New South Wales Supreme Court CITATION : F V v Zeitler [2007] NSWSC 333 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 2 April 2007, 3 April 2007 JUDGMENT DATE : 3 April 2007 JUDGMENT OF : Simpson J DECISION : Appeal dismissed CATCHWORDS : CRIMINAL LAW - order for forensic procedures - appeal - plaintiff a suspect - indictable offence - murder - reasonable grounds to suspect plaintiff - grounds for believing forensic procedures might produce evidence to confirm or disprove commission of offence - forensic procedures justified in circumstances - circumstantial case - DNA evidence - appeal dismissed Crimes (Appeal and Review) Act 2001, Part 5, s3, s8, s23, s24, s25, s25A LEGISLATION CITED : Crimes (Forensic Procedures) Act 2000, s115A Mental Health Act 1990 CASES CITED : Orban v Bayliss [2004] NSWSC 428 PARTIES : F V - Plaintiff Nicole Zeitler - Defendant FILE NUMBER(S) : SC 11343/07 COUNSEL : CA Davenport SC - Plaintiff L Babb SC / LS Leis - Defendant SOLICITORS : Mandy Hull & Associates - Plaintiff IV Knight - Defendant LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Magistrate Michael Holmes LOWER COURT DATE OF DECISION : 9 March 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUTY JUDGE LIST SIMPSON J Tuesday 3 April 2007 11343/07 F V v Nicole Zeitler JUDGMENT 1 HER HONOUR: By Amended Summons filed in court on 3 April 2007, the plaintiff appeals, pursuant to s115A of the Crimes (Forensic Procedures) Act 2000 ("the Act") and Part 5 of the Crimes (Appeal and Review) Act 2001, against an order made under the Act in the Local Court at Armidale on 9 March 2007 by magistrate Michael Holmes. The formal order was expressed in the following terms: "I, Michael North Holmes … at the Local Court at Armidale on 9 March 2007 having been satisfied of the matters referred to under [the Act] make orders authorising the carrying out of a Non Intimate forensic procedure being, 1) buccal swab 2) hair sample 3)photograph and if the suspect refuses the procedures listed 1) 2) 3), a blood test, on F V of Banksia Mental Health Unit Tamworth. I order that F V … attend at the time and place directed for the carrying out of the forensic procedure. … This Order is made under section 24 of [the Act]." 2 In the formal record of the order, there follows a statement of "Reasons for Order", in the following terms: "I note that under s8 of the Act, the suspect cannot consent to the forensic procedure. 1) I am satisfied (s25 of the Act) that; a) the person is a suspect (as defined in s3 of the Act) and; b) on the evidence before me there are reasonable grounds to believe that the suspect committed an indictable offence namely Murder. c) Based on the affidavit and oral evidence of the case officer Detective Senior Constable Borghouts there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence based upon the material place (sic) before the court. d) The carrying out of the forensic procedure is justified in all the circumstances. e) The probative value of the evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is a delay in carrying out the procedure; 1. The police may use reasonable force to ensure that you comply with the order for the carrying out of the forensic procedure. 2. The police are required to comply with the provisions of Part 6 of [the Act] in carrying out the forensic procedure." This accurately reflects reasons given orally by the magistrate at the time he made the orders. 3 An appeal lies to this Court against such an order only on a ground that involves a question of law alone, or, by the leave of this Court, on a question of fact or a question of mixed fact and law. 4 At the conclusion of the hearing of the appeal, and because there existed a degree of urgency, I dismissed the appeal. These are my reasons for doing so. 5 The long title of the Act explains its function. It includes: "An Act to make provision with respect to the power to carry out forensic procedures on certain persons and to make provision with respect to a DNA database system …" 6 Part 5 of the Act is headed: " Forensic procedures by order of Magistrate or other authorised Justice ". The central provisions, at least for present purposes, are s24 and s25. By s24 (and by reference to s23) a magistrate is authorised to order the carrying out of the forensic procedure where a suspect has not consented, or by s8, cannot consent; and the magistrate is satisfied of the matters itemised in s25. 7 "Forensic procedure" is, relevantly, defined in s3 of the Act to include the taking of a sample by buccal swab; it also includes, specifically as "non-intimate forensic procedure", the taking of a hair sample (other than pubic hair); and the taking of photographs of parts of the body (with presently immaterial exceptions). "Intimate forensic procedure", by s3, includes the taking of a sample of blood. 8 By s8 an "incapable person" cannot consent to a forensic procedure; "incapable person" is defined in s3 as meaning an adult who is incapable of understanding the general nature and effect of a forensic procedure, or is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out. 9 S25 sets out the matters required to be considered by a magistrate before ordering a forensic procedure. It is convenient to set out the section in full: "The Magistrate must be satisfied that: (a) the person on whom the procedure is proposed to be carried out is a suspect, and (b) if the forensic procedure concerned is an intimate forensic procedure, on the evidence before the Magistrate there are reasonable grounds to believe that the suspect committed: (i) a prescribed offence, or (ii) another prescribed offence arising out of the same circumstances as that offence, or (iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and Note. A prescribed offence is defined in section 3 as an indictable offence or any other offence prescribed by the regulations. (c) if the forensic procedure concerned is a non-intimate forensic procedure other than the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed: (i) an indictable or a summary offence, or (ii) another indictable or summary offence arising out of the same circumstances as that offence, or (iii) another indictable or summary offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and (d) if the forensic procedure concerned is the taking of a sample of hair other than pubic hair, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed: (i) a prescribed offence, or (ii) another prescribed offence arising out of the same circumstances as that offence, or (iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and (e) if the forensic procedure concerned is the taking of a sample by buccal swab, on the evidence before the Magistrate, there are reasonable grounds to believe that the suspect committed: (i) a prescribed offence, or (ii) another prescribed offence arising out of the same circumstances as that offence, or (iii) another prescribed offence in respect of which evidence likely to be obtained as a result of carrying out the procedure on the suspect is likely to have probative value, and (f) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the relevant offence, and (g) the carrying out of the forensic procedure is justified in all the circumstances." 10 "Suspect" is defined in s3 to include: "(a) a person whom a police officer suspects on reasonable grounds has committed an offence …". 11 On 9 February 2007 Detective Senior Constable Nicole Zeitler (who later gave evidence under the name Nicole Borghouts) made an application under s24 of the Act for a final order authorising the carrying out of a forensic procedure on the plaintiff. The application did not specify the particular forensic procedure in relation to which she sought the order. 12 She supported her application by an affidavit, and some other documentary material. In the affidavit she identified the forensic procedures for which she sought orders as: "Buccal swab Hair sample Photograph Blood test (if suspect refuses above procedures)." 13 The effect of the evidentiary material was as follows. In the early afternoon of 13 January 2007 the body of an 82 year old man, Mark Hutchinson, was found in the back yard of his home at 74 Markham Street Armidale. The body had been decapitated. The head was a short distance from the torso. Some human hair was located on the back of the shirt Mr Hutchinson was wearing. Some cigarettes were found at the scene. 14 Inspection of the premises did not suggest robbery as a motive for the murder. There was no sign of forced entry to the house, and Mr Hutchinson's wallet remained untouched in his rear pocket. Police are aware of no other motive for the murder. 15 A Mr David Green had been in the general vicinity the previous day, 12 January, at about 11.30 am. Mr Green saw a male person fitting the general description of the plaintiff jump the fence at 74 Markham Street and run across parkland to a nearby creek. 16 Mr Green described this person's clothing as a dark-coloured long-sleeved top, possibly tracksuit, and dark coloured long pants, also possibly tracksuit. 17 Police also had reports of "numerous sightings" of a male on Rusden Street (which, later references showed, intersects with Markham Street) on 13 January. Some of these positively identified the plaintiff as the person. The description of the clothing he was then wearing was similar to that given by Mr Green of the clothing worn by the man he had seen the previous day. A significant addition to the clothing description was that the man seen on 13 January was wearing a cap described as "similar to a police cap". 18 On 17 January the plaintiff was detained by police. He was wearing clothes which fitted Mr Green's description of the clothes worn by the man he had observed, and "a dark blue/black cap". He was in possession of a pair of "fake handcuffs with a key and a butter knife". While he was in custody investigators noticed a high concentration of silvery-grey/white fibres on his socks. Subsequently, investigators discovered, near Mr Hutchinson's home, a clump of a plant, perhaps Patterson's Curse, that had similar fibres. Patterson's Curse is a plant which is not common in the area. One broken off plant was found in the area where Mr Green saw the person leave 74 Markham Street on 12 January. 19 The plaintiff's hair is, in length and colour, consistent with that found on Mr Hutchinson's shirt. 20 The plaintiff's mother lives in the near vicinity of Markham Street. The plaintiff has, on a previous occasion, given 1/75 Markham Street as his address, although there is, in fact, no such address. 21 The plaintiff was, after his apprehension, psychiatrically examined and, pursuant to the Mental Health Act 1990, found to be a mentally ill person; he was diagnosed as suffering from chronic schizophrenia. Although the precise nature of any order then made under the Mental Health Act does not emerge from the evidence, it is apparent that he was the subject of compulsory treatment orders under that Act. 22 [deleted] 23 Extensive medical records describe some of his history. These include many instances of the use of dangerous objects, threats of harm to others, aggressive and even homicidal thoughts towards various individuals. Most recently, in May 2006 he was found waving an axe at passing cars and passers-by, and in December 2006 to be loitering in the vicinity of school premises carrying scissors, a needle, with a tomahawk on the ground nearby. 24 A very large bundle of documents, containing drawings and writings by the plaintiff, was part of the material in evidence. This included a drawing of a headless torso; a reference to "Jack the Ripper"; a drawing of a hand ashing a cigarette; another depiction of a body with the head separated; an item which reads "by removing his head and then his Tom Thumb will be exposed"; and much, much more that would require an expert to analyse. 25 The medical records also showed that the plaintiff had been a long-term patient of the New England Area Health Service. He was admitted to a facility called Banksia House on 16 December 2006, although it is not clearly disclosed whether this was a voluntary or involuntary admission. In respect of this admission the nursing progress notes are extensive and comprehensive. They show that, at 6.30 pm on 7 January 2007 the plaintiff was unable to be located. Security and police were notified. The notes also record that, at 8.00 pm that evening, he had been seen by police but that police were unable to apprehend him. He remained "AWOL" until readmitted following his apprehension on 17 January. 26 Reports of the murder appeared in the media. Representatives of Banksia House contacted police to express their concern that the plaintiff, who was then still at large, may have been the perpetrator. 27 Investigators believe that DNA examination of the hairs found on Mr Hutchinson's shirt, the cigarettes found at the scene, a wrist watch worn by Mr Hutchinson, and the plaintiff's clothing, may provide evidence that suggests or establishes his presence at Markham Street on 12 or 13 January. 28 Detective Borghouts gave oral evidence and was cross examined. She expanded to some extent on her affidavit evidence; she said that the plaintiff's shoes, which had been seized on his apprehension on 17 January, bore red staining, and that preliminary testing was "presumptive for blood". 29 Detective Borghouts was also cross examined to suggest that her affidavit evidence, concerning the timing of the contact by Banksia House staff expressing concern about the plaintiff may have been inaccurate. 30 It is unnecessary to conduct a complete analysis of the requirements of the Act. That is because only two matters were challenged on behalf of the plaintiff. The first was the magistrate's finding that reasonable grounds existed to suspect that the plaintiff had committed the murder; the second, that there were reasonable grounds to believe that the forensic procedure(s) might produce evidence tending to confirm or disprove that the plaintiff committed the offence. 31 In the circumstances of the present case, it was necessary for the Magistrate to be satisfied of the following matters: (i) that the plaintiff was a suspect (that is, that a police officer suspected on reasonable grounds that the plaintiff had committed an offence – s25(a)); (ii) that there were reasonable grounds to believe that the plaintiff had committed an indictable offence (in this case, murder – s25(c), (d) and (e)); (iii) that there were reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the plaintiff committed the offence (s25(f)); (iv) that the carrying out of the forensic procedure was justified in all the circumstances (s25(g)). 32 In order to prove the first – that the plaintiff was a suspect - it was necessary that the police officer establish to the satisfaction of the magistrate that she did in fact suspect that the plaintiff had committed an offence. This she was able to do by her own assertion. It was also necessary to establish that her suspicion was based upon reasonable grounds. This could not be done by her own assertion. As I have previously observed (Orban v Bayliss [2004] NSWSC 428), it is not a sufficient discharge of the magistrate's function merely to accept a police officer's assertion that he or she has reasonable grounds for the stated belief. The magistrate must bring an independent assessment to bear upon the grounds said reasonably to give rise to that suspicion. There is, obviously, considerable overlap between that and the second matter necessary to be proved. 33 On the appeal, it was the first and third of the matters above that were the subject of challenge. Senior counsel who appeared for the plaintiff argued that the evidence was insufficient to satisfy the magistrate that Detective Borghouts had reasonable grounds for the suspicion that she asserted. She also argued that there was insufficient material to enable the magistrate to be satisfied that the forensic procedure(s) might produce evidence tending to confirm or disprove that the plaintiff committed the offence. 34 The magistrate declared himself to be satisfied of all of the matters of which he was required, by s25 of the Act, to be satisfied before making the order. S25A of the Act envisages some differences in what a magistrate is required to be satisfied of, depending upon whether the forensic procedure sought is an intimate forensic procedure, or a non-intimate forensic procedure. In fact, there are three categories – intimate, non-intimate, and buccal swabs. Although defined, the terms are largely self-explanatory. A non-intimate forensic procedure may be ordered where there are reasonable grounds to believe that the suspect has committed either an indictable or summary offence; and an intimate forensic procedure, or a buccal swab (or the taking of hair other than public hair) may be ordered only where there are reasonable grounds for believing that the suspect has committed a "prescribed" (relevantly, indictable) offence. Here, the difference is immaterial. The offence of which the plaintiff is suspected is the indictable offence of murder. 35 Analysis of the material put before the magistrate shows that, at this stage, the case for suspecting the plaintiff to be the perpetrator is circumstantial. However, there is, when the material is properly examined, a great deal of circumstantial material that would justify such a suspicion – that is, constitute reasonable grounds for the suspicion. 36 This included the description given by Mr Green of the person he had seen in the vicinity at the relevant time; the plant fibre on the plaintiff's clothing, being similar to plant fibre in the vicinity of the crime; hairs found on Mr Hutchinson's body that appeared to be consistent with the plaintiff's hair; the plaintiff's association with Markham Street or its vicinity; the writings and drawings of the plaintiff; medical evidence that the plaintiff had experienced homicidal ideation and thoughts; evidence of violence on the part of the plaintiff on previous occasions; the red staining on the plaintiff's shoes which was presumptive for blood; previous occasions when the plaintiff had been known to carry cutting weapons. 37 On behalf of the defendant it was also pointed out that the evidence of the cap he was wearing (said to be similar to a police cap) when arrested on 17 January, and his possession of "fake" handcuffs on the later occasion could provide some link with the (unidentified) person seen in the vicinity of Markham Street on 13 January, also wearing a cap that could fit the description of a "police cap". 38 Plainly, establishing reasonable grounds for a suspicion is a less demanding test than establishing reasonable grounds to charge a person with an offence. The whole purpose of the authorisation of forensic procedures is to provide evidence either to strengthen an existing suspicion, or to explode that suspicion. I am satisfied that there was ample material to justify Detective Borghout's suspicion that the plaintiff was the perpetrator of the murder. 39 An attack was also made upon the finding that there were reasonable grounds to believe that the forensic procedures might produce appropriate evidence. There was sufficient evidence – for example, the hairs found on Mr Hutchinson's shirt – that DNA material might be available from the crime scene. If the forensic procedures proposed yielded confirmation (or disproof) that that was the plaintiff's DNA, that would be sufficient to establish reasonable grounds. 40 Accordingly, both challenges to the orders failed. I confirm that the appeal is dismissed. ********** 23/05/2007 - Name of applicant suppressed - Paragraph(s) coversheet [1] 23/05/2007 - Deletion of factual error - Paragraph(s) [22] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.