Dickson v The Commissioner of Police

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

011212/99 - MICHAEL DAVID DICKSON v THE COMMISSIONER OF POLICE

JUDGMENT 1 HER HONOUR: By these proceedings the plaintiff claims a declaration that the defendant, his servants and agents, have no power to require a person charged with an offence to submit to having physical measurements of their body taken. Further, the plaintiff claims an order that the defendant, his servants and agents, be prohibited from requiring the plaintiff to submit to the taking of measurements by a medical practitioner or any other person acting on behalf of the defendant. 2 The plaintiff is a remand prisoner currently being held in custody at the Metropolitan Remand and Reception Centre, Silverwater. On 29 March 1999 he was charged with the commission of an armed robbery offence at the ANZ Bank, Crown Street Wollongong on 1 October 1998. 3 The robbery is being investigated by officers attached to Task Force Mega. In the course of their investigations police attached to the Task Force obtained advice from Dr Richard Smith, of the Faculty of Health Sciences, Cumberland Campus, Sydney University. Dr Smith specialises in the study of biomechanics. It is proposed to have Dr Smith study a video film showing the robber and comment on any similarity between the person depicted therein and the plaintiff. Professor Smith needs to compare measurements of the plaintiff's limbs with his observations of the person depicted in the video in order to form an opinion. 4 The investigating police wish to arrange for an examination of the plaintiff to be carried out by a medical practitioner. It is proposed that the medical practitioner take measurements of the plaintiff's limbs and/or other physical features. The measurements need to be made on a bare segment. Any obstruction such as clothing would need to be adjusted in order to permit the medical practitioner access to the plaintiff's joints at each end of the segment of the limb and to allow a tape measure to be placed against the segment. The practitioner would then palpate the joint to locate a known anatomical landmark and place a water soluble ink dot at that point. The process would be repeated at the other end of the limb segment. The distance between the dot points would be measured. It is possible to conduct the examination without the need for placing marks on the body of the plaintiff, although the latter would make the measurements more precise. 5 The power to conduct such an examination is said to be found in s 353A of the Crimes Act 1900. 6 Section 353A(2) is in these terms: "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 or her 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 or her aid and under his or her 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."

7 Section 353A was inserted in the Crimes Act by Act No. 10 of 1924 (Crimes Act Amendment Act 1924, s 13). A number of subsections have been added to s 353A since that time. Subsection 2 has remained unchanged (save for the inclusion of words to make it non gender specific) since 1924. This provision was examined by the Court in Fernando v Commissioner of Police (1995) 36 NSWLR 567. In that case the majority held that the terms of the section did not authorise the drawing of blood from the body of a person in lawful custody. Priestley JA observed (at 572): "Considering merely the words of s 353A when enacted in 1924, my opinion would be that an examination of the person of someone in custody as permitted by subsection (2) would permit an external examination involving an examination by eye and touch." 8 Mr Craddock, who appeared for the plaintiff, submitted that the examination permitted by the subsection is confined to a medical examination. It is to be observed that the section is not, in terms, so limited. 9 Mr Craddock submitted that what was proposed in this case was the use of a medical practitioner to meet one of the requirements of the subsection. However the examination, so it was submitted, must be as to matters upon which a medical practitioner relying on his or her specialised skill and knowledge is able to express a medical opinion. 10 The construction for which the plaintiff contends would produce arbitrary results. In a case charging a sexual offence where the appearance of the offender's genitalia was of relevance, the section would authorise an examination to determine the presence or absence of genital warts but not a distinctive tattoo or birthmark. 11 In Fernando the majority declined to follow the decision of the South Australian court in R v Franklin (1979) 22 SASR 101, a case which was concerned with the interpretation of a similar provision in the Summary Offences Act 1953 (SA). Wells J in the latter case held that because a medical practitioner is the person nominated to carry out the examination it is implied that the scope of the examination is such that a medical practitioner might carry it out in the ordinary course of medical practice. From this it flowed that the taking of blood samples was embraced by "the examination" authorised by the section. In analysing the reasoning of Wells J in this regard Priestley JA in Fernando observed: "it seems to me, with respect, to be a mistake to equate an examination by a medical practitioner for the purpose of obtaining evidence with a medical examination for the purpose of diagnosis" (emphasis added, at pp.580/1).

I do not read the judgements in Fernando as lending any support to the plaintiff's contention. 12 The defendant referred me to the more recent decision of the South Australian Court of Criminal Appeal in R v Dyson (1997) 92 A Crim R 233. In that case the appellant sought to argue, in the light of Fernando, that Franklin had been wrongly decided. In view of the fact that there were conflicting decisions in South Australia and News South Wales a bench of five judges was convened to hear Dyson. In the result, the South Australian court held that Franklin had been rightly decided and that the authorisation of the "examination" extended to the taking of samples of blood from the body of a person held in lawful custody. Thus there exists a division of opinion on a provision said to be in substantially similar terms as between the South Australian court and this court. Naturally I am bound by the decision of this court. 13 There are passages in the judgments in Dyson which bear on the issue raised by the plaintiff in the present proceedings (and which were not addressed, in terms, in Fernando). Doyle CJ observed of the South Australian provision: "The context in which the word is used is that of a provision for the obtaining of evidence of the commission of an offence. The provision enables the examination of a person to that end … A legally qualified medical practitioner is the obvious person to perform such an examination. The skills of such a person and the intrusion upon privacy which is involved makes such a choice appropriate. But it remains an examination with a view to the obtaining of evidence." (at p.238)

14 Mr Craddock submitted that Priestley JA, in the passage quoted in paragraph 11 above, was not to be taken to be asserting that the examination conducted for the purpose of obtaining evidence was other than a medical examination. As to the passages in Dyson bearing on this issue, he submitted that they provide no assistance in resolving the proper construction of s 353A(2) of the Crimes Act since s 81 of the Police Offences Act (SA) is in relevantly different terms. I note both the New South Wales Court and the South Australian Court have approached the two sections upon the basis that they are in similar terms. Priestley JA in Fernando referred to them as being "in substantially identical words" (at p. 575). 15 Mr Craddock draws attention to the circumstance that the New South Wales provision includes the qualifying words "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 or her person will afford evidence as to the commission of the crime or offence". The examination permitted by the section is to be undertaken because the crime is of such a nature and committed under such circumstances that an examination may afford evidence as to the crime. The examination is to be carried out by a medical practitioner. Thus, it is contended, the subsection is concerned with cases where the nature of the offence and the circumstances of its commission are such that a medical examination might afford evidence. 16 In the course of submissions Mr Craddock conceded that the words "offence which is of such a nature" must, depending on the circumstances, extend to any offence. So in respect of the investigation of any category of offence where it is said the offender sustained a gunshot wound the subsection would permit an examination by a medical practitioner. 17 I do not consider the presence of the words "offence which is of such a nature and is alleged to have been committed under such circumstances" relevantly distinguish s 353A(2) from its South Australian equivalent. I consider the observations of Doyle CJ, set out in paragraph 12 above, to the extent that they are not inconsistent with the decision of the Court in Fernando may be of assistance in resolving the issues raised by the plaintiff in these proceedings. I respectfully adopt his Honour's observations that the reason for requiring the examination be carried out by a medical practitioner might be thought to derive from considerations of privacy but that the examination remains one which may afford evidence of the commission of the offence. 18 Mr Craddock sought to call in aid of his construction of s 353A(2) the terms of the section's heading which reads; "Power to search, make medical examination, take photograph, fingerprints etc". It was accepted that the heading does not form part of the Act. However, relying on s 34 of the Interpretation Act 1987, Mr Craddock submitted that I may have regard to the words "medical examination" as they appear in the heading to resolve any ambiguity raised by the terms of the subsection. To my mind there is no ambiguity in s 353A(2). I consider the terms of the subsection make plain that the examination of the person to be carried out by a legally qualified medical practitioner is an examination to ascertain facts which may afford evidence as to the commission of the crime with which the person is charged. I see no warrant for qualifying the examination authorised as a "medical examination". 19 The subsection authorises an infringement of fundamental rights (the privilege against self incrimination and the right not to be assaulted) and must be read restrictively. Giving full weight to that principle of construction does not justify reading into the provision a qualification that does not appear.

20 The examination which the defendant seeks to carry out is to be conducted by Dr Sue Jennings, Police Forensic Medical Officer. It is proposed that she might place water soluble ink dots on various anatomical landmarks on the plaintiff's body in the course of that examination. I consider this aspect of the proposed examination goes beyond the examination by eye and touch contemplated by the majority in Fernando. 21 The terms of the subsection do not in my view clearly express either directly or by necessary implication an unambiguous and unmistakable intention to authorise the marking of the person's body in any fashion during the examination; see Fernando and the references therein to Coco v the Queen (1994) 179 CLR 427. I do not consider that the examination authorised by s 353A(2) extends to the placing of water soluble ink dots on the person of the plaintiff. 22 For these reasons I decline to grant the relief the plaintiff claims by his Summons. I propose to declare that the examination authorised by s 353A(2) does not extend to the placing of water soluble ink dots on the body of the plaintiff. I do not see the necessity for making an order prohibiting the defendant from conducting an examination of the plaintiff by way of placing marks on his body. In the way the matter was developed before me I apprehend that, in the light of the view I take, the defendant will arrange for an examination which does not involve the use of the ink dot procedure. If there is any difficulty in this respect I would entertain a further application by the plaintiff. 23 The plaintiff has had some success by his proceedings. In the circumstances I consider it is appropriate that I make no order as to costs. 24 I declare that the examination authorised by s 353A(2) of the Crimes Act 1900 (NSW) does not extend to the placing of water soluble ink, or other markings, on the body of the plaintiff.

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