HAWES v THE GOVERNOR OF THE GOULBOURN CORRECTIONAL CENTRE and ANOR [1997] NSWCA 140

HAWES v THE GOVERNOR OF THE GOULBOURN CORRECTIONAL CENTRE and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, HANDLEY and COLE JJA 12 December 1997, 18 December 1997 [1997] NSWCA 140

Blood samples — persons imprisoned awaiting trial following committal for trial — whether in "lawful custody upon a charge" — s353A Crimes Act 1900

In 1995 the appellant was charged by police with the murder of a man in a boarding house in Coogee. He has been in custody since that date. On 27 May 1996 police officers attended Goulbourn Correctional Centre in order to have a doctor and a registered nurse take a blood sample, regardless of the appellant's consent. The appellant refused and proceedings were instituted in the Supreme Court by way of summons.

The appellant challenges Hidden J's refusal to order an injunction restraining the forced taking of a blood sample. At issue is the scope of s353A of the Crimes Act 1900.

$353A(2) provides that when a person is in lawful custody upon a charge of committing any crime or offence and ere are reasonable grounds for believing that an examination will afford evidence as to the commission of the crime or offence, then a legally qualified medical practitioner may make an

examination. The section was amended after Fernando v Commissioner of Police (1995) 36 NSWLR 567. S353A(3A) provides that samples of a person's blood, saliva and hair may be taken. S353A(3C) defines lawful custody as meaning lawful custody of the police or any other authority. Similarly, the place of lawful custody includes a place other than a police station.

The appellant asserted that from the time he was brought before a justice or committed for trial, he ceased to be "in lawful custody upon a charge of recommitting any crime or offence" within the meaning of s353A(2).

Held; Appeal dismissed: