Citation: Kerr v Commissioner of Police & Ors [2001] NSWSC 637
Court: Supreme Court of New South Wales (Common Law Division)
Date: 27 July 2001
Judge(s): Studdert J
Background
The plaintiff was a suspect in a murder investigation following the discovery of a deceased woman at premises where he was residing. Police arrested him on an unrelated matter and, early the following morning, applied for an interim forensic procedure order under the Crimes (Forensic Procedures) Act 2000. A justice granted the order at 7:40 am, directing the procedure be carried out within two hours.
The forensic procedures, including hand and body swabbing, fingernail scrapings, hair samples, an external examination, photographs, and collection of clothing, were not actually carried out until approximately 2:00 pm, well outside the two-hour window specified in both the order and the Act. A subsequent application in the Local Court for a final order to authorise testing of the samples was withdrawn without a formal ruling from the magistrate.
The plaintiff brought proceedings in the Supreme Court seeking a declaration that the interim order was invalid, an order restraining the police from testing the samples, and an order for their destruction. An interim restraining order was in place at the time of hearing, preventing any scientific examination of the samples pending the Court's decision.
Legal Issues
- Whether the interim forensic procedure order was invalid by reason of non-compliance with the Crimes (Forensic Procedures) Act 2000, specifically:
- whether the samples were taken outside the two-hour window mandated by the order and the Act
- whether the application was made by a person who was not an authorised applicant under the Act
- Whether the plaintiff's consent to the procedure, given during the police interview, rendered any identified irregularity irrelevant
- Whether the Court should exercise its discretion to restrain testing of the samples or order their destruction
- Whether the confirmation proceedings should be remitted to the Local Court
Decision
The central question, and ultimately the decisive one, was whether the plaintiff had consented to the forensic procedures. The Court examined the transcript of the recorded police interview conducted on 7 February 2001. The record showed that the plaintiff was read the interim order and then engaged with police about the procedure in a manner that the Court treated as relevant to the consent question.
Studdert J was persuaded that the plaintiff had in fact consented to the forensic examination. As a result, whatever irregularities may have attended the making or execution of the interim order, those irregularities were rendered immaterial. The defendants' submission on consent succeeded, and the plaintiff's primary case for the declaration and restraining orders accordingly failed.
The Court declined to make the orders restraining testing or requiring destruction of the samples. It did, however, make the order remitting the matter to Magistrate Russell for the confirmation proceedings to be dealt with according to law, a course agreed upon by all parties as appropriate if the primary relief were refused. The interim restraining order preventing scientific examination of the samples was lifted immediately.
Studdert J also noted the Court's limited ability, at that stage, to determine what evidence might be placed before the magistrate at the confirmation hearing, including the reasons for the delay between the granting of the order and the carrying out of the procedures. Those matters were properly left for the Local Court to consider.
Orders Made
- The matter was remitted to Magistrate Russell to be dealt with according to law (order sought in paragraph 4 of the amended summons).
- The orders restraining testing (paragraph 1) and requiring destruction of samples (paragraph 3) were refused.
- The declaration that the interim order was contrary to law and invalid (paragraph 2) was refused.
- The plaintiff was ordered to pay the costs of each defendant.
- The interim restraining order preventing scientific examination of the forensic samples was terminated forthwith.
Key Takeaways
- Where a suspect consents to a forensic procedure, that consent can render irregularities in the making or execution of an interim order under the Crimes (Forensic Procedures) Act 2000 irrelevant to the validity of the procedure's outcome.
- A finding of consent by the court defeated the plaintiff's entire basis for seeking a declaration of invalidity, a restraining order, and destruction of the samples, even where arguable procedural breaches had occurred.
- Under the Crimes (Forensic Procedures) Act 2000, interim forensic procedure orders carry a strict timeframe, and delay in carrying out a procedure beyond that window is a matter capable of being raised as an irregularity, though it does not automatically produce the remedies sought here.
- Refusing to order destruction of samples does not foreclose future scrutiny: the Court acknowledged that whether the forensic evidence could ultimately be admitted at trial remained a matter for the trial judge to determine, applying applicable evidentiary rules.
- Where an interim forensic procedure order has not been formally confirmed or disallowed by the Local Court, the appropriate course can be to remit the confirmation proceedings for proper determination rather than have the Supreme Court resolve the matter itself.
Legislation and Cases Referenced
Legislation
- Crimes (Forensic Procedures) Act 2000 (NSW), including ss 23, 25, 33, and 86
Cases
- Ousley v The Queen (1997) 94 ACrimR 195
- George v Rockett (1980) 170 CLR 104
- Coco v The Queen (1994) 179 CLR 427
- Sankey v Whitlam (1978) 142 CLR 1
- Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198
- Yates v Wilson (1989) 168 CLR 339
- Sergi v DPP (unreported, NSWCA, 10 September 1991)
- Tye v The Commissioner of Police (1995) 84 ACrimR 147