Police v RH [2013] NSWChC 7

Children's Court New South Wales

Medium Neutral Citation: Police v RH [2013] NSWChC 7 Hearing dates: 21 November 2013 Decision date: 05 December 2013 Jurisdiction: Criminal Before: Children's Magistrate Graham Blewitt at Nowra Decision: Application for the taking of a self-administered buccal swab granted Catchwords: CRIMINAL LAW - YOUNG PEOPLE - CHILD - Forensic Procedure application - DNA - whether sufficient evidence to give rise to a reasonable belief that the Young Person is a suspect - DNA scene to scene link analysis - whether Court entitled to rely on DNA scene to scene link analysis to form suspicion that the Young Person is a suspect Legislation Cited: Crimes (Forensic Procedures) Act 2000 Cases Cited: Orban v Bayliss [2004] NSWSC 428 Category: Principal judgment Parties: Prosecution Young Person Representation: Sgt Wunderlich for the Prosecution Mr Tate, ALS, for the Young Person File Number(s): 2013/00327765 Publication restriction: Pseudonyms have been used

Judgment

FORENSIC PROCEDURE APPLICATION 1These proceedings involve an unusual factual scenario, and this gives rise to a contested forensic procedure application in this matter. 2The application is supported by an affidavit sworn by Senior Constable Robert Thompson on 29 October 2013. 3The respondent, the Young Person RH (referred to herein as "the Young Person") is a 17 year old aboriginal male and is a child for the purposes of the Crimes (Forensic Procedures) Act 2000 (the Act). 4In this regard s 3 of the Act defines a "child" as meaning "a person who is at least 10 years of age but under 18 years of age". 5Briefly, the relevant facts are that the Young Person has pleaded guilty to, and has been sentenced, in respect of a charge of break, enter and steal, relating to premises at Duchess Close, Nowra. The offence occurred on 10 September 2013. During a police forensic examination conducted in relation to this offence, the Young Person's fingerprints were located within the premises, which led to his arrest, and subsequent plea of guilty. 6Further, a DNA profile of an unknown male was obtained from a swab taken of a red stain found on the leg of an upturned chair within the premises. 7The police believe that "there is now evidence to indicate the accused was in company of co-offenders at the time" of this offence - (see paragraph 9 of Sen. Const. Thompson's affidavit). 8The Young Person does not have a recorded DNA profile on the DNA database. 9Notwithstanding that the police believe the Young Person was not alone when this offence was committed, based on the known involvement of the Young Person in the offence committed at Duchess Close in Nowra on 10 September 2013, the Police hold a reasonable suspicion that the unknown DNA profile recovered from those premises is that of the Young Person. 10The Police have undertaken a DNA Scene to Scene link analysis based on the unknown DNA profile taken from the Duchess Close, Nowra premises. This has resulted in this unknown male DNA profile being linked to two other crime scenes. 11The first linked crime scene relates to a break, enter and steal offence that occurred on 25 November 2009 at the business premises of Society Streetwear and Boards, in Rodway Arcade, Nowra. The perpetrator(s) remains unknown to Police. A forensic examination of that crime scene resulted in a DNA profile of an unknown male being obtained from a red substance located inside the store, on a piece of paper at the point of entry. 12The second linked crime scene relates to a break, enter and steal offence that occurred on 7 June 2013 at the business premises of Stanley John Menswear, in Junction Street, Nowra. Similarly, the perpetrator(s) remains unknown to Police. Also in this case, a forensic examination of the crime scene resulted in a DNA profile of an unknown male being obtained from a red substance, resembling blood, on a shard of glass at the point of entry. 13The DNA profiles of the unknown male taken from both of these linked crime scenes have been identified as matching the DNA profile of the unknown male obtained from the Duchess Close, Nowra offence, that is the offence in which the Young Person was involved. 14Based on this evidence, the Police hold a reasonable suspicion that the two DNA profiles of the unknown male person obtained from the two linked crime scenes are those of the Young Person, and accordingly he is a suspect in those two linked crime scenes. 15A "suspect" is defined in section 3 of the Act as: "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. 16Accordingly an application has been made pursuant to s 26 of the Act for a final order authorising the carrying out of a forensic procedure on the Young Person, pursuant to s 24 of the Act, namely the taking of a buccal swab or the taking of a sample of hair, other than pubic hair, being a non-intimate forensic procedure. 17A non-intimate forensic procedure is defined in the Act as follows: "non-intimate forensic procedure" means any of the following: (a) an external examination of a part of a person's body, other than the person's private parts, that requires touching of the body or removal of clothing, (b) the carrying out on a person of a self-administered buccal swab, (c) the taking from a person of a sample of the person's hair, other than pubic hair, (d) the taking from a person of a sample (such as a nail clipping) of the person's nails or of matter from under the person's nails, (e) the taking from a person of a sample of any matter, by swab or washing,from any external part of the person's body, other than the person's private parts, (f) the taking from a person of a sample of any matter, by vacuum suction,scraping or lifting by tape, from any external part of the person's body, other than the person's private parts, (g) the taking from a person of the person's hand print, finger print, foot print or toe print, (h) the taking of a photograph of a part of a person's body, other than the person's private parts, (i) the taking from a person of an impression or cast of a wound from a part of the person's body, other than the person's private parts, (j) the taking of measurement of a person's body or any part of a person's body (other than the person's private parts) whether or not involving the marking of the person's body. 18The application came before the Nowra Children's Court on 7 November 2013 when the proceedings were adjourned to 21 November for submissions to be made in relation to the forensic procedure application. 19On the last mentioned date, the Court received written submissions from Mr Jacob Tate of the Aboriginal Legal Service on behalf of the Young Person, and oral submissions from the Police Prosecutor. 20In his written submissions Mr Tate contends (in summary) that the Court could not be satisfied that there are reasonable grounds to believe that the Young Person's DNA was found at the Duchess Close premises. At best there is only a tentative link. If this submission is accepted, the Court could not be satisfied that there are reasonable grounds to believe that the Young Person is a suspect in the two linked offences in Rodway Arcade and Junction Street, as detailed above. 21In relation to the Duchess Close premises, Mr Tate submits that a legitimate basis does not exist to undertake a forensic procedure to confirm or disprove the Young Person's involvement in the offence relating to those premises, because it has already been confirmed that the Young Person committed the offence, and the Young Person has been convicted and sentenced in relation to the offence. 22In this regard, in paragraph 4 of the supporting affidavit to the Forensic Procedure Application, it is stated that the Young Person "is a suspect within the meaning of s 3 of the Act, namely that on 10th September 2013....(he)....unlawfully gained entry to the premises at 2 Duchess Close Nowra....." (emphasis added). The supporting affidavit also sets out further details relating to that offence and then sets out details of the two linked premises. 23Paragraph 5 of the supporting affidavit reads "I suspect that (the Young Person) has committed the following offence(s): a) Break & Enter house etc steal value <= $60,000-T1 contrary to section 112(1)(a) of the Crimes Act 1900". 24Under the heading "Other matters: s24(1)(b) of the Act", the supporting affidavit reads "The young person is believed to have committed the offences due to his admission to involvement in one of the three incidents where matched DNA profiles have been obtained". 25It seem clear, in my view, that the police are proceeding on the basis that the Young Person is a suspect in respect of all three offences described throughout the application and supporting affidavit, and not restricted to the premises at Rodway Arcade and Junction Street Nowra. 26Mr Tate further submits, and the Court accepts, that the purpose of the Forensic Procedure legislation "is not to enable investigating police...to identify a person as a suspect; it is to facilitate the procurement of evidence against a person who already is a suspect" (Orban v Bayliss [2004] NSWSC 428 per Simpson J at paragraph 31). 27In response the Prosecutor submits that the Court is dealing with the test set out in s 24 of the Act relating to non-intimate forensic procedures. The Prosecutor submits that the finding of the DNA profile at the scene of the premises in respect of which the Young Person has already pleaded guilty is, on the balance of probabilities, a sufficient basis to regard him as a suspect in respect of the offences relating to the two other premises, where the same DNA profile was located. This, the Prosecutor submits, is a classic case where the carrying out of the forensic procedure will produce evidence tending to confirm or disprove the Young Person's involvement in the two break and enter offences committed at Rodway Arcade and Junction Street, as above mentioned.