Police v JW

5. After oral submissions on 14 August 2007 the court on 23 August 2007 raised the following legal issues in writing:

1. What does "physical integrity" mean? Is it limited to the nature and extent of the physical acts on JW in carrying out the forensic procedure and at the time of the procedure and not in the making of the application (that is matters consequent and not precedent to the final order)?
2. If police have acted in a neglectful and careless manner in making the application and carrying out the forensic procedure (other than for the physical acts on JW in carrying out the procedure) how is that relevant to the test under 24 or is it only relevant under s82?
3. Does s82 apply to these proceedings?
4. What is the relevance for the purposes of the s24 (4) test or otherwise in this application of the submission that JW was in fact in police custody if that be accepted by this court?
5. If the former s25 is the applicable provision do the issues raised above still arise in construing s25 (g) given the words "the carrying out…is justified in all the circumstances" and s25 (a) (f) have been satisfied which do not seem to be in dispute.

Facts 6. Subject to the evidence of the applicant in cross-examination on the application before this court the facts as found by Justice Simpson are adopted: "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. Swabs of hands and fingers. Buccal swab. DNA hair removal. 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."

Exhibits 1-6 are evidence before this court. Evidence of the applicant in these proceedings 7. In examination in chief the applicant said: · She did not become aware of the correct contact details for a support person (interview friend) until a day or two after the carrying out of the procedure. · JW was calm and cordial in the company of at least four staff persons from Cumberland Hospital when she attended the ward at Cumberland Hospital in the company of Dr. Stewart. · The only forensic procedures carried out were those authorised by the interim order.

8. In cross-examination the applicant gave the following evidence: · Dr. Stewart was contracted to the Police to perform the procedure. There had been no prior contact between Dr. Stewart and JW. · Her role in the investigation was that as the senior police officer directing the actions from "afar". She was concerned to follow the legislation and did look at it. She was aware of the limitations imposed by the legislation. · From the information that Senior Constable Kukukakyuz had given her prior to the interim order application she was aware that JW was an incapable person as he "was asleep and unconscious". · She was aware that JW was detained in one of the wards at Cumberland Hospital but was not aware of the specific room number. She was not aware if he was under guard but had been told he had been sedated. She was aware that JW was unconscious between 130pm-430pm. She was not aware when JW regained consciousness but he was not unconscious when she got there and he was "calm and cordial". · When she swore the Affidavit in Support of the Interim Order application (Exhibit 1) she was minded of the urgency required. At the time she was aware JW had been removed from his ward to another ward but was not aware if he had been isolated by security staff. She agreed that when she swore the affidavit that it was true and correct at that time. He attention was directed to paragraph 6 of the affidavit and she conceded that there she did state JW had been removed and isolated by security staff and had been sedated. · She acknowledged her observation in the affidavit that JW may destroy evidence by washing his hands but did not make inquiries whether the room where JW had been taken to had access to water. · She acknowledged that paragraph 6 of her affidavit was not true and correct as at no stage prior to the swearing of the affidavit had JW been given the opportunity either himself or through his lawyer or interview friend to make written submissions. · She acknowledged that paragraphs 11 (suspect under arrest) and 12 (suspect not under arrest) were not correct. She said that JW was not under arrest at the time so the most appropriate paragraph was 12. She said she did not apply for a summons/warrant under s29 and when it was put to her the reason was that JW was under arrest by police she replied "I applied for an Interim Forensic Procedure". She maintained that JW was "not under arrest by us". When put to her that JW was not free to go she replied she could not answer that question. · She agreed that the Affidavit was completed from a pro forma and now having read it she had some difficulty with it in its generic form. · Regarding her Supreme Court Affidavit of 2 July 2007 (Exhibit 6 on this application) at paragraph 8 she could recall if a request had been made of JW not to wash his hands and was not aware if JW had access to water. · Regarding paragraph 9 of her Supreme Court Affidavit she said she made inquiries of the Hospital as to family details so they could be contacted. Contact was attempted by ringing a number but she could not reach anyone. From the Hospital's records she had an address [address] but she did not herself make or cause anyone else to make inquiries at that address. The address [address] was put to her but she only knew of the [address] address. It was put to her she could have sent a police car to [address] and she replied she was not aware if it was JW's or his parents address. · Regarding paragraph 10 of her Supreme Court Affidavit she recalled discussing with Mr. Lawton the issue of JW's legal representation but was not aware whether JW was conscious at that stage and so far as she was aware JW was unconscious between 130pm-400pm. · She attended Cumberland Hospital with Dr. Stewart at 815pm and observed that JW was calm and cordial. She believed that another doctor was also present and at least four nursing staff although she was not aware if those staff were the ones that had earlier detained JW. She was not aware of an earlier physical altercation with staff, only aware that JW had been restrained and detained. She had been in contact with Senior Constable Kukukakyuz at times but could not recall if Senior Constable Kukukakyuz had informed her of an altercation. · As JW was calm and cordial she was asked why did she not ask for his fathers telephone number and replied that she had obtained the order by then so did not ask for those details. Further, Dr. Stewart was on a "very tight time schedule" and she already had the order by then. · It was then put to her that as Dr. Stewart was present and she had the order was her position that she then needed do no more investigation. She replied she was conducting the investigation within the terms of the order. She had a conversation with JW but he did not give any details of his parents although he did ask for a lawyer. She conceded that she did not put in her Supreme Court Affidavit that JW asked for a lawyer at the time the forensic procedure was to be carried out. She also conceded she did not put that into her statement of 6 February 2007 (Exhibit 5) although she had a recollection of typing that in some document but was not aware if it had been served and needed to check with Senior Constable Kukukakyuz. She again answered that JW did ask for a lawyer at the time of the forensic procedure but could not remember the exact details. 9. In re-examination she said: · Paragraph 9 of her Affidavit in Support of the Interim Order (Exhibit 1) provides for options to be selected and she had not selected either option. · Paragraphs 11 and 12 of her Affidavit in Support of the Interim Order (Exhibit 1) provide for "(delete if not applicable)" and she had not done so. · Paragraph 10 was irrelevant on the application. · She agreed the Affidavit in Support of the Interim Order (Exhibit 1) was from a pro forma document and she had not designed that document. · To her knowledge at the time Mr. Lawton granted the Interim Order JW was not conscious. · The forensic procedure was recorded on video and JW was advised of his rights and the right to a lawyer. · She acknowledged that by JW raising the issue of a lawyer did not change her mind about carrying out the forensic procedure, nor would the presence of a lawyer or interview friend have prevented her from taking the samples. · Senior Constable Kukukakyuz was present at Cumberland Hospital at some time but was also at Westmead Hospital attending to victim and she could not say for how long.
9. Further cross-examination was allowed following the re-examination and the applicant said: · She confirmed that Senior Constable Kukukakyuz had gone to Westmead Hospital. She was not aware if other police had remained at Cumberland Hospital.

Evidence of JW's father, AW 11. JW's father was called in the respondents case and gave evidence that: · He was JW's father and had lived at [Address], for 3 years. · Prior to his admission into Cumberland Hospital JW had lived at that address. · His telephone number and address was listed in the telephone directory. His telephone number was [X]. Mobile number [X] was not his and was not sure if it was his sons. · On 23 December 2006 he could not recall where he was. At the time also living at the address was his wife's brother, two sisters and a daughter. On 23 December 2006 he did not know where they were. · On 23 December 2006 the home telephone number [X] had an answering machine in working order. · On 23 December 2006 he was aware that JW was at Cumberland Hospital but cannot remember visiting him that day, nor could he remember if he visited JW on 22 or 24 December.

Determination The applicable provision-s24 or s25? 12. The applicant submits that s25 is applicable as that was the provision in force when the application was made. While not expressly relied upon the applicant's submission must rely upon s30 (1) of the Interpretation Act 1987, which denies retrospective operation where existing rights etc are concerned.

The respondent submits that the amendment does not change the substantive law but simply provides the court with guidance as to how the application is to be determined and s24 is the applicable provision for the application.

In Rodway v The Queen (1990) 169 CLR 515, the court said regarding the retrospective operation of a statute, at 518-519:

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations."

13. A proper construction of the amendment reveals that it provides for clarification of the procedure to be followed and does not affect existing rights. For present and material issues in dispute the words "is justified in all the circumstances" (s24 (1) & (4); s25 (g)) remain in both provisions. The effect of the amendment is to add explicit criteria which are to be considered by the court in determining the application and does not affect the right to make the application. Further, the criteria now stated in s24 (4) are criteria the court could (and should) have considered under s25 (g) which confirms the amendment to be procedural only. There are other amendments to the procedure to be followed but again they are procedural only and for present purposes not disputed.

14. The clear intent of the amendment as stated in "The Agreed in Principle" (formerly called the 2nd Reading Speech) Speech by Mr. Paul McLeay, Parliamentary Secretary on 28 September 2006 was:

"For the first time, the Act will give statutory guidance to magistrates on the criteria to take into account when deciding whether to order a forensic procedure against a suspect."

15. So far as is presently relevant ss.22-24 provides as follows: "22 Forensic procedure may be carried out by order of Magistrate or other authorised officer

A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised officer under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.

23 Circumstances in which Magistrate or other authorised officer may order forensic procedure

An order may be made by a Magistrate under section 24, or by an authorised officer under section 32, for the carrying out of a forensic procedure on a suspect if: (a) the suspect is not under arrest and has not consented to the forensic procedure, or (b) the suspect is under arrest and has not consented to the forensic procedure, or (c) the suspect is a child or an incapable person.

(1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities:

(a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances.

(2) In the case of an intimate forensic procedure, or a non-intimate forensic procedure involving the taking of a sample of the suspect's hair or the carrying out of a self-administered buccal swab:

(a) the act or omission in respect of which the suspect is a suspect must constitute a prescribed offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove:

(i) that the suspect has committed the prescribed offence referred to in paragraph (a), or (ii) that the suspect has committed some other prescribed offence.

(3) In the case of a non-intimate forensic procedure (other than a procedure involving the taking of a sample of the suspect's hair or the carrying out of a self-administered buccal swab):

(a) the act or omission in respect of which the suspect is a suspect must constitute an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove:

(i) that the suspect has committed the offence referred to in paragraph (a), or (ii) that the suspect has committed some other offence.

(4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following:

(a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, (i) such other matters as the Magistrate considers relevant to the balancing of those interests." 16. It is not in contest that: (a) JW was a suspect for the purposes of ss.22-24. (b) JW was an incapable person for the purposes of s23 (c) and s24 (4) (e). (c) that the order sought is for a non-intimate procedure (not being a hair or self administered buccal swab) and the conditions set out in s24 (3) are satisfied. (d) that the criterion in s24 (4) (a) [gravity of the alleged offence]; (b) [seriousness of the circumstances of the offence]; and (c) [degree to which suspect is alleged to have participated in the commission of the offence] are satisfied.

What JW raises in issue is primarily the criterion in s24 (4) (d) & (e) which are dealt with later in these reasons. JW has not explicitly in submissions raised in issue criterion s24 (4) (f)-(i) but I shall also deal with those criterion later in these reasons.

The balancing exercise under s24 (4) 17. The balancing exercise is between the "public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following". By use of the words in s24 (4) of "having regard to the following" and the words "such other matters…to the balancing of those interests" in the last listed criterion (i) of s24 (4) the Parliament has made it clear that it is a balancing exercise of evidence against upholding a suspects physical integrity and no more.

The concept of obtaining evidence that either inculpates or exculpates a suspect is readily understood and requires no further elucidation.

The words "physical integrity" are not defined in the Act. The words have been used in a number of different contexts. In the LexisNexis Encyclopaedic Australian Legal Dictionary Intentional Tort is defined as: "Interference with a person's chattels, land, or physical integrity or security".

In the context of a claim for a veterans affairs disability pension Statement of Principles No 15 of 1994 defines 'stressor' as meaning that a "person experienced, witnessed, or was confronted with event that involved actual or threatened death or serious injury, or threat to person's, or other people's, physical integrity.": see Hayes and Repatriation Commission (2001) 68 ALD 255; [2001] AATA 412.

In Re W (1997) 136 FLR the synonomous term "bodily integrity" was referred to by Hannon J in the context of an application before the court for an order to authorise the taking of a bone marrow harvest upon a child to be used for the benefit of his aunt.

In Secretary, Department of Health and Community Services v JWB and SMB the parents of Marion, a fourteen-year-old mentally retarded girl who resided in the Northern Territory, applied to the Family Court for an order authorizing performance of a hysterectomy and an ovariectomy on her. In considering s.188 of the Criminal Code Act 1983 (NT) which made an unlawful assault an offence Mason CJ, Dawson, Toohey and Gaudron JJ said, at 233: "The corollary of these provisions, which embody the notion that, prima facie, any physical contact or threat of it is unlawful, is a right in each person to bodily integrity. That is to say, the right in an individual to choose what occurs with respect to his or her own person. In his Commentaries 55 , Blackstone wrote: "[T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner." 23. Similarly, what this application entails is judicial approval of what would otherwise amount to the offence of assault as well as an intentional tort in the balancing exercise under s24 (4). In the circumstances of this application the degree to which JW's physical integrity will be violated has to be considered in the context of, amongst the other s24 (4) criterion, "(d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known" and "(e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person,". 24. The words "upholding the suspect's physical integrity" are to be construed as being referable to the nature of the physical acts upon JW that the carrying out of the procedure will entail. In doing so the court needs to be cognisant of the type of procedure involved and its physical effect on JW taking into account the s24 (4) criteria, particularly (d) and (e) in the circumstances of this case as JW suffered from mental illness and was an incapable person. Further, s24 (4) (f) requires the court to consider whether there are other practicable ways of obtaining evidence that is "less intrusive" which confirms that it is the effect of the physical acts in carrying out the procedure that the court has to consider. Regarding s24 (4) (g) there is no evidence before this court that JW had given any reason for refusing to consent but in any event as he was an incapable person he could not consent. Regarding s24 (4) (h) there was no delay in making the application. Regarding s24 (4) (i) there are no other matters before the court that is relevant to the balancing of the interests in s24 (4). 25. This court is mindful of what Justice Simpson said at paragraph 31 of her judgment concerning the former s25 and those words are equally apt in considering its successor s24: "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." 26. In this case the procedures involved are non-intimate, there being minimal intrusion to JW's physical integrity by taking fingernail scrapings, swabs of fingers and hands and photographs of the hands and fingers. The court also needs to take into account that the alleged offence of Aggravated Sexual Assault is a very grave offence and the facts allege a particularly serious offence and on the evidence before the court JW is the only suspect. Given the allegations by EB obtaining evidence by way of the fingernail scrapings and hand/finger swabs and their analysis will have significant probative value in either inculpating or exculpating JW in the public interest. JW's objections and the issues raised in paragraphs 4 & 5: 27. So far as the issues raised in paragraphs 4 and 5 above JW submits that this court can have regard to the neglectful and careless manner by the applicant in making the application and the deliberate decision to proceed with the carrying out of the procedure after JW asked for a lawyer. JW submits that s54 has not been complied with, as it was reasonably practicable for at least an interview friend to be contacted and it was in JW's best interests for an interview friend to be present. That interview friend or lawyer could have made some request or objection on behalf of JW under s99. 28. It is submitted that the words physical integrity must be read in a wider way, which would include a persons control over their body and the right to allow or refuse interference with their body. To read down s24 (4), as being only interested in the nature and extent of the physical acts would be to deprive subsection 4 of any significant work. However, s24 (4) is very specific as to what matters have to be considered and that does not include a review of the applicants conduct. If there has been a failure to comply with certain requirements (other than s24) under the Act then that is a matter to be considered under s82, which deals with the admissibility of evidence, obtained from improper forensic procedures. Section 82 does not apply in these proceedings, as they are not "proceedings against the person." If JW's submissions were accepted it would give the court in this application a power akin to s82 and render s82 with no work to do in this matter in subsequent proceedings. Given the clear terms of s24 in what the court must consider there is no basis to read into s24 a power akin to a supervisory power over the applicant without an express mandate. Further, while s82 allows for a discretion to admit improperly obtained evidence there is nothing in s24 that would admit such a discretion, the result being that if the final order is refused for reasons other that under s24 that would be the end of the matter and s82 would have no role to play. 29. It is instructive to note that s22 provides that once "A person is authorised (court's emphasis) to carry out a forensic procedure" under s24 "The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise." Part 6 contains a number of requirements when the procedure is carried out including the attendance of an interview friend or lawyer under s54. Part 6 only comes into play once the order has been made, i.e. Part 6 has a prospective application once the order has been made after considering the criteria in s24. It is then that s82 would take effect in any subsequent proceedings if the procedure has not been carried out as required by s82. Section 24 clearly does have a role to play in determining whether there should be any intrusion into a suspect's physical integrity and the nature of what that intrusion should be. The Act then requires the forensic procedure to be carried out in accordance with Part 6. Section 82 then provides for further safeguards if there have been improper acts in carrying out the terms of the order. In this particular matter it should be noted that Mr. Lawton refused a buccal swab and DNA hair removal, which were properly matters to consider under s24 given the nature of the allegations by EB, and there was no need to obtain evidence as to JW's identity. 30. If JW's submissions were to be accepted that the court must consider the applicants conduct in the balancing exercise under s24 then on the evidence before the court it was not reasonable practicable to contact an interview friend under s54. While the applicant may have cursorily filled out some parts of the Affidavit in Support (Exhibit 1) by not either choosing or deleting certain paragraphs they are matters of procedural irregularity and do not affect the criteria to be addressed under 24. Given the exigencies of the circumstances the applicant was faced with a need to obtain the order as a matter of urgency before JW could remove any forensic material on his hands. Attempts were made to contact an interview friend, which were reasonable in the circumstances. That she deliberately did not seek to contact a lawyer when JW asked at the time the procedure was to be carried out has to considered against the fact she had an order, the doctor was there, there had already been delay and that the procedure was a minimal intrusion of JW's physical integrity and JW could neither consent or object to the procedure as he was an incapable person. I also accept her evidence that at the time the procedure was carried out JW was calm and cordial, there being no evidence to the contrary. To the extent that it is relevant I am not satisfied that JW was in police custody given that at the time he was detained under the provisions of the Mental Health Act 1990.I am satisfied in the balance it could not be said that the public interest in upholding JW's physical integrity in his best interests outweighed the public interest in obtaining the evidence. Conclusion 31. I have weighed in balance the relevant s24 (4) criteria and in my opinion the public interest in obtaining evidence as to whether or not JW committed the alleged offence outweighs the public interest in upholding the JW's physical integrity bearing in mind the minimal intrusion of JW's physical integrity. ORDERS:

1. I make an order for the taking of fingernail scrapings, swabs of the hands and fingers and photographs of the hands and fingers of JW at Cumberland Hospital on 23 December 2006. Magistrate Favretto Parramatta Local Court

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