VESTER FERNANDO v THE COMMISSIONER OF POLICE; BRENDON FERNANDO v THE COMMISSIONER OF POLICE [1994] NSWCA 96

VESTER FERNANDO v COMMISSIONER OF POLICE; BRENDON FERNANDO v COMMISSIONER OF POLICE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and SHELLER JJA 16 December 1994, 16 December 1994 [1994] NSWCA 96

CRIMINAL LAW AND PROCEDURE — taking of blood and body samples — accused refused consent — police contend s353A(2) Crimes Act 1900 provides authority — whether taking sample is "examination of person" of accused — held: Arguable point that it is not — balance of convenience — provision of injunction until early hearing of appeal. INJUNCTION — criminal proceeding — balance of convenience — arguable point — injunction granted — appeal expedited WORDS AND PHRASES — "examination of his person".

CRIMINAL LAW AND PROCEDURE — taking of blood sample and other body sample — accused on charges of murder refuse consent — police assert power under Crimes Act 1900, s353A — section permits "examination of the person" of an accused in custody — whether such power extends to permit non-consensual taking of blood or other body sample — primary judge (Dunford J) holds that it does — accused notify intention to appeal — seek injunction against police to restrain taking of blood or body sample

INJUNCTION — criminal proceedings — application by police to take body or blood sample from accused — accused refuse consent — primary judge (Dunford J) upholds power under s353A Crimes Act 1900 — notification of intention to appeal

WORDS AND PHRASES — "examination of his person"

Held (by the Court):

(1) It was arguable that "examination of the person" in s353A(2) Crimes Act 1900 did not extend to taking a blood or body sample from an accused person without consent;

(2) The balance of convenience favoured the provision of the injunction until the Court of Appeal could hear the appeal with expedition.