R v White

R v Kane (2004) 144 A Crim R 496 CASES CITED : R v Rondo (2001) 126 A Crim R 562

PARTIES : Regina v Clarence Herman White

M.M. Cunneen (Crown) COUNSEL : S.S. Hanley (Accused)

Office of the Director of Public Prosecutions (Crown) SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service (Accused)

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

JUDGMENT (Re: admissibility of DNA evidence) 1 HIS HONOUR: Clarence Herman White has pleaded not guilty on the presentation of an indictment charging him with the murder of Phyllis Jean O'Brien at Katoomba on 29 August 2003. The trial is to proceed before me sitting without a jury, and at the outset counsel informed the Court that there was a necessity for a ruling upon the admissibility of DNA evidence obtained on the analysis of a cigarette butt discarded by the accused at the police station at Katoomba. 2 The issue of the admissibility of the evidence of analysis involves consideration of the Crimes (Forensic Procedures) Act 2000. 3 Section 82 of that Act renders inadmissible evidence which has been obtained in circumstances contrary to the Act other than as provided for in s 82(4) and (5). 4 It is necessary for present purposes to set out the section, save for s 82(7) which only applies to jury trials: "(1) This section applies where: (a) a forensic procedure has been carried out on a person, and (b) there has been any breach of, or failure to comply with: (i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or (ii) any provision of Part 11 with respect to recording or use of information on the DNA database system. (2) This section does not apply if: (a) a provision of this Act required forensic material to be destroyed, and (b) the forensic material has not been destroyed. Note. Section 83 applies where this Act requires forensic material to have been destroyed. (3) This section applies: (a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and (b) to evidence of any results of the analysis of the forensic material, and (c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure. (4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless: (a) the person does not object to the admission of the evidence, or (b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or (c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child. (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. (6) The probative value of the evidence does not by itself justify the admission of the evidence." 5 The definition section in this Act is s 3 and it defines, inter alia, "forensic material", "forensic procedure", "intimate forensic procedure", "non-intimate forensic procedure" and "suspect". I set out these definitions: " 'forensic material' means:

(a) samples, or (b) hand prints, finger prints, foot prints or toe prints, or (c) photographs, or (d) casts or impressions,

(a) an intimate forensic procedure, or (b) a non- intimate forensic procedure, or (c) the taking of a sample by buccal swab,

(d) any intrusion into a person's body cavities except the mouth, or (e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

Note. Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person." " intimate forensic procedure means the following forensic procedures: (a) an external examination of: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (b) the taking of a sample of blood, (c) the taking of a sample of saliva (otherwise than by buccal swab), (d) the taking of a sample of pubic hair, (e) the taking of a sample by swab or washing from: (i) the external genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from: (i) the external genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (g) the taking of a dental impression, (h) the taking of a photograph of: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (i) the taking of an impression or cast of a wound from: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female." " 'non-intimate forensic procedure' means the following forensic procedures: (a) an external examination of a part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, that requires touching of the body or removal of clothing, (b) the taking of a sample of hair other than pubic hair, (c) the taking of a sample from a nail or under a nail, (d) the taking of a sample by swab or washing from any external part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (f) the taking of a hand print, finger print, foot print or toe print, (g) the taking of a photograph of a part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (h) the taking of an impression or cast of a wound from a part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female, (i) the taking of physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the body other than: (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female." "'suspect' means the following: (a) a person whom a police officer suspects on reasonable grounds has committed an offence, (b) a person charged with an offence, (c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person. (d) (Repealed)" 6 Part 3 of the Act makes provision for the carrying out of a forensic procedure with the informed consent of the suspect person. Part 4 makes provision for the carrying out of a non-intimate forensic procedure on a suspect by order of a senior police officer. Part 5 provides for the making of a court order for the carrying out of a forensic procedure on a suspect, and such an order would be required in relation to an intimate forensic procedure. 7 The first issue that arises here is whether in the circumstances in which the subject evidence was obtained, s 82 comes into operation. If so, should the evidence be admitted? The latter question involves consideration of s 82(4)(b) and s 82(5). 8 The body of the deceased, Phyllis Jean O'Brien, was found in the hallway of her home at Katoomba. The hands were bound, as were the feet, and there was a jumper wrapped around the head of the deceased. The deceased was found to have sustained a blow to the top of the head. According to the pathologist who performed the post mortem examination, the deceased died from the effects of the head injury and from asphyxia. 9 Material was found under the fingernails of the deceased and upon analysis of that material a DNA profile was obtained. On 1 November 2003 the accused was arrested, not on the charge that now brings him to this Court, but on warrants for other matters, and he was taken to the police station at Katoomba where he was given permission to smoke a cigarette in an area defined as the van dock. He was directed to discard the butt in a corner where there was no other rubbish, and the accused was observed to discard the butt in the place directed. The butt was collected, put into an exhibit bag and taken away for laboratory analysis. 10 For the purpose of considering the admissibility of the evidence, the Court was invited to do so upon the basis that a DNA profile was obtained following the analysis of the butt which matched the profile of the material found under the fingernails of the deceased. 11 I shall review the circumstances leading up to the collection of the cigarette butt for analysis presently, but the first question is whether the evidence of the cigarette butt and the scientific analysis of that butt is evidence to which s 82 of the Act applies. Mr Hanley, appearing for the accused, submitted that the section applies, whereas the Crown submitted to the contrary. 12 It is to be observed that the section applies where a forensic procedure has been carried out on a person: s 82(1)(a). "Forensic procedure" means an intimate forensic procedure or a non-intimate forensic procedure on the taking of a sample by buccal swab. 13 Mr Hanley invited attention to the Second Reading speeches when the Bill was introduced, but I have not found that of assistance, and it seems to me that the language of the sections is clear and unambiguous. When the definitions in s 3 are examined, it does not seem to me that they encompass the obtaining of material which has been discarded. One finds the meaning of "forensic procedure" by looking, inter alia, at an intimate forensic procedure and a non-intimate forensic procedure and the taking of a buccal swab. All these activities involve "taking" a substance, not merely picking up a substance which has been discarded or thrown away. In R v Kane (2004) 144 A Crim R 496, the Court of Criminal Appeal had occasion to consider whether DNA evidence from a cigarette discarded at the scene of the crime contravened the Act here under consideration. The court held that it did not. In his judgment, Sully J, with whom the other members of the court agreed, said (at paras 12-13): "[12] The long title to the Act explains relevantly that the Act is intended: 'to make provision with respect to the powers to carry out forensic procedures on certain persons …' [13] A careful examination of the s 3 definitions earlier herein quoted shows, in my opinion, that what is contemplated by the notion of a forensic procedure, whether intimate or non-intimate, is that it is a procedure actually carried out on the person of some specific individual. The chance circumstance that a person throws away, relevantly, a cigarette butt which is retrieved without any reference to, or interference with the person, and which turns out to have significant probative value in terms of what it says about the relevant DNA profile, does not seem to me to satisfy, either in principle or in practice, either in law or in fact, what is contemplated by the Crimes (Forensic Procedures) Act. In my opinion that ground of appeal fails at the threshold." 14 His Honour's reasoning is directly in point. 15 I reject the submission made by Mr Hanley that Kane is distinguishable. In my opinion it is not, and in so deciding I am mindful of the evidence which I will now review as to what led up to the retrieval of the cigarette butt at the police station. 16 Constable Howe said that early in the investigation he compiled a list of persons whom he described as "persons of interest". Then a DNA profile that matched a profile obtained at a break and enter scene in Springwood was found to match the profile that was taken from the material under the fingernails of the deceased. This narrowed the list of those persons of interest and Constable Howe was then concerned to obtain samples of DNA to match those two existing samples. He said that police had been given a variety of descriptions of those who might have been responsible for the crime on 29 August 2003. Skin colouring ranged from white to dark, age from teenagers to middle-aged, and both sexes. Of the twenty "persons of interest" this number was narrowed by DNA testing of six profiles. 17 On 1 November 2003 Sergeant Johnstone rang Constable Howe at a time when the latter was not on duty and alerted him to the accused's arrest on warrant. Constable Howe told Sergeant Johnstone that a DNA sample would be useful, but he also told him it could only be obtained if the accused requested a drink or a cigarette or something like that and discarded it, and further that the police could not offer the drink or cigarette; it had to be the accused's idea. Constable Howe said that he later found out that the accused had rolled his own cigarette, had smoked it in the smoking area and had discarded it, and that it was then collected and stored as an exhibit. 18 In cross examination Constable Howe said that the DNA obtained from the six persons including the accused was obtained by covert means. That was because, he said, there was no reason to approach them to ask for a DNA sample. He said that the original list of twenty "persons of interest" was narrowed down when the material under the deceased's fingernails was analysed and found to match the material from Springwood. The area of interest then was narrowed to people who were involved in break enter and steal activity. Detective Howe did not accept that the accused was a suspect until the match on the discarded cigarette. Detective Howe said that he had a statement from Mr Doyle who had seen an Aboriginal man and a young woman at his home some time on the day that the deceased met her death. Mr Doyle was not shown pictures for identification purposes until after the cigarette butt had been analysed. Mr Doyle's home was relatively close to that of the deceased, but access was through a long bush track. 19 Detective Howe also said that he had a statement from Mr Cross who had a restaurant in Cliff Drive, not far from the deceased's home, and he also described an Aboriginal or Islander seen in the area on the day of the crime. Detective Howe thought this might have been a description of the accused. 20 The police officer also agreed that he had some information from a telephone message from the "Aboriginal community" suggesting the accused's involvement in the crime. Detective Howe did not regard the information he had as justifying the conclusion that the accused was a suspect at a time before the butt was analysed. 21 It was his belief that had he asked for consent for a DNA sample or had he applied to a magistrate the investigation could be compromised. Detective Howe was asked these questions and gave these answers (T 19-20): "Q. I want to suggest that the reason you wished to maintain that he was merely a person of interest as opposed to being described as a suspect is because you did not want to comply with the Crimes (Forensic Procedures) Act ? A. No, not at all. If I thought he was a suspect I would have arrested him and conducted a forensic procedure.

Q. I suggest you wanted to obtain this material covertly and that is another reason why you didn't wish to comply with the Act? A. It is true I did want to obtain the material covertly but that was not to circumvent the Act… HIS HONOUR: Q. Why was it you could see that the investigation would be compromised if word got out that you had a DNA sample that you wanted to match? A. I would imagine your Honour but if the accused was, say, number 6 in the order of people whose DNA was obtained, and he heard from the sample that was obtained that, say, for example, from person number one, that the police were seeking DNA because they had certain DNA evidence, and the accused thought there was a possibility that it might be his DNA, then he would leave the area. " 22 Detective Howe said that there were entries on the criminal history of the accused revealing that in the past he had failed to appear. 23 Sergeant Johnstone said that he cleaned the van dock area up, picking up all the cigarette butts and removing the bins from the area. He said when he finished the clean up there was nothing left in the van dock. He gave instruction to Constable Drum and to Acting Sergeant Lloyd that if the accused wanted to have a cigarette he was to be allowed to do so. Under no circumstances were the police to provide him with a cigarette or to assist him in obtaining a cigarette. However, if he had his own he was to go out into the van dock to smoke and once the cigarette had been completed, the butt was to be collected as an exhibit. 24 Like Constable Howe, Sergeant Johnstone described the accused as a "person of interest" rather than a "suspect", although he conceded that he had used the word "suspect" in the committal proceedings. Sergeant Johnstone, though, was not involved in the investigation. He said that he had sought and obtained instructions from Constable Howe in relation to what was to be done when the accused was brought to the police station. 25 Sergeant Johnstone said that he did not consider asking the accused to give his consent to provide a DNA sample because he did not understand that the circumstances fell within the confines of "the Forensic Procedures Act". This was because he was not a suspect. 26 Constable Drum was directly involved in the arrest of the accused on outstanding warrants. Sergeant Johnstone instructed her that if the accused wanted a cigarette he was to be allowed to have one, but the cigarette butt was to be collected for DNA. Back at the station Constable Warner told her that the accused would like a cigarette and Constable Drum approached the accused in the charge room and said that he could have one. She told him to roll the cigarette at the counter and Constable Drum then went out into the van dock and directed the accused to discard the cigarette butt at a particular point where there was no rubbish. Constable Drum saw the accused finish the cigarette and she then collected the butt and placed it in an exhibit bag. 27 Sergeant Lloyd was the custody manager on duty on 1 November 2003. His recollection was that he was present when Sergeant Johnstone gave Constable Drum instruction concerning collection of any cigarette butt smoked by the accused. He was aware that the purpose of obtaining the butt was to obtain a DNA sample. He agreed that at committal he had said that there were a number of DNA samples taken from people over a period of time, and that those samples were taken from people who were considered suspects. 28 I accept that each of the police officers whose evidence I have reviewed gave evidence honestly and that the evidence given was reliable. As I have already indicated, I am mindful of the evidence above outlined in determining that the cigarette butt discarded at the police station and the DNA evidence that became available after its analysis was not evidence to which s 82 of the Crimes (Forensic Procedures) Act applies. However, it is appropriate that I nevertheless consider s 82(4) and s 82(5) in case I am in error as to the application of the section. 29 Section 82(4)(b) requires me to form an opinion as to whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained otherwise than in compliance with the statute. Section 82A(5) outlines the matters to be considered in the exercise contemplated by s 82(4)(b). 30 I consider each of the matters to which attention is directed by s 82(5) in turn:

(a) The probative value of the evidence . It seems to me prima facie that the evidence which has been obtained through the analysis of the cigarette butt is highly probative. I do not understand Mr Hanley to have contended otherwise for the purposes of this application. (Of course, when the evidence is given at trial it may be that the probative value is the subject of some challenge.)

(b) The reasons given for the failure to comply with the provisions of this Act . The officer in charge of this case is Detective Constable Howe. When he was alerted that the accused had been taken into custody, he gave instructions that permission to smoke should be granted if the accused asked for permission. I accept that Constable Howe did not consider that the Act applied in relation to the obtaining of this sample. Constable Howe drew a distinction between a "person of interest" and a "suspect". According to the definition in s 3 of the Act, a suspect is a person whom a police officer suspects on reasonable grounds has committed an offence. As I understand his evidence, Constable Howe did not regard the evidence against the accused as basing suspicion on reasonable grounds for the subject crime. That, of course, has to be tested by considering what evidence was available to the police against the applicant at the time of his arrest on the warrants relating to other matters. Mr Hanley submitted that the police had reasonable grounds for suspecting that the accused had committed the subject crime by the time the cigarette butt evidence was obtained. I am not persuaded that this is so. No photograph identification had been made by Mr Doyle and the probative value of the telephone message received from the "Aboriginal community" (see Exhibit 1), is impossible to assess. However, even if it be accepted that there was evidence available to the police which warranted suspicion on reasonable grounds that the accused had committed this crime, I accept that that was not the perception of the officer in charge of this investigation and I accept that this sample was undertaken in circumstances in which it was believed by him s 82 did not apply.

(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 . On the assumption that the Act did apply, then the effect of the failure would have been to deprive the accused of the protection that the Act afforded. The accused lost the opportunity of seeking advice, and if need be refusing consent under Pt 3; and he lost the opportunity of being heard by a magistrate had Pt 5 been enlisted.

(d) Whether the failure to comply with the provision of this Act was intentional or reckless . Mr Hanley submitted that I should find that the non-compliance was intentional. In a sense it was because I am satisfied that the officer in charge was aware of the requirements of the Act. However, I do not find that the non-compliance was in defiance of the Act. Rather, as I have indicated above, I accept that it was the belief of the officer in charge that s 82 did not apply having regard to the limited evidence available to him before the cigarette butt was retrieved and the subject of analysis.

(e) The nature of the provision of this Act was not complied with . If it be assumed that the Act applied, evidence of the accused's DNA could only have been obtained by consent and by due process in accordance with the Act.

(f) The nature of the offence concerned and the subject matter of the proceedings . The offence here charged is of the most serious nature and the evidence is sought to be introduced at a trial in which the accused is charged with the crime of murder.

(g) Whether admitting the evidence would seriously undermine the protection given to suspects by this Act . In my opinion, the question posed by s 82(5)(g) is to be answered in the negative. Each case has to be viewed carefully on its own facts and circumstances and, as I have already indicated, I do not consider that this is a case in which the investigating police acted flagrantly in breach of the requirements of the statute. On the contrary, I consider that the police officers here acted in good faith.

(h) Whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with the right of a person recognized by the International Covenant on Civil and Political Rights . Mr Hanley made a reference to Article 17 but advanced no detailed argument referable to s 82(5)(h).

(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 . There is no suggestion that there are any proceedings of the type contemplated in s 82(5)(i) on foot or contemplated.

(j) The difficulty (if any) of obtaining the evidence without contravention of an Australian law . There is no evidence that the accused, if asked, would have declined his consent to the giving of a buccal swab or other bodily sample. There was machinery in Pts 4 and 5 of the Act for the obtaining of appropriate evidence, subject of course to the police being able to have a suspicion on reasonable grounds that the accused was the offender. Mr Hanley submitted that suspicion on reasonable grounds was not a particularly demanding hurdle. He drew attention to R v Rondo (2001) 126 A Crim R 562 and in particular the judgment of Smart AJ at pp 576-577 where his Honour considered the notion of "reasonable suspicion". That notion was being considered in a different context but is nevertheless of relevance for the purpose of considering "reasonable grounds" for the definition of "suspect" in the Act. The officer in charge of this investigation did not regard the information he had as justifying the conclusion that the accused was a suspect prior to obtaining the cigarette butt and the results of the DNA analysis, and I am by no means convinced that the accused was a "suspect" as defined in the Act. However, for the balancing exercise contemplated by s 82(4), I am prepared to assume that evidence could have been obtained by applying for a court order under the Act.

(k) Any other matters the court considers to be relevant . There was no other matter which counsel asked me to consider for the purposes of s 82(5). However, I do not overlook the circumstance that no invitation was extended to the accused to have a cigarette. He was allowed to have one following his request and it was the accused who provided the tobacco and the cigarette paper. 31 The probative value of the evidence which the Crown wishes to introduce is a most important consideration but, by itself, would not justify the admission of the evidence: s 82(6). The crime here charged is of the utmost gravity and that is a consideration discrete from the probative value of the evidence. This is recognized by s 82(5)(a) and (f). 32 Having weighed up the various matters to which s 82(5) directs attention, I am of the opinion that the desirability of admitting the evidence the subject of challenge here outweighs the undesirability of admitting such evidence even if it be assumed, contrary to the view I have formed, that the evidence was obtained in contravention of the Act. 33 For the above reasons, I consider that the evidence the subject of the challenge should be admitted and I so rule. 34 I do not overlook the provisions of s 138 of the Evidence Act. Evidence obtained improperly is not to be admitted by reason of that provision "unless the desirability of admitting the evidence outweighs the undesirability of admitting [it]". Section 138(3) invites consideration of matters of a like type to those matters to be considered under s 82(5). Mr Hanley submitted the demands of s 82(5) were greater than the demands of s 138(3). Whether that be so or not, it seems to me, again assuming the evidence was improperly obtained, that the discretion that would thereby be enlivened under s 138 should be exercised in favour of admitting the evidence. **********

15/02/2005 - Incorrect dates. - Paragraph(s) Para 9: 11 December changed to 1 November.Para 17: 1 December changed to 1 November 15/02/2005 - Typographical error. - Paragraph(s) 30 21/02/2005 - Typographical error. - Paragraph(s) 30

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