NW v George; SW v George

1. [1]

   HER HONOUR: By separate summonses, NW (a police officer) and her father, SW, seek orders, in identical terms, setting aside orders made by Wahlquist LCM on 11 August 2015 that they each submit to a non-intimate forensic procedure pursuant to s 24 of the Crimes (Forensic Procedures) Act 2000 (NSW) ("the Forensic Procedures Act"), being a self-administered buccal swab, after presenting themselves to the Professional Standards Command for that purpose.

2. [2]

   Consistent with the way the contested applications for the orders under the Forensic Procedures Act were heard and determined in the Local Court, including the evidence relied upon in support of the application, the summonses were heard together in this Court.

3. [3]

   The proceedings are brought pursuant to s 115A of the Forensic Procedures Act and are limited to challenging the orders of the learned Magistrate on a question of law alone (see also s 52 of the Crimes (Appeal and Review) Act 2001 (NSW)).

4. [4]

   Eleven grounds of appeal were specified in each summons. The grounds were further refined in advance of the hearing upon the plaintiffs filing an amended statement of grounds pursuant to Part 51B Rule 16(1) of the Supreme Court Rules 1970 (NSW).

5. [5]

   At the hearing of the appeals, only two of the amended grounds were pressed. This relieved the Court of the need to review the evidence relied upon by the defendant in the Local Court for the granting of the applications including, in particular, the evidence to which her Honour referred in concluding that there were reasonable grounds to suspect that both NW and her father, SW, had committed a prescribed offence.

6. [6]

   The first ground of appeal contended that her Honour erred in law by applying the wrong test when determining, pursuant to s 24(1) of the Forensic Procedures Act, that the forensic procedure was justified, in all the circumstances, by her failure to address the matters in s 24(1)(b) of the Forensic Procedures Act by reference to s 24(4) of that Act.

7. [7]

   Those sections provide:

8. [8]

   The error the subject of this ground of appeal was said to be the fact that because police had possession of the confirmed DNA results in the analysis by Melanie Marty, senior scientist at Genetic Technologies, it was not open to her Honour to conclude that a buccal sample should be provided by either of the plaintiffs and, further, that her Honour relied upon inadmissible hearsay evidence and inadmissible opinion evidence (namely, Ms Marty’s report and what was said to be its failure to comply with the requirements of an expert certificate under s 177 of the Evidence Act 1995 (NSW)) in concluding that, in all the circumstances, the non-intimate forensic procedure was justified.

9. [9]

   It was also submitted that because NW is a serving police officer, she should not be subjected to the indignity of being subject to an order under the Forensic Procedures Act and that her Honour failed to take that matter into consideration in the exercise of the discretionary judgment required under s 24(4) of the Act. As to that submission, it is entirely unclear to me why NW’s status as a serving police officer should for some reason have weighed in her favour. If the submission is that she would suffer some greater embarrassment than another member of the public because of her employment, a submission that has a questionable factual premise in any event, it would be an entirely irrelevant consideration for her Honour to have taken into account in the discretionary exercise mandated by s 24(4) of the Forensic Procedures Act and may itself, were the application refused, have grounded an appeal by the defendant.

10. [10]

    The defendant submitted, and correctly in my view, her Honour’s reasons for finding there were reasonable grounds to suspect that both NW and SW had committed a prescribed offence does not oblige her, for the purposes of an order under the Forensic Procedures Act as an investigatory step in the process of the criminal investigation, to be satisfied that the offence is proved, or might be proved, to the criminal standard or that the offences suspected of having been committed are the subject of admissible evidence in proof of that fact.

11. [11]

    What the Court is obliged to be satisfied of, and on the balance of probabilities, is that there are reasonable grounds to believe that the person in respect of whom the order is sought has committed the offence. I am satisfied, having reviewed the evidence myself, that the composite body of material which the defendant collated for the purpose of the application well supported her Honour’s conclusion that there were reasonable grounds to submit that both NW and SW had committed the offence and that her Honour’s exhaustive reasons for making that finding of fact well support that conclusion.

12. [12]

    In the course of oral submissions, it was further submitted that there were no reasonable grounds for her Honour to have found that it would be more appropriate for the purposes of the criminal investigation into the plaintiffs’ conduct for a forensic sample to be taken under the Act.

13. [13]

    This was said to be an error in the category of a House v The King error of law. House v The King [1936] HCA 40; 55 CLR 499 at 504-505 provides:

14. [14]

    The second ground of appeal contended that her Honour erred in law in finding that the defendant’s delay in making the application under the Act was acceptable, also framed as a House v The King category of error.

15. [15]

    In order to give consideration to the issues raised by those two grounds of appeal it is necessary to set out, in summary, the history of the criminal investigation into the offences the plaintiffs are suspected of having committed, including events predating the formal commencement of that investigation on 28 March 2014.

Contextual history

1. [16]

   On 24 July 2007, NW gave birth to her daughter, MW. NW claimed that CH (another police officer) was MW’s father. CH did not accept that he was the child’s father and agreed with NW that the issue should be resolved by paternity testing.

2. [17]

   On 6 August 2007, NW commissioned a report from Paternity Testing Laboratories, a company based in Victoria. Two DNA samples – one sample labelled as that of her daughter, MW, and the other sample labelled as that of CH – were supplied to the laboratory by NW for that purpose. CH provided NW with a buccal swab sample for submission to the laboratory together with, as he understood it, a DNA sample from NW and her daughter. The sample CH provided to her was not labelled or signed by him.

3. [18]

   On 15 August 2007, a report entitled “DNA Parentage Laboratory Report” was generated by the laboratory. It identified CH as MW’s biological father.

4. [19]

   After being informed of the report, CH provided a confirming sample to the same Paternity Testing Laboratories and commissioned an Individual DNA Profile Report.

5. [20]

   On 1 September 2007, CH received an email indicating that the DNA profile obtained from the sample labelled “CH” submitted for the purposes of the (earlier) DNA Parentage Laboratory Report did not match the DNA profile submitted by him for the purposes of the preparation of the Individual DNA Profile Report.

6. [21]

   On 4 September 2007, CH lodged an internal complaint with the New South Wales Police Service against NW, alleging that she had deliberately submitted a DNA sample for paternity testing falsely labelled as a sample he had provided, with the intention of obtaining financial support for her child and that her conduct constituted an offence under s 178BB of the Crimes Act 1900 (NSW) (since repealed).

7. [22]

   On 17 September 2007, the internal police investigation into CH’s complaint against NW was suspended because of what was then considered to be a lack of evidence verifying the origin of the DNA samples NW provided to Paternity Testing Laboratories. The investigating officer’s statement provides as follows:

8. [23]

   As I understand the views of the investigating officer, although it was clear by September 2007 that CH was not MW’s father, until her paternity was settled the identity of the person whose sample NW submitted (and by inference falsely labelled as CH’s sample) was unknown.

9. [24]

   On 1 June 2012, during Family Court proceedings in which another man was said to be MW’s biological father, a Parentage Testing Procedure Report was generated, this time by Sonic Clinical Institute (the “Sonic report”), which confirmed that the biological father of MW was that man.

10. [25]

    On 18 February 2013, a formal police investigation commenced into NW’s allegations of sexual assault against that person. During the course of that investigation, the Sonic report was provided to police. This re-enlivened the internal investigation into the complaint made by CH in 2007 that NW had labelled someone else’s DNA sample as his for the purposes of obtaining financial support from him.

11. [26]

    On 28 March 2014, a formal police investigation was initiated into what is suspected to be NW’s criminal conduct for the purposes of the application the subject of these proceedings, namely a breach of s 178BB of the Crimes Act.

12. [27]

    On 3 July 2014, at the request of police, Melanie Marty, senior scientist at Genetic Technologies, produced an expert certificate in which she reported that the DNA profile obtained from the sample labelled “MW” in the 15 August 2007 report matched the DNA profile obtained from the sample labelled “NW” in the Sonic report of 1 June 2012. The certificate also indicated that if the sample labelled “MW” in the 15 August 2007 report originated from NW, then the sample labelled “CH” could only source from the biological father of NW or her son.

13. [28]

    The evidence before the Magistrate established that NW did not have a son. SW is her father.

14. [29]

    On 14 January 2015, the defendant met with NW and sought her consent for carrying out the forensic procedure. Correspondence between NW’s legal representation and the defendant commenced on 26 January 2015. It indicated that NW refused to give consent for the carrying out of the forensic procedure.

15. [30]

    On 14 January 2015, the defendant met with SW and requested his consent for carrying out the forensic procedure. SW refused to give consent for the carrying out of the forensic procedure.

16. [31]

    On 8 April 2015, an application to the Local Court was lodged under s 26 of the Forensic Procedures Act for NW to present to the Professional Standards Command for the carrying out of the forensic procedure. On 27 April 2015, an application to the Local Court was lodged under s 26 of the Forensic Procedures Act for SW to present to the Professional Standards Command for the carrying out of the forensic procedure.

The first ground of appeal: Error in determination of s 24(1)(b) of the Crimes (Forensic Procedures) Act

1. [32]

   The plaintiffs submitted that the order made by the Magistrate that they each submit to the forensic procedure was unjustified in all the circumstances, and that accordingly her Honour erred in her application of s 24(1)(b) of the Forensic Procedures Act by reference to s 24(4) of the Act.

2. [33]

   Her honour’s reasons for making the orders (delivered ex tempore) addressed her obligations under s 24(4) of the Forensic Procedures Act as follows:

3. [34]

   Her Honour then turned to consider the issue of delay, which I will address below.

4. [35]

   For reasons set out in [9]-[11] above, I consider that her Honour had appropriate regard to the considerations listed in s 24(4) and that in her application of s 21(1)(b) she exercised the discretionary judgment involved in the balancing exercise to which the section refers, free of any error.

Delay

1. [36]

   Her Honour noted that eight years had elapsed between the complaint against NW in 2007 and the application made by the defendant for the obtaining of forensic samples from NW and SW which gave rise to the proceedings before her in 10 August 2015. Her Honour noted the views of the investigating officer on 17 September 2007 that CH’s complaint lacked a sufficient evidentiary basis for the investigation to proceed at that time and, importantly, as I read her Honour’s reasons, that there was insufficient evidence to ground the necessary reasonable suspicion that NW (or SW) had committed a criminal offence to ground an application under the Forensic Procedures Act at that time. Of course, it was not until July 2014 when the expert certificate of Ms Marty was obtained, that SW was implicated as being a suspect, being complicit, so it was suspected, in NW’s offending.

2. [37]

   Once the Sonic report was provided to the police in the course of their renewed investigation into NW’s conduct and what was suspected to be her father’s complicity, a stronger evidentiary basis was available to progress the investigation.

3. [38]

   Her Honour noted that an application for a forensic procedure could have been made in 2007 but considered (and in my opinion, quite properly) that there was an acceptable explanation for not pursuing the application at that time. She said:

4. [39]

   The reasons for the delay in making the application under s 24 of the Forensic Procedures Act were supported by the evidence before the Magistrate. In my view, it was open to her Honour to find the delay was justified and there is no discretionary error in the House v The King sense as contended by the plaintiffs.

5. [40]

   Accordingly, the plaintiffs have failed to identify any error of law which would justify the relief sought in the summonses.

6. [41]

   Orders:

   1. (1)

      In proceedings 2015/238619 and 2015/238628, the summonses are dismissed.

   2. (2)

      The plaintiffs are to pay the defendant’s costs.

   3. (3)

      The orders of Wahlquist LCM made on 11 August 2015 are confirmed save only for the following amendment: