Charara v Commissioner of Police

The appeal concerned the lawfulness of a hair sample taken from the appellant, who was a serious indictable offender in periodic detention. The police officer who performed the procedure purported to act under an order made pursuant to section 70 of the *Crimes (Forensic Procedures) Act*. The appellant argued that the taking of the hair sample was unlawful, and sought declarations that the taking was unlawful and that the sample and derived information be destroyed. The appeal was brought from a decision of an Associate Justice.

The central legal issues before the Court of Appeal were the proper construction of various provisions of the *Crimes (Forensic Procedures) Act*, including sections 70, 62(1), 74(3), and 71, to determine whether the taking of the hair sample was lawful. Specifically, the court had to consider whether section 70(1)(c) or 70(2)(c) applied, whether a failure to comply with section 71 occurred because a court order under section 74(3) could have been sought, and the relevance of the privilege against self-incrimination and the right to natural justice. The court also considered whether compliance with section 73 was a precondition for a section 70 order and, if the taking was unlawful, whether the Act mandated the destruction of the sample and derived information. Finally, the court addressed the procedural issue of whether an appeal from a final decision of an Associate Justice lay to a single judge or the Court of Appeal, and the appropriateness of an indemnity costs order.

The Court of Appeal held that the Act provided specific remedies for breaches of its provisions, and that destruction of a sample or information was only mandated if a court found the evidence inadmissible, which had not occurred. The court found that the appellant had not established that relevant matters were not taken into account as required by section 71, and that the legislation did not imply that a court order under section 74 was a prerequisite for a section 70 order, nor that a police officer should only make a section 70 order if obtaining a court order was impracticable. The court also determined that an appeal from the Associate Justice's final decision lay to the Court of Appeal, not a single judge.

Consequently, the Court of Appeal set aside the order for indemnity costs made by Latham J and substituted an order for ordinary costs. The appeal was otherwise dismissed, with the appellant ordered to pay 95% of the respondent's costs of the appeal proceedings, including the application for leave to appeal.