Sleiman v Murray [2009] ACTSC 82

Sleiman v Murray [2009] ACTSC 82 - ACTSC 2009 case summary — Zoe

[45]

It is alleged that at about 2.00 pm on 21 August 2002, two men, at least one of whom was masked, entered a Manuka jeweller's shop. One of them carried a metal wrench and the other a jemmy bar about 45 centimetres long. The person with the jemmy smashed a glass cabinet and took out of it some diamond rings and other jewellery. The two then left, without the jemmy. The store owner picked up the jemmy and threw it at them, hitting on his upper back the one who had been carrying the wrench. There does not appear to have been any specific identification of the men.
Police attended shortly after and general descriptions of the men were given. The police took possession of the jemmy bar and it was subjected to forensic analysis. Some material was able to be detected on the jemmy and a DNA profile obtained from it.
A vehicle was subsequently located and a mask consistent with that worn by one of the two men was seized. A DNA profile was obtained from material on the mask. That profile was consistent with that obtained from the material from the jemmy bar.
On 16 October 2007, police received information from the National Criminal Investigation DNA Database (NCIDD) that "a match" to the DNA profile from the jemmy bar and the mask had been identified on that part of the Database which had been provided by NSW. The "matching" DNA profile came from Mr Sleiman. This means, as I understand it, that the NSW Police have a sample of material from which a DNA profile has been obtained and that the material which was analysed to produce that profile came from Mr Sleiman.
Mr Sleiman was charged with armed robbery by summons on 28 January 2009 returnable before the ACT Magistrates Court on 20 March 2009.
On 3 April 2009, the informant, Senior Constable Jason Murray, made an application purportedly under s 32 of the Crimes (Forensic Procedures) Act 2000 (ACT) (the Forensic Procedures Act) for an order for the carrying out of a forensic procedure, "namely buccal swab".
I say "purportedly" for the summons issued on 6 April 2009 directed to Mr Sleiman, commanding him to appear on 9 April 2009, stated that the application had been made "before a Deputy Registrar of the Magistrates Court of the Australian Capital Territory". There is, in my view, no power for a deputy registrar to hear such an application; s 32 of the Forensic Procedures Act specifies that a magistrate may make such an order and s 35 of that Act specifies that the application is to be made to a magistrate. For reasons that appear below, I am of the view that the application is made to a magistrate as a persona designata and not to the court which could then delegate power to a deputy registrar.
There can be, however, no reasonable question about the validity of the summons itself for s 37 of the Forensic Procedures Act gives to the Magistrates Court (and not to "a magistrate") the power to issue a summons. Under s 12 of the Magistrates Court Act 1930 (ACT), a registrar (and under s 9B, a deputy registrar) may issue a summons to a witness or do anything necessary and preliminary to a hearing. No issue was raised about the validity of the summons and Mr Sleiman's counsel on this application, Mr K Archer, expressly disavowed any challenge to it.
The first application was heard by Magistrate Doogan on 17 June 2009. Mr D Sahu Khan appeared for Senior Constable Murray and Mr H Dhanji of counsel appeared for Mr Sleiman. Senior Constable Murray gave evidence and was cross-examined.
After hearing submissions, her Honour granted the application and made an order that Mr Sleiman attend at the City Police Station between the hours of 9.00 a.m. and 4.00 p.m. on or before 24 June 2009 to submit to having a sample taken from him by way of a buccal swab. Curiously, the application for judicial review cited the order as requiring Mr Sleiman to report to the "Sydney Police Centre". I assume that this was a transcription error.

[47]

[w]ell, it's quite clear that a number of the criteria in section 34 are met. I'm certainly satisfied on the balance of probabilities that - and there's no issue, as I take it, in relation to most of the criteria under section 34. There's no issue that the person, being the respondent or the applicant in this application, the respondent to the application, or the defendant for short terms is a suspect. That the offence is a serious offence.

I do have concerns, and I have sympathy with the position taken by the prosecution in this, and the concern is that if they were to introduce this evidence that there could be some potential prejudice to the defendant, and that it is highly likely that based on that potential prejudice, being that he is known in another jurisdiction. Therefore, that in the mind of a jury, if it were to go to a jury, or even a judge alone trial, could raise some potential prejudice to him, and on that basis it could be that the DNA evidence taken in another jurisdiction could very well be excluded.

And on the basis of that - and I don't know, because I haven't been told, I'm not privy to what other information or what other evidence there is, I don't know how strong the case is without that forensic material. There's nothing much here, the only application or the only information in the application in the affidavit gives a brief description of the suspects and, as I say, there's no information before me as to the strength of the prosecution case. But having said that, it could well be that the DNA evidence, if it indeed does confirm that the defendant was the person at the scene and the person who committed this offence, it could well supplement any other information and any other evidence that the prosecution may have. It certainly has taken a long time to get the brief of evidence together.

So I have to consider then the balancing interests [sic] as are contained in subsection (3) of section 34, and there is nothing in those provisions which would give me any difficulty in finding that it's quite appropriate, in my view, for the forensic procedure to be undertaken, having regard to the criteria, as I must, the seriousness of the circumstances surrounding the offence. Armed robbery is a most serious crime in this Territory, and indeed in every other jurisdiction: it carries the maximum sentence of 25 years imprisonment. The degree of the suspect's alleged participation in the offence, again from the information that has been provided to me and the evidence given by Constable Murray, it would appear that if indeed the mask and the jemmy that was used in the commission of the offence did contain the defendant's DNA, then his participation is, to a great degree, the other criteria in my view don't apply.

So I am satisfied under the provisions that I need to be satisfied that the forensic procedure should be undertaken of the defendant, and I intend to grant the application.

[56]

I am not entirely convinced by all of these arguments. For example, in relation to (i) above, Mr Sleiman has a right to privacy recognised by s 12 of the Human Rights Act 2004 (ACT), which such a procedure may breach (R v B [1995] 2 NZLR 172). He has, too, the right not to incriminate himself recognised by s 22 of that Act and which such a procedure may also breach, though in the light of the principles recognised in cases such as King v McLellan [1974] VicRp 92; [1974] VR 773 that would seem unlikely.
That the person must have refused to consent to the procedure brings at once a dispute into contention. At common law, a person suspected of an offence, even if arrested, had the right to refuse to submit to a forensic procedure or a medical examination and could not be compelled to do so: R v Boulton (1871) 12 Cox CC 87 (at 91), McAneny v Kearney; Ex parte Kearney [1966] Qd R 306 (at 310-311).
There are also differences between the situation Einfeld J was considering and the situation before me. For example, unlike the procedure under s 464M of the Crimes Act 1958 (Vic), an order cannot be made under the Forensic Procedures Act without notice to the suspected person and that person has a right to address the magistrate and cross-examine the applicant, and with leave, call or cross examine any other witnesses: s 38 of the Forensic Procedures Act.
Nevertheless, I am by no means convinced that his Honour was in error in the characterisation of the power.
There are also strong indications in the Forensic Procedures Act itself that it is an administrative power that is being exercised. It is a power that is conferred in a way that suggests it is conferred on a persona designata: Hilton v Wells & Ors [1985] HCA 16; (1985) 157 CLR 57; Love v Attorney-General (NSW) & Anor (1990) 169 CLR 307; Grollo v Palmer and Ors [1995] HCA 26; (1995) 184 CLR 348.
The notion of conferral of power on a persona designata has been criticised. See Walker K, "Persona designata, incompatibility and the separation of powers" (1997) 8 PLR 153. Nevertheless, it remains good law. Indeed, the model forensic procedures draft legislation (the Model Law) was drawn up by the Model Criminal Code Officers Committee relying on this notion to permit the power to be exercised by judicial officers which constitutionally could not be exercised by courts. See Stuart F, "Commonwealth forensic procedures legislation" (1995) 69 L Inst J 910. It is this Model Law that is the source of the Forensic Procedures Act.
The introduction of provisions of the Model Law into the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) were accompanied by provisions which were intended to permit Commonwealth laws to confer non-judicial functions and powers on judges and magistrates in criminal matters. See s 4AAA of the Commonwealth Crimes Act, which makes it clear that the powers and conferral on the judicial officer is in a personal capacity as a persona designata. This provision was inserted by the Crimes Amendment (Forensic Procedures) Act 2001 (Cth), making a clear connection with forensic procedures and application to such judicial officers for orders about them, despite the general terms of the section. The Explanatory Memorandum also makes the connection clear when it says that the amendments to the Act contained in the Bill "are based on the February 2000 draft Model Forensic Procedures Bill".
Commenting on the amendments generally, including provision that became s 4AAA, the Memorandum says:

[62]

The Forensic Procedures Act was enacted as part of a uniform legislative scheme. It was based on the Model Bill prepared by the Model Criminal Code Officers Committee in May 1999. See Model Criminal Code Officers Committees of the Standing Committee of Attorneys-General, Model Forensic Procedures Bill and the Proposed National DNA Database (1999). There had been earlier versions of the Bill promulgated in 1994 and 1995 which some States had enacted.
This Territory and the Commonwealth enacted legislation following the 2000 modification of the Model Bill.
The Forensic Procedures Act establishes a DNA database system (s 94A). The material included on this database is that collected from suspects (s 8) in accordance with Pts 2.3, 2.4 and 2.5 of the Act. It must be removed, however, in certain circumstances, such as if the suspect is acquitted of the offence with which he or she is charged or is found guilty but not convicted or where the proceedings are not commenced within a year. The upshot is that continuing entries in the database will almost entirely be of material from persons convicted of offences (where there is no appeal from conviction or any appeal against conviction is dismissed).
This is relevant because of the national scheme which is the basis on which the application was made before the Learned Magistrate. The national scheme is established under the Commonwealth Crimes Act as follows.
A Commonwealth DNA database is apparently established administratively. Section 23YDAC of the Commonwealth Crimes Act defines it and this definition describes what it contains. While not apparently established legislatively, the Commonwealth Crimes Act does regulate aspects of it, such as use of information on it (s 23YDAE), inclusion of material on it which should have been destroyed (s 23YDAG) and so on.
Importantly for this case, the Act recognises the National Criminal Investigation DNA Database, NCIDD, which is the whole or part of the Commonwealth DNA database integrated with the whole or part of one or more State/Territory DNA database systems (s 23YDACA). It appears from the course of these proceedings that both the ACT and NSW have integrated part of their systems into the NCIDD. I say this because the ACT clearly had access to the system (since that is how it discovered Mr Sleiman's matching DNA), and that is only available to participating jurisdictions (s 23YDACA(2)) and the material which the ACT accessed came from NSW.
Section 97 of the Crimes (Forensic Procedures) Act 2000 (NSW) permits information from the DNA database of that State to be used for the conduct of proceedings in other participating jurisdictions. Thus, any material that NSW had would be available for tender at a trial of the armed robbery charge in this Territory.
The Forensic Procedures Act also regulates matters such as the undertaking of forensic procedures. Section 18 and the table to it, table 18 of the Forensic Procedures Act, shows that there are three circumstances under which a forensic procedure may be authorised to be carried out on a suspect: with the suspect's informed consent (Pt 2.3), by forensic order of a police officer (Pt 2.4) or by forensic order of a magistrate (Pt 2.5). Where the suspect is an adult and not in custody, it may only be authorised where there is informed consent or by order of a magistrate. In this case, Mr Sleiman was not in custody and since he did not consent, an application had to be made to a magistrate.

[64]

(1) The magistrate must be satisfied on the balance of probabilities that -

(a) the person on whom the forensic procedure is proposed to be carried out is a suspect; and

(b) if the forensic procedure is a procedure other than the taking of a handprint, fingerprint, footprint or toeprint - the offence for which the person is a suspect is a serious offence and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed -

(i) that offence; or

(ii) another serious offence arising out of the same circumstances as that offence; or

(iii) another serious offence for which the evidence likely to be obtained because of carrying out the procedure on the suspect is likely to have probative value; and

(c) if the forensic procedure is the taking of a handprint, fingerprint, footprint or toeprint - the offence for which the person is a suspect is an offence other than an offence that may be dealt with by way of infringement notice and, on the evidence before the magistrate, there are reasonable grounds to believe that the suspect committed -

(i) that offence; or

(ii) another offence (other than an offence that may be dealt with by way of infringement notice) for which the handprints, fingerprints, footprints or toeprints are likely to have probative value; and

(d) the carrying out of the forensic procedure is justified in all the circumstances.

(2) In deciding whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

(3) In balancing those interests, the magistrate must have regard to the following matters:

(a) the seriousness of the circumstances surrounding the commission of the offence and the gravity of the offence;

(b) the degree of the suspect's alleged participation in the commission of the offence;

(c) the age, physical and mental health and cultural background of the suspect, to the extent that they are known to the magistrate;

(d) if the suspect is a child or incapable person - the best interests of the suspect;

(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the offence;

(f) if the suspect gives any reasons for refusing to consent - the reasons;

(g) if the suspect is in custody and the investigation period when the suspect may lawfully be held has not expired -

(i) the period for which the suspect has already been detained; and

(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;

(h) any other matter considered relevant to balancing those interests.

At a glance

Court

Decision date

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Judgment (130 paragraphs)

Sleiman v Murray [2009] ACTSC 82 (15 July 2009)

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Legislation Cited (12)

Cases Cited (15)