The Queen v DA - [2017] NTSC 2

The Queen v DA [2017] NTSC 2
PARTIES:THE QUEEN
v

DA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21619046
DELIVERED:  13 January 2017
PUBLISHED:  17 January 2017
HEARING DATES:  7 & 8 November 2016
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

EVIDENCE – Sexual intercourse without consent – admissibility of DNA evidence – where the accused is a youth – whether DNA evidence was obtained in contravention of or as a result of a failure to comply with the Youth Justice Act – youth was incapable of giving informed consent to a voluntary non-intimate procedure – DNA evidence obtained in contravention of s 15 and s 32 of the Youth Justice Act – DNA evidence has significant probative value – the admission of the DNA evidence would specifically and substantially benefit the public interest and does not unduly prejudice the rights of any person – DNA evidence is admissible – Youth Justice Act 2005 s 15, s 32, s 59(1), s 59(2)
EVIDENCE – Sexual intercourse without consent – admissibility of DNA evidence – where the accused is a youth – whether DNA evidence is admissible under the Evidence (National Uniform Legislation) Act – DNA evidence obtained in contravention of the Youth Justice Act – contraventions not deliberate or reckless – DNA evidence has significant probative value and the desirability of admitting the evidence outweighs the undesirability of admitting the evidence – DNA evidence is admissible – Evidence (National Uniform Legislation) Act 2013 s 138
Criminal Code (NT) s 192, s 192(3), s 213, s 213(1), s 213(4), s 213(5)
Evidence (National Uniform Legislation) Act 2013 (NT) s 138
Youth Justice Act 2005 (NT) s 15, s 29, s 32, s 59
Fernando v Commissioner of Police (1995) 78 A Crim R 64; King v R (1996) 24 MVR 543; R v Stillman [1997] 1 S.C.R. 607; referred to.
Sorby v Commonwealth (1983) 152 CLR 281; X7 v Australian Crime Commission (2013) 248 CLR 92; Lee v New South Wales Crime Commission (Lee No 1) (2013) 251 CLR 196; AFP v Zhao and Jin [2015] HCA 5; Lee v The Queen (Lee No 2) [2014] HCA 20,applied.
John H. Langbein, The Origins of Adversary Criminal Trial (2003), cited.
REPRESENTATION:
Counsel:
The Queen:T McNamee
DA:M Aust
Solicitors:
The Queen:Office of the Director of Public Prosecutions
DA:North Australian Aboriginal Justice Association
Judgment category classification:    B
Judgment ID Number:  Sou1701
Number of pages:  39

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v DA [2017] NTSC 2

No. 21619046
BETWEEN:

THE QUEEN

AND:

DA

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Published 17 January 2017)
Introduction

DA is a 17 year old youth. He has pleaded not guilty to two counts on an indictment dated 28 July 2016. Count 1 on the indictment pleads that contrary to s 213(1), (4) and (5) of the Criminal Code, on 24 December 2015 DA unlawfully entered a dwelling house at night time with the intent to commit the offence of sexual intercourse without consent. Count 2 charges that contrary to s 192(3) of the Criminal Code on 24 December 2015 DA had sexual intercourse with CEO without her consent while knowing about or being reckless as to the lack of consent. The maximum penalty for count 1 is imprisonment for 20 years and for count 2 it is imprisonment for life. The accused was 16 years of age at the time he is alleged to have committed these offences.
The two counts are pleaded in the following circumstances.
The complainant is a 32 year old nurse. She had been based in Warruwi since October 2015. At 11.30 pm on 23 December 2015 she went to bed in her residence at Warruwi. She woke up in the early hours of the morning of 24 December 2015 when a man came into her room. She screamed at him to get out and grabbed her mobile telephone. The man threw her telephone on the ground and physically restrained her on her bed. There was a struggle for about 20 minutes during which the man removed her underwear and pulled his pants down. He rubbed his penis on her and tried to insert his penis into her anus and vagina. He was able to insert his penis into complainant’s vagina. He then forced her onto her stomach and continued to try and have sexual intercourse with her. The man then started to masturbate. When he did so the complainant picked up her telephone and called 000. The man then left the residence.
Police attended the complainant’s residence at 6.04 am on 24 December 2015, examined the scene and spoke to her. She was flown to Darwin and in the afternoon she was examined at the Sexual Assault Referral Centre. Swabs were taken from the complainant’s vulva and right arm. Sperm was identified on the vulva swabs. The samples were analysed by a forensic scientist and a male DNA profile was extracted. The male DNA profile did not match anyone on the Northern Territory data base.
For more than two months after the offences were committed police were unable to identify the offender. As a consequence, rumours were rife in Warruwi about who may have committed these offences. This caused some unrest in the community. Members of the community were concerned that the offender had not been identified, and a male elder and traditional owner in the community asked police to take DNA samples from men in the community on a voluntary basis to eliminate them as suspects.
On 16 March 2016 police flew to Warruwi and buccal swabs and saliva samples were taken at the Yagbani Arts and Craft Centre (the Art Centre) from 42 male members of the community who fitted the description of the offender provided by the complainant, including five youths. DA was one of the youths who provided a sample of his saliva to the police.
On 19 April 2016, police were advised that the DNA profile extracted from the sample provided by DA matched the male DNA profile extracted from the sperm on the vulva swabs and the epithelial swabs taken from the complainant’s right arm. As a result, DA was arrested and charged.
Under s 59 of the Youth Justice Act 2005 (NT), counsel for the defence has asked for an order that the evidence about DA providing a sample of his DNA, the profile of his DNA, and the expert evidence of Forensic Scientist Ms Suzanne Mullen that the male DNA profile extracted from the samples obtained from the complainant is at least 100 billion times more likely to have occurred if it came from DA than if it came from an unknown individual[1] is not admissible as the evidence was obtained in contravention of the Youth Justice Act or as a consequence of a contravention or failure to comply with the Act. In the alternative, counsel for the defence has asked that the evidence be excluded under s 138 of the Evidence (National Uniform Legislation) Act 2013 (NT) because the evidence was obtained improperly or in contravention of the Youth Justice Act. A voir dire to consider the admissibility of this evidence was conducted on 7 and 8 November 2016.
The provisions of the Youth Justice Act (NT)
The Crown did not contend that the provisions of the Youth Justice Act did not apply to a jury trial of a youth in the Supreme Court.
Under s 59(1) of the Youth Justice Act the Court may order that evidence in relation to the youth is not admissible if satisfied the evidence was obtained in contravention of the Act or as a consequence of a contravention or failure to comply with the Act. Subject to s 59(2), the provisions of s 59(1) are mandatory. That is, evidence obtained in the circumstances specified in the subsection is prima facie inadmissible. However, the Court may admit the evidence if satisfied that admission of the evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights of any person. Subject to s 59(2) of the Act, the word ‘may’ in s 59(1) means ‘must’.
Subject to s 59(2) of the Youth Justice Act, for the DNA evidence to be admissible the Court must be satisfied that:
1.The police explained to DA the process involved in taking a sample of saliva or buccal swab, what would be done with the sample and the possible consequences of providing a sample, and they did so in language and a manner that was likely to be understood by DA having regard to his age, maturity, cultural background and English language skills.[2] In this case it was necessary to explain to DA that if his DNA matched the male DNA extracted from the samples obtained from the complainant he would be charged with having sexual intercourse without consent and the result of the analysis of his DNA would be tendered in evidence against him. It was also necessary to tell him that he could refuse to provide a sample of his saliva.
2.A responsible adult was present while the procedure was carried out.[3]
3.A senior police officer carried out the non-intimate procedure or caused the procedure to be carried out by another person.[4]
4.DA consented in writing to the procedure being carried out.[5] The consent must be informed consent.
5.A responsible adult for DA consented in writing to the procedure being carried out.[6] The consent must be informed consent.
Counsel for the defence submits that there were the following contraventions of sections 15, 29 and 32 of the Youth Justice Act. The explanation given to DA by the police was inadequate because he was not told that if his DNA matched the DNA samples taken from the complainant he would be charged with serious criminal offences including sexual intercourse without consent. The explanation given to DA was not given in a language and manner that he was likely to understand. DA did not have a support person present when his sample was taken because JW was not his responsible adult. The written consent of DA and his responsible adult were not obtained by Acting Superintendent Scott Manley before he caused the procedures to be undertaken by Senior Constable Cripps. No written consent was obtained from a responsible adult because JW was not a responsible adult for DA. DA did not provide informed consent because he was not informed that if his DNA matched the profile of the male DNA obtained from the complainant he would be charged with sexual intercourse without consent and results of his DNA analysis would be tendered in evidence against him.
The evidence at the voir dire
DA, JW, Police Sergeant Roger John Ilett, Detective Sergeant Jonathon Beer, Detective Senior Sergeant Scott Andrew Manley, and Senior Constable Jason Cripps gave evidence at the voir dire.
DA’s evidence during his examination-in-chief may be summarised as follows.
He lives in Warruwi. He has done so since he was a little boy. He speaks Kunwinjku when he is in his community. He was grown up by his grandfather DD. He still lives in his grandfather’s home. He goes to JW’s house sometimes. He goes to visit Thomas and Aiden. He sleeps over at JW’s house.
He has gone to school a little bit. At school his speaks Kunwinjku and English. He can read a little bit of English. Police asked him to sign his name on a piece of paper. He wrote his name on the paper because police asked him to sign it. He wrote his name on the piece of paper before he did the DNA test. He wrote his name on the paper for the DNA test.
The DNA test happened at the Art Centre. He was taken to the Art Centre in the Night Patrol vehicle which was driven by JW. Thomas and Aiden were also in the car. He was at DD’s house before he got in the car. They were drinking tinnies. JW took him to the Art Centre. When they got out of the car he stood in a line. He did a DNA test. He does not know what a DNA test is. Police told him to put a thing in his mouth and he did so.
Thomas and Aiden did not do the test because they were too fat. He heard the police say to them, “You are fat.” He did not speak to any police officer on the telephone before he did the test.
Before he did the test no police officer told him that he might get into trouble if he did the test. Nor did JW tell him that. Neither the police nor JW told him the police would keep his DNA on the computer forever. He would not have done the test if he had been told that his DNA would be kept on a police computer forever. The police did not tell him to speak to a lawyer before he did the DNA test. The police did not tell him he could choose anybody to be his support person while he was doing the test. He did not have any identification on him when he did the test and he was not asked for any identification. He was at the Art Centre for a little bit of time. After he did the DNA test JW took him back to DD’s house.
DA’s evidence during his cross-examination may be summarised as follows.
He had lived at Oenpelli for maybe two years. He lived with his mother in Oenpelli. His parents had separated. He was 10 years of age at the time. They spoke English at school in Oenpelli. They only gave lessons in English. They have teachers at Warruwi that teach English. When he came back from Oenpelli he lived in his grandfather DD’s house. He was 11 years of age when he returned. His grandfather made him go to school. He went all the time. He spoke English to the teacher. He was still going to school when the nurse was assaulted at the end of 2015.
His grandfather DD would go to Darwin a fair bit. Around Christmas time 2015 his grandfather was in Darwin.
He has known JW all his life. He calls him grandfather. He gets along with him very well. He speaks to him every time he goes to his house. He has stayed with him a lot. He treated him like family because he was very close to him. He liked staying with JW. He watched a lot of television. He watched the cartoon series Ben 10 in English. He can speak to JW about anything. He is sort of like a father.
Lots of people were talking about who assaulted the nurse after it happened. The whole community were talking about it because they wanted to find out who assaulted the nurse. His grandfather DD worked in the clinic every day. He spoke to him about what happened to the nurse. He was wondering who did it. He was also speaking to his friends about it for months. In January and February 2016 everyone wanted to know who did it. He was told that the police were trying to find who did it. He knew the police were trying to find who did it. He knew that the elders and older people in the community wanted all the men and boys to provide a sample to the police. He knew about that before he went to the Art Centre. He knew they were looking for someone who was young and small. There were rumours in the community about who did it.
His house is not far from the Art Centre. He can easily walk there. He has done that before. JW only lives a few houses down from him. On 16 March 2016 he did not walk to the Art Centre with Frank Davadaco. JW took him to the Art Centre. He was not happy for JW to step in as a parent for him. He did not tell JW that he was okay to do the DNA testing. He then contradicted himself and agreed that because his grandfather was away in Darwin he was happy for JW to step in and help him because he was close to him. JW spoke to him in Kunwinjku. He said that he asked him if he wanted to come to the Art Centre. He said, ‘yeah’. He did not speak to the police officer when he got to the front of the line. JW did not explain the piece of paper. He was not happy to give his DNA to the police. The police forced him to sign the piece of paper. He provided the DNA because police told him. He did not speak to a police officer on the telephone. He did not see JW speaking on the telephone. The police officers did not read something out to him telling him why he was giving his DNA. He had difficulty speaking to the police and understanding them.
When he got to the front of the line the police took him to a table. He went to the table with JW. There was one tall policeman at the table. He asked him to sit down. He did not explain to him they were doing a test for that nurse that had been raped in the community. The policeman asked JW if he was his responsible adult and JW said yes. Police asked him if JW was his responsible adult and he said yes. The police officer did not ask him where he was living. He was not told by the police officer that it was a voluntary procedure. Nor did the police officer say it was about that sexual intercourse without consent with that nurse. The police officer told him that the sample taken from his mouth could be analysed and tested and used in court. The police officer told him and JW that he was going to ring a police officer and put him on the telephone to the police officer. JW spoke to the police officer on the telephone.
After he signed the form he walked over to another table. There was another police officer at that table. The second police officer took him through the form again. He was asked by the second police officer if JW was his responsible adult and he agreed. The police officer told him he was going take a swab from his mouth. He agreed that he wanted to do the swab in the mouth. The police officer took the swab and he signed another piece of paper. He was allowed to leave and he left. He wanted to give the sample.
In re-examination DA said that the police did not tell him what the words ‘responsible’ adult meant.
JW’s evidence during his examination-in-chief may be summarised as follows.
He is a community pastor for the church of Warruwi and he is a community leader. He was employed as a senior officer with the Night Patrol. He has been employed in this position for seven or eight years. He has a motor vehicle which he uses for night patrol. He takes the vehicle home every night. He has known DA all DA’s life. He is his grandson. He also knows DD.
DA sometimes stays at his house and sometimes stays at Douglas’ house. DA stays at his house one or two nights a week. DD’s house is just two houses away from his house. You can walk or drive from his house to the Art Centre.
After the nurse was assaulted, there were a lot of people in the community talking about what happened. After the incident on 24 December 2015 people were talking about who the person who attacked the nurse might be. There were rumours going around about who assaulted the nurse. Goulburn Island is a small island and as soon as they hear a little story, the stories go straight around the community and everyone knows about it. He heard a rumour that the police were coming to Goulburn Island to do DNA tests.
On 16 March 2016 when the police came to do the DNA testing Douglas was not in the community. JW was at home when the police arrived. Someone told him that the police had arrived and they were going to do DNA tests so he went down to the Art Centre. When he arrived he saw people were already lining up. He then drove back to let all the men know the police had arrived to do the tests. He drove around spreading the word. But he did not pick up anyone. He went back to the Art Centre and then he went back to his house to pick up his son, Thomas, and his cousin, Aiden, to come down and do the test. He picked them up and went back to the Art Centre. When he returned to the Art Centre they lined up and moved about halfway along the line before a tall policeman told him that they were looking for an 18 year old slim man. The policeman said Thomas and Aiden did not need to do the test as they were too big. They turned and walked out. As they were walking out, DA and Frank Davadaco walked in. He noticed that there was no one there to support them and he knew he had to be there as DA was his grandson. DD was not there. He told them the police were doing a DNA test to look for a match. He spoke to the two boys in Kunwinjku. He told them they could do the DNA test if they wanted to. He did not force them. They understood and they said yes. They were in the line and were moving forward.
When they got to the front of the line the policewoman came down and talked to him. She asked who is going to be responsible for the two boys. JW said he wanted to take over because nobody was there. DA and Frank agreed to him taking over. He said he was satisfied they were happy with him acting as an adult for them. He read everything and spoke to them clearly and they understood. The policewoman told them to move forward and there was a telephone call between her and another police officer who was in Darwin. The police explained what was happening. A policeman said there was a stick that had to be put in the boys’ mouths and he read a piece of paper and explained it to the boys. He cannot remember everything the police officer said to them. The policeman explained why they were there and JW clearly explained to the boys what the policemen said and they agreed to be tested. He said that it was a DNA test for the nurse. He used the letters DNA and he told them DNA means they are looking for a match to find out who assaulted the nurse. The police explained that to him and DA. He remembered the document he signed and what the police said to him about the document. He signed the document as a responsible adult. The police officer spoke to DA but DA did not acknowledge him or speak to him. After JW signed the document the police officer gave the form to DA and he signed it too. He was happy DA understood what he was signing. He explained to him in Kunwinjku what was happening. He spoke to a police officer on the telephone but he is not sure if DA spoke to the police officer on the telephone. From there they went down and did the DNA test where they were doing the tests. The police officer who did the tests told them to wash their face and mouth with water and place a stick in their mouths. He was not far from where the sample was taken from DA and Frank. DA never said that he did not understand what was going on. JW was happy DA understood what was going on.

At some time JW walked out because he saw DA’s auntie. He told her that no one was around to be responsible for DA so he came in. He explained to her and she said okay. She agreed with him. He has parental responsibility for DA as a grandfather. That is in accordance with Aboriginal tradition and they are a close family. He has a responsibility to help DA in many ways and to guide him, if there is no one there to help him. No one told the boys that they could say, “No. We don’t want to do the test.”
JW’s evidence during his cross-examination may be summarised as follows.
In his role as Senior Night Patrol Officer he works closely with the police. He has a strong working relationship with the police on the island. He knows police officer Roger Illett who was in charge in March 2016. He has a lot of respect for the police. Being a senior elder, if he was speaking to his traditional relatives or to his sons and grandsons and he asked them to do something he would expect them to honour his request and do as he asked. If he said that he wanted them to do the DNA test they would do that because they respect him.
One of the rumours that were circulating in early 2016 was that all of the men would have to give their DNA to the police to prove they were not criminals if they wanted to. He did not know the police were coming to do DNA testing. The first he knew about the DNA testing was when they were at the Art Centre. He went there to see what was happening and he spoke to Roger Illett. He asked him if he could do a DNA test.
When he first arrived the police told him that everybody had to do the DNA test. When he came back after doing a run around the community, he was told that it was only if you were 18 and slim that you had to do a DNA test. A tall policeman told him that. He went out into the community again. He went looking for young boys who wanted to come. That was because he wanted to help the police solve the trouble and he wanted the community to be safe. He did not sing out when he drove around the community. He simply stopped when he saw males that fitted the description. After he stopped he told them that they better go to the Art Centre as the police were there for that DNA test. He picked up Thomas and Aiden. He was asked if he drove past DD’s house and asked little Frederick to see if DA was home and ask him if he wanted to come and get a DNA test too and if he spoke to DA about the test. He said that he did not remember. He was asked if DA got in the back of his car and he said that he did not know. He was asked if he actually took DA with him to the Art Centre and they all went in together. He said, “I don’t know. I guess no, but Thomas and Aiden”. He wanted to make sure all the boys had a DNA test but he was not forcing them.
DA calls JW grandfather in Aboriginal way out of respect. He is from his uncle’s son. His son is part of his family. He did not grow DA up. DA lives with DD. He told the tall policeman DA used to come with the boys. They grew up together as a family in the community. He told the tall policeman that DD was in Darwin at the time. The police did not check if what he told them was the right story. The tall policeman asked him if it would be alright if he was responsible for those boys. He said it was alright because DD is his family so wherever he goes with his kids he is the next responsible to look after them. He knew what responsible adult meant. It meant just to be their guardian, not on one occasion, as a family.
The police explained to him that the DNA test was a very important test. They said these boys need to be tested today. They did not say, “It doesn’t matter, they don’t have to do the test. They can leave now.” Before DA did the test he knew the police were looking for slim 18 year old boys. He did not think that the police were very interested in testing Frank and DA. The police did not tell him that he and the boys were able to speak to a lawyer before the boys did the test. He did not think he should speak to a lawyer. He thought everyone there was in line doing the test so it had to be fair. He did not think that as everyone else was doing the test it meant that DA and Frank had to do the test to be fair. He did not think they had to do the test, but if they wanted to do the test they could.
He read the Consent by a Youth to a Voluntary Non-intimate Procedure Form before he signed it. He is not sure if the police read the form to him and DA. He acknowledged that the form contains the wrong address for DA. The form contains his address rather than DD’s address. He was unable to say what the words “consent to a voluntary non-intimate procedure” meant. The words are in the form. He never said the word “voluntary” to DA and Frank.
The police officer he spoke to on the telephone just made sure that he was prepared to be a responsible adult. He spoke to the police officer in English. The police officer did not say to him that if Frank and DA did the DNA test they might get in big trouble. However, if the police officer had said that he would not have said, “We will not do the test then.” He does not remember if the boys got on the telephone. After the boys were finished doing the test he walked over and spoke to Susan who was approaching with little Douglas and told her that he was being the responsible adult for DA. After he spoke to Susan he walked out. He did not drive DA home.
Sergeant Roger Ilett’s evidence during his evidence-in-chief may be summarised as follows.
He was in charge of the Warruwi Police Station over the relevant period. He attended the scene after the complainant reported she had been assaulted. The complainant gave him a description of the man who assaulted her. She said he was about 150 centimetres tall, skinny build, curly hair, he was Aboriginal, he was wearing red faded board shorts, and he was youngish, in his twenties. Before the police from Darwin arrived on 16 March 2016, the police at Warruwi liaised with the Sex Crimes Unit in Darwin. They were the lead investigators. Members of the unit came to Warruwi on several occasions to do door knocks and to go around and talk to people in the community. They spoke to some of the traditional owners and elders seeking their support. A number of women in the community were concerned about their safety. They held a community safety meeting. There was concern that the incident brought big shame on the community and the community wanted to catch the offender. There were rumours going around the community about different people who some members of the community thought were behaving irregularly. Members of the community thought some people were suspects because their behaviour was a bit out of the ordinary.
In January 2016 a community elder, Mr Bunung Galaminda, came to the police station and told him that the police should take a DNA sample of all the young men in the community because the community needed to be seen as helping the police in their inquiries. They had a similar conversation in March 2016. During that conversation Mr Galaminda said that there was still shame on the community and the men needed to be eliminated as suspects. The women did not feel safe and felt that every man was a suspect. Mr Galaminda said the community had expressed a wish that the men provide samples of their DNA so they could be eliminated from the police investigation.
He then spoke to the people at Yagbani Aboriginal Corporation and told them that if the corporation supported the DNA testing of the men and the community was supportive of the idea, the police would facilitate the testing. Later he received a telephone call from a person at Yagbani Aboriginal Corporation and he was told that the matter had been discussed. The community wanted to ensure that the men were removed from the police investigation and they would voluntarily provide samples of their DNA. He asked if the police could have permission to do the testing at the Art Centre and then he telephoned Senior Constable Cripps to request the DNA testing. Senior Constable Cripps spoke to his boss who said if that is what the community wants the police will facilitate the testing. 16 March 2016 was set aside as the date the detectives could attend and do the DNA testing. Mr Galaminda was the person who said the police could use the Art Centre.
When the police arrived on 16 March 2016 the telephones were out of order until lunch time, so the start of testing was delayed. The police set up two tables. He introduced Detective Beer and Senior Constable Cripps to the community members who came to the Art Centre. He thanked them for coming and said they were there voluntarily to provide their DNA samples to eliminate them from further police enquiries about the rape of the nurse. He said that they were there of their own free will and it was their choice. He explained the forms. He said that the process would be that the men would line up, they would come and see him and fill out a consent form, then go past him, get a cup, rinse their mouths out and then do a buccal swab. He and Officer Gunter were there and they were both in uniform. The two detectives were in plain clothes. There was a good atmosphere and people were happy to be there.
Once the procedure got underway he entered the date and the name of each person who was being tested in a NISK register. His entries comprised all of the entries on the left hand side of the form made on 16 March 2016 down to Mr Micky Yalbarr. He spoke to those people and got their consent. He did not speak to any youths and he did not do any testing. After he spoke to Mickey Yalbarr, Sergeant Ilett left. He went to see Sonya Kentish near the basketball court and then conveyed an intoxicated man to the police station.
During his cross-examination Sergeant Ilett gave the following evidence.
He did not give cause to have any of the men’s DNA tested. There was a blanket authority from Senior Sergeant Scott Manley from the Sexual Assault Unit in Darwin. The Senior Sergeant was aware that the testing was occurring at the community and he gave an authority for anyone volunteering their DNA at that particular time. There was no telephone access until after 12.00 pm. Most people on the island have a good grasp of English.
The Night Patrol was an organisation that worked hand in hand with the police. JW is a bit of an identity for the Night Patrol. The Police and JW worked together if issues arose in the community. JW attended community safety meetings on occasion. He was a liaison between police, Night Patrol, and the community. JW was a gentle person. He took his role seriously. He would report any issues that arose while he was on night patrol to the police. Police contacted him following the incident on 24 December 2015 and asked him if he had seen anything suspicious or dubious and asked him to keep an eye out. He works closely with the police.
He told the men that he spoke to that their DNA would be kept on the register in Darwin. He did not tell them that it could be used against them should they commit another offence that was a serious offence. There were people that lined up to undergo the DNA test and there were others that were just walking around. It was their decision to voluntarily provide a DNA sample. As at 16 March 2016 DA was not known to the police.
Detective Sergeant Jonathon Beer gave the following evidence during his evidence-in-chief.
He was currently attached to the Sex Crimes Unit. On 16 March 2016 he travelled to Warruwi with Officer Cripps who was the officer in charge of the investigation. They had been asked to go to the community to obtain DNA samples from the men of the community for the purposes of a sexual assault investigation. They arrived at the Art Centre an hour and a half late. Members of the community were already at the Art Centre when they arrived. Initially he provided cups of water to the men who had agreed to provide a sample of their DNA.
At some point Sergeant Ilett left and he stepped into his role. He entered the names of the males who had agreed to provide a sample of their DNA in the NISK register. His entries start with the entry for Robbie Jordan. He spoke to the men as they came to his table. He told each person that the police were there because they were investigating the sexual assault of a nurse and he asked each person if they were willing to provide a sample of their DNA. He told them that they had obtained a DNA profile of a man from the victim and the process involved them taking a swab from their mouth. The men from the community were coming forward to provide samples to eliminate them from the investigation. The hand writing on the Consent by a Youth to a Voluntary Non-intimate Procedure form for DA is his. He explained to DA and JW that they were there to investigate the sexual assault of the nurse. They were there to receive DNA samples from people who wanted to provide a sample of their DNA. The DNA could be used for other serious offences, not only the sexual assault.
Once they established that a male who wished to provide a sample was a youth they were required to do a couple of things. There had to be a responsible adult with the youth. He asked JW and DA what their relationship was and JW said he was DA’s grandfather. He then asked DA if he was happy to give his DNA and he indicated he was. He also asked DA if he was happy for JW to be present while he gave his DNA and he indicated that he was. He also asked JW if he was happy to be DA’s support person. He explained to them that they were going to get a swab and they would need to rub it on the inside of their mouth. DA and JW spoke to each other in the Kunwinjku language. He was satisfied that JW fitted the criteria for a responsible adult. He was his grandfather in the community and they provided the same address. The Consent by a Youth to a Voluntary Non-intimate Procedure form was then given to one of them. He does not recall which one. Frank Davadaco was also with them. He did not tell JW and DA that DA was not required to provide a sample. Then DA and JW obtained a cup of water and walked to the other table where Jason Cripps was.
Initially they were taking samples from everybody that came in but when it got to the point that there were only two of them left they stopped taking samples from males who did not fit the description provided by the complainant.
Part of the process of obtaining a sample from a youth is that they needed to get authorisation from a Senior Officer. He told JW and DA that he needed to make a telephone call to his Senior Officer, Acting Superintendent Scott Manley, and that the Acting Superintendent would speak to them also about the process of obtaining a sample. That was part of the protocol. They did not take samples from the youths until some telephone lines were working because he had to make a telephone call to get approval from Acting Superintendent Scott Manley before the youths could provide a sample. He contacted Scott Manley on three occasions. His records for his telephone indicate that at 3.55 pm he rang Scott Manley about DA and Frank Davadaco. The authorisation time recorded on the consent form is 16:00.
During his cross-examination Sergeant Beer gave the following evidence.
He asked JW about his relationship with DA. JW told him he was his grandfather. Sergeant Beer was therefore satisfied that he fitted the description of a responsible adult. He also asked DA if he was happy that JW, his grandfather, was there with him while he provided a sample. DA said ‘yes’ in English. There was no pressing urgency for DA to be tested on that day. He felt DA was a person who was capable of fitting the description of the man provided by the complainant.
When he spoke to Acting Superintendent Manley on the telephone he told him how things were going. He had a general conversation and he told him there were youths present. He also told him that JW was DA’s grandfather. Then JW spoke to Acting Superintendent Manley. He does not recall if Acting Superintendent Manley also spoke to the two youths. Ultimately the telephone was given back to him, and Acting Superintendent Manley gave him approval to obtain samples from the youths. He told all of the youths that they needed a responsible adult present when they provided their sample. He asked DA if he was happy for JW to be with him when he provided his sample and he said yes.
Scott Andrew Manley gave the following evidence during his evidence-in chief.
He is a detective sergeant. He is attached to the Sex Crimes Section. He first became aware of this matter on 24 December 2015. In the early hours of the morning a report was received of a sexual assault on a nurse stationed at Warruwi community. Members of the Warruwi community asked their investigators to attend at the community and do a screening of a number of people who might be within the age range and general description of the man provided by the complainant. This was requested to clear a number of people of suspicion.
On 16 March 2016 he was the Acting Superintendent in charge of the Sex Crimes Section. Before the detectives went to Warruwi it was agreed that if they were approached by people they would contact him over the telephone to obtain telephone approvals. The description of the offender covered men ranging in age from youths through to adults. He provided a blanket approval for adults on the basis that the detectives would bring back authorisations for him to sign at a later date. For youths he wanted to speak to the parties involved. The arrangement was that as the youths were coming forward they would be put on the telephone to speak to him with their responsible adult. He would speak to the adult to determine if there was a relationship of responsibility and he would provide some details about why the officers were there and about the process of taking DNA samples. Just before 4.00 pm he received a telephone call from Detective Sergeant Beer who told him that 28 adults had come forward and samples had been obtained from them. There were a number of youths also. He said that he would deal with the youths individually with their responsible adults.
The first youths he spoke to were DA and Frank Davadaco. He asked them their names and their ages and then he spoke to their responsible adult. He had no difficulty speaking to them. He asked JW for his full name and the spelling of his name and he asked him to explain to him why he saw himself as the youths’ responsible adult. JW said that he was the youth’s grandfather. He told JW that the police were there at the request of the community to take mouth swabs to obtain DNA samples to exclude them, or otherwise, for the sexual assault of the nurse on Christmas eve. He could choose to, or choose not to, participate in the process. He was happy for the process to go ahead on this basis. He recalls JW saying something on the telephone then speaking to other people in the room. JW’s response indicated to him that he understood why the police were there, that it was a community initiative and it was a voluntary process being undertaken. His approval was given by telephone and he subsequently signed the consent document.
During his cross-examination Scott Andrew Manley gave the following evidence.
He knew that the taking of the buccal swabs required informed consent from the person providing a sample. He knew the paperwork had to be signed before the swabs were taken. He had to approve the swabs being taken on the youths. It was incumbent on him to be satisfied that each forensic procedure on a youth was done lawfully. JW gave his consent for swabs to be taken from DA and Frank Davadaco. He did not explain to JW the definition of responsible adult. He did not ask him if he had any parental duties or rights over the youths. He did not ask JW what parental duties he had for each boy. He did not ask him what he did as a grandfather in relation to providing care. He did not satisfy himself that the boys understood the significance of the non-intimate sample procedure. He was more concerned with the interaction taking place with their responsible adult. When he was speaking to the boys he simply confirmed their names and ages. After JW gave his consent he then told Officer Beer that he gave his approval to take the samples.

Senior Constable Jason Cripps gave the following evidence during his examination-in-chief.
He is with the Sex Crimes Unit. He is the officer in charge of this investigation. He went to Warruwi on 16 March 2016. Initially his role was working alongside Constable Gunter. The male members of the community would bring their forms over to him. He would discuss what it was about, go through the form, go through the personal particulars form and then he would take a sample of their DNA. After about 10 or 12 people had provided samples, Constable Gunter had to leave. He does not specifically remember JW. He remembers that he brought over two youths. He remembers Frank Davadaco’s name. His name just stood out.
But for all of the youths the following occurred. They would come over with their authorisation form and they would hand it to him. He would ask them if they knew they were there about the rape of the nurse. He would acknowledge their responsible adult. He would then go through the first form with the youths. He would ask the responsible adult if they were happy to consent to the youth providing a sample of DNA. If the adult consented he would say to the youth, “Are you happy to consent to give your DNA today?” Once they acknowledged that he would tell them that it was for sexual intercourse without consent. Then he would go to the bottom part of the form and tell them in language they could understand that the police would keep the DNA and it could be used for very serious offences like rape and murder. Then he would ask them if they agreed with that, they would then sign the second part of the form and then they would be asked to sign the NISK personal particulars form. Both documents were signed by JW and DA in his presence. He spoke to both JW and DA together. They were both seated. He would initially ask JW if he was happy to give consent for the youth to provide samples of DNA and once he agreed he would ask the youth. He then asked both of them to sign the form. There was a bag with all the NISK paperwork and the NISK. He got out a personal particulars document next. He would write out the personal details on that form and the offence details. He would then ask the responsible adult and the youth to sign if they were happy to provide their consent. Both DA and JW signed that form.
Senior Constable Cripps gave the following evidence during his cross-examination.
He does not have a specific recollection of his conversation with JW and DA. However, he adopted the same procedure with all youths.
Save in one respect in which I am not satisfied with the evidence of JW, I accept the evidence of JW and each of the Police Officers. Their evidence is consistent and mutually supportive. The respect in which I am not satisfied with the evidence of JW is his evidence that he met DA at the Art Centre. In my opinion, he may have picked up DA from his grandfather’s house in the Night Patrol vehicle. When he was cross-examined about this possibility his evidence was that he could not remember or did not know.
To the extent that the evidence of DA conflicts with the evidence of JW and the police officers, I prefer the evidence of JW and the police officers. DA’s evidence changed from time to time and he made some assertions which lacked the ring of truth and reality. For example, he said that the police forced him to sign the piece of paper.
In any event DA made the following concessions which are largely consistent with the evidence of the other witnesses.
He wrote his name on the piece of paper before he did the DNA test. He wrote his name on the paper for the DNA test. His grandfather DD went to Darwin a fair bit. Around Christmas time in 2015 his grandfather was in Darwin. He has known JW all his life. He calls him grandfather. He gets along with him very well. He speaks to him every time he goes to his house. He has stayed with him a lot. He treated him like family because he was very close to him. He can speak to JW about anything. He is sort of like a father. He was told that the police were trying to find who did it. He knew the police were trying to find who did it. He knew that the elders and older people in the community wanted all the men and boys to provide a sample to the police. He knew about that before he went to the Art Centre. He knew they were looking for someone who was young and small. He agreed that because his grandfather was away in Darwin he was happy for JW to step in and help him because he was close to him. JW spoke to him in Kunwinjku. He said that he asked him if he wanted to come to the Art Centre. He said ‘yeah’. The policeman asked JW if he was his responsible adult and JW said yes. Police asked him if JW was his responsible adult and he said yes. The police officer told him that the sample taken from his mouth could be analysed and tested and used in court. The police officer told him and JW that he was going to ring a police officer and put him on the telephone to the police officer. JW spoke to the police officer on the telephone. After he signed the form he walked over to another table. There was another police officer at that table. The second police officer took him through the form again. He was asked by the second police officer if JW was his responsible adult and he agreed. The police officer told him he was going to take a swab from his mouth. He agreed that he wanted to do the swab in his mouth. The police officer took the swab and he signed another piece of paper. He was allowed to leave and he left. He wanted to give the sample.
Findings
Having heard and considered all of the evidence I am satisfied of the following.
Both DA and JW have a good command of spoken English. JW is also able to read and write in English. However, DA could not have read and understood the Consent by a Youth to a Voluntary Non-intimate Procedure document without assistance and explanation.
JW was a responsible adult for DA and he acted as his support person. He also understood what his role was as a support person. DA consented to JW acting as his support person. In the circumstances there was no contravention of s 29 of the Youth Justice Act.
To the extent that police explained matters to DA they did so in a language and in a manner that was likely to be understood by DA having regard to his age and maturity, cultural background and English language skills.
However, no police officer told DA that if his DNA matched the male DNA obtained from the complainant he would be charged with sexual intercourse without consent and the evidence would be used against him. They did not even tell him that he would be in serious trouble in those circumstances. I am not satisfied that DA understood this was the case and unless he did he was incapable of giving informed consent. This amounted to a contravention of s 15 and s 32 of the Youth Justice Act. In order to comply with s 15 and s 32 of the Youth Justice Act and obtain informed consent from DA, it was necessary for the police to tell him that if his DNA matched the sample of male DNA obtained from the complainant he would be charged with sexual intercourse without consent and the evidence would be used against him; and he could refuse to provide a sample of his saliva if he chose to do so. This was particularly necessary in this case because not only was DA a youth but he was a youth without any prior convictions, and I infer no previous dealings with the police. There was a lot of pressure from the community for men and youths to provide samples of their DNA and the express purpose of providing the DNA samples was to be eliminated from the investigation. The fact that the members of the Warruwi Community requested the police to come to their community and take DNA samples and that the police only attended the community to take samples of DNA from volunteers for elimination purposes did not change the obligation of police to fully inform the volunteers of the consequences of the process.
I also find that Acting Superintendent Scott Manley failed to satisfy himself that DA consented in writing, or at all, to undergo the non-intimate procedure before he caused the other police officers to take a sample of saliva from him. His evidence was that he only asked the youths he spoke to their name and age and then he spoke to their responsible adult. He did not even ask JW if DA consented to providing a sample of his saliva. The evidence of Senior Constable Cripps also establishes that DA signed the consent form after the superintendent gave his approval for the youths to provide a sample of their saliva. This is contrary to the provisions of s 32 of the Youth Justice Act. The text of the section makes it clear that before a senior police officer may cause the procedure to be carried out by another person he must be satisfied that the youth consents in writing to undergoing the procedure. This responsibility is clearly placed on a senior police officer for the protection of a youth. In this regard, there was a systems failure which was brought about by the late arrival of the police in the community through no fault of their own and the fact that for a significant period of time telephone lines were not working. Acting Superintendent Manley should have been contacted after DA had the procedure explained to him by Senior Constable Cripps and after he had signed the consent form. Acting Superintendent Manley should have then spoken to Senior Constable Cripps to confirm that he had explained the procedure to DA and that DA had signed the consent form. He should have then spoken to DA to confirm he consented to providing a sample of his saliva and understood the potential ramifications of doing so and had signed the form. He should then have spoken to JW to confirm that he understood the procedure and the potential ramifications of DA providing a sample of his saliva and had consented in writing to DA providing a sample of his saliva.
The exercise of discretion
As to the first limb of both s 59(2) of the Youth Justice Act and s 138(1) of the Evidence (National Uniform Legislation) Act, it is apparent the charges against DA are very serious charges, the DNA evidence is very cogent and significantly probative evidence, without the evidence the Crown case would be significantly weakened, and it may not have been possible to obtain the evidence without the contraventions of the Youth Justice Act. However, as DA stated that he wanted to provide a sample of his DNA there is a remote possibility that he may still have provided a sample even if he was told that the provision of such a sample may result in him being charged with sexual intercourse without consent. There is a much greater probability that he would have refused to provide a sample of his DNA if he had been adequately informed.
As to the second limb of s 59(2) of the Youth Justice Act, counsel for the defence, Mr Aust, was unable to identify any rights that may be unduly prejudiced. In saying this I am not being critical of Mr Aust. The subsection is a difficult subsection. Neither counsel nor I were able to discover any previous authorities which deal with its provisions. It is an unusually drafted subsection and the difficulty in identifying affected rights arises because it is the admission of the evidence which must give rise to the prejudice. The prejudice that is the subject of the subsection is not the prejudice caused by the unlawful act itself but the prejudice of, or resulting from, admitting the evidence which is the product of the contravention of the Act.
It seems to me that the rights of DA which are potentially prejudiced as a result of admitting the evidence are his right of privacy and the dignity of his person, his privilege against self-incrimination, and his right to a fair trial. In my opinion, while there will most likely be further publication of the results of his DNA analysis during the course of the trial, his right to privacy and dignity will not be unduly prejudiced by the admission of the evidence. This is because he said he wanted to provide a sample of his DNA, and while he did not appreciate fully the consequences of providing a sample, he understood the manner in which the buccal swab would be taken.
The privilege against self-incrimination is potentially a very important principle in circumstances where the accused is a vulnerable youth who was not even a suspect at the time he was asked to provide a sample of his DNA. However, the scope and extent of the privilege against self-incrimination remains unsettled in Australia. Traditionally, the privilege does not extend to the tender of real evidence because such evidence is said to exist independently of any action of the accused. The privilege is usually confined to testimonial evidence.[7] Apart from the decision of Powell JA in Fernando v Commissioner of Police,[8] I have not been able to find any Australian authority which adopts similar reasoning to that adopted by the Supreme Court of Canada in R v Stillman[9] under the Canadian Charter of Rights and Freedoms. In that decision the majority of the Court determined that real evidence, including buccal swabs, obtained as a result of a breach of a right recognised by the Charter was inadmissible if it was conscriptive evidence because the tender of conscriptive evidence resulted in an unfair trial. Evidence will be conscriptive evidence when the accused, in violation of his rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.[10] The trial is unfair because the tender of such evidence operates against the presumption of innocence and the burden on the Crown to produce the evidence which incriminates the accused under an accusatorial or adversary trial system.
The Australian approach seems to have been influenced by recent analysis of the historical development of the adversary or accusatorial trial in England including the work of Professor Langbein.[11] However, I am not sure that the historical research necessarily resolves the matter. The fact the privilege had its origins as an effort by the common law courts using the writ of prohibition, to restrain practices in the ecclesiastical and prerogative courts, most prominently the Court of High Commission, while important, is not necessarily the end of the matter. Potentially more important are the applicable principles which gave rise to the issue of the writ of prohibition and it is arguable the basis of that is a principle against conscription.
In the relatively recent High Court decisions of X7 v Australian Crime Commission; Lee v New South Wales Crime Commission (Lee No.1); AFP v Zhao and Jin and Lee v The Queen (Lee No. 2) there is support for the following principles:
A fundamental principle of the adversarial system of trial is that the burden of proof is on the prosecution.
An accused cannot be compelled to assist in the discharge of that burden.
The principle of the common law is that the prosecution is to prove the guilt of the accused person.
The prosecution cannot compel a person charged with a crime to assist in the discharge of the onus of proof.
No accused person can be compelled by legal process to admit the offence of which he is accused.
An accused is entitled to be acquitted of a charge of criminal wrong doing unless unaided by him the prosecution proves guilt.[12]
However, those principles were being considered in the context of testimonial evidence only and the members of the High Court had considerably different views about the nature and scope of the principles.
As the law currently stands, it cannot be said that the privilege against self-incrimination is a right that DA has in the circumstances of this case which will be unduly prejudiced by the admission of the DNA evidence.
As the law currently stands, the admission of the DNA evidence does not affect the accused’s right to a fair trial because in a strict sense it does not impact on the presumption of innocence and it does not alter the burden of proof. The crown still has the burden of adducing evidence and any doubt must be resolved in favour of the accused. The accused has notice of the evidence and the evidence can be tested.
In the circumstances, I find that the admission of the DNA evidence would specifically and substantially benefit the public interest and does not unduly prejudice the rights of any person.
As to the discretion granted by s 138 of the Evidence (National Uniform Legislation) Act, I find the evidence was obtained in contravention of s 15 and s 32 of the Youth Justice Act. However, I find the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The DNA evidence has a significant probative value and it is very important evidence. The contraventions of the Youth Justice Act were not deliberate or reckless. The tender of the evidence does not result in an unfair trial.
In accordance with the exercise of the discretions granted by s 59(2) of the Youth Justice Act and s 138 of the Evidence (National Uniform Legislation) Act, I rule that the DNA evidence is admissible.

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[1] hereafter “the DNA evidence”.

[2] Youth Justice Act (NT) s 15.

[3] Ibid s 29.

[4] Ibid s 32(1).

[5] Ibid s 32(1).

[6] Youth Justice Act (NT) s 32(1).

[7] Sorby v Commonwealth (1983) 152 CLR 281 per Gibbs CJ at 291 - 2; see also King v R (1996) 24 MVR 543.

[8] (1995) 78 A Crim R 64 at 87 – 8.

[9] [1997] 1 SCR 607.

[10] Ibid at [80].

[11] John H. Langbein, The Origins of Adversary Criminal Trial (2003).

[12] X7 v Australian Crime Commission (2013) 248 CLR 92 at [42]; Lee v New South Wales Crime Commission (Lee No 1) (2013) 251 CLR 196 at [266]; AFP v Zhao and Jin [2015] HCA 5 at [18]; Lee v The Queen(Lee No 2) [2014] HCA 20 at [30] and [33].