R v Scott Edward REGAN [2014] NSWDC 118

R v Scott Edward REGAN [2014] NSWDC 118

The 5 September 2012 buccal swab was taken in breach of the Crimes (Forensic Procedure) Act 2000 because the officer formally requesting and administering the procedure did not personally satisfy himself of the matters required by s 11, and, more significantly, Mr Regan was not informed of the purpose of the procedure or the offence in relation to which it was sought as required by s 13. The s 13 breach deprived the accused of a significant statutory protection connected with the right against self-incrimination. Applying s 82, the desirability of admitting the DNA evidence did not outweigh the undesirability of admitting evidence obtained through the unlawful forensic procedure. Once...

Jurisdiction
Australia
Judgment Date
16 June 2014
Procedural Posture
Criminal Proceedings for Break Enter and Steal Offences / Judge Alone Trial; Voir Dire on Admissibility of Evidence Obtained From a Forensic Procedure
Outcome
Evidence obtained as a result of or in connection with the unlawful 2012 forensic procedure was excluded; Mr Regan was found not guilty on all counts.
Legal Topics
['forensic Procedure' 'buccal Swab' 'dna Evidence' 'exclusion of Unlawfully Obtained Evidence' 'judge Alone Trial' 'break Enter and Steal']
['criminal Law' 'evidence' 'criminal Procedure'] ['forensic Procedure' 'buccal Swab' 'dna Evidence' 'exclusion of Unlawfully Obtained Evidence' 'judge Alone Trial' 'break Enter and Steal']

Case Brief

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Procedural Posture

Criminal Proceedings for Break Enter and Steal Offences / Judge Alone Trial; Voir Dire on Admissibility of Evidence Obtained From a Forensic Procedure

Legal Issues

  1. 1 ['Whether the buccal swab taken from Mr Regan on 5 September 2012 complied with ss 11 and 13 of the Crimes (Forensic Procedure) Act 2000.' 'Whether evidence obtained as a result of or in connection with the 5 September 2012 forensic procedure should be excluded under s 82 of the Crimes (Forensic Procedure) Act 2000.' 'Whether, after exclusion of the DNA evidence, the Crown could prove beyond reasonable doubt that Mr Regan was involved in the offences.']

Ratio Decidendi

The 5 September 2012 buccal swab was taken in breach of the Crimes (Forensic Procedure) Act 2000 because the officer formally requesting and administering the procedure did not personally satisfy himself of the matters required by s 11, and, more significantly, Mr Regan was not informed of the purpose of the procedure or the offence in relation to which it was sought as required by s 13. The s 13 breach deprived the accused of a significant statutory protection connected with the right against self-incrimination. Applying s 82, the desirability of admitting the DNA evidence did not outweigh the undesirability of admitting evidence obtained through the unlawful forensic procedure. Once...

Court Disposition

Evidence obtained as a result of or in connection with the unlawful 2012 forensic procedure was excluded; Mr Regan was found not guilty on all counts.

Orders

  • ['In relation to count 1 (sequence 003) of 22 September 2009 at Gowan, a break enter and steal at the premises of Boyd and Denise Brell, you are found not guilty.' 'In relation to count 2 (sequence 001) at the same place and time, the aggravated break enter and steal at the premises of Michael and Mary Sanders at...