Reported Decision : 168 A Crim R 89 New South Wales Supreme Court CITATION : Charara v The Commissioner of Police NSW [2007] NSWSC 26 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 30/01/2007 JUDGMENT DATE : 5 February 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. CATCHWORDS : Carrying out of forensic procedures on serious indictable offenders in a place of detention - non-intimate procedure (hair sample) - refusal of consent - order by senior police officer - threshold requirements - construction of statutory provisions - jurisdiction of a Court. LEGISLATION CITED : Crimes (Forensic Procedures) Act 2000 (NSW) PARTIES : Jamal Charara The Commissioner of Police NSW FILE NUMBER(S) : SC 10878/06 COUNSEL : In Person (Pl) Mr T. Ryan (Def) SOLICITORS : Assistant Commissioner Lee Shearer (Def) - 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 5 FEBRUARY 2007 10878/06 Jamal Charara v The Commissioner of Police NSW JUDGMENT 1 HIS HONOUR: On 9 April 1999, the plaintiff was convicted in respect of a number of offences (including resist arrest and assault police). He was sentenced to six months periodic detention. 2 Whilst he was in periodic detention (prior to 21 March 2002), he was informed by the corrective services liaison officer that a testing procedure would be taking place the following weekend and that he should seek independent legal advice prior thereto. The plaintiff made contact with his barrister (Mr Kennedy). 3 During the period from September 2001 to December 2002, Sergeant Hassett was a member of the forensic procedures testing team (as a team leader). On 21 March 2002, he attended Parramatta Correctional Centre with the team. The plaintiff was requested to undergo a testing procedure. He was told that the purpose of the exercise was to enable a sample to be stored in the DNA database. Sergeant Hassett has deposed to the following:- "I then went through the "Consent Form" with Mr Charara and asked all the appropriate questions as required by law with regard to the procedure". Thereafter, the plaintiff refused to give consent. Sergeant Hassett also deposed to the following:- "I then provided a copy of the section 69 information sheet to Mr Charara and went through the information sheet with him on a point by point basis". Sergeant Hassett then purported to make an order pursuant to section 70 of the Crimes (Forensic Procedures) Act 2000 (NSW) (the Act) . 4 Subsequently, Sergeant Naughton took a hair sample from the plaintiff's head. The sample was then sealed and marked. 5 On 23 February 2006, the plaintiff filed a summons in this Court. An amended summons was filed in Court on 1 May 2006. The relief claimed therein is as follows:- "1. A Declaration that the taken (sic) of the plaintiff hair on 21/3/02 was in the circumstances unlawful. 2. (1) Order that un-intimate hair taken from the plaintiff (sic) head and records stored in Police DNA databases by NSW Police be destroyed". 6 The hearing of the proceedings took place on 30 January 2007. The plaintiff appeared in person. The defendant was represented by Counsel. 7 The plaintiff tendered three affidavits. The defendant relied on two affidavits (one was sworn by Wayne Lawrence Tosh and the other was sworn by Sergeant Hassett). The plaintiff cross-examined Sergeant Hassett. 8 The conduct of the procedure was recorded on video. The defendant initially sought to tender and show the video. This was the subject of objection from the plaintiff. The determination of admissibility was deferred until the completion of the cross-examination of Sergeant Hassett. Subsequent thereto, the defendant did not press the tender of the video. 9 Both parties have relied on written submissions. The written material was supplemented by oral argument. 10 The Act describes itself as, inter alia, an Act to make provision with respect to the powers to carry out forensic procedures on certain persons and to make provision with respect to a DNA database system. Provisions concerning DNA database systems may be found in Part 11 thereof. 11 The second reading speeches contain some material that assists the Court in approaching the construction of the provisions of the Act. 12 There is material therein that supports the following:- 1) the purpose of the Bill was to introduce a regime for carrying out forensic procedures on serious indictable offenders; 2) any serious indictable offender is liable to be tested; 3) that virtually all prisoners will simply go on the DNA database, regardless of circumstances; 4) the rationale for targeting serious indictable offenders is the likelihood that they have committed or will commit other offences; and 5) it is reasonable for society to expect that such persons have forfeited a degree of civil liberty and that they should be required to give samples to assist with the detection of a repeat offence. 13 Primarily, the relevant provisions of the Act are to be found in Part 7 of the Act (which is headed "Carrying out of certain forensic procedures after conviction of serious indictable offenders"). 14 Section 61 thereof defines intimate forensic procedures and non-intimate forensic procedures to which the Part applies (non-intimate forensic procedures include the taking of a sample of hair other than pubic hair). It also authorises the carrying out of a forensic procedure under the Part on a person who is serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention. 15 Section 62(1) thereof restricts the authorisation to those cases where the carrying out of the non-intimate forensic procedure on such a person (other than a child or an incapable person) is done either with the informed consent of the serious indictable offender or by order of a police officer under section 70 thereof. Section 62(2) has application to a non-intimate forensic procedure where a child or an incapable person is involved. The provision restricts the carrying out of the forensic procedure to cases where an order of a court is made under section 74. Section 63 applies to intimate forensic procedures (which can be carried out with informed consent or by order of the Court under section 74). 16 Sections 67 and 69 thereof deal with what comprises "informed consent". They have no application in the circumstances of this case. 17 Section 68 thereof is as follows:- "68 Police officer may request offender to consent to forensic procedure A police officer may request a serious indictable offender (other than a child or an incapable person) to consent to a forensic procedure to which this Part applies being carried out on the offender." 18 Section 70 thereof is as follows:- "70 Circumstances in which senior police officer may order non-intimate forensic procedure (1) A senior police officer may order the carrying out of a non-intimate forensic procedure on a serious indictable offender if: (a) the offender has been requested under section 68 to consent to the carrying out of the forensic procedure, and (b) the offender has not consented, and (c) the senior police officer has taken into account the matters set out in section 71. (2) A police officer may take a sample of hair other than pubic hair from a serious indictable offender if: (a) the offender has been requested under section 68 to consent to the taking of a sample by buccal swab, and (b) the offender has not consented, and (c) a senior police officer has ordered that the sample be taken after taking into account the matters set out in section 71." 19 This provision deals with two matters. Sub-section (1) enables a senior police officer to make an order when the threshold requirements set forth in (a), (b) and (c) thereof have been satisfied. Sub-section (2) enables a police officer to take a sample if, inter alia, a senior police officer has made such an order. 20 Section 71 thereof is as follows:- "71 Matters to be taken into account by senior police officer In determining whether to make an order under section 70, the senior police officer concerned is to take into account whether this Act would authorise the forensic procedure to be carried out in the absence of the order." 21 For completeness, I should also briefly refer to Part 9 of the Act which appears intended to provide remedies where there have been improper forensic procedures (by way of the making of evidence inadmissible) and Part 10 thereof (which deals with the destruction of forensic material). 22 I should also add that it seemed to be common ground that, inter alia, the plaintiff was a person serving a sentence of imprisonment for a serious indictable offence in a correctional centre or other place of detention and that Sergeant Hassett was a senior police officer. 23 What was ultimately argued by the plaintiff were questions said to bring about invalidity of the order made by Sergeant Hassett on 21 March 2002 (the order). A copy of the order is annexure D of his affidavit. 24 Whilst at times what was being put by the plaintiff seemed to be somewhat unclear, I shall do my best to present my understanding of his arguments. 25 One argument concerned section 68. It was conceded by the defendant that in discussions had between Sergeant Hassett and the plaintiff that there was no express mention of this section. It seems to me that this is a matter of no significance. Section 68 is an enabling provision (it enables a police officer to make a request to consent to a forensic procedure). I am not satisfied that a proper construction of the legislation requires an express mention of the section in the making of a request thereunder. I consider that the threshold requirement set forth in section 70(1)(a) is satisfied when a request has been purportedly made under section 68. 26 The next argument relied on by the plaintiff concerned section 71. During the cross-examination of Sergeant Hassett, the plaintiff elicited the identity of some of the matters that were taken into account by the Sergeant which led him to the making of the order (including the matters that the plaintiff was a serious indictable offender, a request had been made pursuant to section 68 and the refusal of consent). 27 The proper construction to be attributed to the section was thought to be somewhat obscure. For completeness, I should add the Court was informed that it is intended that the section be repealed. 28 Whilst the argument of the plaintiff seemed to be that there was a failure to take into account relevant matters, the identification of any such matters remained elusive. In my view, the plaintiff has not satisfied the Court that there were matters that were relevant and which were not taken into account as required by section 71. 29 There was mention of a question of lack of urgency which should have been taken into account. The thrust of the plaintiff's argument seemed to be that there was time for the making of an application to the Court for an order pursuant to section 74 and that if this had been done it would have given the plaintiff an opportunity to challenge the making of the order in court. 30 There was some evidence relevant to any question of urgency. It is somewhat unclear as to whether any regard was had to it. I will merely mention some of the evidence that was elicited. At the time of the carrying out of the procedure, the plaintiff was three weeks away from completing his periodic detention. There was evidence that at times periodic detainees failed to turn up for testing. I take this matter no further. It is immaterial in this case, as the plaintiff's argument is misconceived. 31 I have not received any assistance on the question of the proper construction to be given to section 71. What appears therein, is similar in content to what appears in section 74(6) (which relates to the making of a court order). 32 It is not easy to discern what function the provision was intended to serve in a case such as is presently before the Court. (Inter alia, when regard is had to the threshold requirements set forth in what appears in (a) and (b) in section 70(1)). 33 A reading of section 70(1)(c) and section 71 would suggest that these provisions purport to ensure that an order is not made in circumstances where the forensic procedure is otherwise authorised by provisions of the Act. A perusal of the second reading speech reveals no material that assists this question of statutory construction. 34 In the present case, it is not suggested that the carrying out of the procedure was otherwise authorised by the Act. Indeed, the thrust of the plaintiff's case is that there was no authorisation whatsoever for the carrying out of the procedure on him (he regarded the carrying out of the procedure on him as being unlawful). 35 It seems to me that the plaintiff's insistence on an entitlement to have the matter taken to court is also misconceived. It appears that his argument looked to either section 62(2) or section 63 for support. These provisions are not relevant in the present case (one applies when a child or an incapable person is involved and the other applies to intimate forensic procedures). 36 It needs to be appreciated that Part 7 distinguishes between intimate and non-intimate forensic procedures. It does not confer jurisdiction upon a court in relation to the latter, unless a child or an incapable person is involved. 37 The remaining argument raised the contention that the person who made the request should not make the order (there was a suggestion that a fresh mind should have addressed the question of the making of an order). In my view this argument is devoid of substance. The plaintiff has failed to satisfy me that there is any basis for such a contention. 38 The plaintiff bears the onus of satisfying the Court of an entitlement to relief. In my view, he has failed to substantiate any basis for challenging the validity of the order. 39 For completeness, I should add that the provisions of Part 10 have no application in the circumstances of this case. 40 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. ********** 05/02/2007 - Date of decision 5 February 2005 instead of 2007 - Paragraph(s) Date of decision 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.