By FARRAH JOHNSON
Tribune Staff Reporter
fjohnson@tribunemedia.net
THE Court of Appeal yesterday dismissed the applications of two men who attempted to appeal two judicial rulings that gave police permission to have medical practitioners draw blood samples from them to aid officers in their investigation into an incest case.
According to two judgements, the men, who are relatives, are both suspects in a police investigation involving incest where DNA samples are required to verify or negate their involvement in the alleged offence.
In an effort to further their investigations, police secured permission from a magistrate to have a physician take an “intimate sample” from Man 1 without his consent. He filed for constitutional relief in the Supreme Court from the magistrate’s order but was denied. He recently appealed that decision on the grounds that the judge erred when she ruled that order did not violate his constitutional rights.
Likewise, a magistrate also gave officers the authority to get a DNA sample from Man 2 without his permission. He also appealed that decision after arguing that the “evidence was wrongly considered by the learned magistrate”.
On Monday, Justices Jon Isaacs, Maureen Crane-Scott and Roy Jones dismissed both applications and affirmed both the judge and magistrate’s rulings, after concluding that there were instances when an individual’s rights had to “give way to the more overarching objective” of protecting society at large.
In their judgement regarding Man 1’s appeal, the panel noted that in June of last year, the woman alleging the offence told police her father’s brother had sexual intercourse with her when she was just 15 years old. The complainant, who is now 38, further alleged that a child was born from the incest.
“Pursuant to Section 34 of the Police Act (the Commissioner of Police) sought an authorisation to obtain a blood sample from the applicant,” the court documents read.
“Magistrate Kara Turnquest-Deveaux on the same date granted an authorisation being satisfied that there were reasonable grounds for suspecting that the applicant had been involved in the offence of incest...and that a sample would confirm or disprove (Man 1) in relation to the same.”
That same day, officers went to Man 1’s home and informed him that he would have to go to the local clinic the next day to have his blood extracted so that it could be used in a DNA test to determine whether he was the father of his niece’s child.
However, he “never met the police that day, nor did he have the blood sample extracted”. Instead, nearly two weeks after the matter was initially reported, he filed an originating notice of motion for relief in the Supreme Court.
In their judgement of Man 1’s appeal, the justices said that he failed to demonstrate that Section 34 of the Police Force Act could not be “reasonably justified” in a nation built on democracy.
“It is not competent for a justice of the Supreme Court to injunct the police from investigating allegations of crime without the clearest evidence that such actions by the police have involved egregious behaviour that violates not only their codes of conduct, but the consciousness of all right-minded persons in the society,” they stated.
“...The present challenge amounts to no more than the appellant complaining about a statutory power being exercised by the magistrate but without raising any justiciable issue about the constitutionality of Section 34 itself.”
In Man 2’s case, the panel also ruled that there was nothing to suggest that the magistrate had “wrongly considered” the evidence the police presented to her.
“Nor can what is stated by the magistrate, that is, the appellant is suspected of committing the offence of incest with his niece, be insufficient to support the magistrate harbouring a reasonable suspicion that the appellant is involved in the offence,” they furthered.
They ruled: “In the circumstances of this case, the decision of the magistrate is both reasonable and supportable”.
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