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

1. 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

2. 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…