District Court New South Wales Medium Neutral Citation: Jordan Gibson v NSW Commissioner of Police [2018] NSWDC 420 Hearing dates: 28 November 2018 Date of orders: 10 December 2018 Decision date: 10 December 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Appeal dismissed. Confirm orders of the Local Court Catchwords: PROCEDURAL RULING – appeal from Magistrate – application for forensic procedure – buccal swab –respondent's DNA profile already on database – whether application for obtaining fresh material now reasonable Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Forensic Procedure) Act Evidence Act 1995 Local Court Act Cases Cited: Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218 Dyason v Butterworth [2015] NSWCA 52 Lewis v Sgt Riley [2017] NSW CA 272 Plassas v Person [2016] NSWSC 1445 Category: Principal judgment Parties: Jordan Gibson (Appellant) NSW Commissioner of Police (Respondent) Representation: Solicitors: Mr T McKenzie (for the appellant) Mr R Coffey (for the NSW Commissioner of Police) File Number(s): 2018/00236376 Judgment 1. On 2 October 2018 Magistrate P Thompson allowed a police application for a forensic procedure involving a self-administered buccal swab be carried out on Jordan Gibson. Gibson has appealed that decision to the District Court. 2. This Court has jurisdiction to entertain that appeal: s 70 Local Court Act; Lewis v Sgt Riley [2017] NSW CA 272. This court proceeds in the same way as it would when dealing with an appeal against conviction under Part 3 Crimes (Appeal and Review) Act 2001. Generally a court on appeal is taken to an error said to be made in the court below: Dyason v Butterworth [2015] NSWCA 52; Director of Public Prosecutions v AG (NSW) [2015] NSWCA 218. 3. I have had the benefit of comprehensive submissions from Mr McKenzie, solicitor, Legal Aid Commission and Mr Coffey, solicitor advocate, for the New South Wales Commissioner of Police. I have reviewed Magistrate Thomson's extempore reasons. I have had the considerable benefit of the review of the legislative provisions by Justice Bellew in Plassas v Person [2016] NSWSC 1445. 4. Magistrate Thomson discretionary judgment was available to him. It was well reasoned and supported by affidavit evidence and authority. He did not err. No reason has been advanced for setting aside that order. These are my brief reasons for dismissing the appeal. Background 1. On 9 October 2012 someone entered a motor vehicle at Shell Cove and stole property from it. A cigarette butt was found immediately adjacent to a burn on a car seat, suggestive that whoever had been smoking that cigarette had left it in the vehicle. That fact is also strongly suggestive that this person was the thief. 2. On 17 November 2017, police were notified of the DNA profile match "cold hit" between a DNA sample taken from the cigarette butt found on 9 October 2012 and a sample held on the National DNA database in the name of Jordan Gibson. That information led to police forming the suspicion he was the thief. 3. On 19 February 2018, Gibson was spoken to by police. He declined to be interviewed. He was told he would receive a future Court Attendance Notice charging him with larceny. Because of the age of the matter he was not arrested. Had he been arrested a DNA sample could have been obtained from him at that time. 4. On 26 July 2018 Gibson's solicitor advised police that he was not willing to provide a voluntary DNA sample. 5. An application was made by NSW Police pursuant to section 24 Crimes (Forensic Procedure) Act for a magistrate to order Gibson to provide a sample. 6. Section 24 of the Act confers a discretionary power on the Magistrate to order the carrying out of a forensic procedure if the Magistrate is satisfied that: there were reasonable grounds to believe that the persons had committed a prescribed offence; there were reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the person had committed such offence; and the carrying out of the procedure was justified in all of the circumstances. Submissions 1. Mr McKenzie provided to the court a document pursuant to s 191 Evidence Act 1995 headed "Agreement as to facts." The effect of the document is that in these proceedings evidence is not required to prove the existence of an agreed fact. Mr McKenzie has clearly put on the record that the agreed facts are only for the purpose of these proceedings, whether or not an agreed fact can be or should be allowed as a general admission in future proceedings is not for me to determine. 2. The critical facts agreed are that the respondent's DNA has previously been taken and uploaded to the national DNA database and that he has been identified as a suspect as a result of a cold hit on database. Mr McKenzie submits that those facts mean that it is simply unnecessary for this procedure to be ordered. 3. No concession is made as to the accuracy, reliability or provenance of whatever material led to a DNA profile said to be associated with Gibson being placed on the national database. 4. The Police evidence at the initial hearing was that they have not sought such material and do not even know if it exists. 5. Mr McKenzie submits that in the Local Court a magistrate would not be concerned nor draw any adverse inference from the fact that Gibson's profile had been placed on the national database. He submits that even if there were improprieties in how that material came to be placed on the database it might still be admissible at hearing: Kerr v Commissioner of Police [2001] NSW SC637. He also submits, while conceding Gibson may be a suspect, the circumstantial case against him was weak. He seeks to distinguish Plassis v Person as a decision relevant to an indictable as opposed to a summary matter. 6. Mr Coffey submits that Plassis v Person is correct and applicable and that Magistrate Thomson correctly considered the matters required and exercised his discretion appropriately in the circumstances. Consideration 1. Magistrate Thomson determined that the carrying out of a non-intimate forensic procedure – buccal swab was justified in normal circumstances. He found it to be the least intrusive option. He noted that the making of the order will require Gibson to attend a police station and this may take a short period of his time. He found that there were reasonable grounds to believe that the suspect, Gibson, had committed an offence. He then found that there were reasonable grounds to believe that the procedure sought might produce evidence tending to confirm or disprove that Gibson had committed the offence. He had regard to the gravity and seriousness of the offence, here a larceny: An offence involving the interference with a fellow citizen's property. He had regard to the degree of participation; here the allegation that the suspect Gibson was the person responsible for the theft. 2. He had regard to what little was known and provided to him about Gibson's then age, background and capacity. 3. The critical issue was and remains whether other practical ways of obtaining the evidence as to whether or not the suspect committed the alleged offence, which were less intrusive. Here it is submitted that material which led to Gibson's profile been placed on the national database might provide a less intrusive measure of obtaining that material. His Honour then had to consider other matters deemed relevant to balancing of the interests of the two parties. 4. The Police raised initially a question of fairness: that is, that the use of the old profile might prejudice the trier of fact against Gibson. The term "fairness" is probably a misnomer; what the police were seeking to do was avoid the evidence being excluded because of its potential prejudicial effect: s137 Evidence Act 1995. 5. Mr McKenzie on Gibson's behalf has made no concessions about to what points will be taken when the matter comes to trial before a magistrate. He has no obligation to do so. That said; defence have no say in how the prosecution presents and proves its case. It is not for the defence to determine the material that is tended at a hearing. Determination 1. If a buccal sample is ordered and the profile taken from Gibson matches that from the crime scene the evidence of the post charge sampling can be carefully reviewed to ensure that there are no possible errors in matching the sample taken with that of taken from the crime scene. If the sample taken does not match that from the crime scene it could disprove the suspicions now held by the police. If it matches the profile from the crime scene that will form only is one part of a potential circumstantial case and the police should not be deprived from obtaining it. 2. The appeal is dismissed. ********** 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: 07 January 2019