Citation: [2018] NSWDC 420
Court: District Court of NSW
Date: 10 December 2018
Judge(s): Haesler SC DCJ
Background
The appellant was identified as a suspect in a 2012 motor vehicle larceny after a "cold hit" on the National DNA database linked his stored profile to DNA extracted from a cigarette butt found at the crime scene. When approached by police in 2018, he declined to be interviewed and later declined to provide a voluntary DNA sample.
NSW Police applied to a magistrate under the Crimes (Forensic Procedure) Act for an order requiring the appellant to submit to a self-administered buccal swab. Magistrate Thomson granted the order in October 2018. The appellant appealed that decision to the District Court.
The central dispute on appeal was whether ordering a fresh forensic procedure was reasonable in circumstances where the appellant's DNA profile already existed on the national database.
Legal Issues
- Whether Magistrate Thomson erred in exercising his discretion to order the forensic procedure under section 24 of the Crimes (Forensic Procedure) Act
- Whether the existence of an existing DNA profile on the national database made a new buccal swab unnecessary or unjustified
- Whether the carrying out of the procedure was justified in all the circumstances, including as the least intrusive available option
Decision
Issue 1: Error in the magistrate's discretionary judgment
Haesler SC DCJ found that the magistrate's reasoning was well-founded and supported by affidavit evidence and authority (at [4]). No error was identified in the exercise of the discretion, and the appellant advanced no sufficient reason to set the order aside (at [4]).
Issue 2: Whether an existing database profile made the procedure unnecessary
The appellant argued that because his DNA profile already resided on the national database, ordering a fresh buccal swab served no useful purpose. The Court rejected that submission. No concession had been made about the accuracy, reliability, or provenance of the material that led to the profile being placed on the database, and police had not sought that underlying material and did not know whether it still existed (at [13]-[14]).
Issue 3: Justification for the procedure in all the circumstances
The magistrate had found reasonable grounds to believe the appellant committed the offence and that the procedure might produce evidence confirming or disproving that (at [17]). A fresh sample would allow careful verification of any match against the crime scene material, and a non-matching result could exculpate the appellant entirely (at [22]). The Court accepted that the defence had no entitlement to dictate how the prosecution gathers or presents its evidence, and that police should not be prevented from obtaining a sample that forms part of a potential circumstantial case (at [21]-[22]).
Orders Made
- Appeal dismissed
- Orders of the Local Court confirmed
Key Takeaways
- The District Court confirmed that an appeal from a magistrate's forensic procedure order proceeds in the same manner as an appeal against conviction under Part 3 of the Crimes (Appeal and Review) Act 2001, with the appellate court looking for error in the court below (at [2]).
- The existence of a suspect's DNA profile on the National DNA database does not, of itself, render a fresh court-ordered forensic procedure unjustified where the accuracy, reliability, and provenance of the underlying material are not conceded (at [13]-[14]).
- Under section 24 of the Crimes (Forensic Procedure) Act, a magistrate must be satisfied of reasonable grounds to suspect commission of a prescribed offence, reasonable grounds to believe the procedure might confirm or disprove that suspicion, and overall justification in the circumstances; those requirements were met here (at [10], [17]).
- A fresh DNA sample serves legitimate evidentiary purposes even where a profile already exists: it enables verification of any match and, if no match results, can disprove the suspicion against the suspect (at [22]).
- No error was established in Magistrate Thomson's discretionary judgment, and the Court affirmed Plassas v Person as a relevant and applicable authority on the legislative framework, rejecting the attempt to confine it to indictable matters (at [4], [16]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001
- Crimes (Forensic Procedure) Act
- Evidence Act 1995
- Local Court Act
Cases
- 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