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. THE RELEVANT LAW 28Sections 23 and 24 of the Act are particularly relevant to these proceedings. Section 23 of the Act provides: Section 23 Circumstances in which Magistrate or other authorised officer may order forensic procedure An order may be made by a Magistrate under section 24, or by an authorised officer under section 32, for the carrying out of a forensic procedure on a suspect if: (a) the suspect is not under arrest and has not consented to the forensic procedure, or (b) the suspect is under arrest and has not consented to the forensic procedure, or (c) the suspect is a child or an incapable person. 29Section 24 of the Act provides: Section 24 Final order for carrying out forensic procedure (1) A Magistrate may order the carrying out of a forensic procedure if satisfied on the balance of probabilities: (a) that the circumstances referred to in subsection (2) or (3) exist, and (b) that the carrying out of such a procedure is justified in all the circumstances. (2) In the case of an intimate forensic procedure: [Not relevant] (3) In the case of a non-intimate forensic procedure: (a) there must be reasonable grounds to believe that the suspect has committed an offence, and (b) there must be reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence referred to in paragraph (a). (4) In determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, the Magistrate must balance the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, having regard to the following: (a) the gravity of the alleged offence, (b) the seriousness of the circumstances in which the offence is alleged to have been committed, (c) the degree to which the suspect is alleged to have participated in the commission of the offence, (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known, (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person, (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive, (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned, (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section, (i) such other matters as the Magistrate considers relevant to the balancing of those interests. DISPOSITION 30Given the circumstances of this case it seems, in my opinion, the appropriate questions to be answered are: are there reasonable grounds to believe that the Young Person's DNA was found at the Duchess Close premises? 31If so, are there reasonable grounds to believe the Young Person is a suspect in the two linked offences in Rodway Arcade and Junction Street premises? 32It follows, in my opinion, that if the answer to the first question is negative, then there is no basis to believe, on reasonable grounds or otherwise, that the Young Person is a suspect in the two linked offences mentioned above. 33In my view, if the first question is answered in the affirmative, then it is possible that the second question can also be answered in the affirmative. 34It is well established that a Magistrate hearing a forensic procedure application must bring his/her own independent evaluation to the evidence which the prosecution contends amounts to reasonable grounds to believe that the suspect committed the relevant offence; that there existed reasonable grounds for believing that any of the forensic procedures sought might produce evidence tending to confirm or disprove the respondent committed the relevant offence; and, the forensic procedures are justified in all the circumstances (taking into account the s 24(4) criteria). It is insufficient to simply recount that it is alleged that the suspected person committed the relevant offence: Orban v Bayliss at [56]. 35Turning to the first question that I have posed above, namely are there reasonable grounds to believe that the Young Person's DNA was found at the Duchess Close premises? The relevant facts are that it has been established by fingerprint evidence, followed by a plea of guilty, that the Young Person was responsible for breaking into the premises and stealing property from those premises. There is no dispute that the Young Person is a suspect in relation to that offence. In my view this does give rise to a reasonable belief that the Young Person's DNA was found inside the premises. The fact that DNA of other persons may also be present inside the premises, including that of any co-offenders, does not in my view, diminish the possibility that the DNA belongs to the Young Person, who on the evidence, was present inside the premises. 36Accordingly, in my view there are reasonable grounds to believe that the Young Person's DNA was found at the Duchess Close premises. Consequently, there are reasonable grounds to believe that the Young person is a suspect in relation to the two other linked premises. 37Turning to the considerations set out in s 24(4) of the Act in determining whether or not the carrying out of the forensic procedure is justified in all the circumstances, and in balancing the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, the Court has regard to: (a) the gravity of the alleged offence: - offences of break, enter and steal, contrary to s 112 of the Crimes Act, are serious offences and cannot be regarded as being trivial; (b) the seriousness of the circumstances in which the offence is alleged to have been committed: - apart from the gravity of the detected offences, the Court is not aware of any other particular serious circumstances; (c) the degree to which the suspect is alleged to have participated in the commission of the offence: - similarly the Court is not aware of the degree of the Young Person's involvement in the offences, apart from being inside the premises that have been broken into and property stolen; (d) the age, cultural background and physical and mental health of the suspect, to the extent to which they are known: - the Court is aware that the Young Person is currently 17 years of age and is an Aboriginal male. The Court is not aware of any particular physical or mental health issues in relation to the Young Person; (e) in the case of a suspect who is a child or an incapable person, the best interests of the child or person: - the Young Person is currently serving a custodial sentence. The Court takes the view that it is in the Young Person's best interests to take responsibility for his actions, in the hope that his prospects for rehabilitation can be improved; (f) such other practicable ways of obtaining evidence as to whether or not the suspect committed the alleged offence as are less intrusive: - given the circumstances of this case, there are not other practicable ways of obtaining the evidence; (g) such reasons as the suspect may have given for refusing to consent to the carrying out of the forensic procedure concerned: - the Young Person is a child and it is not appropriate to ask a child to give consent to the application; (h) in the case of a suspect who is in custody, the period for which the suspect has been in custody and the reasons for any delay in the making of an application for an order under this section: - the Young Person is in custody serving a Control Order for the Duchess Close offence, and there has been no undue delay in making the application; (i) such other matters as the Magistrate considers relevant to the balancing of those interests: - In relation to this consideration, and in balancing the public interest in obtaining evidence as to whether or not the suspect committed the alleged offence against the public interest in upholding the suspect's physical integrity, the Court is mindful of the value of DNA evidence in the investigation of crime, which is embodied in the legislation, which in turn, in Part 11 of the Act, makes provision for and use of a DNA database. 38In conclusion, I am satisfied there are reasonable grounds to believe that the suspect has committed the three offences mention above, and that there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect has committed the offences. 39The application for the taking of a self-administered buccal swab is granted and the Young Person is to provide such swab within 21 days. 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. Decision last updated: 08 January 2014