Citation: [2014] NSWLC 4
Court: Local Court of New South Wales (Tumut)
Date: 28 January 2014
Judge(s): Magistrate P S Dare SC
Background
A senior constable from Tumut Police Station applied to the Local Court for an order authorising a forensic procedure on a respondent classified as an "untested former offender" under Part 7A of the Crimes (Forensic Procedures) Act 2000 (the Act). The respondent had served a sentence of periodic detention in 1998 for cultivating a prohibited drug, a conviction that pre-dated the introduction of DNA testing in January 2001. His DNA profile was not recorded in the offenders index of the national DNA database system.
In July 2012, the respondent was served with a Court Attendance Notice (a formal charge document) for aggravated sexual assault. That charge had not yet been determined when the forensic procedure application came before the court.
The respondent, through his solicitor, declined to consent to the procedure. His solicitor raised the point that he had not been convicted of the sexual assault allegation. The respondent personally told the court he opposed the order on the basis that he had already served his time for the earlier drug offence.
Legal Issues
- Whether the three prerequisites under section 75A(3) of the Act were satisfied, making the respondent an "untested former offender."
- Whether a conviction for the fresh indictable offence is required before Part 7A is triggered, or whether the service of a Court Attendance Notice is sufficient.
- Whether the carrying out of the forensic procedure was justified in all the circumstances.
Decision
Magistrate Dare SC examined the statutory framework in detail, beginning with the Second Reading Speech for the amending bill that introduced Part 7A. That speech confirmed that DNA backcapture was designed to allow police to obtain DNA samples from persons who had previously served sentences for serious offences before testing commenced, provided those persons were subsequently charged with another indictable offence.
The Magistrate found all three prerequisites under section 75A(3) satisfied: the respondent had served a sentence of imprisonment for a serious indictable offence in a place of detention; he had been served with a Court Attendance Notice for an indictable offence; and his DNA profile was absent from the offenders index. The respondent himself confirmed the first two matters in court.
On the central question of whether a conviction for the fresh charge was required, the Magistrate held that the provision is not conviction-based. Neither the section itself nor the Second Reading Speech includes any such requirement. The trigger is service of the Court Attendance Notice, nothing more.
Having found the prerequisites met and the procedure justified in the interests of community protection, the Magistrate made the order sought.
Orders Made
- The respondent was ordered to attend Tumut Police Station within seven days to submit to a non-intimate forensic procedure, comprising the taking of a hair sample (other than pubic hair) and a self-administered buccal swab.
- The respondent was warned that failure to comply could result in arrest, and that reasonable force could be used to enforce compliance.
Key Takeaways
- Part 7A of the Crimes (Forensic Procedures) Act 2000 establishes a DNA backcapture scheme targeting former serious offenders who served sentences before DNA testing commenced in January 2001 and who have since been charged with a fresh indictable offence.
- A conviction for the fresh indictable offence is not required to enliven the Part 7A regime. The Tumut Local Court held that the provision operates upon service of a Court Attendance Notice alone.
- Under section 75A(3), three cumulative conditions must be met: the person must have served a sentence of imprisonment for a serious indictable offence; been served with a Court Attendance Notice for an indictable offence; and not have a DNA profile on the offenders index.
- The backcapture scheme was expressly designed to strike a balance between community protection and the rehabilitation of former offenders by limiting compelled sampling to those who come back into contact with the criminal justice system through a fresh charge.
- Parliamentary second reading speeches can assist courts in understanding the legislative intent behind provisions that may otherwise appear unusual or require contextual explanation.
Legislation and Cases Referenced
Legislation:
- Crimes (Forensic Procedures) Act 2000 (NSW), in particular Part 7A (ss 75A, 75L, 75M)
- Local Court Act 2007 (NSW), s 45
Cases:
- No cases cited in the judgment.