The Charter vs DNA sampling

I spoke too soon last post (as I often do.) The Charter has gotten a mention in a County Court judgment that is public available. I’ve known for a while that the County Court does publish selected judgments online, but they nearly all seem to be cases concerning the Accident Compensation Act. Fascinating for all those who want to know the percentage impairment for the loss of a middle figure or whatever. However, a search on the word ‘Charter’ that I typed in just now popped out a criminal case  brought down in June: R v Long [2008] VCC 595, curiously filed under ‘L’. Not that the judgment proves illuminating of anything except Victorian judges’ continuing inability to read the statutes they’re asked to apply.

This matter was a follow-up to a 2007 crimnial trial. Michael Long faced nine charges relating to an incident with Jeanette Long (his wife? Or ex-wife?), including kidnapping and rape; however, he was only convicted of a single charge relating to slapping her in the face. The police wanted to retain a DNA sample taken in relation to the more serious charges, so they asked the trial judge, Susan Cohen, to make an order. And here’s where the Charter got a mention:

In the course of written submissions, an issue was raised on behalf of the respondent concerning the Charter of Human Rights. I had my preliminary views notified to both parties with a request for any further submissions on them, and no such submissions were forthcoming. I have not changed my preliminary views as then set out, except to note that although this matter bears a 2006 file number, the presentment was not in fact filed until July 2007. However, as that date, and indeed the whole of the trial, the jury verdict and the sentencing, occurred prior to the commencement of the Charter of Human Rights, the same reasoning applies and I am not satisfied that it has any application in this proceeding. The merits of the substantive argument can be left for another case.

Well, that’s pretty vague, but it seems obvious what’s going on. Judge Cohen is applying the dreaded Charter s. 49(2):

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

But, as readers of this blog – and anyone who bothers to read the Charter’s commencement clause – well knows, Part 2 commenced on 1/1/7. So, ‘the whole of the trial, the jury verdict and the sentencing occurred’ after the relevant commencement. Judge Cohen, like Bell J and VCAT Member Nihill before her, has got the date wrong, presumably misled by the Charter’s incorrect EM. That being said, again like Bell J, it looks like she may actually have gotten the right result, because, if R v Williams [2007] VSC 2 is correct, then the fact that Long was charged before 1/1/7 (as it seems he was) is enough to mean the Charter s. 49(2) applied. But that assumes that this DNA proceeding is part of the earlier one; no matter what date Cohen J was using, she should have considered that question.

Enough is enough, surely. This is now becoming quite a trend. Isn’t it about time an urgent all-points bulletin was sent to all judges pointing out the correct date in Charter s. 49(2)?

It’s a pity that Cohen J (mis-)applied Charter s. 49(2), because I would have liked to have known more about the Charter arguments in this case, which raise a potential conflict between Victoria’s DNA sampling regime and the Charter. The relevant statutory provision is this one:

464ZFB(1) If at any time on or after the commencement of section 26 of the Crimes (Amendment) Act 1997- (a) a forensic procedure is conducted on a person in accordance with section 464R, 464SA, 464T(3), 464U(7) or 464V(5); and (b) a court finds the person guilty of- (i) the offence in respect of which the forensic procedure was conducted; or (ii) any other offence arising out of the same circumstances… – a member of the police force, at any time after the finding of guilt but not later than 6 months after the final determination of an appeal against conviction or sentence or the expiry of any appeal period in respect of the offence (whichever is the later), may apply to the court referred to in paragraph (b) or to the Magistrates’ Court or Children’s Court (as the case may be) for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.

(2) A court hearing an application under subsection (1)… – (a) must take into account the seriousness of the circumstances of the offence in determining whether to make the order under subsection (1) or (1A), as the case requires; and (b) must be satisfied that, in all the circumstances, the making of the order is justified; and (c) may make such inquiries on oath or otherwise as it considers desirable.

This section raises an issue presently before the ECtHR: the retaining of DNA samples taken for the purpose of investigating an offence despite the person being acquitted of the offence.

In Long’s case, his DNA samples appear not to have been taken in relation to the offence he was convicted of (slapping his wife on the face) as it’s unclear how his DNA could have assisted that investigation; rather, the samples were presumably taken to investigate the claims of rape (which Long was acquitted on.) The police couldn’t get a fresh DNA sample based on Long’s conviction for recklessly causing injury (as Victorian law only provides for taking an offender sample for more serious ‘forensic sample offences‘, such as causing ‘serious’ injury, or the offences Long was acquitted on.) So, they tried instead to retain his sample based on s464ZFB(1)(a)(ii), on the grounds that the less serious offence that Long was convicted of arose ‘out of the same circumstances’ as the offence for which the DNA was taken.

This would seem to me to possibly raise the Charter right to be presumed innocent:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

After all, the only reason Long’s DNA may end up permanently on the database is because of the proximity between the minor offence he was convicted of and the more serious offence he was acquitted of. It is arguably a breach of Long’s presumption of innocence to use a charge he has been acquitted of as a basis for an imposition on his rights (in this case, the privacy right implicated by permanently retaining his DNA on the database.) And it’s hard to think of a Charter s. 7(2) argument that could support this scheme.

Now, even if this rights-compatibility issue does arise, Long would still have had to frame his arguments in terms of the Charter’s operative provisions. One option would be to argue that s464ZFB should be interpreted in a way that is compatible with Long’s rights. For example, perhaps s464ZFB(a)(ii) should be read as limited to offences that are alternative counts to offences that Long could have been properly sampled (either to investigate or if he was convicted.) That would exclude this case, because neither recklessly causing injury (which Long was convicted of) or the more serious charge of intentionally causing injury (which Long was acquitted of) would have justified a DNA sample on their own. An alternative intpretation option would be to read ‘out of the same circumstances’ in a quite narrow way, e.g. requiring contemporaneity in time (e.g. if the slap occured during the alleged rape.) Either way, the effect would be to ensure a real link between the offence Long was sampled for and the offence he was actually convicted of.

An alternative option would be the conduct mandate. Judge Cohen wasn’t bound by it (as making a DNA sampling order is, presumably, not an administrative function) but the police were. Were they acting incompatibly with Long’s presumption of innocence by seeking to get his DNA by relying on his prior sampling for an offence he’d been acquitted of? I think it’s arguable that they were and that s464ZFB(a)(ii) did not make it unreasonable for the cops to refrain from seeking to retain his DNA permanently.

As it happens, Cohen J rejected the police’s application in her discretion, relying on the non-seriousness of the count Long was convicted of; the lack of close connection between that count and the rape and kidnapping charges; and the lack of any reason in Long’s record or the conviction he faced to think that there were likely to be unsolved offences in the database that he commmitted. So, Michael Long has nothing to complain about in Cohen J’s failure to apply the Charter. But we – the eager consumers of Charter precedents – have been denied a reasoned discussion of whether s464ZFB is compatible with human rights.