Police v BH [2016] NSWChC 5

Children's Court New South Wales

Medium Neutral Citation: Police v BH [2016] NSWChC 5 Hearing dates: 10 November and 8 December 2016 Date of orders: 08 December 2016 Decision date: 08 December 2016 Jurisdiction: Criminal Before: Magistrate P Stewart at Dubbo Decision: Application granted Catchwords: Forensic procedure application – buccal swab – child unable to consent – civil proceedings – rules of evidence apply – hearsay evidence – Evidence Act to be read in conjunction with Crimes (Forensic Procedures) Act – suspect – limited use of tendency or coincidence evidence in absence of notice – prosecution rely upon composite body of evidence Legislation Cited: Bail Act 2013 Crimes Act 1900 Crimes (Forensic Procedures) Act 2000 Evidence Act (NSW) 1995 Road Transport Act 2013 Cases Cited: Azar v DPP [2014] NSWSC 1199 L v Lyons & Anor [2002] NSWSC 1199 LK v Commissioner of Police [2011] NSWSC 458 TS v James [2014] NSWSC 984 Walker v Bugden [2005] NSWSC 898 Texts Cited: Appearing for a suspect in an application under Part 5 Crimes (Forensic Procedures) Act, F Graham, March 2014 (MCLE paper) Category: Principal judgment Parties: NSW Police Young Person Representation: Sgt J Fraser, Police Prosecutor (NSW Police) Mr N Leach, solicitor, Aboriginal Legal Service File Number(s): 2016/174877 Publication restriction: Pseudonyms have been used

Judgment 1. Application is made for a forensic procedure to be carried out on the young person by way of buccal swab. The applicant suspects that BH has committed a number of offences, and that the procedure might produce evidence tending to confirm or disprove that suspicion. 2. The offences include Steal Motor Vehicle per s 154F Crimes Act; Enter Dwelling with Intent per s 111 Crimes Act; Take and Drive Conveyance per s 154A Crimes Act; Intentionally Destroy Property per s 195(1)(a) Crimes Act; Police Pursuit per s 51B Crimes Act and Drive Manner Dangerous per s 117(2) Road Transport Act. 3. As the young person is a child, he cannot consent to the application: s 7(2)(a) Crimes (Forensic Procedures) Act. The making of such application is opposed. The application was heard on 10 November 2016 with further material and argument presented today. 4. By agreement on 10 November 2016, a number of documents were tendered by the prosecutor on behalf of the applicant (exhibits 1 and 2). 5. Of the documents tendered, the applicant relies primarily upon the application, the affidavit of DSC Ridley, a single photograph of BH, still images from Coles Express CCTV footage, a statement of Sergeant Morley with 3 photographs that he took of BH, and the statement of Jacqueline Stewart together with a receipt for fuel. 6. An affidavit by DSC Ridley supports the application in compliance with s 26(2)(b) of the Crimes (Forensic Procedures) Act regarding the matters to which a Magistrate must be satisfied. The type of forensic procedure sought is specified in the application as required by s 26(2)(c) of the Act. 7. It is not in dispute that BH is a child, as defined in s 3 of the Act. At the time of the application he was 16 years old. A child cannot consent to the carrying out of a forensic procedure. Section 23 permits the making of an Order by a Magistrate under s 24 if the suspect is a child, subject to the Magistrate being satisfied primarily of the legislative requirements set out in s 24.