Fernando v Commissioner of Police

36 NSWLR 567
1995 WL 1689234 (NSWCA)
78 A Crim R 64

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(Decision by: Powell JA.)

Fernando
v Commissioner of Police

Court:

Judges: Priestley JA.
Clarke JA.

Powell JA.

Hearing date: 3 February 1995, 29 March 1995
Judgment date: 29 March 1995

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Decision by:
Powell JA.

As the several judgments which have been written by Priestley JA and Clarke JA make clear, this appeal raises for consideration two questions, they being:

(1)

Whether, upon their true construction, the provisions of s 353A(2) of the Crimes Act 1900 (NSW), in a case such as this is said to be, authorise the taking of samples of blood - or, for that matter, any form of body fluid or tissue - for the purposes of analysis notwithstanding the absence of consent on the part of the person from whom those samples are sought to be taken; and

(2)

In the event that that question be answered in the negative, whether this Court, in the pursuit of an Australia-wide uniformity of approach to statutory provisions in pari materia, should, notwithstanding its own view, adopt the view of the Full Court of the Supreme Court of South Australia in Franklin (1979) 22 SASR 101; 1 A Crim R 1.

One's approach to the first of these questions is, as it seems to me, necessarily, and to a significant degree, affected by two fundamental principles of the common law, they being:

(1)

In the absence of clear statutory, or other lawful, authority, or excuse, no person - whether a prisoner or other detainee, or not - may be required to submit to a medical examination, and still less to undergo any form of medical treatment or to be detained in a hospital for the purposes of any form of medical treatment, without his consent (see, for example, Hallstrom: Ex parte W [1986] 1 QB 1090 at 1104), the corollary of which is, of course, that, in the absence of such authority, or of some excuse recognised by the law, any attempt to carry out such a medical examination, or medical treatment, without the consent of the subject person, constitutes a trespass to the person.

(2)

Although, since - in contrast to the position in the United States - the privilege against self-incrimination is not the subject of constitutional protection, it can be abrogated by statute, it is, and has since the 17th century been, a firmly established rule of the common law, that, in the absence of such a statutory provision, no person can be compelled to incriminate himself. While, in the early stages of its development, the privilege was directed against any requirement to testify as to, or to admit guilt, it was later extended so as to, protect a person - whether an accused person or not - from producing documents which might tend to incriminate him. Although the privilege is generally expressed as being limited to entitle a person to refuse to answer any question, or to produce any document or thing, if to do so might tend to incriminate him (see, for example, Sorby (1983) 152 CLR 281 at 288 per Gibbs CJ) and although there may be found in the cases (see, for example, Sorby at 292 per Gibbs CJ; King v McLellan [1974] VR 773 at 777-778) which suggest that the privilege does not extend to entitling a person (inter alia) to refuse to provide a fingerprint, or to provide a sample of his breath for analysis, it is to be observed that, at least in this country, the requirement to provide fingerprints or to provide a sample of breath for analysis is the subject of statutory enactment and that in Dumbell v Roberts [1944] 1 All ER 326 at 330 Scott LJ observed that, in the absence of consent, the taking of fingerprints "involves a trespass to the person". If, as has recently been said (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 502 per Mason CJ ad Toohey J):

"... the protection afforded by the privilege is now so far reaching that it has been described as protection against being compelled to say anything which 'may tend to bring him into the peril and possibility of being convicted as a criminal' or as protection 'against exposure to conviction for a crime' that is because the privilege protects a person from discovering or revealing information which may lead to the discovery of admissible evidence of guilty not in his or her possession of power"

then it may be, as well, that, in the absence of statutory authority, the privilege against self-incrimination, too, would entitle a person to decline to refuse to provide blood samples for analysis if - as is said to be the object sought to be attained in the present case - the results of that analysis may well provide evidence of the guilt of the person from whom the samples are sought to be taken.

The significance of these fundamental principles in the present case lies in the insistence of the courts - to which reference is made in the passage from the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco (1994) 179 CLR 427 at 437-438; 72 A Crim R 32 at 36 to which Priestley JA has referred in his judgment - that the intention of the legislature to interfere with fundamental rights, freedoms or immunities must be clearly manifested by unmistakable and unambiguous language. It is but a particular application of that insistence to say, as did Lord Diplock in Morris v Beardmore [1981] AC 446 at 455; (1980) 71 Cr App R 256 at 266, that the presumption is that, in the absence of express provision to the contrary, Parliament did not intend to authorise tortious conduct, an observation which is of particular relevance to the present case when it is to be recalled that, when referring to the provisions of the Road Traffic Act 1972 (UK) which authorised compulsory breath testing, his Lordship said:

"... These sections authorise constables to do several things to private individuals which, in the absence of statutory authorisation, would amount to torts actionable in damages at the suit of the person whose common law rights had been infringed and restrainable by a court of justice if the infringement had been threatened but not carried to completion before it was possible to apply for an injunction."

It might also be noted that, in Morris v Beardmore at 463; 273, Lord Scarman observed that:

"When for the detection, prevention or prosecution of crime, Parliament confers upon a constable a power or right which curtails the rights of others, it is to be expected that Parliament intended the curtailment to extend no further than its express authorisation."

While it is true that the requirement for a clear expression of intention does not exclude the possibility that the presumption may be displaced by implication - as, for example, in a case whether the relevant statutory provision would otherwise become inoperative or meaningless - it is to be recalled that in Plenty v Dillon (1991) 171 CLR 635 at 654 Gaudron and McHugh JJ observed that:

"Inconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights."

Given the fundamental principles, and the accepted approach to statutory construction in such cases as this, to which I have referred, it seems to me that unless - which in my view it does not - it were to appear that so to construe the word "examination" would render the provisions of s 353A(2) inoperable or meaningless, the word ought to be construed as permitting no more than an examination by sight or touch and, in particular, that it ought not to be construed as permitting the involuntary taking for analysis of samples of body fluid or body tissues. Far from this being an overly restrictive approach to be taken to the provisions of s 353A(2) it is, I suggest, an approach which draws support from the fact that the provisions of s 353A(3) would indicate it was the view of the legislature - which view, in my opinion, was clearly right - that even the lesser form of assault involved in taking fingerprints required an express authorisation.

I turn, then, to the second of the questions to which I have earlier referred.

I accept that, in matters involving the construction of a Commonwealth statute (Abbrederis [1981] 1 NSWLR 530 at 542; (1981) 3 A Crim R 366 at 378 per Street CJ; Yates (1991) 56 A Crim R 29 at 34 per Priestley JA; Hookham (1993) 31 NSWLR 381; 68 A Crim R 129) or of uniform national legislation (Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485) and even in the case of legislative provisions which are identical in terms, or substantially so (Camden Park Estate Pty Ltd v O'Toole (1969) 72 SR (NSW) 188 - it being noted in this respect, however, that the provisions in question in each case stemmed from the National Security (Landlord and Tenant) Regulations) - it is highly desirable that there be conformity of decision whether throughout Australia or between the States the statutes of which are in question. It is, however, to be observed that, even in the case of Commonwealth legislation or uniform national legislation, it is not said that the pursuit of the objects of uniformity requires this Court to conform to the interpretation placed on such legislation by another Australian intermediate appellate court in the event that this Court is convinced that that interpretation is plainly wrong.

Notwithstanding the respect which one is accustomed to accord to a judgment of the Full Court of the Supreme Court of South Australia, I find myself unable to accept the decision in Franklin as having been correct; on the contrary, as will be apparent from what I have earlier written, I am of the opinion, for the reasons which I have sought to explain, that the decision is clearly wrong.

This being so, I am of the opinion that the appeal should be upheld and that the orders which have been proposed by Priestley JA for the disposition of the appeal should be made.

Appeal allowed