Dyson v The Queen
[1998] HCATrans 65
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A39 of 1997
B e t w e e n -
MICHAEL NEIL DYSON
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
BRENNAN CJ
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
FROM ADELAIDE BY VIDEO LINK TO CANBERRA
ON THURSDAY, 12 MARCH 1998, AT 9.37 AM
Copyright in the High Court of Australia
MR G.F. BARRETT, QC: May it please the Court, I appear for the applicant with my learned friend, MR R. LEMPENS. (instructed by
Camatta Lempens Pty Ltd)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear for the respondent with my learned friend, MS C.A. JUTTNER. (instructed by the Director of Public Prosecutions (South Australia))
BRENNAN CJ: Yes. Yes, Mr Barrett.
MR BARRETT: If the Court pleases. The applicant contends that the South Australian Court of Criminal Appeal has approached the interpretation of section 81(2) of our Summary Offences Act in an erroneous way, one which fails to reflect the high regard this Court has required States to pay to fundamental rights, freedoms and immunities, when interpreting legislation purporting to abrogate them, and in doing so it has rejected the reasoning of the New South Wales Court of Appeal in part, because the South Australian legislature has seen fit to expressly permit force to be used to compel submission to a medical examination, whereas in New South Wales legislation had not done so.
BRENNAN CJ: But is it not right to say that the South Australian court followed the earlier decision of that court in Franklin’s Case?
MR BARRETT: That is correct, with respect.
BRENNAN CJ: Franklin’s Case was brought on special leave to appeal to this Court and a Bench of five entertained the application and special leave was refused.
MR BARRETT: Yes.
BRENNAN CJ: Why should the same question now command a grant of special leave?
MR BARRETT: Partly because the High Court has expressed in more vigorous terms, if I may put it that way, the need to look for unambiguous words when fundamental rights are going to be abrogated.
BRENNAN CJ: That was a principle that was well established at the time of Franklin’s Case.
MR BARRETT: Well, may I suggest that the High Court has spoken in more recent years, more forcefully, in that regard. But, in any event, in my submission, the court did not have the benefit of other arguments that had found favour around the country. The New South Wales Court of Appeal was very detailed in its reasons for finding, at least by majority, that Franklin had been wrongly decided. The arguments, in my submission, that were followed by our Court of Criminal Appeal in this case, are flawed, and they strain the language that was used by the legislature. What the Court of Criminal Appeal has done here, in my submission, is to call in aid the express permission to use force to support a wider interpretation of the word “examination” than, in our submission, the words permit.
His Honour Justice Bollen of our Court of Criminal Appeal specifically distinguished Fernando on that basis. The decision has held that where Parliament has displaced the presumption against abrogating a fundamental right, then the presumption has no more work to do. It cannot, as we argue, be used to restrict the meaning of an ambiguously express power - in this case, the word “examination”.
Can I take the Court very quickly to the reasons of his Honour the Chief Justice at page 15 of our application book at the bottom:
In my opinion, Parliament having authorised an examination, using force if necessary, which is a clear infringement of the common law right to decline such an examination, there is no particular reason in principle why the scope of the examination authorised should be restricted in the manner proposed. While the taking of bodily specimens may be both invasive and intrusive, once one concludes, as one must, that Parliament has seen fit to authorise an examination of the person, there is no principle which requires one to limit what is authorised to the minimum possible consistent with the meaning of the word. Parliament has clearly displaced the presumption against a compulsory and forcible bodily examination, and the presumption having been displaced it has, in my opinion, no further work to do. For that reason, in my opinion there is no reason why one should restrict the meaning of the word “examination” in the manner that was done by the Court of Appeal in Fernando.
In my submission, the case raises a matter of general application transcending local concerns with interpretation of our section 81(2) which, I suppose it might be said in legislative terms, is probably the last of the dinosaurs on the continent. My learned friend for the respondent has put before the Court information which, of course, was by consent indicating that legislatures are presently considering changes to the power to take samples or to conduct examinations.
I think it is fair to say that by now all, with one possible exception, jurisdictions in the Commonwealth have expressly provided for the taking of bodily samples during the course of medical examinations envisaged by our section 81 and many, if not all, of the jurisdictions are presently considering enactments based upon the model code put together by the committee of standing Attorneys-General.
As indicated in the supplementary summary of argument by the Crown, there is such a bill before the legislature in South Australia. It has, in the last two weeks, passed the Upper House and is expected to be debated by the Lower House in the coming weeks. That is true of the Commonwealth, the Victorian legislature and, I suspect, true of other legislatures around the country.
So, all legislatures, with the possible exception of one, have used express and unambiguous words to provide for the taking of bodily samples, and many will be considering a much more detailed code for such examinations pursuant to the agreement between standing Attorneys‑General.
So, in my submission the argument we put now is not restricted to the interpretation of our enactment or, if there is still a similar enactment around the country, to that either. It is directed specifically to the way in which these new enactments will be interpreted, and if the model is to be followed by legislatures around the country, then each of them will permit the use of force to compel compliance with the taking of samples.
In the result, the Court of Criminal Appeal was forced, by its intention to adhere to the decision of Franklin, to strain the language of the legislation and to imply that which, in my submission, should never have been implied. The court drew an analogy between examination in section 81(2) with medical examination on the basis that, since it was a medical practitioner conducting the examination, then that was the appropriate analogy to draw.
In my submission, that is erroneous, because a medical examination is part only of a medical consultation, and it is to confuse consultation with examination to draw the analogy which our Court of Criminal Appeal did. It is said that it is routine to take tests during the course of a medical examination conducted by a medical practitioner. Well, of course it is. But the analogy falls down because there is no comparison between a confidential medical consultation, with the duty of care and so on, and the obtaining of medical samples, or forensic samples, by a doctor at the behest of the police.
The analogies used, with great respect to Justice Wells, who provided the leading judgment in Franklin, were misconceived. They applied to inanimate objects; architect’s examinations, engineer’s examinations and the like. The court reasoned that the purpose of the examination was made plain by the fact of a medical practitioner having to carry it out. In my submission, that is not necessarily so at all. A medical practitioner is needed to interpret that which he or she sees or feels and, so, in my submission, the Court of Criminal Appeal, with respect, has moved from the fact of a doctor being used to widen unnecessarily the idea of a medical examination.
It is said by our Court of Criminal Appeal that the legislature could not have contemplated the taking of blood for forensic purposes in 1924 but, nevertheless, the word has an ambulatory function; it can change with changing times. In my submission, that is misconceived. Medical examinations have for many years required or involved the taking of blood during the course of a medical consultation but, in my submission, the fact that now more forensic use can be made of blood so taken, or other samples so taken, does not lead to a change in the interpretation of the word.
In my submission, it is mistaken for the Court of Criminal Appeal to rely, as it did, on Lake Macquarie Shire Council v Aberdare County Council, which concerned itself with an ambulatory sort of expression. The word “gas” can change as time goes by. The word “examination” does not change. All that changes is the use that may be made of the fruits, if you like, of the consultation.
BRENNAN CJ: Mr Barrett, if you are right on this point and if special leave were given and the Court were to take a view different from that which it took in Franklin’s Case, what would be the result, so far as the admissibility of evidence is concerned, and the outcome from the point of view of your client?
MR BARRETT: So far as the admissibility is concerned, it is true that the trial judge on a retrial would have to consider whether or not the illegally or unlawfully obtained evidence was to be admitted. If the evidence was not admitted, that would not be the end of the matter; the trial could proceed. There is other evidence upon which the Crown would argue the accused could be convicted. Nevertheless, it was very important.
BRENNAN CJ: But the Full Court took the view that even if your point were right, the evidence ought to have been admitted in the exercise of a discretion. Do you not have to overcome that?
MR BARRETT: I think the question of the discretion does have to be addressed, with respect. In my submission, the case here of course involved no exercise of the discretion by the learned trial judge. The learned trial judge saw immediately that he was going to be bound by the decision in Franklin and so did not ‑ ‑ ‑
BRENNAN CJ: But before there is any question of a miscarriage of justice, the miscarriage must consist in the admission of evidence of that which ought not to have been admitted.
MR BARRETT: Yes.
BRENNAN CJ: The court has said that this evidence ought to have been admitted.
MR BARRETT: Yes.
BRENNAN CJ: How then can you establish a miscarriage of justice?
MR BARRETT: In my submission, the court was in error in doing so because, as it was in error in giving too little weight to the importance of overcoming presumptions against abrogating fundamental freedoms, so also in the exercise of the discretion, or in the purported exercise of discretion by the learned Court of Appeal, in my submission, it was erroneous there too. But the question of the abrogating of fundamental rights is so important that it should, in my submission, go into the exercise of discretion and weigh heavily against the admission of that evidence.
HAYNE J: In the exercise of that discretion, would account be taken of the fact that the police officers concerned acted in accordance with the understanding of the law in South Australia that had been declared almost 20 years ago by the Full Court?
MR BARRETT: That would have to be a consideration, with respect. Bunning v Cross ‑ ‑ ‑
HAYNE J: And would it not be a compelling consideration in the exercise of a Bunning v Cross discretion?
MR BARRETT: I do not concede “compelling”, with respect, but I do not suggest it could be other than a powerful consideration.
BRENNAN CJ: I think you have got some very difficult problems ahead of you, Mr Barrett.
MR BARRETT: Well, the discretion is no minor point, I dare say.
BRENNAN CJ: It seems to me to be perhaps an obstacle in your path, apart from any other obstacles.
MR BARRETT: I do not know that I can say much more about the discretion ‑ ‑ ‑
BRENNAN CJ: I do not know that you can either, but if you can, now is the time to do it.
MR BARRETT: There are other considerations, of course, quite apart from the two that we have already identified, that have to be taken into account in weighing up the Bunning v Cross considerations. The cogency of the evidence is one. The inadmissibility of this evidence would not be determinative of the matter. It is important evidence in the trial, perhaps extremely important evidence in the trial. It is cogent without being critical, if I could put it that way. So its exclusion would not mean the end of the Crown case. The Court of Criminal Appeal concluded that the Crown case was a strong one. So cogency is another of the criteria identified by the Court in Bunning v Cross for consideration, when the exercise of discretion comes about.
Could I return to the argument that the legislative enactment is meaningless or it has no job to do, without the power to ‑ ‑ ‑
BRENNAN CJ: Why do you wish to return to that?
MR BARRETT: Well, in my submission, the court concluded wrongly that the legislature must have intended that a medical examination involved the taking of samples, because to do otherwise would be to render the provision meaningless. It does not render it meaningless at all, with respect. In my submission, there are plenty of materials or acts that can be conducted by the medical practitioner that have useful forensic purposes, with the interpretation that we put forward.
If the Court pleases, I said earlier that one of the greatest considerations for the exercise of discretion would be the care that the High Court has taken to read down enactments purporting to abrogate fundamental freedoms and that was no more forcefully adumbrated than in Coco, of course. And there, while not making light of the right to be free of trespass to ones property, in this case we are talking about the manhandling of suspects for the purpose of taking samples from them. So, that which was adumbrated in Coco has even greater significance, in my submission, in a case such as this, not just in the substantive interpretation of the legislation
but in the exercise of the discretion whether to admit unlawfully obtained material. In my submission, that which is said in Coco makes it quite plain that the discretion ought to be exercised in favour of excluding the material.
If the Court pleases, it may be that nothing more need be said about the substantive matter. The discretion may be the turning point but, in my submission, there are important considerations for full argument on this matter of general importance. If the Court pleases.
BRENNAN CJ: Thank you, Mr Barrett. We need not trouble you, Mr Solicitor.
The decision in Reg v Franklin (1979) 22 SASR 101 was the subject of an application for special leave to appeal to this Court. Under its old procedure the application was fully argued before a Full Court of five Justices who, by majority, refused a grant of special leave on 21 February 1980. Notwithstanding the decision in Franklin’s Case, the Court of Criminal Appeal of New South Wales, by majority, reached a contrary conclusion, albeit it on a statute that was not framed in precisely the same terms in Fernando v The Commissioner of Police (1995) 36 NSWLR 567. The New South Wales Parliament amended the law of New South Wales to ensure that the limitation on power resulting from Fernando should be removed.
Putting Fernando aside, the decision in Franklin, followed in the present case by the Full Court, is not likely to be departed from if special leave were granted. In any event, as Chief Justice Doyle points out, the evidence obtained by the examinations of the person, complained of by the applicant, would have been admitted even if, on a different construction of section 81(2) of the Summary Offences Act (1953) (SA), the examinations were held to be unauthorised. We note that uniform legislation on the question raised by this case has been, or is being, introduced by State legislatures. For these reasons, special leave will be refused.
AT 9.58 AM THE MATTER WAS CONCLUDED
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