed. The court's decision highlights the importance of considering the individual circumstances of each case when making a retention order under the Crimes Act 1958.

Orders