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Supreme Court 24 July 2007

JW v Detective Sergeant Karol Blackley & Anor

[2007] NSWSC 799

Also reported as 172 A Crim R 483
Sexual offencesAssault & violence
CRIMINAL LAW INTERIM ORDER FOR FORENSIC PROCEDURES PLAINTIFF PATIENT IN PSYCHIATRIC UNIT PURPOSES OF FORENSIC PROCEDURES PURPOSES OF INTERIM ORDERS PREMATURE APPLICATION TO SUPREME COURT

Citation: JW v Detective Sergeant Karol Blackley & Anor [2007] NSWSC 799
Court: Supreme Court of New South Wales, Common Law Division
Date: 24 July 2007
Judge(s): Simpson J

Background

The plaintiff, JW, was a patient in a psychiatric unit. A fellow patient reported that JW had assaulted and raped her. Because of his psychiatric condition, JW was classified as an "incapable person" under the Crimes (Forensic Procedures) Act 2000, meaning he could not legally consent to forensic procedures being carried out on him.

On 23 December 2006, Detective Sergeant Blackley applied for and obtained an interim order under s 32 of the Act authorising the carrying out of forensic procedures on JW. Samples were collected from JW that day. The detective's concern was that any DNA evidence on JW's person was fragile and would be lost if collection was delayed.

JW brought proceedings in the Supreme Court seeking to have the interim order declared void and to restrain the testing of the samples and their destruction. He raised several grounds, including that the order was defective on its face, that procedural requirements had not been met, and that no interview friend or legal representative had been present during the procedures.

  • Whether the interim order was void for failing to specify the time, place, or a time limit for carrying out the forensic procedures.
  • Whether the application for the interim order was defective because it was not supported by evidence on oath or affidavit as soon as practicable after the order was made.
  • Whether the forensic procedures were unlawfully conducted because no interview friend or legal representative was present, contrary to s 54(2) of the Act.
  • Whether Detective Blackley was an "authorised applicant" within the meaning of s 33(1) of the Act.
  • Whether the Supreme Court application was premature given the statutory framework governing the use of material collected under an interim order.

Decision

Simpson J dismissed each ground of challenge. On the question of whether the order was defective for failing to specify a time, place, or time limit, the Court found that the Crimes (Forensic Procedures) Act 2000 imposes no such requirement on interim orders. The Act's language did not demand that an interim order contain those particulars, and the absence of such detail did not render the order a nullity.

On the ground concerning the absence of an interview friend or legal representative, the Court accepted the evidence of Detective Blackley that she had made reasonable efforts to locate a suitable person, including attempting to identify the plaintiff's relatives. The urgency of the situation, specifically the risk that DNA evidence would be lost, justified proceeding without such a person present. The Court was satisfied that the detective had done all that was reasonably necessary in the circumstances.

The argument that Detective Blackley was not an "authorised applicant" was rejected as plainly without merit. The Act defines an authorised applicant to include an investigating police officer, and the evidence clearly established that she was involved in the investigation of the relevant offence.

The Court also accepted the defendant's submission that the application was premature. Under s 38 of the Act, samples collected pursuant to an interim order cannot be analysed until a magistrate makes a final confirming order. That final process is governed by strict and detailed requirements in s 25 of the Act. Accordingly, no harm could be done to JW by the mere existence of unanalysed samples, and any procedural flaws in the process could be addressed as questions of admissibility if and when the matter reached a hearing.

Orders Made

  • Summons dismissed with costs.

Key Takeaways

  • The Crimes (Forensic Procedures) Act 2000 does not require an interim order under s 32 to specify the time, place, or a time limit for the carrying out of forensic procedures; omitting those details does not render the order void.
  • Under s 38 of the Act, samples obtained pursuant to an interim order cannot be analysed until a magistrate confirms the order at a final hearing, providing a significant protection against premature use of the material.
  • A Supreme Court challenge to an interim forensic procedure order may be dismissed as premature where the statutory scheme provides its own safeguards, including a final confirmation hearing and admissibility provisions under s 80 of the Act and s 138 of the Evidence Act 1995.
  • Where the presence of an interview friend or legal representative is not reasonably practicable, evidence demonstrating genuine and documented attempts to secure such a person, weighed against the urgency of preserving fragile evidence, may satisfy the requirement under s 54(2).
  • An investigating police officer falls squarely within the definition of "authorised applicant" in s 33(1) of the Act and is entitled to apply for an interim forensic procedure order without the suspect being brought before an authorised officer.

Legislation and Cases Referenced

Legislation:
- Crimes (Forensic Procedures) Act 2000 (NSW), including ss 3, 4, 8, 22, 23, 24, 25, 26, 32, 33, 38, 54, 80
- Evidence Act 1995 (NSW), s 138
- Supreme Court Act 1970 (NSW), ss 69, 75
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases:
- Kerr v Commissioner of Police (NSW) [2001] NSWSC 637
- Orban v Bayliss [2004] NSWSC 428