The Queen v Dencle Barnes - Application to exclude DNA evidence - Ruling

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¶ [11] the exhibit as my exhibit with rej#-KR3/DB. I subsequently handed over to SPC Mark Miller at the George Town Police Station, exhibits KRJIMC, KR2/DB and KR3/DB for safekeeping. " Counsel referred the court to the provisions of the Police Act (2021 Revision) which creates different rules for the taking of intimate and non-intimate samples. The definition of non-intimate samples includes 'a swab taken from any part of a person's body other than a part from which a swab taken would be an intimate sample'. There is no issue on this application that the swab taken from the defendant in 201 7 was a non-intimate sample Counsel submitted that the provisions of Section 3 7 of the Police Act were therefore applicable: "SECTION 37 (1) Except as provided by this section, a non-intimate sample may not be taken from a person without the appropriate consent. (2) Where a person gives consent to the taking of a non-intimate sample that consent shall be in writing. " Section 37 goes on to describe all the scenarios in which a sample may be taken without w1itten consent, and the conditions that must be satisfied. Subsection 14 then reads: "(14) If a non-intimate sample is taken from a person at a police station, whether with or without the appropriate consent - (a) before the sample is taken, a police officer shall inform that person that it may be the subject of a random search; and (b) the fact that the person has been informed of this possibility shall be recorded by a police officer as soon as practicable after the sample has been taken. " Counsel for the defendant submitted that the prosecution had failed to satisfy the provisions in the subsections 2 and 14, the burden being on the prosecution to do so beyond reasonable doubt. He invited the court to exercise its discretion under section 40 of the Evidence Act (2021 Revision), to exclude the DNA evidence 220512 The Queen v Dencle Barnes -Application to exclude DNA evidence-Ruling Page 3 of 12