AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 October 2024

R v Farrell

[2024] NSWDC 547

Other
VULNERABLE PERSON INFORMED CONSENT UNDERMINING OF LEGISLATIVE SAFEGUARDS

Citation: R v Farrell [2024] NSWDC 547
Court: District Court of New South Wales
Date: 9 October 2024
Judge(s): Hopkins DCJ

Background

The accused, a 21-year-old Aboriginal man, was arrested in November 2023 for unrelated matters. While in custody, a database search linked his DNA profile to a series of aggravated break and enter offences at a nursing home. Police then sought to obtain a buccal swab (a cheek swab) from him as a forensic procedure under the Crimes (Forensic Procedures) Act 2000 (NSW).

Before the procedure was carried out, the accused spoke with a solicitor from the Aboriginal Legal Service (ALS), who he instructed that he did not consent to the swab. The solicitor communicated that refusal to the custody manager, who recorded it. Despite this, the accused was not referred to a senior police officer for a compulsory order. Instead, he was taken directly to the forensic procedure room where a different officer, who had not been told of his refusal or his recent hospitalisation, took him through a standard consent form.

The accused had also self-harmed while in custody and was transported to hospital, where he was sedated on multiple occasions with ketamine and droperidol. He was brought back to the police station within hours of his last sedation. He was never read or provided with the caution and summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), which sets out rights for persons in custody. The defence applied to exclude the resulting DNA certificate from evidence.

Legal Issues

  • Whether there were breaches of the Crimes (Forensic Procedures) Act 2000 (NSW) in the way consent was sought and obtained.
  • Whether the accused gave informed consent to the forensic procedure in accordance with sections 10 and 13 of that Act.
  • Whether the accused made an express and voluntary waiver of his right to an interview friend, with full knowledge and understanding, as required by section 106(1)(b) of the Act.
  • Whether, under section 82 of the Act, the desirability of admitting the DNA evidence outweighed the undesirability of admitting evidence obtained in contravention of the legislation.

Decision

Informed consent and the officer's limited information:

The court found that the officer who conducted the procedure (Senior Constable Aslin) had been told almost nothing before she entered the room. She was not told the accused had already refused consent through his solicitor, that he had been hospitalised, or how many times he had been sedated. Without that information, she could not have properly informed him of the matters required by section 13 of the Act, including the offences under investigation. The court found that, in substance, the intended statutory safeguard was undermined, even if the officer's conduct was formally compliant in its outward form (at [41]-[42]).

The process following the expressed refusal:

The court characterised what followed the recorded refusal as a failure of communication that amounted, in effect if not intent, to obfuscation (at [35]). The accused had already told his solicitor he refused consent. The questions then put to him in the forensic procedure room were, in that context, confusing and nonsensical. The court found no informed consent was given within the meaning of sections 10 and 13 of the Act (at [42]), and found the Crown could not establish that the officer was satisfied the request for consent was justified in all the circumstances under section 11(1)(d) (at [43]).

Waiver of right to an interview friend:

The court held it could not be satisfied on the balance of probabilities that the accused voluntarily waived his right to an interview friend with full knowledge and understanding of what he was doing, as required by section 106(1)(b) of the Act. This conclusion reflected the cumulative effect of his vulnerability: his age, his identity as an Aboriginal person, his recent self-harm, his hospitalisation, and his heavily sedated state in the hours before the procedure (at [39], [44]).

The section 82 balancing exercise:

The court acknowledged the DNA evidence had very significant probative value and that the offences, though at the lower end of their category, were serious (at [47]). However, it found the breaches were serious and deprived a young, vulnerable Aboriginal man of critical statutory protections (at [48]). The court also noted evidence from another officer that it was common practice to escort suspects to the forensic procedure room after they had refused consent, a practice the court described as undermining the legislative safeguards and unnecessarily confusing (at [49]). Admitting the evidence carried a very real risk of being seen as judicial approval of that conduct (at [50]). The ease with which the evidence could have been lawfully obtained weighed in favour of admission but was given only limited weight given the gravity of the breaches (at [51]). The Crown did not establish that the desirability of admitting the evidence outweighed the undesirability, and the evidence was excluded (at [52], [54]).

Orders Made

  • The DNA evidence relating to the buccal sample taken from the applicant while in custody on 22 November 2023 is excluded pursuant to section 82 of the Crimes (Forensic Procedures) Act 2000 (NSW).

Key Takeaways

  • Where a suspect expressly refuses consent to a forensic procedure through their solicitor and that refusal is recorded, police cannot simply proceed to ask again in the forensic procedure room without ensuring the officer conducting the procedure is fully informed of the refusal and its context, and without properly framing the further contact in that context (at [34]-[35], [41]).

  • Under section 106(1)(b) of the Crimes (Forensic Procedures) Act 2000, the burden lies on the prosecution to prove that a waiver of a statutory right by an Aboriginal or Torres Strait Islander suspect was voluntary and made with full knowledge and understanding. Acute vulnerability arising from sedation, hospitalisation and prior self-harm can defeat that burden (at [39], [44]).

  • The District Court found that an officer who conducts a forensic procedure in a vacuum of relevant background information cannot, in substance, give a suspect the informed consent process the legislation requires, even if the officer follows the prescribed form word for word (at [38], [41]-[42]).

  • A practice of routinely taking suspects to the forensic procedure room after they have refused consent, and putting them through the standard information sheet and consent form without adjustment, risks undermining the statutory safeguards and may support exclusion of the resulting evidence under section 82 (at [49]).

  • In the section 82 balancing exercise, the ease with which lawful compliance could have been achieved is a relevant factor favouring admission, but it does not override serious, systemic failures to protect the rights of a vulnerable suspect, particularly where admission would carry the appearance of judicial endorsement of that conduct (at [50]-[51]).

Legislation and Cases Referenced

Legislation
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Evidence Act 1995 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Law Enforcement (Powers and Responsibilities) Regulations 2016

Cases
- R v Coombe (NSWCCA, 24 April 1997, unrep)
- R v Ryan and Fitzhenry (NSWDC, English DCJ, 19 October 2011, unrep)
- R v Greenaway (NSWDC, Lerve DCJ, 12 April 2013, unrep)
- R v Hookey (NSWDC, Marien DCJ, 3 October 2013, unrep)
- R v Phung and Huynh [2001] NSWSC 115
- Mann v R [2023] NSWCCA 256