Donohoe v Director of Public Prosecutions for the State of Western Australia

The High Court of Australia considered an appeal by Mr Donohoe against the Director of Public Prosecutions for the State of Western Australia. The dispute concerned the validity of a notice issued under s 139 of the *Criminal Investigation Act 2006* (WA) (the Act) requiring Mr Donohoe to provide a sample of his DNA. Mr Donohoe had been charged with a serious indictable offence.

The central legal issue before the High Court was whether the notice issued under s 139 of the Act was invalid because it was issued by a police officer who was not authorised to do so under the relevant provisions of the Act. Specifically, the Court had to determine whether the officer who issued the notice had the requisite authority, and if not, whether this rendered the notice a nullity.

The Court analysed the scheme of the *Criminal Investigation Act 2006* (WA), particularly ss 138 and 139, which govern the issuing of notices for the collection of DNA samples. It was held that s 138(1) of the Act confers the power to issue such notices on a "senior police officer". The Court found that the officer who issued the notice in this instance did not satisfy the definition of a "senior police officer" as stipulated in the Act. Consequently, the notice was issued without lawful authority, rendering it invalid and of no legal effect. The Court applied the principle that a statutory power must be exercised by the person or body to whom it is expressly granted, and any purported exercise of that power by an unauthorised person will be ineffective.

The High Court allowed the appeal and ordered that the notice issued under s 139 of the *Criminal Investigation Act 2006* (WA) be quashed.