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: (1) S353A(3C) ensures that the place of lawful custody is not limited to a police station. (2) S353A(3C) also extends the scope of s353A beyond lawful custody of the police to lawful custody of "any other authority". This includes the custody of the governor of a correctional centre. (3) The discrimination between persons who have been granted bail, and are no longer in lawful custody (and therefore not susceptible to a forced blood sample), and those for whom bail is refused, does not preclude the section having application according to its terms. Mason P, Handley and Cole JJA The appellant challenges the dismissal of proceedings in which he sought an injunction to restrain the forced taking of a blood sample. He is in custody at the Goulburn Correctional Centre awaiting trial on a charge of murder. At issue is the scope of s353A of the Crimes Act 1900. On 30 August 1995 the appellant was charged by police with the murder the previous evening of a man in a boarding house at Coogee. He has been in custody since that date. He was committed for trial on 3 April 1996. He has declined on several occasions to supply voluntarily a sample of his blood. On 27 May 1997 he was visited by police officers at Goulburn Correctional Centre. They were accompanied by a doctor and a registered nurse and they intimated their intention 2 UNREPORTED JUDGMENTS to obtain a blood sample regardless of consent. The appellant again refused, saying "I want a decision from the Supreme Court before I will give blood voluntarily". There the matter rested until the following day when Hidden J granted an injunction pending the final determination of proceedings which his Honour heard on 25 July and dismissed on 3 September 1997. His Honour held that, provided that the pre-conditions stipulated in s353A are met, the appellant may be subjected to a medical examination, including the taking of samples of blood, saliva or hair, whilst in prison custody. This appeal has been heard with expedition. There is an interim injunction pending its determination. The appellant's trial is currently listed to commence on 4 May 1998. So far as relevant, s353A of the Crimes Act provides: "(1) Where a person is in lawful custody upon a charge of committing a crime or offence: (a) any constable: or (b) where the person in custody is a female and no female constable is available to conduct the search - any female acting under and in accordance with the request of a constable may search the person and take from the person anything found upon that search. (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 such an examination of his person win 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 and 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. (3) When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where he is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including, where the person is or above the age of 14 years, his photograph and finger-prints and palm-prints. (3A) A person authorised by subs(2) to make a medical examination of a person in lawful custody may take samples of the person's blood, saliva and hair. (3B) Evidence concerning the samples may be given only in proceedings concerning the crime or offence in relation to which the samples were taken and the samples must be destroyed as soon as practicable after the conclusion of the proceedings and the exhaustion of any right of appeal concerning the crime or offence. (3C) A reference in this section to lawful custody is a reference to lawful custody of the police or any other authority. If a person is in lawful custody in a place other than a police station, the powers under this section of a constable or an officer of police may be exercised by the person in charge of the place or by another person who is normally supervised by that person. (3D) The consent of the person in lawful custody is not required for the doing of any thing under this section ". WRAWES v THE GOVERNOR OF THE GOULBOURN CORRECTIONAL CENTRE an@ ANOR (Mason P, Handley and Cole JJA) (Mason P, Handley and Cole JJA) In Fernando v Commissioner of Police! Priestley JA discussed the legislative history of s353A, which was first enacted in 1924. In its original form, the section comprised subs(1), subs(2) and subs(3). Subs(2) remains unchanged. Subs(1) and subs(3) have since been amended, but not in any way presently material. It is clear that the section is directed at features of identification which are not discoverable or obtainable except by force or with the co-operation of the person in custody.? Subs(3A), empowering a person undertaking a medical examination under subs(2) to take samples of a suspect's blood, saliva and hair without consent was inserted by Act No 23 of 1995, following the decision of the Court of Appeal in Fernando. Subs(3B), subs(3C) and subs(3D) were added at the same time. Although the privilege against self-incrimination is probably restricted to testimonial incrimination,3 the forced taking of a sample of blood hair or saliva without consent is a trespass for which clear legislative authority would be required.4 The Commissioner of Police (the first respondent having submitted to the orders of the Court, save as to costs) submits that the meaning is plain in the light of the purpose of the section (evidence-gathering), the post-Fernando legislative history, and the language used, particularly in the subsections added in 1995. We agree. The power is available notwithstanding the appellant's present custodial situation. Before addressing the appellant's arguments it is appropriate to record his custodial history since arrest.5 After the appellant's arrest, it was the duty of the police to take him before a justice as soon as practicable to be dealt with according to law.° He was then remanded to prison.? Throughout the whole period following his arrest the appellant's right in respect to bail has been subject to the provisions of the Bail Act 1978. Bail was either not granted or its conditions were not met and he remained in lawful custody. During the time between arrest and committal for trial the appellant would have spent periods in custody at a police station and, in all probability, in a correctional centre. When committed for trial, the appellant was doubtless ordered to be committed to prison.8 S39 of the Correctional Centres Act 1952 provides that while the appellant is detained as an "inmate" in a correctional centre he is deemed to be in the custody of the governor of that centre. The appellant accepts that s353A, as amended after Fernando, would justify the forced taking of a sample of blood during the period after arrest and charge and while a person is in police custody until brought for the first time before a court. (Naturally there must be reasonable grounds for believing that the sample would afford evidence as to the commission of a crime or offence, and the other legislative conditions must be satisfied. We were informed by counsel for the appellant that there is no dispute that reasonable grounds exist for believing that the taking of a sample will afford evidence as to the commission of a crime.) 1. (1995) 36 NSWLR 567 at 569-70; 78 A Crim R 64 at 65-7. 2. Fullerton v Commissioner of Police [1984] 1 NSWLR 159 at 163; McPhail (1988) 36 A Crim R 390 at 398. See now subs(3D). 3. See Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 502. See Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252; Coco v The Queen (1994) 179 CLR 427 at 437-8; Fernando. As to the meaning of "custody", see Eatts v Dawson (1990) 21 FCR 166. Crimes Act 1900, s352; Williams v The Queen (1986) 161 CLR 278. Cf Justices Act 1902, s34. Cf Justices Act 1902, s42(1). a SPAIN 4 UNREPORTED JUDGMENTS However the appellant submits that from the time when he was first brought before a justice, or alternatively from the time when he was committed for trial, he ceased to be "in lawful custody upon a charge of committing any crime or offence" (cf s353A(2)). The appellant develops his argument this way: Subs(2) (as enlarged by subs(3A)) is the critical provision. However, it takes its colour from the section as a whole. Subs(1), which authorises the search of a person and the taking from the person of anything found upon that search, is (by its context) concerned with the initial period of police custody as a charged person in the sense of being the time before the charged person has been brought to court. It is said that there would be little point in conducting a search at any later time. Likewise with subs(3), which enables the taking of particulars deemed necessary for identification. With subs(3) this is reinforced by the express reference to the officer in charge of police "at the station" where the person is in custody. In R v Carr? the Court of Criminal Appeal said this of s353A(3): "Clearly what is envisaged is custody at a police station and not custody in a gaol. It is difficult to ascribe a reason for s353A (1) and (2) both commencing "Where a person is in lawful custody upon a charge' and for (3) commencing as it does when it was introduced in the same legislative breath, but the fact that it deals with custody at a police station clearly indicates that it is temporary custody before trial to which it refers. It is said that he was not fingerprinted for the purpose of his identification, but we doubt whether it is identification to the police, to whom he may have been well known, that is the concern of the section. We think it is identification to the court that matters..." It is then submitted that subs(2) ought to be construed as limited in the same way as subs(1) and subs(3), notwithstanding the absence of express reference to a (police) station in subs(2). This latter argument seeks to draw support from the reference to "any officer of police of or above the rank of sergeant" in subs(2) itself. See also Clarke v Bailey.!0 It was also submitted that the appellant ceased to be "in lawful custody upon a charge" from and after the time when he was first brought before the justice who remanded him to prison pursuant to s34 of the Justices Act. A similar argument is advanced a fortiori in relation to committal to prison pursuant to s42 of that Act following committal for trial. However, counsel could offer no textual, contextual or policy argument supporting this submission. We would reject it. It runs in the teeth of several statutory references to a person being "upon a charge" or "charged" during the period after that person has first been brought before a justice or, indeed, committed for trial: See Crimes Act 1900, s352A(4), s353B, s394(1), s476(1), s480, s556A and Third Schedule; Justices Act 1902, s35(1), s41(1), s51, sl00A(4). Particularly telling are Forms 2 and 3 in the Third Schedule to the Crimes Act. When read with s358 of that Act, they provide for the discharge from custody of a person who has been committed for trial and remanded into prison in a situation where the Attorney General or Director of Public Prosecutions has declined to proceed further upon an indictment. The Forms refer to a person "detained in... custody" (Form 2) or "a prisoner" (Form 3), in each case "upon a charge of" a stated offence. Although s353A is in that portion of Pt10 of the Crimes Act dealing with the apprehension of offenders, it 9. [1972] 1 NSWLR 608 at 610. Special leave was refused: see Carr v The Queen (1973) 127 CLR 662. 10. (1933) 33 SR (NSW) 303 at 310. WRWES v THE GOVERNOR OF THE GOULBOURN CORRECTIONAL CENTRE an@ ANOR (Mason P, Handley and Cole JJA) (Mason P, Handley and Cole JJA) is not possible to use this to confine the language of the section to the period before the first appearance in court. By its terms s353A addresses the time after arrest and charge. It goes well beyond the apprehension or arrest of offenders. We therefore see no basis for reading into the section a proviso that it ceases to apply once the person in custody has been first brought before a justice or, alternatively, committed for trial. The section deals with summary and indictable offences generally. The passage in Carr which has been relied upon by the appellant speaks of temporary custody before trial". Since one of the features of s353A is the provision of evidence for use at trial,!! this argument based on giving the expression "upon a charge" a very temporary application falls away. There is simply no reason for reading into the section words that would limit it to the very short period between arrest/charge and bringing before a justice. The conditions that must be met before a court would read the necessary words into the section!2 are absent. Nevertheless, the collocation of subs(2) and subs(3) and the pre-history of the section (see Fernando!3) would provide some weight to the appellant's construction were it not for subs(3C). As the Attorney General pointed out in his second reading speech, this ensures that the place of "lawful custody" is not limited to a police station.!4 Subs(3C) contemplates explicitly that the person may be in lawful custody "in a place other than a police station ". We see no basis for limiting these words to detention at a watch-house or lock-up!5 as the appellant contended. Clearly a corrective centre is included. The subsection also extends the scope of s353A beyond lawful custody of the police to lawful custody of "any other authority". The governor of a correctional centre is an "authority" .!¢ The 1995 amendments removed subs(2) from the limited gravitational force of subs(3) as interpreted in the dictum we have quoted from Carr. In any event, that dictum reveals that the Court was conscious of a possible tension between subs(1) and subs(2) on the one hand and subs(3) on the other. Carr's case involved fingerprinting, which is addressed in subs(3). It is therefore hardly surprising that the Court expressed itself as it did, given that subs(3) refers expressly to "the officer in charge of police at the station". Subs(2) never had a similar expression.!7 The appellant further contends that his suggested restriction of the period of operation of the expanded s353A to that prior to first appearance in court would avoid a potentially discriminatory impact for the section, which is not lightly to be imputed to Parliament. The discrimination would be between those persons who have been granted police bail (who would be outside the scope of s353A, because they were no longer in lawful custody) and those for whom such bail had been refused. There is no merit in this discrimination argument. Parliament has chosen to confine s353A to persons who are in lawful custody. This means, for example, that none of the powers are available with respect to a 11. "See subs(3B), Carr vy The Queen (1973) 127 CLR 662 at 663; McPhail (1988) 36 A Crim R 390 at 399 400. 12. Bermingham v Corrective Services Commission of New South Wales (1985) 15 NSWLR 292; Newcastle City Council v GIO General Ltd High Court unreported, 2 December 1997, per McHugh J. 13. 36 NSWLR at 575-6, 78 A Crim R 71-2. See also Clarke v Bailey (1933) 33 SR (NSW) 303 at 310. 14. NSW Parliamentary Debates, Legislative Council, 1 June 1995 p541. 15. Cf Justices Act, s34. 16. Cf Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407 at 428-30. 17. Contrast s81(2) of the Police Offences Act 1953 (SA), discussed in The Queen v Franklin (1979) 22 SASR 101. 6 UNREPORTED JUDGMENTS person against whom criminal charges are commenced by summons. Yet the possibility of such "discrimination" does not preclude the section having application according to its terms. In support of an argument that s353A could not reasonably be extended to custody in a correctional centre, counsel for the appellant submitted that it would be inappropriate for the Governor of such a centre to be the person making the decision to request the examination in which a blood sample is taken without consent. It is difficult to see why this should be so. Before the scope of subs(2) was extended by subs(3C) the power to make the necessary request, and the implicit duty to form the belief on reasonable grounds that the examination will afford evidence as to the commission of a crime or offence, rested upon "any officer of police of or above the rank of sergeant". It is inconceivable that the section was only intended for use where the senior police officer had directly-acquired personal knowledge of the circumstances giving rise to the relevant belief. Rather, the purpose behind nominating an officer of or above the rank of sergeant was to ensure there would be a senior officer prepared to take responsibility for the compulsory process: cf Fullerton v Commissioner of Police.18 There is no reason why the governor of a correctional centre cannot perform a similar role. The appellant also submitted that subs(3C) was confined in its operation to subs(3) and that, in consequence, it did not extend the scope of subsection (2). This submission was based upon the reference to "a constable or an officer of police" in subs(3C), and the contrast with the words "officer of police of or above the rank of sergeant" in subs(2). There is nothing in this point. It attributes to Parliament in 1995 the intention of doing everything but reversing Fernando. The contrary was clearly the case. Subs(2) recognises explicitly that a sergeant of police is at the same time an officer of police, so the language of subs(3C) can easily fit subs(2), as the Parliament intended. As Priestley JA demonstrated in Fernando, s353A derives from Sir Samuel Griffith's draft Criminal Code. It has counterparts in other Australian jurisdictions. In this context it is relevant to observe that, in Galvin and McCaulay!9 Muirhead J had no difficulty in extending the concept of lawful custody to custody in prison. We make the following orders: 1. Appeal dismissed with costs. 2. Injunction pending determination of appeal dissolved. 1. Appeal dismissed with costs. 2. Injunction pending determination of appeal dissolved. Counsel for the appellant: J C Papayanni Solicitors for the appellant: Jeffreys & Assoc Counsel for the respondent: M Latham Solicitors for the respondent: I V Knight, Crown Solicitor 18. [1984] 1 NSWLR 159 at 163. 19. (1983) 72 FLR 276 at 282.