Police v BH [2016] NSWChC 5

Police v BH [2016] NSWChC 5

The Court was satisfied on the balance of probabilities that BH was a suspect, that there were reasonable grounds to believe he had committed offences and that a buccal swab might produce evidence tending to confirm or disprove that suspicion because there was a composite body of circumstantial and forensic material, including CCTV and clothing similarity, bail compliance checks, injury evidence, and two male DNA profiles available for comparison. Balancing the seriousness of the alleged offences, public interest in obtaining evidence, BH's age and best interests, and the minimally intrusive nature of a self-administered buccal swab, the procedure was justified in all the circumstances.

Jurisdiction
Australia
Judgment Date
08 December 2016
Procedural Posture
Application for Forensic Procedure Order in Criminal Jurisdiction / Final Order Application Under the Crimes (forensic Procedures) Act 2000
Outcome
Application granted
Legal Topics
['buccal Swab' 'child Unable to Consent' 'reasonable Grounds for Suspicion' 'hearsay Evidence in Forensic Procedure Applications' 'tendency and Coincidence Evidence' 'balance of Public Interest and Physical Integrity']
['criminal Law' 'evidence' 'forensic Procedures' "children's Criminal Procedure"] ['buccal Swab' 'child Unable to Consent' 'reasonable Grounds for Suspicion' 'hearsay Evidence in Forensic Procedure Applications' 'tendency and Coincidence Evidence' 'balance of Public Interest and Physical Integrity']

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Procedural Posture

Application for Forensic Procedure Order in Criminal Jurisdiction / Final Order Application Under the Crimes (forensic Procedures) Act 2000

Legal Issues

  1. 1 ['Whether there were reasonable grounds to believe that BH had committed an offence.' 'Whether there were reasonable grounds to believe that a buccal swab might produce evidence tending to confirm or disprove that BH committed the alleged offences.' 'Whether the carrying out of the forensic procedure was justified in all the circumstances under s 24(4) of the Crimes (Forensic Procedures) Act 2000.' 'Whether the applicant could rely on hearsay and a composite body of material in the application.' 'Whether evidence of subsequent offending could be admitted as tendency or coincidence evidence without notice.']

Ratio Decidendi

The Court was satisfied on the balance of probabilities that BH was a suspect, that there were reasonable grounds to believe he had committed offences and that a buccal swab might produce evidence tending to confirm or disprove that suspicion because there was a composite body of circumstantial and forensic material, including CCTV and clothing similarity, bail compliance checks, injury evidence, and two male DNA profiles available for comparison. Balancing the seriousness of the alleged offences, public interest in obtaining evidence, BH's age and best interests, and the minimally intrusive nature of a self-administered buccal swab, the procedure was justified in all the circumstances.

Court Disposition

Application granted

Orders

  • ['The Application is granted for a Forensic Procedure by way of buccal swab to be carried out upon the suspect, BH.' 'BH was informed that reasonable force may be used to ensure compliance with the order for the carrying out of the forensic procedure, though this will not be necessary if he complies with what police...