Director of Public Prosecutions v Tupper
[2018] VSC 285
•30 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 02468
IN THE MATTER of an Appeal on a Question of Law pursuant
to section 272 Criminal Procedure Act 2009
BETWEEN:
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Robert Baker) | Appellant |
| v | |
| JASON TUPPER | Respondent |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2017 |
DATE OF JUDGMENT: | 30 May 2018 |
CASE MAY BE CITED AS: | DPP v Tupper |
MEDIUM NEUTRAL CITATION: | [2018] VSC 285 |
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JUDICIAL REVIEW AND APPEALS – Appeal pursuant to Criminal Procedure Act 2009, s 272 – Whether magistrate misconstrued the definition of ‘forensic procedure’ in s 464 of the Crimes Act 1958 – Whether a police search of an arrested person involving the removal of the person’s clothing, a ‘strip search’, amounted to an unlawful ‘physical examination of the body’ — Error of law – Appeal allowed – Crimes Act 1958, ss 464, 464R, 464S and 464T.
CRIMINAL PROCEDURE – Police search powers – Consideration of common law power to conduct a ‘safety and evidence’ search – Botton v Winn, Supreme Court of Victoria, Phillips J (unreported) 18 December 1987, considered – Lindley v Rutter [1981] QB 128, considered.
STATUTORY INTERPRETATION — Whether legislation has by implication altered the general common law — Whether enactment of Crimes (Amendment) Act 1993 abrogated the common law power to conduct a ‘safety and evidence’ search.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Carr | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Gurvich QC with Ms G Connelly | Leanne Warren & Associates |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Factual background........................................................................................................................... 1
Magistrate’s decision......................................................................................................................... 4
Relevant statutory provisions.......................................................................................................... 5
Principal arguments........................................................................................................................... 9
What power exists at common law to conduct a ‘safety and evidence’ search?.................... 10
Was the common law search power abrogated by subdivision 30A?.................................... 12
Was it open on the evidence to find the search was a forensic procedure?.......................... 19
Conclusion......................................................................................................................................... 20
HIS HONOUR:
Introduction
A magistrate sitting in the Magistrates’ Court of Victoria at Ringwood on 1 June 2017 dismissed charges of trafficking and possessing heroin contrary to ss 71AC(1) and 73(1) of the Drugs, Poisons and Controlled Substances Act1981[1] brought against the respondent, Jason Tupper. The magistrate had excluded evidence that Mr Tupper was in possession of 7 grams of heroin having found that the search of him which yielded that evidence was unlawful for being in breach of Sub-Division (30A), Division 1, Part III of the Crimes Act 1958.[2]
[1]Drugs, Poisons and Controlled Substances Act 1981 (Vic), (‘the DPCSA’).
[2]Crimes Act 1958 (Vic), (‘the Act’).
The appellant, the Director of Public Prosecutions (Director), now appeals the magistrate’s dismissal of those charges pursuant to s 272(1) of the Criminal Procedure Act 2009,[3] a provision that entitles a party to a criminal proceeding to appeal to a judge of this Court on a question of law from a final order of the Magistrates’ Court.
[3]Criminal Procedure Act 2009 (Vic), (‘the CPA’).
The fundamental issue on the appeal is whether the magistrate misconstrued the definition of ‘forensic procedure’ in s 464 of the Act in holding that the search was such a procedure. There is no dispute that if the search was a ‘forensic procedure’, the police lacked the necessary consent, authorisation or court order for it to be lawful. But the Director contends, instead, that the search was a lawful ‘safety and evidence search’ conducted pursuant to common law power and that the magistrate made a legal error in finding that it fell to be considered under the Act.
Factual background
On 25 October 2016, at around 1pm in the afternoon, police attended Mr Tupper’s residence located in Bayswater, Victoria. The police were acting pursuant to an officer’s written authority which authorised them to search Mr Tupper’s home for stolen goods.
When Mr Tupper answered the door, he was informed of these facts by Detective Sergeant Church. He stated to Detective Church that he had some laptop computers that did not belong to him, and was then placed under arrest for handling stolen goods. Mr Tupper was informed of his rights and was cautioned. He told police that he understood the caution.
Between 2.17 pm and 2.47 pm, police officers conducted a search of Mr Tupper’s premises seizing 16 items. During that period, Mr Tupper was sitting with a police officer on the back steps of the house. At some point, Mr Tupper informed the police officer with him – Senior Constable Wallace – that he needed to urinate. Detective Sergeant Taylor told Mr Tupper that he could relieve himself against the side fence of the property.
Later, at a voir dire in the Magistrates’ Court proceedings, Detective Taylor described what he then observed:
I just noticed he was quite fidgety and he appeared to be adjusting his underpants in an unusual way that just aroused suspicion… I probably thought at that stage he might be trying to conceal drugs but I wasn’t sure at that stage. It certainly aroused suspicion. I remember the accused had trouble going to the toilet. So with that, along with the adjusting himself, it just led to me – basically my suspicion was that he was perhaps trying to conceal something.
Detective Taylor relayed his suspicions to Detective Church, who, having formed the belief that Mr Tupper may have hidden drugs or a weapon in his underwear, contacted Detective Senior Sergeant McFarlane at the Knox CIU and requested permission to conduct a strip search on Mr Tupper ‘so they could make it safe’ to transport him back to that police station. Permission was granted.[4]
[4]It was agreed between the parties that the permission granted by the senior officer at the Knox CIU had no bearing on the lawfulness or otherwise of the search.
Detective Church and Detective Taylor then took Mr Tupper into the master bedroom and searched him. Detective Church’s account to the court was that:
In privacy we conducted a search of him which included the removing of his clothing. At one stage he was requested to squat down and it was at this point that a small blue wrapping, which I believed was electrical tape, fell from his buttock. I said to him, ‘What’s in here?’ and he said, ‘Seven grams of heroin’.
Under questioning, Detective Church elaborated on the circumstances of the search and his state of mind. He agreed that the police were aware that Mr Tupper and a female resident were known users of heroin. He said he believed the common law authorised him to conduct a safety and evidence search, saying:
The accused was under arrest and, therefore, I have a common law power to conduct a safety and evidence search and I had reasonable grounds to believe that he was hiding something in his underwear… It was conducted with a view that he could be safely transported back to a police station.
As to whether he suspected Mr Tupper was concealing a weapon he explained:
I didn’t know what he was trying to – it’s not uncommon for people to secure weapons or razorblades or – I had no idea what it was.
The suspicion [was] that he most likely had drugs on him but the reason why I searched him was because he was going to be transported back to a police station and it was a safety in (sic) evidence in that even if he did have drugs in his possession and he ingested them, then it becomes a real risk to him and members.
Every accused that is arrested at a search warrant will be searched and will be patted down to make sure that there’s no weapons or drugs, but due to his behaviour, that is why a strip search was requested and conducted.
Detective Taylor also gave evidence in relation to the search. He gave this account of the purpose of the search:
So it’s always a consideration of mine when a person is in custody that it’s important for their safety as well, if it is drugs – you know, the fact that they’re in custody might lead them to take these drugs and we’re looking at potential overdoses. That’s for the accused’s safety but also destruction of evidence as well, Your Honour, which is a consideration and also just to ensure that there’s no weapons or razorblades or something that may be concealed which may cause harm, either to themselves or my members who are transporting as well as considerations when they are back to the police station as well.
As to whether he genuinely believed that Mr Tupper was hiding a weapon, he added:
Well, at that stage my first belief is he’s probably got drugs, but I never discount that he may have a weapon, no.
Analysis of the item which fell from Mr Tupper during the search established it contained 6.8 grams of heroin with purity of 76 per cent, more than twice the amount required to constitute a trafficable quantity under the DPCSA.[5]
[5]See column 3 or Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981 (Vic), (‘the DPSCA’).
As a result of the search of his home and his person, Mr Tupper was charged with a number of offences. Relevantly to this appeal, charges 1 and 4 were for trafficking and possessing heroin contrary to ss 71 AC(1) and 73(1) of the DPCSA.
Magistrate’s decision
Proceedings in the Magistrates’ Court at Ringwood were conducted in a hybrid fashion, that is, with the magistrate admitting witness evidence both for the purpose of a voir dire (as to whether the evidence of the discovery of the heroin should be admitted) and for the trial itself. After hearing the evidence and arguments the magistrate excluded the evidence of the heroin and ordered that charges 1 and 4 be dismissed. As already stated, he did so on the basis that the search conducted by police constituted an unlawful ‘forensic procedure’.
His Honour described the search as a ‘strip search’. He considered that the admissibility of evidence about the discovery of the heroin in such circumstances was contentious because:
… on the face of the legislation set out in provisions of Part 3, subdivision 30A of the Crimes Act, and more particularly those which follow from s. 464, a strip search or intimate examination, being different from a pat-down search and more intrusive, may only, in general terms, be carried out with the consent – that is, the informed consent – of the person to be searched or by court order.[6]
[6]Transcript of Proceedings before Mr A McKenna, Magistrate, The Police v Jason Tupper, Magistrates Court Ringwood 29 May 2017 (‘Transcript’); T.263.
After referring to sub-div 30A of the Act, the magistrate concluded that:
… [w]hat was sought was a forensic procedure by way of physical examination of the whole of his body, meaning the areas around his genitalia or rectum or anus…Clear enough, no-one really can argue to the contrary that this was contrary to what was authorised or lawful under the Act.[7]
[7]T264.25–31.
His Honour made relevant findings of fact in the course of his decision which I should mention. His Honour found:
It is clear enough that there was no court order and also that there was no informed consent given by Tupper, although he acquiesced in doing what police asked of him. It came about after he had been observed attempting to urinate beside a fence on his own or near his own premises and seemed to be troubled, fidgety, delaying, moving his hands in an abnormal fashion, perhaps. This was observed by police nearby, who considered a number of possibilities but certainly that he might be concealing something, whether drugs or a weapon or generally something that might be harmful to him or others.
… the strip search which took place … occurred in fairly benign circumstances notwithstanding the intrusive nature of it. That is to say, it was done in a private room and it seems to have been relatively short. No hand was laid on Tupper. He was asked to turn in a fully naked state to expose both his front and back and finally to squat down. It was upon the squatting the package somehow emerged from his person and that contained the heroin.[8]
[8]T263. 19–T264.8.
Relevant statutory provisions
Part III of the Act is headed ‘Procedure and punishment’; Division 1 is headed ‘Pleading procedure, proof &c’; and subdivision 30A is headed ‘Custody and investigation’. Definitions of terms used within the subdivision are found in s 464. The subdivision addresses some general processes when a suspect is in custody as well as specific topics of fingerprinting, forensic procedures, DNA database systems, and inter-jurisdictional enforcement.
The relevant provisions for present purposes fall under the heading ‘Forensic procedures’, commencing with s 464R. This group of provisions, relevantly, provides power to conduct a forensic procedure on an adult who is suspected of committing a crime, including a physical examination. The lawful exercise of the power requires the informed consent of the suspect, an order of a Magistrates’ Court or, in some circumstances, the authorisation of a senior police officer.
There is no dispute that in the present case none of the preconditions for the lawful conduct of a forensic procedure were satisfied.
Section 464R(1) provides:
(1)A police officer may request a suspect to undergo a forensic procedure only if there are reasonable grounds to believe that the procedure would tend to confirm or disprove the involvement of the suspect in the commission of an indictable offence and the suspect—
(a)is suspected on reasonable grounds of having committed the indictable offence; or
(b) has been charged with the indictable offence; or
(c)has been summonsed to answer to a charge for the indictable offence.
The Act defines a ‘forensic procedure’ in s 464, as follows:
forensic procedure means the taking of a sample from any part of the body, whether an intimate or non-intimate sample or any other type of sample, or the conduct of any procedure on or physical examination of the body but does not include the taking of a fingerprint. [emphasis added].
In the same section there is a definition of ‘physical examination’, namely:
physical examination means an examination of the external part of a person's body requiring touching of the person or removal of the person's clothing.
Intimate and non-intimate samples are also defined. Essentially, an intimate sample is a blood sample, a sample of pubic hair, samples taken from the genital or anal region of a male or female or from the breast of a female, saliva, scraping from the mouth or a dental impression. A non-intimate sample, in substance, is a sample taken from the body other than an intimate sample.
Section 464S specifies the information that the suspect who has been invited to consent to a forensic procedure must be given for that consent to be ‘informed consent’. In language likely to be understood by the person, a police officer must inform the suspect of the purpose and nature of the procedure; that the suspect may request that it be conducted in the presence of a medically trained person; the offence which the suspect is suspected to have committed, or with which he or she has been charged; that any evidence obtained may be used in court; that information from any forensic material obtained will be placed on a DNA database; that the suspect may refuse to undergo the procedure, but that if they do, an application may be made in the Magistrates’ Court for an order authorising the conduct of the procedure; and that in the case of an examination for a non-intimate sample, a senior police officer may authorise the procedure if the suspect refuses to consent.
In argument, the Director emphasised the conditions that must exist before a court may order a compulsory forensic procedure. These conditions are set out in s 464T. The Director argued that they were important to the proper construction of the words, ‘physical examination of the body’, appearing in the definition of ‘forensic procedure’. Subsections (1), (2) and (3) provide:
(1) If—
(a)a person refuses to undergo a forensic procedure after being requested to do so or is incapable of giving informed consent by reason of mental impairment; and
(b)the sample or examination sought may be obtained by a compulsory procedure; and
(c)the person is a relevant suspect ; and
(d)a police officer believes on reasonable grounds that the person has committed the offence in respect of which the procedure was requested—
the police officer may apply to the Magistrates' Court for an order directing the person to undergo the compulsory procedure.
(2) An application under subsection (1)—
(a)must be in writing supported by evidence on oath or by affidavit; and
(b)if the person is a detained or protected person, must state that fact and identify the place where the person is held or resides; and
(c)must specify the type of compulsory procedure sought to be conducted.
(3)The Court may make an order directing a person to undergo a compulsory procedure if the Court is satisfied on the balance of probabilities that—
(a) the person is a relevant suspect; and
(b)there are reasonable grounds to believe that the person has committed the offence in respect of which the application is made; and
(c)in the case of an application for a sample other than one referred to in paragraph (d), any of the following applies—
(i)material reasonably believed to be from the body of a person who committed the offence has been found—
(A) at the scene of the offence; or
(B)on the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
(C)on an object or person reasonably believed to have been associated with the commission of the offence; or
(ii)there are reasonable grounds to believe that, because of the nature of the offence or injuries inflicted during the commission of the offence, material from the body or clothing of the victim is present—
(A)on the person who committed the offence or on anything reasonably believed to have been worn or carried by that person when the offence was committed; or
(B)on an object reasonably believed to have been associated with the commission of the offence; or
(iii)the victim of the offence has not been found, and there are reasonable grounds to believe that material reasonably believed to be from the body of the victim is present on a person suspected of having committed the offence; or
(iv)the offence in respect of which the application is made is an offence against a provision of Subdivision (8A), (8B) or (8C) of Division 1 of Part I and there are reasonable grounds to believe that the conduct of the procedure on the person may be relevant in determining the paternity of a child that has been conceived allegedly as a result of the offence; and
(d)in the case of an application to take a sample or washing from the skin to determine the presence of gunshot residue, a firearm was discharged during the commission of the offence; and
(e)in the case of an application to conduct a physical examination, the person who committed the offence had distinguishing marks or injuries, whether acquired during the commission of the offence or otherwise; [emphasis added] and
(f)there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence; and
(g)the person has refused to give consent to a request under section 464R(1) or the person is incapable of giving informed consent by reason of mental impairment; and
(h) in all the circumstances, the making of the order is justified.
Subsections (4) – (10) concern the process for conducting an application which, in substance, involves a short summary procedure before a court in the presence of the suspect. The court is required to give reasons and state the evidence on which it has made its findings.
Of particular importance are the emphasised words in s 464T(3)(e) (my emphasis) concerning the case of an application to conduct a physical examination. I will return to them in due course.
Principal arguments
As noted, the Director argues that the search conducted by the police on this occasion was not a ‘physical examination of the body’ as that expression is to be construed under sub-div 30A of the Act but, rather, a ‘safety and evidence’ search authorised at common law. In response, Mr Tupper’s arguments are three-fold:
(a) First, the common law power to conduct a ‘safety and evidence’ search did not extend to the removal of all an arrested person’s clothing (i.e. ‘a full search’ or ‘a strip search’);
(b) Secondly, in any event, the common law power to conduct a ‘safety and evidence’ search was abrogated by the introduction of sub-div 30A of the Act; and
(c) Thirdly, in the alternative, even if the common law power survived the introduction of sub-div 30A, in the particular circumstances of this case it was open for the magistrate to conclude that the search in question was a forensic procedure.
What power exists at common law to conduct a ‘safety and evidence’ search?
In Botton v Winn,[9] Phillips J (as he then was) considered powers that existed at common law for a police officer to search and seize property from a person under arrest. After surveying a number of authorities, his Honour concluded that those authorities established three principles:
(1)that a police officer has a right to search a prisoner in lawful custody and take possession of property in circumstances where he or she reasonably suspects the property may be connected with a crime committed by the prisoner (and arguably any other crime) or where part of the property is an object which might be used to do injury to the prisoner or others or to effect an escape or cause damage;
(2)a police officer purporting to exercise this right must have regard to all the circumstances of the particular case to ensure its valid exercise;
(3)at least some searches should be preceded by the police officer informing the person to be searched of the reason or reasons for the search.[10]
[9]Supreme Court of Victoria, Phillips J (unreported) 18 December 1987.
[10]Ibid 15(a).
The facts of Botton concerned the forcible removal of a wrist watch from a male person who had been arrested and taken back to the police station. Phillips J referred to a number of English authorities, including Lindley v Rutter,[11] Brazil v Chief Constable of Surrey[12] and Reg v Naylor.[13] Lindley involved the search of a female arrestee by two female police officers who, at the police station, forcibly removed her brassiere during the course of the search. In the particular circumstances of the case, the Court of Appeal held the search was unjustified. In the course of his reasons for judgment, Donaldson LJ (Musthill J agreeing) said:
It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.[14]
[11][1981] QB 128.
[12][1983] 1 WLR 1155.
[13](1979) Crim LR 532.
[14]Ibid 134.
Donaldson LJ went on to consider the relevance of police standing instructions as a matter to be taken into account in considering the scope of appropriate police powers to conduct such a search. After observing that the fruits of general experience may be useful to pass onto officers in the form of standing instructions, his Lordship continued:
But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far as searches are concerned, he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone’s pockets or handbag is less of an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so.[15]
[15]Ibid 135.
Botton v Winn seems not to have been reconsidered since 1987 by any superior court in Australia,[16] and Lindley v Rutter has received little further attention.[17] But, in my view there is no reason to doubt the existence of a common law power enabling police to search a suspect in lawful custody, including one that might involve the removal of some or all of the person’s clothing. This particular power is an incident of the power of arrest itself. As Donaldson LJ explained, the power stems from the duty of police to take reasonable measures to ensure that a person in custody does not harm himself, herself or others, escape, or destroy or dispose of evidence. The shorthand expression ‘safety and evidence search’ captures these purposes.
[16]It was considered and applied in R v Boekman [2011] NSWDC 126 in the New South Wales District Court.
[17]It was explained and applied in the civil context by the UK Court of Appeal in Middleweek v Chief Constable of Merseyside & Anor [1992] 1 AC 179 and cited twice in the New South Wales Court of Appeal, Woodley v Boyd [2001] NSWCA 35 and Pringle v Everingham (2006) 46 MVR 58 [67]. In both of those cases the concentration was on the use of force in making an arrest.
It is not wise to constrain or define how a particular search may or should be carried out, other than by reference to the general principles that have been stated in Lindley and Botton. That is to say, there is no reason to stipulate that such a search can never involve the removal of all items of an arrested person’s clothing, as opposed to only some of them. Some circumstances may require a frisk over external clothing, or the removal of only outer clothing or, I expect in only rare circumstances, the removal of underclothing as well.
In all cases the appropriate balance must be struck between observing a person’s privacy and dignity, on the one hand, and the duty to ensure safety and the preservation of evidence, on the other. But given that the range of possible circumstances in which a search might need to be conducted on an arrested person is impossible to predict and almost limitless, it is inadvisable to impose arbitrary limits which must apply in every case on the specific means by which the safety and evidence search power may be exercised.
Despite the fact that in none of the reported cases has a court approved a search that involved the removal of underclothing, I do not interpret authority as laying down any principle that the common law power of search can never extend to that degree. To the contrary.
Was the common law search power abrogated by subdivision 30A?
It is well established that the task of statutory construction begins and ends with the text of the provision, seen in the light of its context and legislative purpose.[18]
[18]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; Baini v R (2012) 246 CLR 469.
Section 35(a) of the Interpretation of Legislation Act 1984 requires courts to prefer a construction of an Act that promotes the purpose and object underlying the Act over one that would not do so.[19] Relevant considerations for ascertaining that purpose and object include extrinsic materials as listed in s 35(b). Those materials will include explanatory memoranda or other documents laid before Parliament and reports of Royal Commissions, Law Reform Commissioners and similar bodies.
[19]Interpretation of Legislation Act 1984 (Vic).
The case of R v Lavender[20] provides a good illustration of the operation of these principles. In construing s 18 of the Crimes Act 1900 (NSW), a provision defining murder and manslaughter, the majority of the High Court of Australia (comprising Gleeson CJ, McHugh, Gummow and Hayne JJ) began with the text of s 18,[21] widened their view to the immediate statutory context, including the whole of the Act,[22] further widened their vision to the existing common law,[23] and then looked at the history of the legislation, including its earlier iterations and the Parliamentary reports and debates that preceded its introduction into law.[24]
[20](2005) 79 ALJR 1337.
[21]Ibid 1344 [31].
[22]Ibid 1345 [34]-[35].
[23]Ibid 1345 [36].
[24]Ibid, 1346–1347 [41]–[48].
Additionally, there are established principles of construction applicable to any enquiry into whether an enactment has altered the existing common law. This is not a case where legislation arguably alters ‘fundamental rights’ so as to engage ‘the principle of legality’.[25] However, aside from that type of case, in relation to any question whether legislation has by implication altered the general common law the principle to be applied is that an Act is only to be construed as altering the law so far as necessary to give effect to the provisions of the Act.[26] Where two alternative constructions of legislation are open, the one which is consonant with common law is to be preferred.[27]
[25]Cf. Lee v NSW Crime Commission (2013) 302 ALR 363; see also DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed) 5.6.
[26]Thompson v Australian Capital Television Pty Ltd (1994) 54 FCR 513, 526; Comptroller-General of Customs v Kawasaki Motors Pty Ltd [No 2] (1991) 32 FCR 243 (FC) Hill and Heerey JJ, 258.
[27]Balog v Independent Commission Against Corruption (1990) 169 CLR 625, 635–6; see also BIL (NZ Holdings) Limited v Era House Limited (1991) 23 NSWLR 280, 286.
With these principles in mind, for the reasons which follow, in my opinion there is no justification for concluding that the introduction of sub-div 30A, and in particular the provision defining a physical examination of the body as a forensic procedure, abrogated or interfered with the common law power of police to conduct a ‘safety and evidence’ search.
First, there is nothing in the Crimes (Amendment) Act 1993 that expressly indicates any intention to interfere with existing common law powers to search an arrested person.[28]
[28]Crimes (Amendment) Act 1993 (Vic), (‘the 1993 amending Act’).
Secondly, as appears from the following brief summary, the history of the 1993 amending Act indicates that its purpose was to provide the police with new powers of investigation, albeit in tightly controlled circumstances, where previously such powers had been lacking. That is, the legislation added powers; it was not designed to remove powers.
Sections 464R, 464S and 464T which deal with ‘forensic procedure’, together with the definition of ‘physical examination’ in s 464, were inserted into sub-div 30A of the Act by the 1993 amending Act. Prior to that enactment, Parliament had passed three other pieces of legislation effecting related amendments to the principal Act, namely the:
·Crimes (Custody and Investigation) Act 1988;
·Crimes (Fingerprinting) Act 1988; and
·Crimes (Blood Samples) Act 1989.
As explained by the Full Court in Loughnan v Magistrates Court of Victoria,[29] the first three pieces of legislation were enacted to reflect the recommendations of successive reports of the Consultative Committee of Police Powers of Investigation presided over by John Coldrey QC (as his Honour then was). The Coldrey Committee, as it became known, comprised representatives of the State Government, Victoria Police and lawyers. It produced three reports and its recommendations were substantially incorporated into the pieces of legislation I have just listed.
[29](1993) 1 VR 685, 698 (‘Loughnan’).
When commenting on the Coldrey Committee’s three reports and the first three pieces of legislation, the Full Court in Loughnan said:
Obviously enough these three pieces of legislation seek to strike a balance between two competing interests: that which the community has in detecting and investigating of crime and in the efficient gathering of reliable evidence and its presentation in court; and that of the individual in resisting unnecessary harassment and invasion of privacy by State investigative authorities.[30]
[30]Loughnan (1993) 1 VR 685, 689.
The recommendations contained in the Coldrey Committee’s third report, the Report on Body Samples and Examinations (September 1989), found their way into the Crimes (Blood Samples) Act 1989.[31] Recommendations in that same report also underlay the 1993 amending Act which brought into force the sections and definitions identified in paragraph [46] above with which this appeal is concerned.
[31]Crimes (Blood Samples) Act 1989 (Vic), (‘the 1989 amending Act’).
The 1989 amending Act introduced a series of provisions that were the forerunner to the provisions the subject of this case. They were drafted in very similar (if not equivalent) terms. As stated in s 1 of the 1989 amending Act, its purpose was ‘to permit the taking of blood samples by consent or upon the order of a court from persons suspected of committing certain offences’. Section 464S(1), as introduced by that amending Act, empowered members of the police force to obtain blood samples by, first, requesting a suspect to give a sample of his or her blood if reasonable grounds existed to believe that the taking of the sample would tend to confirm or disprove the suspect’s involvement in the commission of an indictable offence. Providing requirements of proof were met, a Magistrates’ Court could order that a blood sample be obtained if consent was not given.
The 1993 amending Act undertook the next stage in the amendment of sub-div 30A. As stated in s 1(a) of that Act, its purpose was:
…to give members of the police force further powers to obtain fingerprints and forensic samples, to conduct forensic examinations and to obtain names and addresses from certain persons.
During the second reading speech on 28 October 1993 Mr McNamara, the Minister for Police and Emergency Services, noted that the 1993 amending Act extended the power under the principal Act to:
…allow compulsory blood samples to be taken, subject to court supervision, to include the full range of samples and examinations recommended by the Coldrey Committee’.[32]
Continuing, the Minister said that the full range of samples and examinations included, amongst other things, ‘physical examination’, explaining:
Where the police are seeking to conduct a physical examination, the court must be satisfied that the person who committed the offence has distinguishing marks or injuries. [emphasis added].
[32]Victoria, Parliamentary Debates, Legislative Assembly, 28 October 1992, 1458 (Patrick McNamara, Minister for Police and Emergency Services).
To understand the genesis for and purpose of a physical examination as a species of ‘forensic procedure’ as it came to be enacted by the 1993 amending Act, it is helpful to go back to the Report on Body Samples and Examinations of September 1989. In its report the Coldrey Committee commenced as follows:
The Committee proposes a scheme for taking samples from or off the body of a person suspected of an indictable offence, which scheme is substantially similar to that set out in the Crimes (Fingerprinting) Act 1988. That is, a model which allows for consensual procedures in the case of adults, but judicial supervision in the event that the suspect refuses to consent to the procedure or is under 17 years of age.
The threshold criteria for the authorisation by a Magistrate of non-consensual procedures would be as with fingerprinting, that there exist reasonable grounds to believe that the suspect in respect of whom the order is sought has committed the offence in question and that the investigation of the crime had brought forward information (eg blood sample at crime scene, evidence of discharge of a firearm or evidence of injury to the offender) such that the procedure proposed would provide information relevant to determining the suspect’s involvement in the crime under investigation.
…
In recognition of the rapidly changing technological environment of forensic investigation, the scheme recommended by the Committee involves authorising specific categories of tests and examinations within the Act itself, and the setting of appropriate procedures by subordinate legislation. Those tests and examinations which would be authorised include:
the conduct of physical examinations to observe injuries such as bruises, cuts, scratches, and distinguishing marks such as tattoos, birth marks (and if appropriate photograph them);
the taking of gunshot residues from external skin surfaces, hair samples, fingernail scrapings, blood samples and, as an alternative to blood sampling, scrapings from inside the mouth.[33] [emphasis added].
[33]Attorney-General’s Consultative Committee on Police Powers of Investigation, Body Samples and Examinations – recommendations (1989) 1.
What is clear from this history, and from the language of ss 464R, 464S and 464T, is that the forensic procedure regime gives police specific investigative tools permitted only when their use may tend to confirm or disprove that a suspect has committed the offence under investigation.
The definition of ‘physical examination’ in s 464 of the Act introduced by the 1993 amending Act does not, in terms, stipulate that the examination of the external part of a person’s body is to be understood as being for the purpose of ascertaining if the body bears distinguishing marks or injuries, and only upon reasonable grounds to believe they may tend to confirm or disprove the suspect’s involvement in the commission of an offence. But, in my view, that is how the text is to be construed. No words are required to be ‘read in’ to the definition to produce that meaning (as the Respondent argues would need to occur). Rather, that construction emerges from having regard to the whole of the subdivision, including s 464T and in particular sub-ss (3)(e) and (f). It is further reinforced by considering the text within the context of its legislative history, including the extrinsic material to which I have just referred.
Thirdly, it follows from these conclusions that the general objectives of the ‘safety and evidence’ search, on the one hand, and forensic procedures, on the other, are quite different. The first is to discharge a duty to ensure personal safety and preserve evidence when taking an individual into lawful custody; the other is an investigative tool to gather evidence that would tend to prove or disprove the commission of a specifically identified offence. From that perspective there is no need to infer that the addition of one was intended to replace the other.
Fourthly, it also follows from the above analysis that the specific purpose of the ‘safety and evidence’ search is different from a ‘physical examination of the body’ (as a species of forensic procedure). That is, the first is to ascertain if there is any object on or about the person, including within or under that person’s clothing; the other is to ascertain if the body itself has any distinctive markings on it. Again, from that perspective there is no need to infer that the addition of one was intended to replace the other.
Fifthly, if the phrase ‘physical examination of the body’ was construed to exclude an examination conducted for the sole purpose of finding out if a person had a concealed weapon or was hiding evidence in or around their body, and the enactment of sub-div 30A abrogated the power to undertake a ‘safety and evidence’ search, then police would be left with no power to ensure the safety of an arrested person, themselves or others or to ensure the preservation of evidence when taking a person into custody. Neither the language of the provisions nor the history of their enactment lends support for such an intention.
Sixthly, and in the alternative to the last point, if the phrase ‘physical examination of the body’ was construed to include an examination conducted for the sole purpose of finding out if a person had a concealed weapon or was hiding evidence in or around their body, it would result in the phrase having two quite different meanings depending on the circumstances in which the examination occurred. In the case of a physical examination of the body being undertaken without informed consent but with a magistrate’s order, the examination could only be done for the purpose of ascertaining distinctive markings on the body itself and, even then, only if those markings would tend to prove or disprove the commission of a specified crime. But, in the case of a physical examination of the body undertaken with informed consent, the theory is that it would not be so confined. That is, it could be undertaken to look for objects that were secreted on the person, untethered from any requirement that those objects might tend to confirm or disprove the commission of a particular crime. It is most unlikely that Parliament intended that the meaning of those words should have such an operation.
Seventhly, if a physical examination of the body, as provided for in sub-div 30A, was intended to subsume and embrace a ‘safety and evidence’ search at common law, then its enactment brought about some other odd consequences. Those consequences include the following:
(a) no such examination would be permitted in the case of a summary offence — one might ask why Parliament intended to so discriminate; and
(b) given the logistical steps that must be carried out to obtain an order of the Magistrates’ Court for a mandatory forensic procedure, absent the informed consent of an arrested person any search ‘in the field’ to ensure that he or she was not secreting a weapon or harbouring evidence under clothing would simply become impractical to undertake.
These consequences would undermine the cohesiveness of the law, and bring about a reduction in police powers in a way that does not have any apparent logical basis — indications that they were unlikely to have been intended.
To end where I began, having regard to these matters and the established presumptions against the alteration of common law doctrine, there is no justification for the conclusion that the introduction of sub-div 30A, and in particular the provision defining a physical examination of the body as a forensic procedure, was intended to abrogate or interfere with the common law power of police to conduct a ‘safety and evidence’ search.
Was it open on the evidence to find the search was a forensic procedure?
For the reasons I have explained, the proper construction of the words ‘physical examination of the body’ as they appear in the definition of ‘forensic procedure’ in the Act, means that such an examination is confined to a search of the body itself for distinguishing marks or injuries that may tend to confirm or disprove a relevant suspect’s involvement in the commission of a nominated offence.
It is clear that the magistrate did not construe sub-div 30A in those terms or apply that construction to evaluate the admissibility of the evidence of what was discovered from the search of Mr Tupper. I should add that I make no criticism of the magistrate for not doing so; his Honour did not have the benefit of the thorough and well researched arguments that have been advanced before me.
There was no evidence before the magistrate that would suggest that Mr Tupper was a ‘relevant suspect’ within the meaning of the subdivision, or that the search was relevant to ascertaining whether Mr Tupper’s body bore distinguishing marks or injuries that might tend to confirm or disprove his involvement in an indictable offence. Hence, it was not open on the evidence for the magistrate to find that the particular search of Mr Tupper which is the subject of this appeal was a ‘forensic procedure’ under the Act.
The search was conducted for an entirely different purpose and its lawfulness fell to be assessed against the scope of the common law power to conduct a ‘safety and evidence’ search at the point of arrest or upon taking a person into police custody. This the magistrate did not do.
Conclusion
The appeal must be allowed. The final order whereby the magistrate dismissed charges 1 and 4 must be set aside. Because the magistrate has not yet determined whether the search of Mr Tupper was lawful, as one purportedly undertaken under the common law power, I will remit the further hearing of charges 1 and 4 back to the magistrate for determination according to law.
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