Zoric v Police - [2006] SASC 355

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ZORIC v POLICE
[2006] SASC 355
Judgment of The Honourable Justice Debelle (ex tempore)
15 November 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - IDENTIFICATION AND EXAMINATION OF THE PERSON
Forensic examination – blood sample taken under interim order – whether grounds existed for final order - whether reasonable grounds to suspect appellant had committed a criminal offence – whether reasonable grounds to suspect forensic procedure could produce material of value to the investigation – whether obtaining the evidence to prove or disprove appellant’s guilt outweighs public interest in ensuring private individuals are protected from unwanted interference - appeal dismissed.
Criminal Law Consolidation Act 1935 s 19A; Criminal Law (Forensic Procedures) Act 1998 s 3, s 17, s 23, s26, s42, referred to.
BJM v Police A Crim R 393; George v Rockett (1990) 170 CLR 104; Hussien v Chong Fook Kam [1970] AC 942; Police v Beck (2001) 79 SASR 98; Walsh v Loughnan [1991] 2 VR 351, applied.
Iskra v Police (2003) 84 SASR 586, considered.

ZORIC v POLICE
[2006] SASC 355
Magistrates Appeals: Criminal

DEBELLE J. This is an appeal from a final order authorising a forensic procedure. The order was made by a magistrate pursuant to the terms of the Criminal Law (Forensic Procedures) Act1998.
A Blood Sample is Taken
The application to carry out a forensic procedure was made following an incident at about 2.50 am on 6 May 2006, in which a motor car being driven by the appellant collided with a pedestrian on Hanson Road, Woodville North. The facts which I now recite are based on findings of fact made by the magistrate, which are not contested on the appeal.
1.On 6 May 2006, at about 2.50 am, the appellant was the driver of a vehicle travelling in a southerly direction on Hanson Road at Woodville North.
2.At that time, the vehicle driven by the appellant collided with a female pedestrian. The collision occurred in the right-hand lane of what, at that point, was a dual-lane carriageway.
3.There were no apparent obstacles obscuring the view of the appellant. The weather conditions were fine, lighting conditions were good and visibility was clear. In that respect, the cause of the collision is unexplained.
4.The appellant submitted to an alcotest within two hours of the collision and that alcotest returned a nil reading.
5.Shortly after the collision, police saw that there were a number of bottles of Visine and some bottled water in the appellant’s car. The evidence was that the presence of the Visine and the bottled water is consistent with the use of drugs for a non-medicinal purpose. The presence of the Visine and the bottled water, therefore, gave rise to a suspicion, in the minds of the police officers investigating the accident, that drugs might have been present in the appellant’s blood at the time of the collision and that the presence of such drugs resulted in the appellant having driven the vehicle immediately before and at the time of the collision in a culpably negligent manner, or recklessly, or at a speed and in a manner dangerous to the public.
6.Some time after the collision, police officers went to the appellant’s home and asked him to consent to a forensic procedure to enable a sample of blood to be taken and tested for the presence of drugs.
7.The appellant declined to consent to the forensic procedure.
8.At 0608 hours, on 6 May 2006, Mr Grasso SM authorised the taking of a blood sample from the appellant.
9.A sample of blood was extracted from the appellant by a medical practitioner.
10.The evidence does not disclose the time at which the sample of blood was taken, but the magistrate found that it was taken within two hours of Mr Grasso’s order. It is admitted that it was taken at about 7.45 am.
11.The sample of blood remains in the custody of the police.
If a final order is made, the sample of blood will be analysed. If a final order is not made, it will be destroyed.
The Scheme of the Act
The Criminal Law (Forensic Procedures) Act is effectively a code prescribing the circumstances in which forensic procedures may be performed upon persons suspected of having committed a criminal offence and those convicted of criminal offences: Police v Beck (2001) 79 SASR 98 at [22]. As the scheme of the Act has been noted in other decisions, it is unnecessary to note all of its provisions. However, it might be emphasised that the Act contains safeguards to protect individuals from unwanted forensic examination and those safeguards must be scrupulously observed. In particular, care must be taken to ensure that the requirements of s 26(1) of the Act are satisfactorily established before any final order is made.
For present purposes, it is sufficient to note that the process by which a compulsory forensic procedure is ordered requires both an interim order and a final order: see s 17 of the Act. The order made by Mr Grasso SM was an interim order. Both interim and final orders may be made by a magistrate: see s 48 of the Act. Evidence obtained pursuant to an interim order is not admissible, unless a final order is made confirming the interim order: see s 23(3) of the Act. In addition, a final order must be made before material obtained under an interim order can be analysed, unless the material is likely to perish or lose its evidentiary value before it is possible to hold a hearing to obtain a final order: see s 42 of the Act. The power to obtain an interim order is plainly intended to provide a means by which to act urgently and obtain evidence which might otherwise be lost or destroyed: see s 23(1) of the Act.
In this case, there is no challenge to the manner in which the interim order was made by Mr Grasso SM or to the manner in which the forensic procedure was conducted. The issue is whether the magistrate erred in finding that there were grounds on which to make the final order.
The procedure of taking a sample of blood by means other than a finger prick is an intrusive forensic procedure: see s 3 of the Act. An intrusive forensic procedure may only be performed if the suspected offence “is a serious offence”: see s 26(3)(b). The police suspect that the appellant has committed the offence of driving a vehicle in a culpably negligent manner and by that culpable negligence has caused harm to another, contrary to s19A of the Criminal Law Consolidation Act 1935. A serious criminal offence is defined by s 3 of the Act. It is common ground that an offence contrary to s 19A is a serious criminal offence.
The Requirements for a Final Order
Section 26(1) of the Act prescribes what must be established if a final order is to be made. A final order will only be made if a magistrate is satisfied that
(a)    there are reasonable grounds to suspect that the respondent to the order has committed a final offence; and
(b)    there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of a suspected offence; and
(c)    the public interest in obtaining evidence tending to prove or disprove the appellant’s guilt, outweighs the public interest in ensuring that private individuals are protected from unwarranted interference.
Section 26(2) lists the factors to be considered when weighing the public interest for the purposes of para (c). I will return to that provision.
Appeal Against the Final Order
The magistrate held that he was satisfied as to each of the requirements of s 26(1) and (2) of the Act. The appellant has appealed against that finding.
The notice of appeal does not recite anything further than that the magistrate erred in making that decision stating that there were no reasonable grounds upon which the magistrate could be satisfied either as to sub-s (1) or sub-s (2) of s 26 and that he erred in finding that the public interest in obtaining the evidence outweighed the appellant’s right to be protected from unwanted interference. Those grounds are amplified in the appellant’s outline of argument. It is clear that the appellant challenges each of the grounds upon which the magistrate reached his conclusion.
In Iskra v Police (2003) 84 SASR 586 at [29], Perry J said that the matters to be addressed on an application for a final order will differ, depending upon whether or not the application is made by the investigating police officer. Since that decision, the Act has been amended. The observations of Perry J, therefore, no longer apply. The three issues prescribed by s 26(1) must be addressed, no matter who is the applicant.
A Suspicion Based on Reasonable Grounds?
Mr Woods, who appeared for the appellant, submitted that the absence of an explanation as to the cause of the appellant’s car striking the pedestrian does not give rise to a suspicion based on reasonable grounds that the appellant had committed the offence of driving in a culpably negligent manner so as to cause harm to another. He submitted that the police were under a duty to place before the magistrate evidence which may have assisted in eliminating or discounting other causes of the collision. He listed a number of matters which ought to have been proved. He, therefore, submitted that, in the absence of proof of those matters, it was not sufficient for the police to claim that there is no other logical explanation for the collision.
Section 26(1) requires that there are reasonable grounds to suspect that the respondent has committed a criminal offence. A belief is not required, only a suspicion. Suspicion and belief are different states of mind: see George v Rockett (1990) 170 CLR 104 at 115. Suspicion does not mean that all reasonable possibilities have been excluded or that other explanations have been ruled out. That is to place suspicion at a higher level than its true meaning requires. Suspicion denotes a less positive state of mind. As Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942 at 948:
Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect, but I cannot prove’. Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.
The remarks of Lord Devlin were followed and applied by the High Court in George v Rockett at 115, when the court examined what state of mind constitutes suspicion.
Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth), Kitto J. said:
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a ‘slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors”.
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the ground which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. (Citations omitted.)
The requirement in s 26(1)(a) that reasonable grounds must exist for the suspicion is a reiteration of the proposition in the fifth line in those reasons that “some factual basis for the suspicion must be shown”. There must be, in other words, facts which would cause a reasonable person to surmise that the respondent has committed a criminal offence.
As the magistrate noted, reasonable grounds for suspicion is not mere idle wondering. Neither is it mere speculation. As Martin J said in Police v Beck at [37]:
The decision for the magistrate was, therefore, whether facts existed which were sufficient to induce in the mind of a reasonable person a suspicion that the respondent had committed a criminal offence. Put another way, the magistrate was required to decide whether reasonable grounds existed to create in the mind of a reasonable person an apprehension that the respondent might possibly have committed an offence: R v Heaney [1992] 2 VR 531 at 547 - 548.
In Police v Beck, at [39], Martin J agreed with Vincent J in Walsh v Loughnan [1991] 2 VR 351 that, when determining whether reasonable grounds existed, the magistrate was not bound by the rules of evidence. Vincent J had said:
The questions to be determined by the learned magistrate were not to be resolved by reference to the rules of evidence or by the application of a test related to the balance of probabilities. In the process of investigation it is by no means uncommon for information to be obtained which would not be admissible in a court of law, or for well-founded suspicions and beliefs to be developed on the basis of a variety of pieces and types of information, including evidence of consistency or inconsistency of conduct, which could not be advanced as proof of the facts outlined or suspected to exist.
I respectfully agree with both Vincent J and Martin J. I turn to apply those principles to the facts of this case.
The suspicion that the appellant drove in culpably negligent manner is founded on a number of facts. Essentially, those facts are that the accident occurred on a wide road, where the lighting was good and in conditions where the weather was fine and the road was dry. Coupled with that are the observations of the bottles of Visine seen in the front console area of the appellant’s car together with a bottle of water. The unchallenged evidence was that the bottles of Visine and the water are consistent with the use of drugs. The appellant does not dispute that evidence. It was reasonable, therefore, for the investigating officer to form the suspicion that Visine was being used as a drug and for a non-medicinal purpose. The fact that blood tests did not disclose alcohol in the appellant’s blood does not, of course, rule out the fact that he might have been affected by drugs. While one or two bottles of Visine might be explained as being used for medicinal purposes only and might not, standing alone, give rise to reasonable grounds for a suspicion that drugs were being used for a non-medicinal purpose, the position is different when a number of bottles of Visine are found in the car. The fact that the appellant might have been using drugs coupled with the fact that, on the night when he collided with the victim, the lighting was good, the weather was fine, the road was dry and the traffic was light, are reasonable grounds on which to suspect that the appellant was driving in a negligently culpable manner. Shortly put, they constitute reasonable grounds for suspicion that the appellant’s faculties were impaired by drugs so that he failed to keep a proper look out and failed to take proper evasive action to avoid colliding with the victim.
Mr Woods submitted that the respondent had failed to place before the magistrate evidence which might have assisted in eliminating or discounting other causes of the collision. He gave particulars of what he submitted the police had failed to do. He submitted that the police had
●failed to provide a statement from the complainant as to how she came to be on the roadway when struck;
●failed to exclude the fact that the complainant was affected by alcohol or a drug or suffered from some other disorder, such as suicidal intention, or might even have just been distracted or tired;
●failed to prove whether the complainant was wearing dark clothing or other bright clothing;
●failed to provide any plans, measurements or detail of the scene of the collision or anything from which the point of impact might have been determined;
●failed to produce evidence of bad driving on the part of the appellant;
●failed to examine the appellant’s vehicle to exclude the possibility of mechanical defect.
It is possible to have reasonable grounds for a suspicion the appellant was driving in a negligently culpable manner without the benefit of evidence on each of those particular facts. The list indicates that Mr Woods misconceives the effect of para (a) of s 26(1) to mean that the magistrate had to be satisfied that the appellant had committed the offence. That is not what s 26(1) requires. It is not a case of whether the police have excluded all relevant possibilities. It is sufficient for a number of factors to be considered together and not in isolation from one another. In this case, the relevant factors were the number of bottles of Visine and the fact that this collision had occurred in the circumstances noted above.
Mr Woods also contended that the respondent had failed to establish the nature of the street lighting at the location of the collision. That submission overlooked the summary of the street lighting and other relevant factors in the affidavit filed in support of the final order. That evidence was to the effect that the road surface was dry, the lighting conditions were good and traffic was minimal. The affidavit proved that there were no known environmental conditions that contributed to low or poor visibility at the time of the collision and that, when police first arrived, the area was clear and easily visible.
Mr Woods further contended that the police had failed to interview the appellant and ask for his explanation as to what occurred. That overlooks the fact that the appellant might have exercised his right to silence. As I understood his submission, that last ground was not pressed.
For all of those reasons, the appellant has failed to establish that the magistrate erred in concluding that there are reasonable grounds to suspect that the appellant had committed a criminal offence. It is clear from his reasons that the magistrate proceeded on the footing that it was not the suspicion of the investigating police officer which was relevant, but, instead, that he, the magistrate, had to determine objectively whether there are reasonable grounds to suspect that the appellant has committed a criminal offence.
Material of Value
The next matter which had to be established was that there are reasonable grounds to suspect that the forensic procedure could produce material of value to the investigation of the suspected offence. It must be emphasised that para (b) of s 26(1), requires no more than a suspicion on reasonable grounds that the forensic procedure could produce material of value to the investigation of the suspected offence. The expression “material of value” refers both to evidence which might incriminate the suspected offender and to evidence which might exculpate the suspect. Any doubt as to that issue is removed by a consideration of sub-s (2)(d) of s 26. Whilst that appears in a different subsection, it is, nevertheless, relevant in determining the purpose of sub-s (1)(b). In either event, what is required is material which is of value to the investigation. Furthermore, it is necessary only that the forensic procedure could produce material of value to the investigation. The word ‘could’ denotes the possibility that the procedure might produce material of value to the investigation. It is not a requirement of para (b) that the applicant for a final order is able positively to establish that the procedure will produce material of value to the investigation. As Mullighan J said in BJM v Police (2002) 133 A Crim R 393 at [26], the test in s 26(1)(b) is, not that the forensic procedure would produce material of value, but that it could do so.

The magistrate’s reasons show that he was alert to the factors which might call into question the probative value of an analysis which showed that the appellant was affected by drugs. For example, he could have consumed drugs on returning home after being released by police. That fact might affect the weight to be attached to the elements of the analysis. However, it does not mean that the analysis could not assist the investigation, at least as an item of circumstantial evidence. Alternatively, if the analysis disclosed that no drug was present in the appellant’s blood, that factor would be of value in ruling out the possibility that the appellant was affected by drugs. The appellant fails on this ground also.
Balancing Competing Interests
The final issue to be determined requires a balancing of different factors affecting the public interest.
Para (c) of s 26(1) requires the magistrate to be satisfied that the public interest in obtaining evidence tending to prove or disprove the appellant’s guilt outweighs the public interest in ensuring that private individuals are protected from unwanted interference. The factors to be considered when weighing those two interests are listed in s 26(2) which provides:
(2)In weighing the public interest in obtaining evidence tending to prove or disprove guilt against the public interest in ensuring that private individuals are protected from unwanted interference, the appropriate authority must have regard to –
(a)     the seriousness of the suspected offence; and
(b)     the extent to which the procedure is necessary for the proper investigation of the suspected offence; and
(c)     any likely effects of the procedure on the welfare of the respondent (so far as they can be reasonably anticipated) given the respondent’s age, physical and mental health, and cultural and ethnic background; and
(d)     whether there is a less intrusive but reasonably practicable way of obtaining evidence of the same or similar probative value to confirm or disprove that the respondent committed the suspected offence; and
(e)     if the respondent gives any reasons for refusing to give informed consent – those reasons; and
(f)     other relevant factors.
When weighing the two aspects of the public interest, the magistrate is not limited to the factors as listed in s 26(2). As para (f) emphasises, there may be other relevant factors.
I set out the magistrate’s findings in relation to each of the factors in s 26(2) and my observations on each of those findings:
1.The magistrate found that the suspected offence was a serious offence. That finding is plainly correct and is not disputed on the appeal.
2.The magistrate found that the procedure was necessary for the proper investigation of the suspected offence. The reasons for that conclusion appear above. The magistrate’s conclusion is plainly correct.
3.The magistrate found the question whether the procedure would affect the welfare of the appellant did not arise in this case as the procedure had already been implemented and the sample of blood had been taken. That conclusion is manifestly correct and is not challenged on the appeal.
4.The magistrate found that the question whether there was a less intrusive but reasonably practicable way of obtaining the same evidence did not arise because there was no other practical way of obtaining that evidence. Plainly, this evidence could only be obtained by a blood sample. A blood sample had been obtained. Any later blood sample would be of no probative value at all. The magistrate’s conclusion is, therefore, plainly correct. Again, as I understand the submission, it is not challenged on this appeal.
5.The magistrate found that there was no evidence of the reasons of the appellant for refusing to consent to the procedure. The only evidence was that the appellant had refused to give consent. The magistrate had to deal with the matter on that footing. It would have been improper to have required reasons from the appellant for refusing to grant consent. Again, this conclusion is not open to challenge.
6.The magistrate found that there was no other relevant factor. The only other relevant factor which has been suggested is that the probative value of the evidence might be slight. The magistrate had regard to that fact. While there is the reasonable possibility that the accused might have consumed drugs after he had been released by the police, or that the sample was obtained some considerable time after he had been driving, that is not a reason for not making a final order. The evidence of the blood sample would constitute an item of circumstantial evidence. Its probative value would depend on what other factors are proved at any trial.
The magistrate, therefore, concluded that he was satisfied as to the requirements of para (c) of s 26(1), that is to say, that the evidence obtained outweighed the public interest in ensuring that private individuals are protected from unwanted interference. The appellant’s attack on that finding fails for the reasons I have already expressed.
Conclusion
The appellant has, therefore, failed on all of the grounds upon which he challenges the decision of the magistrate. For these reasons, the appeal must be dismissed.