JW v Detective Sergeant Karol Blackley & Anor

JW v Detective Sergeant Karol Blackley & Anor - [2007] NSWSC 799 - NSWSC 2007 case summary — Zoe

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The facts 7 In December 2006 the plaintiff was a patient in the psychiatric unit of the Cumberland Hospital at Westmead. He had been diagnosed with a drug-induced psychosis and was being treated for that condition. He was also receiving treatment for schizophrenia. 8 On 23 December 2006 another (female) patient ("EB"), who was also receiving treatment for chronic schizophrenia and mood disorder, reported to a nurse that the plaintiff had assaulted and raped her. She said that she had bled badly from the nose and showed the nurse her bedding, which was significantly bloodstained. The nurse spoke to the plaintiff who replied in terms that could be construed as an admission. He appeared to the nurse to have dried blood around his mouth. 9 The nurse notified police. Hospital authorities isolated the plaintiff. Senior Constable Filiz Kukukakyuz attended. EB gave an account of what she alleged had occurred. This included an assertion that she had been digitally penetrated and penilely penetrated and punched by the plaintiff. 10 Senior Constable Kukukakyuz contacted Detective Sergeant Karol Blackley who gave instructions as to the priorities required for the investigation of the allegation. Although Detective Sergeant Blackley was engaged on a homicide investigation she continued to liaise with Senior Constable Kukukakyuz. 11 On the information available to her, Detective Sergeant Blackley took the view that, if the plaintiff were the perpetrator of an assault as described by EB, then it was likely that there would be traces of EB's DNA on his hands or under his fingernails. She considered that evidence would be extremely fragile and vulnerable to loss and destruction, and capable of being removed by thorough washing. 12 She was informed by hospital staff that the plaintiff was heavily sedated and had been moved away from the ward where the incident was alleged to have occurred. She requested from the hospital details of the plaintiff's family; she was given details that had been provided to the hospital by the plaintiff, but, notwithstanding attempts to do so, was not able to make contact with any such persons. She conducted enquiries on the Police Service information system but was unable to obtain any information identifying the plaintiff's family. 13 After making these enquiries she made an application for an interim order under s 33 of the Forensic Procedures Act. 14 This application came before Mr Ross Lawton, who was (it was not in dispute) an "authorised officer" for the purpose of that section. The application was made by facsimile. She subsequently had a discussion with Mr Lawton. 15 She identified the forensic procedures sought as: "Fingernail scrapings.

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from the plaintiff. 17 It was common ground, and acknowledged in the application by Detective Blackley, that, by reason of his psychiatric condition, the plaintiff was an incapable person and, accordingly, could not consent to any forensic procedure. 18 Counsel who appeared for the plaintiff acknowledged that it is only in an exceptional case that orders of the kind now sought will be made. She cited as authority for this proposition Kerr v Commissioner of Police (NSW) [2001] NSWSC 637 per Studdert J. She contended that this was an exceptional case. 19 In Kerr orders framed in virtually identical terms to those the subject of the present summons were sought. Studdert J said: "29 If I were to make the orders sought this would have the practical consequence of interfering with the course of the criminal process following the charging of the plaintiff with the most serious crime of murder. I am asked to make an order that would prevent testing and scientific examination of available evidence. I am asked to order the destruction of evidence. Testing and/or scientific examination of the samples may produce evidence of significant probative value for the purposes of any trial that may take place. For this Court, in its civil jurisdiction, to make orders, the practical consequence of which would be to eliminate the possibility of significant evidence being made available for the consideration of this court in its criminal jurisdiction, is a course which should only be taken in exceptional circumstances." 20 Counsel also referred to a passage in a decision of my own in Orban v Bayliss [2004] NSWSC 428, in which I alluded to the purposes of the Forensic Procedures Act, the inroads it makes into traditional rights and liberties, and the need to balance the interests of justice in properly investigating serious crime, and those traditional rights and liberties. 21 In that context counsel argued that the circumstances here are exceptional, within the principles stated by Studdert J in Kerr. The circumstances she identified were expressed as follows: "• the plaintiff was under a mental health order at the Paringa Ward of the Cumberland Hospital, and treated for psychosis;

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