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[2014] NSWDC 118
District Court of NSW
2014-06-16
Mr J
Original judgment source is linked above.
INTRODUCTION 1On 22 September 2009 there were break-ins at two small rural properties at Gowan Road, Gowan. The properties are about 50 kilometres north-west of Bathurst and 28 kilometres north east of Orange. It is an isolated area of mainly small holdings serviced by a rough dirt road. By coincidence, I am quite familiar with the area having recently held a view at a neighbouring property in relation to a civil matter: see Wood v Christopherson [2013] NSWDC 233. 2The owner of one property, Mrs Sanders, arrived home with her two young children at about 5pm on the 22nd of September. It was apparent someone had entered the house and garage. It soon became apparent someone was still in the house. Mrs Sanders immediately got the children into the car but as she did so, she saw a hand reach through the front door and grab a shovel from the verandah and bring it inside. She quickly retreated, in her car with the children, to a neighbour's property, from where the police were called. 3Gowan Road has only intermittent mobile phone coverage. Her husband, Michael who was working in northern New South Wales, rang home at about 5.24pm that evening. A female voice answered "Hello" and hung up. It was not his wife's voice. 4Later that evening Mrs Sanders returned to the premises with Senior Constable Golding from Orange Police Station. The house and garage, it was clear, had been forcibly entered. The house safe had been opened. The key to the gun safe kept in it had been used to open the gun safe in the garage. Property, including her husband's rifle, tools, DVDs and other equipment has been taken. 5Mrs Sanders noted a couple of important features of the burglary: (1)The front gate which provided the only vehicle access to the property was, as usual, padlocked when she arrived home. (2)She saw no vehicles outside the property or on the road nearby, although that did not exclude the possibility that one was hidden nearby. (3)On the floor of the garage near the gun safe was a large wood handled butcher's knife. It did not belong to the property. (4)Whoever had broken in had taken her one remaining bottle of Corona beer from the fridge, drunk it, and left it on the floor inside the home. (5)Someone had finished off a partially drunk bottle of red wine and left it in the kitchen. (6)Someone had smoked cigarettes in the house. There were butts with lipstick marks of a colour she did not use. 6She showed the bottle and cigarette butts to Senior Constable Golding. The butts were put in an envelope. Senior Constable Golding, wearing gloves, put the envelope and the empty wine and Corona bottles in the lounge room safe for later analysis by a Scene of Crime officer. 7Immediately following this incident Mrs Sanders discussed what had occurred with her neighbours. Within two days, together with a Mrs Anderson who held the key, she went to an adjoining property in Gowan Road owned by the Brell family. Although the gate to that property was locked it was clear there had been a break-in there as well. The owner, Mr Brell, who lives in Sydney, was alerted. There had indeed been a break in at Mr Brell's property. Tools including a ladder and other items had been taken. Mrs Sanders showed Mr Brell the knife found in her garage. He said it was his. He told the Court that he had owned it for many years. He also said that in order to get the stolen property from his house to the road would have involved a walk of about 200 metres and "a couple of trips". 8On 6 October 2009, Ms Coddington, a Scene of Crime officer attached to Orange Police Station, inspected both premises. Photographs were taken: exhibit D. The mouth of the Corona bottle was swabbed for later DNA testing. A cigarette butt was taken from the envelope where it had been placed by Mrs Sanders and secured for later DNA testing. 9The Corona swab and cigarette butts were sent to Genetic Technologies Corp Pty Limited of Fitzroy, Victoria, for analysis. A DNA profile was obtained from the filter paper of the butt and a partial DNA profile was obtained from the bottle swab: exhibit L. Scene of Crime Officer Coddington labelled it "trace swab". Genetic Technologies called it a "saliva swab". Scene of Crime Officer Coddington explained that the mouth of a bottle, as people often drink directly from bottles, was a good source of the saliva which contained epithelial cells, from which DNA could be extracted. 10A number of latent fingerprints were also identified and photographed so they could be later compared with prints on the police fingerprint database. Ms Coddington also inspected and photographed Mr Brell's property and identified fingerprints at those premises. None of the fingerprints were ever matched to anyone. 11Mr Regan, the accused, has lived and worked in Bathurst since at least 2007. He owns a business that repairs hydraulics on vehicles and other machinery. Since 2007 he has lived at Freemantle Road about ten kilometres from Bathurst and about thirty kilometres from Gowan Road. 12There the matter rested until 2012. In July 2012, Mr Regan was arrested for property offences by Detective Senior Constable Lee. On 5 September 2012, Detective Senior Constable Lee had cause to arrest Mr Regan again for further property offences, one of which dated back to 2009. 13After his arrest on 5 September 2012, Mr Regan was spoken to at Bathurst Police Station by the custody manager, Senior Constable Ruming. He was told of his right to consent or object to a forensic procedure: exhibit H. Senior Constable Ruming obtained that consent: exhibit G. The procedure was recorded. I have viewed that recording: exhibit F. 14A DNA profile was obtained from the sample obtained from the Corona bottle. A DNA profile was obtained from the buccal swab provided by Mr Regan on 5 September 2012. On 24 September 2012 a profile match was indicated between those two profiles. Detective Senior Constable Lee was informed of the match between the Corona bottle DNA profile and Mr Regan's profile. 15As a consequence on 8 January 2013, Detective Senior Constable Lee spoke to Mr Regan about the two Gowan Road break-ins, at Mr Regan's work premises in Bathurst. He said he did not know Gowan Road and that he did not know the Sanders' or anything about a knife. He thereafter exercised his right to silence; that right was respected. He was asked by Detective Senior Constable Lee on that date if he was willing to provide a DNA sample. He said he would. As before, a custody manager obtained Mr Regan's formal written consent: exhibit O, and conducted the procedure following the normal pro-forma protocols. That buccal swab was processed and a DNA profile obtained: exhibit N. No issue has been raised about the continuity of exhibits. 16It is not in dispute that in September 2013, Mr Regan was acquitted of the matters which led to his arrest in 2012. On 30 May 2014, the details of the "suspect DNA sample" taken on 5 September 2012 were destroyed. 17Ms Zoe Hitchcock, an expert DNA analyst with the New South Wales Forensic and Analytical Science Service, compared the DNA profile obtained from the sample taken from Mr Regan on 8 January 2013 with the mixed profile obtained from the Corona bottle swab taken by Scene of Crime Officer Coddington and processed by Genetic Technologies Corp Pty Limited. She concluded the DNA recovered is a mixture that originates from at least two individuals. The major component of this mixture has the same profile as Scott Edward Regan. She noted the expected occurrence of such a match in the general population is approximately 1:110 million individuals. The minor component was too weak to enable the profiles of the individual contributor or contributors to be determined. In relation to the cigarette butt DNA profile, all she could conclude was that it originated from an unknown female. Further information about DNA testing was provided in a standard form attachment to her report.
THE TRIAL 18Scott Regan was committed for trial from Bathurst Local Court to the June 2014 sittings of this Court. On 10 June 2014 the matter was mentioned and stood over for trial on 13 June. On 12 June the matter was mentioned again and leave sought, by consent, to file a notice requesting trial by Judge alone. I granted leave and directed the matter proceed as Judge alone trial. 19On 12 June 2014 Mr Regan entered pleas of not guilty to two counts, the first being an allegation that on or about 22 September at Gowan he broke into the dwelling house of Boyd and Denise Brell at 656 Gowan Road and did commit a serious indictable offence therein, namely stealing certain nominated property: s 112(1)(a) Crimes Act 1900. 20He also entered a plea of not guilty to an offence at Gowan in the State of New South Wales, that on or about 22 September he broke and entered the dwelling house of Michael and Mary Sanders at 572 Gowan Road and did commit a serious indictable offence therein, namely stealing certain property including a rifle. That count was said to be aggravated by the fact that it was committed in company: s 112(2) Crimes Act. 21He also pleaded not guilty to an alternative count to the second charge which contained the same allegation except that it was not said to have occurred in company: s 112(1)(a) Crimes Act. 22Mr Bailey appeared as Crown Prosecutor. Mr Bouveng appeared for the accused. I have heard evidence from Mrs Sanders, Mr Sanders, Mr Brell, Scene of Crime Officer Coddington, Senior Constable Ruming, Senior Constable Golding and Detective Senior Constable Lee and Ms Hitchcock from FASS. Other material was tendered without objection: exhibits A to O. 23After a proper election is made for proper reasons a person accused of a serious crime can waive their right to trial by jury. 24A Judge is obliged to set out the principles of law applied in any decision made, whether it be on the voir dire or on the ultimate issue. The Judge must also set out the findings of fact on which they rely. The Judge is required to summarise critical arguments of the parties and formulate the issues that resolve any issues of law and fact. When it comes to the question of guilt the Judge can make any decision that a jury could make and must give themselves the warnings that a Judge would ordinarily give a jury in such matters, including any legal directions. They include the onus of proof and directions as to circumstantial evidence and a direction to interpret DNA material: see R v Karger (2002) 83 SASR 135. If there is a voir dire, the Judge must determine the issues as they would in a jury trial, based upon the evidence before them both at trial and on the voir dire.
VOIR DIRE 25In the course of the trial a voir dire was held as a defence objection was made to the admission of any evidence obtained as a result of, or in connection with, the carrying out of the forensic procedure conducted on Mr Regan on 5 September 2012. The issue was important, as if the evidence objected to is rejected, the Crown would not have been able to rely on evidence linking the crime scene sample from the Corona bottle with the accused and as a consequence Mr Regan could not be linked to the crime scenes at all. 26It was asserted that there had been breach of, and a failure to comply, with the provisions of the Crimes (Forensic Procedure) Act 2000, (the Act), specifically the provisions of s 11, requiring things to be done before the forensic procedure was administered. In argument this afternoon, reference was also made to a breach of s 13 of the Act, relating to what information had to be provided to a person subject to a test. Some evidence on the voir dire was heard separately from that at trial as it would not have been admissible or relevant at trial. 27The defence contention is that when Senior Constable Ruming took a buccal swab from Mr Regan at Bathurst Police Station on 5 September 2012 the requirements of the Act were not complied with and accordingly I should reject all evidence that flowed from this sample. The Crown submits to the contrary. 28The evidence on the voir dire came from Detective Senior Constable Lee and Senior Constable Ruming and voir dire exhibit A. What was said was not disputed; it is what can be concluded from the evidence that is critical. I note that none of the parties, nor I, have the benefit of a transcript.
BASIC FACTS VOIR DIRE 29In July 2012, Detective Senior Constable Lee arrested Mr Regan for property offences. No request for a buccal swab was made. Mr Regan was bailed. Detective Senior Constable Lee conducted further investigations in relation to Mr Regan. He checked police intelligence reports from a number of sources, both formal and informal and on the COPS system, including material from Bathurst Gaol 'intelligence' sources. He formed the opinion that Mr Regan may be linked to break-ins and thefts from rural properties in the Bathurst/Orange area. He was aware from his experience as a detective in the area that Scene of Crime officers regularly took forensic samples from such rural crime scenes. He believed that if a DNA profile was obtained from Mr Regan it might help produce evidence tending to confirm his involvement in such offences. 30On 5 September 2012, Detective Senior Constable Lee requested that Mr Regan come to Bathurst Police Station. There, he again arrested Mr Regan for property offences. He had reasonable grounds to do so. There was, as he freely conceded, no need to obtain a DNA sample to assist in the proof or disproof of Mr Regan's involvement in those offences. The custody manager at Bathurst at the time, Senior Constable Ruming, spoke to and processed Mr Regan in relation to his arrest. All Law Enforcement (Power and Responsibilities) Act 2002 requirements were complied with. 31Detective Senior Constable Lee had a conversation with Mr Regan while he was still in custody. He informed him that he wanted Mr Regan to provide a DNA sample and that a person unconnected with the investigation would administer it. As I understand it, no record of this conversation was made. This evidence was given to the best of Detective Senior Constable Lee's recollection. 32Detective Senior Constable Lee did not, as I understand it, tell Mr Regan why he wanted the sample. Detective Senior Constable Lee then asked Senior Constable Ruming if he was trained to take a buccal swab sample. He was told he was. He then asked him to undertake the procedure. All Detective Senior Constable Lee told Senior Constable Ruming was that Mr Regan was a suspect under arrest and the sample was required to see if it could be matched on the database. Senior Constable Ruming administered the buccal swab and followed the buccal swab procedures. 33The formal consent form from 5 September 2012 was exhibit G in the proceedings. The forensic procedure suspect information sheet is exhibit H. It is a copy of the standard form sheet. The standard form has provision for information specific to the suspect to be added to it. Senior Constable Ruming did not have available at trial the original or a copy of the actual form read to or provided to Mr Regan. That failure, administrative or otherwise, has proved to be critical in this case.
EVALUATION OF ISSUES 34On 5 September 2012 prior to the administration of the buccal swab procedure: (1)Mr Regan was a suspect, as he was a person whom a police officer suspected on reasonable grounds had committed an offence. He was also a person charged with an offence - see s 3 of the Act. (2)Detective Senior Constable Lee had a basis to suspect that Mr Regan was involved in other offences. He believed that if a general search was made of the crime scene database and matched against Regan's DNA profile, evidence might be obtained which would produce evidence tending to confirm (he also said, disprove) he had committed some other offence. It is clear from the tenor in which he gave his evidence, that although he used the formal terms "confirm or disprove" he was clearly seeking evidence to confirm some other offence had been committed. (3)Detective Senior Constable Lee did not tell Senior Constable Ruming what his reasonable grounds for suspicion were. (4)Senior Constable Ruming was aware that Mr Regan was a suspect but he himself made no independent assessment or inquiry as to the reasonableness of any grounds for taking the sample, he acted as the agent or instrument of Detective Senior Constable Lee. (5)Senior Constable Ruming purported to comply with the formal requirements of s 11 of the Act. He appears to have done so in relation to the requirement in s 11(1), that sections 8, 9 or 10 (as the case requires) be complied with. (6)Senior Constable Ruming himself did not form any independent assessment in relation to the other matters in s 11 of the Act. (7)Senior Constable Ruming was not asked any specific questions on the voir dire in relation to compliance with s 13 of the Act, however that section requires that the police officer must personally, or in writing, inform the suspect of a number of matters. They include relevantly here:
Applying the Crimes (Forensic Procedure) Act. 35The Act provides a code for the taking of samples and other forensic evidence from a person. The Act is said to strike a necessary balance between the appropriate use of available scientific means for investigating suspected crime and the historic rights of citizens against self incrimination: see Fawcett v Nimmo & Anor (2005) 156 A Crim R 431. As these requirements interfere with the liberty of a citizen generally, strict construction of any legislative requirement would be necessary: see Williams v The Queen (1986) 161 CLR 278 at [296]. The Act requires a positive finding the person to be tested is a suspect: Orban v Bayliss [2004] NSWSC 428. 36Before a sample can be required there must be reasonable grounds to believe the procedure will produce evidence that will prove the commission of an offence: s 11(3) of the Act. The factual foundations for any belief have to be established. 37Examples from decisions made by Magistrates pursuant to s 24 of the Act can be found in a number of decisions including; Maguire v Beaton (2005) 162 A Crim R 21, Hardy v Pinazza, SCNSW, unreported, 18.4.2005, Walker v Bugden (2005) 155 A Crim R 416 and LK v The Commissioner of Police [2011] NSWSC 458. 38Care must be taken to ensure that strict procedural requirements of the Act are followed and complied with. The Act does not provide a carte blanche to facilitate the placing of everyone's DNA or every suspect's DNA on the database. The Act can be abused. As a consequence it contains many protections; these are designed, in the words of Simpson J in Orban v Bayliss at [30]: "To maintain a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crimes, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments but in the context of valued traditional civil liberties." 39The exclusion of evidence unlawfully obtained is a necessary role of the trial court: see Kerr v Commissioner of Police [2001] NSWSC 637. 40Part 9 of the Evidence Act 1995 deals specifically with questions relating to admissibility. The Evidence Act can also apply to the issues raised on the voir dire but here there are specific provisions within the Crimes (Forensic Procedure) Act that apply. 41If the strict requirements of s 11 and/or s 13 of the Act are breached, then the exclusion of the evidence is warranted, subject to s 82 considerations. Often the desirability of admitting the evidence the subject of challenge will outweigh the undesirability of omitting such evidence. If the evidence was obtained in contravention of the Act, the failures of the police or others must be carefully examined and weighed in terms of s 82 of the Act. As always with exclusionary provisions, where the discretion of the Court is enlivened, everything depends on the nature of the impropriety. 42In most respects, s 82 of the Act mirrors s 138 of the Evidence Act. This clearly indicates that the legal principles that inform the Evidence Act provisions also apply to the Crimes (Forensic Procedure) Act. It is important to note however that there are a number of specific differences between the two sections. The differences are best summed up by s 82(6) which adds to the Crimes (Forensic Procedure) Act provisions: "The probative value of the evidence does not itself justify the admission of the evidence". This provision is not found in s 138 of the Evidence Act. 43Turning to the Crimes (Forensic Procedure) Act, section 11 reads: Conditions under which police officer may request consent to forensic procedure (1)A police officer may not ask a suspect to undergo a forensic procedure unless satisfied: (a)that section 8, and section 9 or 10, as the case requires, have been complied with, and (b)that the circumstances referred to in subsection (2) or (3) exist, and (c)that the suspect is neither a child nor an incapable person, and (d)that the request for consent is justified in all the circumstances. (2)In the case of an intimate forensic procedure: (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: (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. 44Section 13 Crimes (Forensic Procedure) Act reads: Matters that suspect must be informed of before giving consent (1)The police officer must (personally or in writing) inform the suspect of the following matters: (a)that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by electronic means, or in writing, and that the suspect has a right to be given an opportunity to hear or view the recording as provided by section 100, (b)the purpose for which the forensic procedure is required, (c)the offence in relation to which the police officer wants the forensic procedure carried out, (d)the way in which the forensic procedure is to be carried out, (e)that the forensic procedure may produce evidence against the suspect that might be used in a court of law, (f)that the forensic procedure will be carried out by an appropriately qualified police officer or person, (g)if relevant, the matters specified in subsection (2), (h)(h) if the suspect identifies as an Aboriginal person or a Torres Strait Islander-that the suspect's interview friend may be present while the forensic procedure is carried out, (i)that the suspect may refuse to consent to the carrying out of the forensic procedure, (j)the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable), (k)if the police officer intends forensic material obtained from the carrying out of the forensic procedure to be used for the purpose of deriving a DNA profile on the suspect-that information obtained from analysis of the forensic material obtained from carrying out the forensic procedure may be placed on the DNA database system and the rules that will apply under this Act to its disclosure and use, including that the information may be compared with information from the DNA database systems of other participating jurisdictions. (2)Suspect's right to have medical practitioner or dentist present during some forensic procedures In the case of: (a)an intimate forensic procedure, or (b)a non-intimate forensic procedure that involves the taking of an impression or cast of a wound from a part of the suspect's body, the police officer must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of procedure) of his or her choice be present while the procedure is being carried out. (3)Failure to consent to non-intimate forensic procedure-suspect under arrest If the suspect is under arrest and the forensic procedure is a non-intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent, a senior police officer may order the carrying out of the forensic procedure under Part 4 if he or she is satisfied of the matters referred to in section 20. (4)Failure to consent to intimate forensic procedure-suspect under arrest If the suspect is under arrest in relation to a prescribed offence and the forensic procedure is an intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent, an application may be made to a Magistrate or other authorised officer for an order authorising the carrying out of the forensic procedure. (5)Failure to consent to intimate or non-intimate forensic procedure-suspect not under arrest If the suspect is not under arrest, the police officer must inform the suspect that, if the suspect does not consent, an application may be made to a Magistrate or other authorised officer for an order authorising the carrying out of the forensic procedure.
SUBMISSIONS 45Mr Bouveng submits that on 5 September 2012, Detective Senior Constable Lee did not have reasonable grounds to suspect that Mr Regan had committed an offence which justified a DNA sample being taken. Here, at best, he submits, all that could be said was that the Detective had a suspicion Mr Regan was involved in property theft or offences. He was also aware that crimes scenes for such offences were tested regularly for forensic material and that if there was such material he suspected a match might be found with Mr Regan's DNA profile. In effect, he wanted to do the sort of test regularly done when fingerprints are taken from a person under arrest, which prints are then compared with the database of crime scene fingerprints. 46Section 11(3)(b) of the Act, he submits, must be strictly construed. Given the scheme of the Act and the need to respect individual rights inherent in it, the "reasonable grounds" must relate to some specific offence or an offence ancillary or related to, the offence for which the suspect has been arrested. The wording of s 11(3)(b) also, he notes, speaks of tending to "confirm" the suspect has committed some other offence. Confirm implies there is some information relating to the other offence held by the officer. 47He further submits that s 11 of the Act applies only to the person who administers the test. Here, only Senior Constable Ruming formally asked Mr Regan to undergo the forensic procedure. In his written submissions he draws an analogy with cases involving reasonable grounds for the issue of search warrants and reasonable grounds for arrest where it has been held that the reasonable grounds for suspicion must be held by the person discharging the statutory duty not the person who asks that it be done: see George v Rockett (1990) 170 CLR 104; Chief Constable Royal Ulster Constabulary [1997] AC 286 and Hyder v Commonwealth [2012] NSWCA 336. 48Mr Crown submits that s 11 of the Act is not so strictly worded as those which deal with either arrest or search warrants and that as long as the request can be directly linked to the person who had the requisite knowledge in the section, agency is allowed for. He submits that this is clearly the intention behind s 52 (1) of the Act which reads: "A person who is authorised to carry out a forensic procedure under the table to section 50 is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help". 49Thus, he submits, the Act makes the arresting officer accountable and provides for, and indeed presumes, that others may administer the actual procedure. 50Mr Bouveng also, belatedly, drew to my attention s 13 of the Act. He says that that section clearly indicates the responsibilities of the officer conducting the test or requesting the test. He notes that the requirements of 13(1)(c) of the Act are quite specific. The officer must inform the suspect of "the offence in relation to which a police officer wants the forensic procedure carried out". He says that while it could be considered independently, reading s 13 in conjunction with s 11, clearly indicates that the wording of s 11(3)(b) of the Act is specific. It involves the need for reasonable grounds in relation to some specific offence. 51Mr Crown, on having s 13 of the Act drawn to his attention, concedes however that the evidence is silent and that it can be presumed on what we know that s 13(1)(b) and (c) were not complied with:- Mr Regan was not told the purpose for which the forensic procedure was required, or the offence in relation to which the police wanted the forensic procedure carried out.
Determination of Voir Dire Issues 52The wording of s 11 of the Act contains a degree of ambiguity not present in the sections the subject of review in George v Rocket and Chief Constable Royal Ulster Constabulary or Hyder v Commonwealth. Those decisions do however assist in understanding how sections such as this are to be construed and how the objective test in s 11 of the Act is to be determined. 53Mr Regan was a suspect in custody. Detective Senior Constable Lee wanted his DNA to check it against the database. Detective Senior Constable Lee believed, prophetically, that such a check might produce evidence that Mr Regan had committed some other offence. He did not have a specific offence in mind.
Breach of section 11. 54Section 11 of the Act does not include the same requirements as s 24(3) of the Act; before a magistrate can make an order, there must be reasonable grounds to believe that the suspect has committed an offence. 55Section 11(3) (b) (ii) is much more general. It requires only that the officer have reasonable grounds to believe the procedure might produce evidence tending to confirm or disprove the suspect has committed the offence referred to in s 11(3) (a).The section applies in its terms. There is no reason to read words into it. It allows for the most general belief that evidence might be produced tending to confirm or disprove the commission of some other offence. The word "might" is important as is the word "confirm". The word "might" does not impose a particularly stringent requirement. 56Had s 11 of the Act stood alone it might be capable of being interpreted in the manner suggested by the Crown and allow for the most general of grounds in relation to some other offence. But s 11 does not stand alone. Section 13 informs the section and s 13, itself, contains a formal requirement that must be complied with. 57Senior Constable Ruming was satisfied Mr Regan was a suspect. He did satisfy himself that s 8 of the Act was complied with and he did comply with the requirements of ss 9 and 10 of the Act. He was also, I find, satisfied that Detective Senior Constable Lee wanted a sample from Mr Regan but there is no evidence he himself was satisfied there were any reasonable grounds nor did he satisfy himself that the procedure was justified. If s 11 of the Act applies to the police officer administering the test or making the formal request to undertake the procedure, the requirements of s 11 would not have been met. 58Detective Senior Constable Lee did have reasonable grounds to believe that the procedure might produce some evidence and that the request for consent was justified in all the circumstances. However he himself did not comply with all the requirements of s 11 of the Act as he relied on Senior Constable Ruming to ask the s 8 question and comply with the s 9 requirements. 59Mr Crown submits s 52 of the Act allows for such help to be given. Section 52 does not however specifically allow for delegation of the formal matters required in s 11, nor is it capable of extrapolation to allow for more than help in administering the test once the formal requirements are met for the administration of the procedure. 60In reaching that decision I take comfort from recent changes to s 99 of the Law Enforcement (Powers and Responsibilities) Act which by the addition of s 99(2) allows for the test of reasonable necessity of arrest without warrant to be done by one police officer if directed to do so by another police officer. This provision is not in the Crimes (Forensic Procedures) Act. A similar amendment may be necessary to remove the apparent ambiguity in s 11 of the Act. 61There is also some ambiguity in the evidence from Detective Senior Constable Lee. The detective informed Mr Regan someone would be coming to test him but I do not believe that this was a formal request that he undergo the procedure as required by s 11 of the Act. In any event, he clearly did not at that stage comply with the requirements of s 13 of the Act. 62Section 11 of the Act puts certain preconditions on the administration of forensic procedures. The preconditions apply to a police officer, that police officer may not make the request unless satisfied of certain things; that satisfaction must be personal to the officer construing the section strictly; the words of s 11 can admit no other meaning. 63That breach of s 11 of the Act, brings into play s 82. However it was simply a breach of the requirement in relation to who made the decisions pursuant to s 11. 64If all of the necessary provisions, albeit by two police officers, had been satisfied the balancing required by s 82 (discussed below) would have compelled the admission of the evidence. But this was not simply a case involving a procedural error as to which of the two detectives formed the views required by s 11.
Breach of Section 13. 65Section 13 is also clear in its terms. It requires the police officer to provide certain material and information to a suspect. That material is necessary to inform the suspect as to the reasons why this procedure is to be conducted and the offence to which the procedure relates. Section 13 is clearly designed to allow a suspect to consider their options and make an informed decision whether to consent or not. It is clearly designed to alert the suspect to the possibility that their right not to incriminate themselves might be interfered with by giving consent. 66In those circumstances the failure here was clearly significant. While I might excuse the s 11 breaches, regardless of whether my interpretation of s 52 is correct or not, I do regard the breach of s 13 as significant and grave. I also, as I indicated earlier, believe that s 13 does to a degree limit the generality of s 11; the two sections must go together. 67Turning now to the provisions of s 82 of the Act. The section applies as a forensic procedure has been carried out on a person and there has been a breach or a failure to comply with the Act in relation to: (a)the evidence consisting of the forensic material taken from the person by the forensic procedure, (b)to evidence of any results of the analysis of the forensic procedure and, (c)to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure. 68Accordingly, if there has been a breach the evidence which was obtained as a consequence of this forensic procedure, that is the forensic procedure of September 2012, it would mean that the evidence which is based upon it, that is the request for the future sample and the arrest itself in January 2013, would not be admissible. The Act makes it clear that evidence is not admissible in any proceeding against the person in a Court unless s 82 is satisfied. 69I have to consider the matters which are set out in s 82(5)(a) to (k): s 82 (5) The matters that may be considered by the court for the purposes of subsection (4) (b) are the following: (a)the probative value of the evidence, (b)the reasons given for the failure to comply with the provision of this Act, (c)the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act, (d)whether the failure to comply with the provision of this Act was intentional or reckless, (e)the nature of the provision of this Act that was not complied with, (f)the nature of the offence concerned and the subject matter of the proceedings, (g)whether admitting the evidence would seriously undermine the protection given to suspects by this Act, (h)whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, (i)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply, (j)the difficulty (if any) of obtaining the evidence without contravention of an Australian law, (k)any other matters the court considers to be relevant. 70In doing so, I must have regard to the evidence both at trial and on the voir dire. In particular I must consider what occurred when both Detective Senior Constable Lee and Senior Constable Ruming spoke to the accused about obtaining the buccal swab. I must also consider what was done in context and take into account the surrounding circumstances. 71The evidence is highly probative of the Crown case but I note s 82(6). The failure here was not of a technical nature, it went to a specific mandatory provision in s 13. 72Detective Senior Constable Lee, while at all times holding himself out as being responsible for the arrest, relied upon Senior Constable Ruming. Senior Constable Ruming had not complied with the provisions of s 11. Now if he had complied with the provisions of s 11 he would have had to have satisfied himself of the matters of which he was mandated to inform the suspect, Mr Regan, pursuant to s 13. If Detective Senior Constable Lee had made a proper inquiry as to his obligations pursuant to s 11 and 13, he would have realised that his general belief did not comply with the section. If it did not comply with the section it could not have been reasonable. 73The breach did seriously undermine the protections given to suspects by the Act because the requirements of the Act are designed to alert a suspect that consent may remove one of the important protections against self incrimination. That right, as I understand it, falls within the International Covenant on Civil and Political Rights. Had proper procedures been put in place, the Act could not have been complied with. The information that Detective Senior Constable Lee had available to him was not, on the evidence before me, capable of relating to an offence for which a forensic procedure was required. 74I also have to consider the competing public interests. Having considered the facts, the legislative provisions, and the authorities noted earlier, I am of the view that it is not desirable that the evidence which was obtained as a result of, or in connection with, the carrying out of the unlawful 2012 forensic procedure, be admitted. 75I note that s 138 Evidence Act does not apply because the evidence which I have excluded is preliminary to the admission of other evidence, but if it did, I would exclude the evidence for the same reasons. 76I might just simply add at this time, and while it is not part of my determination, that it is my understanding that the exclusion of this evidence means that the Crown could not prove the case.
TRIAL JUDGMENT 77I note what was set out in my voir dire judgment. Without having heard full argument, my preliminary view would have been that the Crown's circumstantial case based upon the evidence of a partial DNA profile match, statistical support for that match and the accused's residence in Bathurst on the date of the offence would not have satisfied me beyond reasonable doubt. As I have not heard full argument from both the parties I leave the issue for another trial, and another court. 78The Crown case has closed. It clearly establishes a break and enter occurred at both premises. It clearly establishes, that at least two people were involved, including one who was the female, and who was present at the second burglary. 79However, given the voir dire ruling, a critical element required for both offences cannot be proved beyond reasonable doubt. The Crown cannot identify Mr Regan as a person involved in the crimes. Mr Regan is entitled to the benefit of any doubt that I have and the benefit of the absence of evidence which I have excluded. 80He must be found not guilty. 81The formal orders of the Court are: In relation to count 1 (sequence 003) of 22 September 2009 at Gowan, a break enter and steal at the premises of Boyd and Denise Brell, you are found not guilty. In relation to count 2 (sequence 001) at the same place and time, the aggravated break enter and steal at the premises of Michael and Mary Sanders at Gowan Road, you are found not guilty. In relation to the alternative count to count 2 (sequence 002) of 22 September 2009 at Gowan, a break enter and steal at the premises of Michael and Mary Sanders at Gowan Road, you are found not guilty.
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R
Scott Edward REGAN
(1990) 170 CLR 104
(2002) 83 SASR 135
(1986) 161 CLR 278