Windsor v AO[2016] QMC 16

MAGISTRATES COURT OF QUEENSLAND

1. [1]
   By sworn application filed 10 February 2016 the applicant seeks a Forensic Examination Order pursuant to section 458 of the Police Powers and Responsibilities Act 2000 (PPRA) authorising a qualified person to perform a non-intimate forensic procedure on the respondent, namely, a buccal swab to obtain a DNA sample^[1].

2. [2]
   The respondent, who has been served with the application, opposes it^[2].

3. [3]
   Grounds for the application relate to two separate occurrences when the respondent was aged 14 and 15. The respondent, whose date of birth is 11 November 1998, turned 17 on 11 November 2015. From then, he ceased to be a “child” as defined for the purposes of the PPRA^[3]. He has not been charged with any offence in respect of the two occurrences.  

4. [4]
   In relation to the first occurrence, on 4 January 2013 a motor vehicle was broken into and severely damaged details of which are not relevant to this application. Items were also stolen. Suffice it to say that a droplet of blood was located on the cord of a phone charger in the passenger side foot well.

5. [5]
   As described in the grounds for the application, the indictable offences committed are wilful damage, attempted unlawful use of a motor vehicle and enter premises and commit an indictable offence: ss 469 (1), 408A(1)(a) and 421(2) respectively of the Criminal Code (Qld).

6. [6]
   The respondent was implicated by a named associate. On 14 March 2013 he denied any involvement during a record of interview in the presence of his father. He said he went to Brisbane with his mother on 2 January 2013 and did not return for a week. He had been fishing and working with his uncle. His father confirmed this. He further said that the associate had admitted to him that the associate was involved in the first occurrence.

7. [7]
   In relation to the second occurrence, between 12 and 19 February 2014 an unoccupied unit had been broken into and damaged including water and fire damage. A number of items were left including cigarette butts, drink bottles and a pizza box. Also left were two baseball caps one of which had the name of the respondent as well as his initials on the inside.

8. [8]
   A number of youths had been seen entering the unit during this period by a handyman for the unit complex. One of those, a male, who lived in another unit in the same complex with his mother and recognised by the handyman, admitted to police he was in the unoccupied unit at times and implicated the respondent. He said the respondent had “set a fire” in the back of the unit, damaged a wall, left his hats inside the unit and had smoked cannabis there.

9. [9]
   During a record of interview in the presence of his father on 11 March 2014 the respondent denied any involvement in the second occurrence and blamed the male youth referred to above who lived in a different unit in the same complex with his mother. He could not explain how the baseball cap with his name and also his initials came to be in the unit and denied it was his. The respondent said he owned the other cap but had left it at the unit of that other youth.

10. [10]
    The respondent’s father provided a statement stating that the respondent was grounded during the second occurrence and didn’t know if the respondent owned the two caps.

11. [11]
    Other youths were interviewed. One of them implicated the male youth who lived with his mother in that same unit complex.

12. [12]
    The grounds for the application state that both occurrences occurred in the near vicinity of the respondent’s then residence.

13. [13]
    The indictable offences for the second occurrence outlined in the application are break and enter, and wilful damage: ss. 419 and 469(1) respectively of the Criminal Code (Qld).  

14. [14]
    DNA of the blood sample taken from the phone charger in the first occurrence matched the DNA located on the cigarette butt from the second occurrence.

15. [15]
    On about 20 April 2014 police requested a voluntary sample of DNA from the respondent. Upon receipt of legal advice the respondent declined to provide a voluntary sample.

16. [16]
    Police then sought and on 24 April 2015 received DNA profiles of samples taken from both caps^[4]. Results showed that the DNA from the caps and the cigarette butt from the second occurrence matched the DNA profile of the blood sample from the phone charger in the first occurrence.

The Legislation

17. [17]
    The current provisions for forensic procedures were introduced into Chapter 17 PPRA by the Police Powers and Responsibilities (Forensic Procedures) Amendment Act 2003 (since renumbered) which commenced 27 August 2003 as a response to the 2000 Model Forensic Bill (Model Bill) developed over the years by the Standing Committee of Attorneys-General (SCAG) and the Model Criminal code Officers Committee^[5].

18. [18]
    Section 447(1) PPRA provides for three circumstances in which a forensic order may be performed under Chapter 17:

1. (a)
   Obtaining consent in Part 2 of Chapter 17;
2. (b)
   By forensic order upon application to a Magistrate in Part 3 Chapter 17;
3. (c)
   If Chapter 17 otherwise authorises a qualified person to do so. 

19. [19]
    Part 2 Chapter 17 PPRA provides, among other things, for seeking forensic procedure consent of a person including a child suspected of committing an offence: section 448 PPRA^[6] although an indictable offence must be suspected in seeking consent for an intimate procedure: section 449(2). There are specific safeguard provisions for seeking the consent of children and persons with impaired capacity^[7]. In this case, the respondent has refused consent.

20. [20]
    By section 458 in Part 3 Chapter 17 PPRA a police officer may apply for a forensic procedure on a person suspected of committing an indictable offence^[8] if the procedure “may provide evidence of the commission of the offence”: section 457 PPRA. The application may be made whether or not the person has previously consented: section 458(3) (b). These provisions are said to have removed the general right against self-incrimination^[9].

21. [21]
    Relevantly, section 457 (3) in Part 3 restricts applications for forensic procedures on a child:

1. (3)
   A police officer may not apply for a forensic procedure order under this part in relation to a child if—

1. (a)
   the only purpose of the application is to obtain authority to take a sample for DNA analysis; and

1. (b)
   it is practicable to make an application under section 488 (other application) for an order to take a DNA sample from the child; and

1. (c)
   it is likely that an order made under that section can be given immediate effect.

22. [22]
    Section 488 is in Part 5 “DNA procedures” of Chapter 17. It provides for the taking of a DNA sample from a child where proceedings for an indictable offence have started or continued. It does not apply before a charge is laid.

23. [23]
    The police may apply to the Childrens Court under section 488 for an order to take a DNA sample after giving requisite notices^[10]. The court can make an order if satisfied that an indictable offence has been committed, that the child is reasonably suspected of having committed the offence and the DNA analysis may tend to prove or disprove the child’s involvement in the offence.           

24. [24]
    Returning to section 461 in Part 3 which provides:

461 Making forensic procedure order

1. (1)
   A magistrate may make a forensic procedure order in relation to a person only if satisfied on the balance of probabilities there are reasonable grounds for believing performing the forensic procedure concerned on the person may provide evidence of the commission of an indictable offence the person is suspected of having committed (a suspected offence) and carrying out the forensic procedure is justified in the circumstances.

1. (2)
   In deciding whether performing the forensic procedure on the person is justified in the circumstances, the magistrate must balance the rights and liberties of the person and the public interest.

1. (3)
   In balancing those interests the magistrate may have regard to any of the following matters—

1. (a)
   the seriousness of the circumstances surrounding the commission of the suspected offence and the gravity of that offence;

1. (b)
   the degree of the person’s alleged participation in the commission of the suspected offence;

1. (c)
   the age and physical and mental health of the person, to the extent they are known to the magistrate or can be reasonably discovered by the magistrate (by asking the person or otherwise);

1. (d)
   if the person is a child or a person with impaired capacity—the welfare of the person;

1. (e)
   whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the person committed the suspected offence;

1. (f)
   if the person has been asked for and refused to give a forensic procedure consent in relation to the suspected offence—the reasons for the refusal to the extent they are known to the magistrate or can be reasonably discovered by the magistrate (by asking the person or otherwise);

1. (g)
   if the person is in custody for the suspected offence—

1. (i)
   the period for which the person has already been detained; and

1. (ii)
   the reason for any delay in applying for the forensic procedure order;

1. (h)
   any other matter the magistrate considers relevant to balancing those interests.

25. [25]
    The applicant must satisfy two limbs in section 461(1) to succeed in this application. The primary question argued was in relation to the second limb namely that the applicant has not discharged the onus of establishing on the balance of probabilities that the carrying out of the forensic procedure is justified in the circumstances.

26. [26]
    In respect of the first limb, it was not argued, or at least not strenuously, that there are reasonable grounds for believing that the contemplated forensic procedure “may” provide evidence of the respondent having committing an indictable offence he is suspected of having committed in respect of both occurrences. In light of the above background, on balance I am satisfied that the first limb is established. It is more compelling in respect of the first occurrence as the DNA profile was taken from a blood sample located in the vehicle.                     

Is the Contemplated Forensic Procedure Justified?

27. [27]
    The parties were unable to identify any reported case law on the application of these provisions in Queensland. Nor could I find any.

28. [28]
    There is case law on similar but not identical provisions in New South Wales. The section 461(2) PPRA equivalent is section 24(4) Crimes (Forensic Procedures) Act 2000 (NSW) which expresses the balancing exercise as “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” a range of factors similar to those in section 461(3) PPRA.

29. [29]
    In Orban v Bayliss [2004] NSWSC 428 at [3-] & [31] Simpson J said:

The Forensic Procedures Act conferred new and unprecedented powers upon, inter alia, magistrates that would have the result of compelling persons suspected of criminal offences (including those against whom charges have not been laid) to co-operate in the investigation of the crime(s) of which they are suspected, and to provide, from their own bodies, evidence which may be used against them (and which, of course, may also be used to exonerate them). The Parliament was, in my view, seeking to maintain 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 co-operate with investigating authorities, and the overall interests of the community and of justice in facilitating the investigation of crime, and the administration of justice, in securing the conviction of the guilty and the non-prosecution or acquittal of the not guilty. The Act was a specific response to scientific and technological developments, but in the context of valued traditional civil liberties

The conditions that must be met before an order can be made demonstrate that 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 already is a suspect.                 

30. [30]
    In ACP v Munro [2012] NSWSC 1510 at [96]^[11] Button J described the approach to be taken in deciding “justification”:

In determining the last question, the Magistrate was required to balance the public interest in obtaining evidence as to whether or not the defendant committed the alleged offence, as against the public interest in upholding his physical integrity. That was required pursuant to the chapeau of s 24(4). In undertaking that balancing exercise, the Magistrate was required to have regard to all of the factors enumerated in ss 24(4) (a)-(i)^[12].    

31. [31]
    Although the legislation differs slightly, these sentiments apply to the forensic provisions of the PPRA in my opinion.

32. [32]
    In considering the factors in section 461(3), the offences are serious and there is some evidence from co-offenders suggesting the respondent’s participation was not insignificant (section 461(3) (a) & (b)). The respondent has no health, cultural or religious reason why the procedure should not be performed (section 461(3) (c)). The respondent is not now a child so section 461(3) (d) does not apply. There is no less intrusive procedure that can be carried out (section 461(3) (e)). The only reason for the refusal to consent is that he relied on legal advice based on the arguments raised in this application (section 461(3) (f)). The respondent is not in custody so that section 461(3) (g) does not apply.

33. [33]
    The principle point argued for the respondent was in relation to section 461(3) (h).

34. [34]
    The applicant submits that a buccal swab is the least intrusive forensic procedure that can be performed on the respondent. It can be performed in a matter of seconds and in a way that respects his privacy and in the company of his father or other support person. It was submitted that the procedure will either exculpate or inculpate the respondent and that the public interest in ascertaining whether the respondent is either inculpated or exculpated in these serious offences far outweighs the rights or liberties of the respondent.

35. [35]
    It was submitted for the respondent that the forensic procedure is not justified given the time taken to bring this application just after the respondent had ceased to be a child thus depriving him of protections that would have been available to him as a child referring in particular to sections 457(3) and 488. The submission continued that given the protection lost, the forensic procedure is not justified in the circumstances. This, it was submitted, is a factor within paragraph 461(3) (h) PPRA.

36. [36]
    What is the protection lost?

37. [37]
    The protection lost, it is submitted, is in section 488 itself. A precondition is that the person must have been charged. Then, three criteria in section 457(3) must be satisfied.

38. [38]
    The first is satisfied, namely that the only purpose for the application is to obtain a sample for DNA analysis. This would be the case before and after the respondent’s 17^th birthday.

39. [39]
    For the second criterion as to whether it is practicable to make an application under section 488, such an application can only be made if the person has been charged with an indictable offence. The respondent has not been charged.

40. [40]
    The Director of Public Prosecutions’ Guidelines dated 30 June 2015 provide guidance to prosecutors in deciding when to prosecute. Section 4 “Decision to Prosecute” provides for a two tier test. (1) Is there sufficient evidence? (2) If so, is it in the public interest to do so. As to the first, the guidelines provide that a prima facie case is not enough and that a prosecution must not proceed if there is no reasonable prospect of conviction. On the limited sworn facts before me, it appears as though the evidence is not sufficient to achieve that level at this point.

41. [41]
    “Practicable” is not defined in the PPRA^[13]. Dictionary definitions include “capable of being put into practice, done, or effected, esp. with the available means or with reason or prudence; feasible”^[14] and “that can be done, feasible”^[15]. At the present time it is not practicable to make such an application as the respondent is not a child and has not been charged which are pre-conditions for section 488 applications. Prior to the respondent’s 17^th birthday, an application under section 488 would still have not been practicable because he had not been charged with an indictable offence. The second criterion is not satisfied on both accounts.                

42. [42]
    It follows that the third criterion in section 457(3) is not satisfied now, nor was it before the respondent’s 17^th birthday.

43. [43]
    Therefore, the current position is that the applicant is not precluded by section 457(3) from bringing this application because he is not a child and because no charge has been laid against the respondent. An application could not have been brought before the respondent’s 17^th birthday because no charge had been laid. No protection has been lost.

44. [44]
    Although not argued, it should also be observed that apart from the requirement in section 488 that a child must be charged, there appears to be no other special provision for children when one compares the matters the court must be satisfied of before making an order with those matters a court must be satisfied of under the first limb in section 461 although expressed differently. Also, there is no second limb in section 488 requiring a court to determine justification. However, the requirement of being charged does set a higher bar before an application can be brought under that section as opposed to an application under Part 3^[16].  

45. [45]
    The respondent further submits that, when considering the rights and liberties on the justification question as “any other matter …relevant” in section 461(3) (h), the court should take a more liberal view when it comes to children. Other parts of the PPRA provide extra protection for children. The consent provisions in Part 2 Chapter 17 were cited in support. For example, they provide for a support person to be present when an explanation is being given to a child about the procedure, to ensure the child can speak privately with the support person, and to personally give a child an explanation even if one had previously been given to a parent in the child’s absence: sections 450, 451 & 453.

46. [46]
    These have no bearing on applications under Part 3. In my view, they do not assist in determining the justification question. I can accept that, at the time of performing a forensic procedure, a child may be more affected than a person who is not a child. Children have greater vulnerabilities. However, that is a different proposition to saying that because the respondent was a lot younger when the offences were committed, he necessarily suffers from the same vulnerabilities now. It is the effect of the forensic procedure itself on him at this point in time that matters. This case has been contested on pure legal argument. There is no suggestion the respondent suffers from any special health disadvantage that would make him more impressionable.

47. [47]
    Nevertheless, I reject that submission. Section 461(3) sets out the factors to be taken into account.

48. [48]
    The respondent submitted that delay simpliciter in bringing this application militates against the justification issue. The respondent was only aged 14 and 15 when this offending occurred.

49. [49]
    The applicant provided a timeline of events commencing with the first occurrence on 4 January 2013 to the filing of this application on 10 February 2016.

50. [50]
    The first period of interest in the control of the police was from 3 June 2014 when the respondent refused consent to 2 October 2014 when the additional exhibits were sent for analysis (4 months). It is not clear why it took four months to uplift the additional exhibits and seek and obtain an Inspector’s approval for further analysis. In the absence of further explanation one might be forgiven for thinking this length of time is unreasonable.

51. [51]
    Then it took well over 6 months for the results to be returned (2 October 2014 to 24 April 2015). The applicant had made a number of calls regarding progress. This period was outside her control.

52. [52]
    The next period of interest is from 24 April 2015 to 11 November 2015 (the respondent’s 17^th birthday). This is a period of over 6 months. The timeline provided indicates no action was taken at all to advance the matter. It took another 3 months to file the application on 10 February 2016. This is because the applicant was unavailable for various reasons e.g. leave, sick leave, on night duty and seconded to another unit for 3 months (the crime unit).

53. [53]
    There is no suggestion that the applicant deliberately delayed bringing this application. I accept that. But that is not the point. It may be that an investigating officer appointed to a case stays on that case. However, the two periods referred to constitute unreasonable delay in the progression of the matter in my opinion. Such delay should be discouraged. This is perhaps a matter for police management to address for future matters. Note section 3 DPP Guidelines entitled “Expedition”. Whilst only guidelines, once a decision is made to prosecute, a case should be prepared as soon as possible. One would have thought a similar approach would be taken prior to that decision.

54. [54]
    The delay outlined constitutes a factor against a finding of justification which must be balanced against other section 461(3) factors.

55. [55]
    The alleged indictable offences are very serious. There is generally no limitation period in commencing proceedings for indictable offences^[17]. The respondent has been implicated by co-offenders in both occurrences. The forensic procedure, a buccal swab, is the least intrusive procedure that can be performed. It can be done with dignity and within seconds. The anticipated evidence will have significant probative value in either inculpating or exculpating the respondent. The sole reason for refusing consent was upon legal advice and not for any health, religious or cultural reason.

56. [56]
    For a similar approach in applying the New South Wales legislation see for example LK v Commissioner of Police [2011] NSWSC per Fullerton J at [37] and Orban v Bayliss [2004] NSWSC 428 per Simpson J at [54].

57. [57]
    In my view, balancing the rights and liberties of the respondent and the public interest with reference to the factors identified in section 461, I am satisfied on the balance of probabilities that the contemplated forensic procedure is justified.

58. [58]
    I have not been provided a draft order. I will hear the parties as to the terms of the order having regard to section 462 PPRA.