Children's Court New South Wales Medium Neutral Citation: Police v JC [2016] NSWChC 1 Hearing dates: 7 January 2016 Decision date: 05 February 2016 Jurisdiction: Criminal Before: Magistrate M W Crompton at Wagga Wagga Decision: Application refused Catchwords: Forensic procedure – suspect – suspicion on reasonable grounds Legislation Cited: Crimes (Forensic Procedures) Act 2000 Cases Cited: Orban v Bayliss [2004] NSWSC 428 Regina v Rondo [2001] NSWCCA 540 at 53 George Rockett (1990) 170 CLR 104 Category: Principal judgment Parties: Police Young Person Representation: Sgt Watterson Police Prosecutor Ms Kirby, solicitor, for the young person File Number(s): 2015/360186 Publication restriction: Psuedonyms have been used in order to anonymise the children and parties. Judgment Reasons for Decision 1. This is an application for a final order authorising the carrying out of forensic procedures on the respondent young person JC, pursuant to s 24 of the Crimes (Forensic Procedures) Act 2000. 2. The type of forensic procedure sought by the application are the taking of a sample of the respondent's finger, hand and palm prints and photographs. 3. The respondent, a juvenile, cannot consent to the application. In any event, the application is opposed. The principal basis for the objection is the submission that the prosecution are unable to satisfy the Court that the respondent is a suspect within the meaning of that word as it is used within the legislation. 4. An affidavit in support of the application was sworn on 7 December 2015. A further affidavit was sworn on 15 December 2015, each by Constable Scott Earl of the Wagga Wagga police. Background 1. Before proceeding to the relevant legislation, extracted below are the relevant parts of the affidavits sworn by Constable Earl which ground the application: "I suspect that JC has committed the following offences: (a) break and enter dwelling house or building commit serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900. (b) intentionally or recklessly destroy/damage property contrary to s 195(1)(a) of the Crimes Act 1900. (c) take and drive conveyance contrary to s 154(1)(a) of the Crimes Act 1900. Police Forensic Services has positively identified the same fingerprints/handprints and/or palm prints located at eight different crime scenes. The prints of the unknown person/offender have not been identified on the National Automated Fingerprint Identification System (NAFIS) database. Police are of the belief that the respondent, JC belongs to the fingerprints/handprints and/or palm prints. He has not had his fingerprints taken by police before and they are not recorded on the NAFIS. The eight crime scenes relate to break, enter and stealing offences, intentionally or recklessly destroy/damage property, take and drive conveyance and knowingly be carried in/on stolen conveyance. The crime scenes are predominantly in the Wagga Wagga area. The respondent is a known associate of JH and is regularly sighted in his company. The respondent associates with JH who was charged and proven guilty of break and enter dwelling house or building commit serious offence in relation to crime scene 1. Two witnesses observed two other young males of Aboriginal appearance, about 14 to 16 years of age in the company of JH matching the description of the respondent at the premises at the time of the offence jump the rear fence of the premises. The respondent is a known associate of JH and regularly sighted in his company. The respondent associates with JH who was charged and proven guilty of a break and enter dwelling house or building commit serious offence in relation to crime scene 1. Two witnesses observed two other young males of Aboriginal appearance, about 14 to 16 years of age in the company of JH matching the description of the respondent at the premises at the time of the offence jump the rear fence of the premises. About 9.44pm, Thursday the 19th of November 2015, I attended a home and spoke to the respondent and his grandfather. The respondent declined the opportunity to participate in an identification parade in relation to a break, enter and stealing incident that occurred on the 27th of April 2015. Police previously spoke to the respondent's mother, who stated "I was wondering when you were going to come and speak to JC about that break and enter with JH". The respondent has been searched many times by police all times of the day and night in high risk crime related areas and associates with other known young persons with extensive criminal history and known for break, enter and stealing and stealing offences such as: JH...[the Affidavit lists a number other young persons]. The respondent has been treated under the Young Offenders Act 1997 for the offences of: enter inclosed land not prescribed premises without consent of the owner, receive/dispose stolen property, goods in personal custody suspected being stolen, enter inclosed land not prescribed premises without consent of owner, knowingly be carried in/on stolen conveyance, intentionally or recklessly destroy/damage property and traffic matters. The location is a single storey detached brick house with an enclosed rear patio. On Monday the 27th of April 2015 the victim and single occupant of the premises at the time locked and secured the premises before he left for work that morning. About 3.25pm the next door neighbour and friend from a residence nearby witnessed from the western side gate of the driveway young person JH and two other young males of Aboriginal appearance, about 14 to 16 years of age, have [sic] exiting the western facing side patio screen door that is about five metres from the western side gate. JH was carrying a white safe about thirty centimetres long from the premises under his right arm. JH and the two young persons of Aboriginal and [sic] Torres Strait Islander appearance, upon being noticed have run towards the rear southern fence and jumped a number of fences. The young person JH admitted the offence of break and enter dwelling house or building commit serious indictable offence. He would not provide information of the identity of his co-offenders. The location of another home is a single storey weatherboard house. At about 1.30am, the house alarm was activated. Witnesses nearby stated banging noises and torch flash lights were heard and seen inside the premises. Upon police attending and inspecting the premises two offenders were seen jumping the rear fence and a side bedroom window had been smashed. CCTV footage later revealed images of young persons JD and JC2 (half brother of the respondent) as some of the offenders. The young person JC2's fingerprints were located on a bottle of Johnny Walker scotch whiskey located inside the premises that was found in the bedroom having been removed from the lounge room. On 13 May 2015 a crime scene officer attended that location. Whilst conducting a finger print examination upon the external side bedroom sliding window panel, the crime scene officer discovered fingerprints, hand prints and palm prints suitable for comparison. Police Crime Scene Services has positively identified the same fingerprints located at eight different crime scenes. The fingerprints of the unknown person/offender have not been identified on the National Automated Fingerprint Identification System database. Police are of the belief that the respondent, JC, belongs to the fingerprints. He has not had his fingerprints taken by police before. Through matching the samples police believe that it will prove or disprove that the respondent JC is the offender responsible for the break, enter and stealing, intentionally or recklessly destroy/damage property, take and drive conveyance and knowingly be carried in/on stolen conveyance offences that occurred at the crime scenes." Legislation 1. Sections 22 to 24 of the Crimes (Forensic Procedures) Act 2000 provide: 22 Forensic procedure may be carried out by order of Magistrate or other authorised officer A person is authorised to carry out a forensic procedure on a suspect by order of a Magistrate under section 24 or 27, or by order of an authorised officer under section 32. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise. 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. 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: (a) there must be reasonable grounds to believe that the suspect has committed a prescribed 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). (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. 1. The word "suspect" is defined in section 3 as: 2. "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. Consideration of the legislation 1. The respondent young person has not been charged with an offence nor has he been summoned to appear before a court. Accordingly, in order for the Court to make the order which is sought, the applicant must satisfy the Court in accordance with paragraph (a) of the above definition, namely that the young person is a "person whom a police officer suspects on reasonable grounds has committed an offence". 2. The decision of Simpson J in Orban v Bayliss [2004] NSWSC 428 is instructive. At paragraph 40 her Honour stated: "The definition (of "suspect" in s.3) also includes a person whom a police officer suspects on reasonable grounds has committed an offence and thus is applicable to a person who is not, at the time of the application, the subject of any charge. Where an order is sought in relation to such a person, then the evidence put before the magistrate must be evidence which will enable the magistrate to satisfy himself or herself not only that the police officer does suspect that that person had committed an offence but also that the police officer has reasonable grounds for that suspicion. Evaluation of whether the grounds for suspicion are reasonable or not, for this purpose, must be the independent evaluation of the magistrate. The mere assertion by a police officer that he or she suspects, or even that he or she suspects on reasonable grounds, that the person the subject of the order sought has committed an offence, would not satisfy the sub-paragraph." 1. The remarks of Simpson J in Regina v Rondo [2001] NSWCCA 540 at 53 are also apposite: "(a) A reasonable suspicion involved less than a reasonable belief but more than a possibility. There must be some thing which would create in the mind of a reasonable person an apprehension of fear of one of the state of affairs covered by s.357E. A reason to suspect that a factor exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. Assertions made in an affidavit are not evidence. (c) What is important is the information in the mind of the police officer (undertaking the relevant course of action). Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of these surrounding circumstances." 1. In George v Rockett (1990) 170 CLR 104, a case involving the issue of a search warrant under the Criminal Code of Queensland, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated at paragraph 8: "When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person." Consideration of the issues 1. The question to be considered is whether the applicant police officer has reasonable grounds for suspecting that the respondent young person was involved in the commission of the offences outlined in the application. The answer to that question requires an assessment of two things: the grounds upon which the person is suspected and the reasonableness of those grounds. 2. The grounds relied upon by the applicant, as articulated in the affidavits in support of the application, can be summarised as follows: (a) that police forensic services have positively identified the same fingerprints/hand prints and/or palm prints at eight different crime scenes in Wagga Wagga; (b) that police are of the belief that the respondent "belongs to" the fingerprints/hand prints and/or palm prints; (c) that the respondent is a "known associate" of JH and is regularly sighted in his company; (d) that JH was charged with and found guilty of an offence of break and enter dwelling house or building and commit a serious indictable offence; (e) that two witnesses observed "two other young males of Aboriginal appearance, about 14 to 16 years of age in the company of JH matching the description of the respondent at the premises at the time of the offence jump the rear fence of the premises"; (f) that police previously spoke to the respondent's mother who stated "I was wondering when you were going to come and speak to JC about that break and enter with JH"; (g) that the respondent is the half brother of JC2 who was identified on CCTV footage and had a fingerprint located at the crime scene and was charged with the offence of break and enter dwelling-house with intent to steal; (h) that police believe the respondent was with his half brother JD and JH at the time of the offence as a number of fingerprints from the crime scene belong to an unidentified person; (i) that four young persons, being the respondent, and JC2, JY, and JD have committed a number of offences in the vicinity of the crime scene over a short period of time where legal action was taken against all four young people; (j) that the respondent resided previously and now resides at addresses which are in close proximity to all eight crime scenes where prints have been located; (k) that the respondent has been "searched many times by police all times of the day and night in high risk crime related areas and associates with other known young persons with extensive criminal history and known for break, enter and stealing and stealing offences" (l) that the respondent has been "treated" under the Young Offenders Act 1997 for the offences of enter inclosed land without consent of owner, receive/dispose stolen property, goods in custody suspected being stolen, knowingly be carried in/on stolen conveyance, intentionally or recklessly destroy/damage property and traffic matters. 1. I will deal firstly with ground (f) above. At the hearing of the application the respondent young person's mother was called to give evidence. Her evidence was that she recalled the conversation which was had with police and that what she said was "I was expecting you". 2. She was cross-examined about her recollection of the conversation and it was put to her that what she actually said was what is asserted by the applicant in (f) above. She answered: "Police come to my house all the time... my son lives with my father, not with me, I do recall that conversation, not every conversation. Every time they come to my door it's always about my boys doing break and enter." 1. It was submitted in support of the application that the respondent's mother was unprompted when questioned by police and knew of her son's involvement in the alleged offences. The mother, in response to cross-examination, remained firm that all she said was "I was expecting you". In any event, her evidence was that police come to her house all the time with questions about her sons, and I find that I am unable to determine exactly what was said during the exchange with police on that occasion. That being so, the conversation is of little, if any, probative value. 2. Turning to the other matters listed in (a) to (l) above it is my opinion that those contained in (a), (b) and (i) may have entitled the police to begin an investigation into the respondent young person's suspected involvement in a number of offences. Proper investigative inquiries may establish a basis for criminal charges, although it bears repeating that the young person has not to this point in time been charged with any offence. 3. The matters in (c), (d), (e), (g), (j), (k), and (l) are, in my view, spurious at best and offensive of the principle of the presumption of innocence at worst and by their nature connote some type of guilt by association, that being a concept long rejected by the common law. Information used to ground a reasonable suspicion does not have to amount to admissible evidence, however it must have some probative value. I am unable to find any such probative value in this group of grounds. Assertions made in affidavits are not evidence. Conclusion 1. I am not satisfied on the balance of probabilities that the respondent is a "suspect" within the meaning of the Crimes (Forensic Procedures) Act 2000. As Simpson J held in Orban v Bayliss (at 31) the purpose of the 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 is already a suspect". There is in the legislation, as Simpson J observed "a delicate balance between preserving the traditional rights of citizens and individuals, including those suspected of crime, to decline to participate in investigations or to cooperate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice". This is particularly so in respect of children where the Court exercises a protective role. 2. It appears to me that in all the circumstances the application is based on a misguided view that the forensic procedure sought would allow the police to identify the respondent as a suspect and that reasonable grounds do not exist to establish that the respondent is in fact a suspect. I would add that even if I am in error as to the question of whether JC is a "suspect" within the meaning of the Act, I would still not be satisfied on balance that the applicant held reasonable grounds for a belief that JC had committed an offence for the purposes of s. 24(3)(a) of the Act. Order 1. The application is refused. ********** 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: 11 April 2016