Citation: MB v R [2019] NSWDC 58
Court: District Court of NSW
Date: 14 March 2019
Judge(s): Berman SC ADCJ
Background
The appellant was a 14-year-old Aboriginal young person who admitted committing a break, enter and steal at a Mitre 10 store in Orange in November 2018. Police also suspected him of a separate break, enter and steal at the same store approximately a month earlier, in which blood was left at the point of entry.
Police applied to the Children's Court for an order permitting the young person to perform a self-administered buccal swab, a non-intimate forensic procedure, so that his DNA could be compared against the blood sample. A Magistrate granted the order, and the young person appealed to the District Court.
The District Court conducted the matter as a rehearing on the evidence admitted below, with the judge determining afresh whether the order should be made under the Crimes (Forensic Procedures) Act 2000.
Legal Issues
- Whether there were reasonable grounds to believe the young person had committed the October 2018 break, enter and steal, as required by s 24(3) of the Crimes (Forensic Procedures) Act 2000
- Whether material that would be inadmissible at trial (including criminal history) could found the reasonable grounds requirement
- Whether the forensic procedure was justified after balancing the public interest in obtaining evidence against the young person's right to physical integrity, taking into account the factors in s 24(4)
Decision
Issue 1: Reasonable grounds to believe the offence was committed
The court confirmed that the threshold for "reasonable grounds to believe" a person committed an offence is not equivalent to admissibility at trial (at [8]). Material such as criminal history or information from a confidential informer may be incapable of being placed before a jury but can still ground a reasonable suspicion for forensic procedure purposes (at [8]).
Applying that principle, the court identified three matters which, taken in combination, established reasonable grounds (at [9]-[13]). First, both offences involved breaking glass with a brick to access the same store, a similar method (at [10]). Second, police found a Stihl whipper snipper hidden in the young person's garage, identical to items stolen in the October offence, and the young person told police he had stolen it, albeit from a different location (at [11]). Third, the young person had a prior history of break, enter and steal offences, which was unchallenged (at [12]).
Issue 2: Whether the procedure might produce confirmatory evidence
The court was satisfied that analysis of the blood left at the point of entry would almost certainly yield a DNA profile capable of comparison with any profile obtained from the buccal swab (at [14]).
Issue 3: Balancing public interest against physical integrity
The court weighed the s 24(4) factors, including the gravity of the offence (maximum 14 years imprisonment, and a repeat offence against the same premises) (at [16]), the young person's age, Aboriginal background, and apparent good health (at [19]), and his placement in a care home (at [19]-[20]). The court noted that a self-administered buccal swab is a minimally intrusive procedure and that no less intrusive alternative was available (at [21]). Taking all matters into account, the court was satisfied the balance favoured making the order (at [22]).
Orders Made
- Appeal dismissed.
Key Takeaways
- Under s 24(3) of the Crimes (Forensic Procedures) Act 2000, "reasonable grounds to believe" a person committed an offence can be established by material that would be inadmissible at a criminal trial, including prior criminal history that falls short of tendency evidence under the Evidence Act 1995 (at [8]).
- A person's antecedents and the similarity of method between admitted and suspected offences are relevant considerations when assessing whether grounds for suspicion exist, even where those factors would not, of themselves, be sufficient for a jury (at [9]-[13]).
- In dismissing the appeal, the District Court confirmed that the forensic procedure analysis involves a two-stage inquiry: first, whether reasonable grounds for belief exist; and second, whether the public interest in obtaining evidence outweighs the subject's interest in physical integrity, assessed against the specific criteria in s 24(4) (at [6], [15]).
- The minimally intrusive nature of a self-administered buccal swab is a relevant factor in the proportionality balance, and no less intrusive alternatives need exist before the order can be made (at [21]).
- Where a young person suspected of an offence has a connection to stolen property recovered at their address, that connection remains a relevant consideration even if the person offers an alternative explanation for how the item was obtained (at [11]).
Legislation and Cases Referenced
Legislation
- Crimes (Forensic Procedures) Act 2000
- Evidence Act 1995
- Local Court Act 2007
Cases
- Lewis v Sergeant Riley [2017] NSWCA 272
- R v Ponfield [1999] NSWCCA 422