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. R v Carr [1972] 1 NSWLR 608 (CCA); McAneny v Kearney; Ex parte Kearney [1966] QdR 306 (FC), referred to. Held: Injunction should issue to preserve the status quo pending the hearing of the appeal with expedition. Crimes Act 1900, s353A(2). Traffic Act 1909, ssAA. ORDERS (1) Order that all police officers in New South Wales, themselves or by their agents, refrain from taking from either appellant without his consent any sample of blood or any other bodily fluid or tissue until the determination of this Court in the appeal against the orders of Dunford J given this day, dismissing the application of the claimants for relief; (2) Order the claimants to file and serve their notice of appeal against the judgment of Dunford J by 4.00 pm this day; (3) Order expedition of the hearing of the appeal, category A, to the intent that the appeal will be heard in the first two weeks of the new Term on a date to be fixed by the Registrar after consultation of the parties; (4) Order written submissions; 2 UNREPORTED JUDGMENTS (5) Reserve the costs of today; (6) Grant liberty to either party to restore the matter to the list, category A, before the Vacation Judge, upon one day's notice to the other party; and (7) Note that the claimants undertake, by their counsel, to give three days' notice to the Commissioner of Police of any application which they may make for bail, pending the determination of these proceedings in the Court. Kirby P These proceedings have come before the Court at short notice on the last day of the current Term. They arise out of a judgment given ex tempore this morning by Dunford J. That judgment in turn arose out of the arrest of Mr Vester Fernando and Mr Brendon Fernando (the claimants). It appears, as the Court has been informed today, that the claimants were arrested last weekend, apparently on very serious charges, including murder. The respondent to the proposed appeal is the Commissioner of Police (the opponent). He appeared today by the Crown Advocate. At first instance, it was suggested that the State of New South Wales should have been joined as a party. However, this was not done, and the State is not a party before this Court. Dunford J dismissed the application. His order will be the subject of an appeal to this Court. The Commissioner, in support of the Crown case against the claimants, wishes to take a blood sample from each of the claimants. The blood sample is presumably required by the Crown to reinforce the case which the Crown will present against the claimants at the committal. It may be inferred that the sample is required for forensic testing, e.g. for DNA purposes. THE CLAIMANTS RESIST THE TAKING OF SAMPLES OF THEIR BLOOD The claimants regard the compulsory extraction of blood as an impermissible invasion of their person and, in principle, a potential form of compulsory self-incrimination to which they should not be submitted without clear authority of law. The alleged source of the power of police to take such a blood sample is said to be s353A of the Crimes Act 1900. That section provides: "353A (2) When a person is in lawful custody upon a charge of committing any crime or offence which is of such a nature and is alleged to have been committed under such circumstances that there are reasonable grounds for believing that an EXAMINATION OF HIS PERSON will afford evidence as to the commission of the crime or offence, any legally qualified medical practitioner acting at the request of any officer of police of or above the rank of sergeant, and any person acting in good faith in his aid under his direction, may make SUCH AN EXAMINATION OF THE PERSON so in custody as is reasonable in order to ascertain the facts which may afford such evidence." (emphasis added) The short question which Dunford J was called upon to answer was whether n "examination of the person", as provided in the subsection, extends to the unconsensual taking of a body sample, namely, a blood sample. Dunford J held that it did. The claimants say that Dunford J has erred in his decision and that an "examination of the person" is limited to an external examination. It does not, so they submit, involve the invasion of the body of the person. Such a construction, it was argued, would be contrary to the approach of the courts in Australia and elsewhere to legislation involving invasion of the person of the subject. Cf Australian Law Reform Commission, Alcohol, Drugs and Driving (ALRC 4) AGPS, Canberra 1976, 130 (para306). WESTER FERNANDO v COMMISSIONER OF POLICE; BRENDON FERNANDO 3 COMMISSIONER OF POLICE (Kirby P) This Court has not had the advantage of a copy of Dunford J's reasons. Those reasons will not be transcribed until next week. The proceedings before the Court today have been conducted with a high measure of informality. The Court has been asked to act, in part, upon statements made from the Bar table. However, this is an appropriate course given the day, the urgency and the interlocutory character of the proceedings. The issue which the claimants wish to raise in their proposed appeal to this Court is clearly arguable. Upon the argument of the claimants, the words of the section would be given the narrow meaning out of respect for ie bodily integrity and basic human rights of the appellants. Express provisions in another statute of this State provide for the taking of body samples. However, such provisions do so with the express authority of Parliament for limited and defined purposes and in clear terms. See Traffic Act 1909, ssAA (Samples for detecting drugs). $353A was inserted in the Crimes Act in 1924. It, and its interstate analogues, have hitherto been given a rather strict interpretation. See eg R v Carr [1972] 1 NSWLR 608 (CCA) 610 (s353A(3)); McAneny v Kearney; Ex parte Kearney [1966] QdR 306 (FC), 311f. There being, therefore, a distinctly arguable point for an appeal, the question is whether the balance of convenience supports the provision of relief which the claimants seek, forbidding the extraction of blood samples until February 1995 when the Court, after the Vacation, will be able to return to the case. It was common ground that, for the purpose for which the samples were required, there would be no relevant alteration in the quality and character of the claimants' blood between now and February 1995. For the Commissioner of Police, the Crown Advocate raised the concern that the claimants, although they are presently in lawful custody, may be given bail. A suggestion was made that a delay in the provision of bail, in order to protect the process in this Court, might not be proper. To meet this concern the claimants are prepared to give three days' notice of any application for bail. This is proper notice. It would allow the Commissioner, if necessary, to have the proceedings (and if necessary the appeal) listed for hearing in Vacation for further orders. It was also said that the police are continuing their investigations for which, it was suggested, the analysis of the blood samples could be useful. I do not believe that any material that is before this Court demonstrates that the further investigations, if they did extend to the provision of blood samples, would be kept out of the case of the Crown against the claimants if such samples were not available until after February 1995. It was also suggested, rather gently, by the Crown Advocate, that the samples could be taken and preserved until the new Term pending the orders of the Court as to their use. This would not be an appropriate course. The whole point of the proposed appeal and of this motion, is to prevent the invasion of the claimants' person which the claimants say is not lawful. This Court has dealt with the matter upon the basis of statements from the Bar table. It has not had placed before it the evidence given at the primary hearing or any fresh evidence. But there is no reason for the Court to withhold relief as there is no reason for the Court to doubt what has been said. The Court has been told by both parties that it has jurisdiction to give the relief asked. It was common ground that jurisdiction does not reside in the Court of Criminal Appeal or elsewhere. The Court will assume that this is the case. The orders which I therefore propose are: 4 UNREPORTED JUDGMENTS (1) Order that all police officers in New South Wales, themselves or by their agents, refrain from taking from either appellant without his consent any sample of blood or any other bodily fluid or tissue until the determination of this Court in the appeal against the orders of Dunford J given this day, dismissing the application of the claimants for relief; (2) Order the claimants to file and serve their notice of appeal against the judgment of Dunford J by 4.00pm this day; (3) Order expedition of the hearing of the appeal, category A, to the intent that the appeal will be heard in the first two weeks of the new Term on a date to be fixed by the Registrar after consultation of the parties; (4) Order written submissions; (5) Reserve the costs of today; (6) Grant liberty to either party to restore the matter to the list, category A, before the Vacation Judge, upon one day's notice to the other party; and (7) Note that the claimants undertake, by their counsel, to give three days' notice to the Commissioner of Police of any application which they may make for bail, pending the determination of these proceedings in the Court. Mahoney JA I agree. Sheller JA I agree. Kirby P: They, therefore, are the orders of the Court. (1) Order that all police officers in New South Wales, themselves or by their agents, refrain from taking from either appellant without his consent any sample of blood or any other bodily fluid or tissue until the determination of this Court in the appeal against the orders of Dunford J given this day, dismissing the application of the claimants for relief; (2) Order the claimants to file and serve their notice of appeal against the judgment of Dunford J by 4.00 pm this day; (3) Order expedition of the hearing of the appeal, category A, to the intent that the appeal will be heard in the first two weeks of the new Term on a date to be fixed by the Registrar after consultation of the parties; (4) Order written submissions; (5) Reserve the costs of today; (6) Grant liberty to either party to restore the matter to the list, category A, before the Vacation Judge, upon one day's notice to the other party; and (7) Note that the claimants undertake, by their counsel, to give three days' notice to the Commissioner of Police of any application which they may make for bail, pending the determination of these proceedings in the Court. Counsel for the Claimants: T Molomby / AR Moses Instructed by: Aboriginal Legal Service Counsel for the Opponent: RN Howie QC, Crown Advocate Instructed by: IV Knight (State Crown Solicitor)