JW v Detective Sergeant Karol Blackley & Anor

CASES CITED : Kerr v Commissioner of Police (NSW) [2001] NSWSC 637 Orban v Bayliss [2004] NSWSC 428

JW (Plaintiff) PARTIES : Detective Sergeant Karol Blackley (First Defendant) His Honour Magistrate John Favretto (Second Defendant)

C Loukas (Plaintiff) COUNSEL : P Saidi (First Defendant) Submitting appearance (Second Defendant)

Legal Aid Commission (Plaintiff) SOLICITORS : I V Knight Crown Solicitor (First Defendant) I V Knight Crown Solicitor (Second Defendant)

LOWER COURT JUDICIAL OFFICER : Magistrate Favretto

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

11708/07 JW v Detective Sergeant Karol Blackley & Anor

JUDGMENT 1 HER HONOUR: By summons filed on 3 April 2007 the plaintiff, to whom I will refer as JW, seeks the following orders: "1. An order restraining the first defendant [Detective Sergeant Karol Blackley] from testing or subjecting to any form of scientific examination all forensic samples obtained from the plaintiff on 23 December 2006.

2. An order restraining the second defendant from further entertaining the application by the first defendant for an order under s 32(4) Crimes (Forensic Procedures) Act 2000 to confirm the interim order.

3. A declaration that the interim order under s 32 Crimes (Forensic Procedures) Act 2000 made by Ross Lawton on 23 December 2006 in relation to the plaintiff is contrary to Law and void.

4. An order that the forensic samples obtained by or on behalf of the first defendant from the plaintiff on 23 December 2006 be destroyed.

The summons went on to specify the "grounds of appeal" as follows: "1. The purported interim order of 23 December 2006 is void and a nullity in that it failed to specify a time or place for the carrying out of the forensic procedure.

2. The purported interim order of 23 December 2006 is void and a nullity in that failed to specify any time limit for the carrying out of any such forensic procedure.

3. The first defendant has failed to comply with s 33(9) of the Crimes (Forensic Procedures) Act 2000 in that the application has not been supported by evidence on oath or affidavit as soon as practicable after the making of the application on 23 December 2006.

4. The first defendant failed, in purporting to carry out the forensic procedure, to comply with s 54(2) of the Crimes (Forensic Procedures) Act 2000 in that no interview friend or legal representative was present at the time of the forensic procedure and at such time the presence of such person was reasonably practicable." 2 As will be apparent from the terms of the orders sought, the application concerns an order made by Mr Ross Lawton on 23 December 2006 under s 32 of the Crimes (Forensic Procedures) Act 2000 ("the Forensic Procedures Act"). Although the reference to "Grounds of Appeal" suggests that the proceedings involve an appeal from that order, it was the position of both parties that the statutory authority for the orders sought was in ss 69 and 75 of the Supreme Court Act 1970. 3 For the purposes of the present application, the relevant provisions of the Forensic Procedures Act may be summarised as follows:

An " authorised applicant " is defined to include "an investigating police officer in relation to an offence";

An " authorised officer " is defined (by incorporation of the meaning of the term in the Law Enforcement (Powers and Responsibilities) Act 2002 ), to include, relevantly, a magistrate or Local Court registrar;

" Forensic procedure " is defined extensively, and divided into "intimate forensic procedures" and "non-intimate forensic procedures". For present purposes it is enough to say that the term includes the taking of fingernail scrapings, taking swabs of body parts, taking photographs of body parts, taking buccal swabs and taking hair samples;

" Investigating police officer " is defined to mean any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is carried out or is proposed to be carried out;

A " suspect " (not surprisingly) includes a person whom a police officer suspects on reasonable grounds has committed an offence.

s 4 : this section identifies persons who may act as interview friends, to include parents or guardians or other persons chosen by or acceptable to the suspect or offender, the suspect or offender's legal representative, and, where these are not available, persons who are not police officers or in any way involved in the investigation of an offence in relation to which a forensic procedure is proposed to be carried out;

s 22 : this section authorises the carrying out of a forensic procedure on a suspect where, inter alia, an order has been made by a magistrate under s 24, or by an authorised officer under s 32;

s 23 : inter alia, this section authorises the making of an order by a magistrate under s 24, or by an authorised officer under s 32 where the suspect does not, or cannot, consent to the forensic procedure; by s 8(2) an incapable person cannot consent to a forensic procedure. By s 3 an "incapable person" is an adult who is incapable of understanding the general nature and effect of a forensic procedure or is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out;

s 24 : this section authorises a magistrate to order the carrying out of a forensic procedure on a suspect if s 23 applies, and the magistrate is satisfied of the relevant matters set out in s 25;

s 25 : (misleadingly headed "Matters to be considered by a Magistrate before ordering forensic procedure), this section specifies in considerable detail the matters of which a magistrate must be satisfied before ordering a forensic procedure, drawing various distinctions between, for example, the matters of which a magistrate is required to be satisfied where the forensic procedure in question is an intimate forensic procedure and those of which the magistrate is required to be satisfied where the forensic procedure in question is a non-intimate forensic procedure;

s 26(1) : by this sub-section "an authorised applicant" and no other person may apply to a magistrate for an order under s 24 authorising him or her to arrange the carrying out of a forensic procedure on a suspect.

s 32(1) : this sub-section makes provision for the making, by an authorised officer, of an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay, if s 23 applies, the authorised officer is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure, and the authorised officer is satisfied that there is sufficient evidence to indicate that an authorised officer is reasonably likely to be satisfied of the existence of the matters specified in s 25 when the application is finally determined;

s 32(3) : this sub-section imposes limits on the operation of an interim order until a magistrate, at a hearing held under Div 2 (a final hearing) confirms or disallows the interim order, and whether or not the suspect consents to the carrying out of the forensic procedure after the interim order is made but before it is confirmed or disallowed;

s 33(1) : by this sub-section an authorised applicant (and nobody else) may, without bringing a suspect before an authorised officer and without obtaining an order under s 24, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay; by sub-s (2) such an application may be made only where the person the subject of the application is a suspect in relation to a prescribed offence;

s 33(5) : this sub-section provides that, where the suspect who is in the presence of the authorised applicant when an application for an interim order is made is, inter alia, an incapable person, an interview friend or legal representative of the suspect must also (if reasonably practicable) be present;

s 33(7) : this sub-section provides as follows: "(7) If a suspect who is in the presence of the authorised applicant when an application for an interim order is made is not covered by sub-s (5) [ie is a child or an incapable person] or (6) [is an Aboriginal person or a Torres Strait Islander], the suspect's legal representative (if any) must also (if reasonably practicable) be in the presence of the authorised applicant.";

s 34 : sub-ss (1) and (2) require that an opportunity be given to the suspect's legal representative or interview friend (if any) to communicate with the authorised officer to whom the application is made;

s 54(2) : this sub-section provides that, where the suspect is an incapable person, either an interview friend or a legal representative must, if reasonably practicable, be present while the forensic procedure is carried out.

s 80 : this section makes provision for orders for the carrying out of a forensic procedure on a child or an incapable person where the consent of the parent or guardian cannot reasonably be obtained or that person refuses consent and the magistrate is satisfied that there are reasonable grounds to believe that the child or incapable person, or the parent or guardian thereof, is a suspect and the forensic procedure is likely to produce evidence tending to confirm or disprove that the child or incapable person committed an offence. Sub-s (2) specifies matters the magistrate is required to take into account in determining whether to make an order under the section. (However, s 80 appears in Pt 8 of the Forensic Procedures Act, which is under the heading "Carrying out of forensic procedures on volunteers and certain other persons" and appears to have little, if any, relevance to the present case.)

s 82 : this section renders inadmissible evidence obtained as a result of forensic procedures in breach of any provision of the Forensic Procedures Act, unless the court is of the opinion that the desirability of admitting the evidence outweighs the undesirability of admitting evidence so obtained; this section, in effect, mirrors the provisions of s 138 of the Evidence Act 1995. 4 What might not be apparent from the above summary of the legislative provisions is the purpose, the nature, and the limits upon, an interim order. I have pointed out that s 25 contains detailed, and quite stringent, provisions itemising the matters of which the magistrate asked to make a final order must be satisfied before doing so. There are no such limits on the making of an interim order. That is because, as is apparent from the language of ss 32 and 33, such an order may be made where it is necessary that the procedure be carried out "without delay". However, there are then limits upon what use may be made of the product of any forensic procedure so authorised: s 38(1). Statutory recognition is given to the exigencies of any given situation: s 38 prohibits analysis of any sample taken under an interim order before a final order is made, unless the sample is likely to perish before that can be done. 5 The effect of Pt 5 is that, while an interim order may be made in order to obtain and preserve evidence that may otherwise be lost, and may be made without the safeguards provided by s 25, no use (including analysis) may be made of the product of the forensic procedure unless a final order is made in accordance with the safeguards specified in s 25. 6 Moreover, s 82 imposes restrictions on the admissibility of evidence obtained as a result of the carrying out of forensic procedures where those procedures have not been properly carried out, by reason of breach of, or failure to comply with any provisions of the Forensic Procedures Act.

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.

Photographs General and of areas swabs and scrapings taken from." 16 On the same day Mr Lawton made an interim order, in terms more limited than those sought. The interim order authorised: "The taking of fingernail scrapings, taking swabs of the hands and fingers, photographs of the hands and fingers"

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;

• the plaintiff was an incapable person under s 8 [Forensic Procedures Act] and 'cannot consent to the forensic procedure';

• the plaintiff was not provided with an interview friend or legal representative to be present while the forensic procedure was carried out;

• no attempt was made to ensure the presence of an interview friend or legal representative; and

• directions for time, date and time limit for carrying out procedure were imprecise, unclear and undefined."

The grounds of the application 22 Ground 3 of the grounds specified in the summons was withdrawn. It was not in issue that the application made by Detective Blackley was supported by evidence on oath or affidavit.

Grounds 1 and 2: failure to specify a time or place, or a time limit, for the carrying out of the forensic procedure 23 In support of grounds 1 and 2 counsel cited the passage, to which I have already referred, from Orban v Bayliss, concerning the purposes of the Forensic Procedures Act. She sought to draw an analogy with entry not authorised by law on premises, and the invalidity of search warrants that are impermissibly broad. However, she was unable to point to any provision in the Forensic Procedures Act which requires specification of a time or place for the carrying out of the forensic procedures, or to impose any time limit thereon. In fact, such a requirement would be quite impracticable and would, in many cases, defeat the objects of the Forensic Procedures Act. Quite plainly, there may well be occasions when forensic procedures are required and ordered when it cannot be known whether or when the suspect, or the persons who will carry out the procedures, will be available for that purpose. It will not be in every case that the suspect is in custody, or is subject to orders under the Mental Health Act 1900 and is therefore readily available. 24 There is nothing to support the contention that an order is "void and a nullity" for those reasons. I reject grounds 1 and 2.

Ground 4: absence of interview friend or legal representative 25 Ground 4 appears to relate only to order 4 as sought in the summons. Both the ground and the written submissions in support of it focus upon the absence of an interview friend or legal representative at the time the forensic procedures were carried out - not at the time the order was made. 26 Although there appears to be some confusion about the absence of an interview friend or legal representative at the time the forensic procedures were carried out, and at the time the interim application was made, in either case, I am satisfied that the absence has been satisfactorily explained in the affidavit of the two police officers. Detective Blackley, in particular, explained the efforts that she made to obtain information about relatives of the plaintiff, efforts which were unsuccessful. In considering grounds such as this, it is necessary to bear in mind the urgency of the circumstances. The police officers were concerned that any DNA evidence that might have been located upon the plaintiff could be lost. It was, as they said, fragile and transitory. In my opinion Detective Blackley has demonstrated that she did all that was reasonably necessary and possible in the circumstances. 27 I reject this ground of the application. The summons must therefore be dismissed. 28 Counsel also argued that Detective Sergeant Blackley was not "an authorised applicant" within the meaning of s 33(1). This plainly cannot succeed. As indicated above, "an authorised applicant" includes an investigating police officer; "an investigating police officer" means any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is proposed to be carried out. The evidence of Detective Blackley establishes beyond question that she was an investigating police officer, and therefore an authorised applicant.

Prematurity 29 The principal response made on behalf of the defendant was that the application is premature. There is considerable substance in this position. 30 S 38 precludes the analysis of any samples taken under an interim order until a final order is made, or unless the sample is likely to perish before a final order is made. 31 As I indicated in Orban v Bayliss, and have here repeated, the provisions relevant to the making of a final order are rigid and demanding and very specific. No order may be made unless the requirements of s 25 are met. 32 Thus, the samples taken under the interim order will not be analysed, and therefore will not be used, unless and until a magistrate determines that it is appropriate that an order be made. 33 Further, should it be the case that there is some flaw in the process, this becomes a matter of admissibility of evidence on any hearing: see s 80; and see also s 138 of the Evidence Act 1995. 34 This provides an alternative reason for the order I propose to make. 35 The summons is dismissed with costs. **********

25/07/2007 - File number inserted - Paragraph(s) Coversheet

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