R v Michael Neil Dyson No. SCCRM 96/357 Judgment No. 6053 Number of Pages 12 Criminal Law (1997) 68 Sasr 156

[1997] SASC 6053

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, BOLLEN, PERRY, DUGGAN AND DEBELLE JJ

Criminal law - jurisdiction, practice and procedure - warrants, arrest, search, seizure and incidental powers - identification and examination of the person - appeal against conviction - abduction and rape of 20 month child - appellant submitted to examination by medical practitioner because told to by lawyer - fingernail scrapings and blood extracted - meaning of "examination" under s81Summary Offences Act 1953 - what authorised - privilege against self-incrimination - extent of invasion to be reasonable compared to health of prisoner, seriousness of charge and cogency of evidence - examination not limited to sight and touch. Criminal Law Consolidation Act 1935s80; Summary Offences Act 1953s81; Crimes Act 1900 (NSW) ss353A and 353A(2), referred to. R v Franklin (1979) 22 SASR 101, applied. Fernando v Commissioner of PoliceRCT
(1995) 36 NSWLR 567, not followed. R v Harrison [1975] TasSR 140; Coco v The Queen (1994) 179 CLR 427, considered.

ADELAIDE, 17, 19 February 1997 (hearing), 21 March 1997 (decision)

#DATE 21:3:1997

Appellant Michael Neil Dyson:

Counsel: Mr G Barrett QC

Solicitors: Camatta Lempens

Respondent R:

Counsel: Mr P Rofe QC

Solicitors: DPP (SA)

Appeal dismissed

DOYLE CJ

1. The appellant has appealed against his conviction. He was convicted upon the verdict of a jury of one count of abduction of a child by force or fraud, contrary to s80 of the Criminal Law Consolidation Act, 1935 (SA), and one count of rape of the same child. The alleged rape was by the insertion of his finger into the vagina of the child. The child was 20 months of age.

2. The appellant appeals against the conviction on the grounds that certain evidence, central to the prosecution case, was obtained unlawfully and should not have been admitted. The Director of Public Prosecutions argues that the evidence was obtained lawfully and was admissible.

3. It is not necessary to say much about the offence itself. The prosecution alleged that in the early hours of one morning the accused, who lived in a block of units next door to the victim and her mother, forced entry through a window into the child's bedroom and abducted the child from the cot in which she was sleeping. It was alleged that he took her to a place not far away, and there sexually interfered with her by inserting his finger into her vagina. He then abandoned the child. She was found, still alive, at about 7.15 am in the morning.

4. The accused was arrested the following day. He was arrested at a police station. There, while he was in custody, at the request of a member of the police force the appellant was examined by a legally qualified medical practitioner. He appears to have conducted a visual examination of the body of the appellant, looking for marks and injuries. The details of this do not matter. Relevantly to the appeal, the medical practitioner collected samples for potential forensic examination. These included saliva, head hair and pubic hair. In particular he took scrapings from under the fingernails of the appellant and he took blood from the appellant.

5. The fingernail scrapings and the blood were used to extract DNA for comparison purposes. The findings, of which evidence was given by experts at the trial, were that DNA matching that of the victim was found in the fingernail scrapings. The DNA was not that of the accused. The blood samples established that. On the evidence, the likelihood of that DNA coming from anyone other than the victim was extremely small. It was likely that the material containing the victim's DNA was deposited under the fingernails of the accused during the commission of the rape.

6. This evidence was of considerable importance in the prosecution case, although the prosecutions case seems to have been a strong one apart from that evidence.

7. The examination of the defendant by the medical practitioner was conducted in the exercise of the power conferred by s81 of the SummaryOffences Act, 1953 (SA) ("the Act"). That was common ground upon the hearing of the appeal. The appellant submitted to the examination because he was advised by his solicitor that he was obliged to do so. The appellant did not give his free consent to the examination, but merely submitted because his lawyer told him that he had to. The case was therefore argued before us upon the basis that the examination was carried out by compulsion, relying upon the statutory power conferred by s81 of the Act.

8. Subsections (1), (2) and (3) of s81 provide as follows: "(1) When a person is taken into lawful custody, a member of the police force may search, and take anything found upon, his or her person, and may use such force as is reasonably necessary for those purposes.

(2) When a person is in lawful custody on a charge of committing an offence and there are reasonable grounds for believing that an examination of his or her person will afford evidence as to the commission of the offence, a legally qualified medical practitioner acting at the request of a member of the police force in charge of a police station, or of or above the rank of sergeant, and any assistant acting in good faith under the practitioner's 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, and may use such force as is reasonably necessary for that purpose.

(3) Where a member of the police force intends to request a medical practitioner to examine a person in custody - (a) the member must, before communicating with the medical practitioner for the purpose of making the request, inform the person in custody of the intention and inquire from that person whether he or she desires to be examined also by another medical practitioner named by that person; (b) if the person states that he or she does so desire and names a medical practitioner, the member must promptly take all reasonable steps to inform that practitioner by telephone message that the person in custody desires him or her to attend at the police station and examine the person.

A person in custody is liable for the cost of any medical examination conducted at his or her request under this subsection and neither the Crown nor any member of the police force is liable for that cost.

Failure to comply with this subsection does not affect the legality of the detention of any person in custody, or of any medical examination conducted at the request of a member of the police force."

9. Before the trial judge objection was taken to the admission of the DNA evidence, because it depended upon the use of the blood and of the material contained in the scrapings from under the fingernails of the appellant. The objection was that s81 did not authorise the taking of the scrapings or of the blood. It was argued that s81 authorised only an external examination of the appellant by inspection.

10. The trial judge rejected that submission. He rightly held that he was bound to follow the decision of the Full Court of this Court in R v Franklin
(1979) 22 SASR 101 in which the Court held that in conducting an examination under s81 of the Act the taking of specimens or samples from the body of the person examined was authorised, and that that was authorised when the taking was for the purposes of subsequent examination by persons other than the relevant medical practitioner.

11. When the appeal first came before this Court it was argued for the appellant that Franklin was wrongly decided, and that the Court should follow the decision of the New South Wales Court of Appeal in Fernando v Commissioner of Police (1995) 36 NSWLR 567. In that decision the Court of Appeal held, by a majority, that Franklin was wrongly decided and that s353A of the Crimes Act, 1900 (NSW), which is in very similar terms, authorised only an external examination involving an examination by eye and by touch.

12. In view of the fact that there were conflicting decisions on sections expressed in very similar terms, the Court was reconvened as a bench of five judges to resolve the conflict.

13. It is convenient to begin by summarising the reasoning to be found in Franklin and Fernando, because most of the matters canvassed in submissions before us are dealt with in the judgments in those cases.

14. I begin with Franklin, where the judgment of the Court was given by Wells J.

15. The first step in his reasoning was that what was authorised was an examination to ascertain facts which might afford evidence of the commission of the relevant offence. The section was not limited to facts about which a medical practitioner could offer expert testimony. The purpose of the examination was the ascertainment of any facts which might afford evidence of the commission of the offence. The next step in his reasoning was that the choice of a medical practitioner to conduct the examination (the reasons for which are obvious) gave rise to the implication that the sort of examination envisaged was that which a medical practitioner might properly carry out "...having regard to the ordinary course of medical practice" (at 106). Then his Honour said that "examination" as a matter of ordinary usage was not confined to surveillance. Experts of various types in examining something might well take samples for the purpose of conducting tests. The same applied, he said, to a medical practitioner in the ordinary course of a medical examination. Considering these matters in the context of a provision which authorised the ascertaining of facts which might provide evidence, he came to the conclusion that (at 106): "....an examination may proceed beyond mere scrutiny of the person, and extend to the taking of specimens or the recovery of foreign bodies where those specimens or bodies may afford evidence of the charge in question."

16. He emphasised that the section required that the examination be reasonable, and that was a matter of fact and degree which depended upon all the circumstances of the particular case. Those circumstances included (at 106-107): "...the extent to which the examination will invade the integrity of the body, the state of health of the prisoner, the seriousness of the charge, the cogency of the evidence that there are reasonable grounds for believing that the examination will afford."

17. In deciding as he did his Honour considered that he was taking the same approach as was taken in R v Harrison [1975] TasSR 140.

18. Fernando dealt with the taking of blood. Section 353A(2) of the CrimesAct provides as follows: "(2) 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 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 aid and under his 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."

19. The only difference of any significance between that provision and s81(2) of the Act is that the former provision does not in terms empower the use of force to conduct the examination.

20. No reference is made to that distinction in the judgments in Fernando.

21. In his judgment Priestley JA dealt at some length with the history of similar legislation in a number of Australian States. In all cases the term used was "examination" and in all cases the relevant provisions were expressed in very similar terms. It appears from his judgment that the first such provision was enacted in Queensland in 1901, that the New South Wales provision was enacted in 1926 and the South Australian provision in 1928. It is fair to say that the Parliamentary debates in the various States to which he referred did not disclose any reference to the taking of blood or other samples of bodily fluids or tissues. It may be doubted whether it is permissible for a court in this State to refer in the general manner in which Priestley JA did to Parliamentary debates. His use of them does not appear to have been limited to the identification of the object of the provision. However, there seems no reason to doubt that when the provision was enacted the use of bodily fluids and tissues for scientific examination in the manner that occurs these days would not have been contemplated.

22. I turn now to the reasoning in the various judgments.

23. Priestley JA considered that the word "examination" when enacted in 1924 suggested only "an external examination involving an examination by eye and by touch" (at 572). He based that upon his understanding of what an examination "as understood in ordinary language" would have meant in 1924 and by recognising that the section made lawful some actions which would not have otherwise been lawful. Nothing about the section, including the fact that it was an examination to obtain evidence as to the commission of a crime, suggested to him that the statutory authority to commit what would otherwise be an assault "went....to the extent of authorising the taking from within the body of the person in custody part of the body, namely blood" (572). He also said that the taking of blood was something "incidental to the examination, or in aid of the examination, but not part of the examination itself." And finally, he was influenced by the strong presumption, most recently endorsed by the High Court in Coco v The Queen (1994) 179 CLR 427, that a court will not construe a statute as abrogating or suspending a fundamental right, freedom or immunity unless Parliament makes that intention unmistakably clear (572-573). In his opinion (574) the section did not "...clearly express, either directly or by implication, an unmistakable and unambiguous intention to authorise the drawing of blood from within the body of a person is custody."

24. He rejected an argument based on the desirability of the prosecution being able to obtain the sort of material which could be obtained by such things as the taking of blood. He declined to follow the decision of this Court in Franklin. He did so because of his different view of the meaning of "examination", because the Parliamentary material did not reveal that the sort of procedures contemplated by Wells J were contemplated by members of Parliament, because more recent legislative proposals for the taking of bodily samples revealed that when that is in fact intended the authorisation is given plainly and unmistakably, because the firm rule stated by the High Court in Coco v The Queen had not been stated in that strong form when Franklin was decided and because of the distinction between an examination and things ancillary to the examination (575-584).

25. Clarke JA favoured the same view, but not being satisfied that Franklin was plainly wrong decided that it should be followed in the interests of certainty and comity. He referred to a number of cases supporting the view that it was desirable that there be consistency of approach by the courts of the State to the interpretation of substantially similar statutory provisions.

26. The approach of Powell JA was similar to that of Priestley JA. The privilege against self-incrimination and the common law right to refuse the medical examination meant that the provision should not be construed as permitting more than an examination by sight or touch unless to do so would render the provision inoperable or meaningless, and in his opinion the suggested construction did not. In addition, because he regarded Franklin as clearly wrong it was not appropriate to follow that decision.

27. I turn now to express my own views. I will not repeat, except where necessary, ground that is covered by the above summary of the conflicting judgments.

28. In my opinion the word "examination" is commonly used to embrace both visual inspection and, as part of such an inspection, the taking of samples or specimens from the thing being examined. The Shorter Oxford English Dictionary
(1978) gives as meanings for "examination" the following - a trial, proof, assay; the action of testing or judging by a standard; investigation by inspection or experiment. To my mind, these meanings of the word readily embrace the taking of samples or specimens.

29. 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. I can think of no particular reason why, in that context, the meaning of the word should be limited to an examination by the eye or by touch.

30. There are a number of things which one can think of which would not be embraced by a visual examination or examination by touch. Things such as the removal of a hair, by cutting or simply by lifting a loose hair from the scalp, the taking of swabs from the surface of the skin, obtaining specimens of saliva and blood and so on. These considerations lead me to think that it is unlikely that Parliament would have intended such a limited examination as one by sight and by touch.

31. 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 make such a choice appropriate. But it remains an examination with a view to the obtaining of evidence.

32. Advances in science since 1924 mean that the range of specimens or samples that can usefully be examined has widened. However, I proceed on the basis that when enacted the word used was apt to embrace an examination that was both intrusive in the sense of an invasion of privacy and invasive in the sense of empowering the taking of samples or specimens from the body of the person, and was not limited to conducting an examination by sight or touch.

33. I therefore agree with what Wells J said about the meaning of the word used in s81. But that, of course, is not the end of the inquiry. The meaning of the word chosen, as a matter of ordinary language, is a starting point.

34. I do not consider that the debates in the various Parliaments are of any assistance in this case. The second reading speech in the South Australian House of Assembly (Hansard, August 2 1928, p432) is uninformative. The Minister introducing the legislation did no more than summarise the terms of the section. The fact that in the debates in South Australia and elsewhere no reference is made to the taking of bodily samples is of no particular significance in my opinion. It throws no light on the meaning of the provision in question. It may indicate that the obtaining of specimens and samples was not at the time seen as a matter of great importance, but it indicates no more than that.

35. That leaves the question of whether the well established presumption that Parliament does not intend to interfere with fundamental rights and established common law freedoms operates to restrict the meaning which one would otherwise give to the word "examination", and in particular to restrict its meaning to an examination by sight and by touch, or at least so as to exclude as part of an examination any procedure which involves the taking of specimens or samples from the body.

36. In the present case it is clear that Parliament did intend to infringe a basic common law right, the right not to have to submit to an examination against one's will. An examination of the body, at least involving a touching, is a trespass if conducted without the consent of the person examined. But Parliament has required the person examined to submit to such an examination, and in South Australia has authorised the use of force to compel submission.

37. In that context, the presumption against interference with common law rights has been displaced. The question then becomes whether the presumption nevertheless operates so as to restrict that which Parliament has authorised to an examination which, consistently with the words used, involves the least possible intrusion upon the common law right.

38. To restrict an examination, by reason of the presumption, to an examination by eye and by touch, is a very significant restriction. It would exclude things such as the plucking of a hair, the application of a swab to the skin of the person examined to take a sample of something on the skin, and it would possibly prevent the examination of a number of bodily orifices. It would also, as this case illustrates, prevent a procedure such as the taking of scrapings from under a fingernail. To my mind, while this is not decisive, the suggested restriction would deprive the provision of a significant part of its effect.

39. 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 that was done by the Court of Appeal in Fernando.

40. It is important, in considering the matter, not to overlook that s81 of the Act itself imposes a limitation upon what can be done. The examination must be one which is reasonable. I agree with Wells J that that involves a balancing of the nature of the proposed examination, the likely cogency of the fact which it is sought to ascertain, the seriousness of the crime alleged, the risk to the person being examined and, I think, the extent of the intrusion upon the privacy of the person being examined. Parliament has not given a blank cheque to the examiner in the search for evidence as to the commission of an offence. That, as I see things, is the limitation that Parliament has seen fit to impose.

41. In my opinion the fact that contemporary legislation dealing with the taking of blood and the obtaining of bodily samples demonstrates a greater degree of legislative care and discrimination in this area, and more carefully thought out regimes for such procedures, does not affect the meaning to be given to s81. These aspects of contemporary legislation illustrate the undoubted desirability of a more discriminating and carefully thought out approach. I accept that s81 should, having regard to contemporary standards, be reviewed by Parliament. One cannot imagine that such a provision would be enacted in these terms today. But in my opinion those considerations do not erode the conclusion reached by the Court in Franklin. To show that there is good reason to take a different approach is not to throw any particularly helpful light upon the meaning of the language used.

42. For those reasons I am not satisfied that the decision of this Court in Franklin is plainly wrong. While it is regrettable that there should be a conflict between a decision of this Court and a decision of the Court of Appeal of New South Wales, this Court should not refuse to follow its own previous decision unless satisfied that is plainly wrong.

43. For that reason I would dismiss the appeal, because in my opinion the judge rightly held the evidence to be admissible.

44. Even if I am wrong in that, the appeal should still be dismissed. Even if the evidence was obtained unlawfully, there is no reason to think anything other than that the medical practitioner and the police officers concerned acted in good faith. They acted in a manner which had the support of the decision of this Court in Franklin. It is likely that the appellant's solicitor advised him that he had to submit to the examination upon the same basis. The taking of fingernail scrapings is, to my mind, a minor procedure, and the taking of blood is these days a relatively routine procedure. It follows that the things done in reliance upon s81, even if mistaken reliance, could not be regarded as in any sense unusual or carrying with them any significant risk to the appellant. There is no suggestion that the proper procedures required by s81 were not followed. To allow the admission of the evidence would not be to encourage disregard of the requirements of the section in the future. Nor would it in any sense be to condone wrong doing. It would be to do no more than to recognise that the persons concerned had acted in good faith in reliance upon a belief as to the state of the law as it was at the time, even if a subsequent decision of this Court had found that the law was not as it was believed to be. Weighing up the matters which are relevant to the exercise of the discretion to exclude evidence obtained unlawfully, it is my opinion that the only conclusion which could reasonably be reached in a case such as the present is that the evidence should be admitted. It is for those reasons that, in my opinion, even if I am wrong as to the meaning of s81 of the Act, the appeal should be dismissed.

BOLLEN J

45. I agree with the reasons of the Chief Justice. I agree that the appeal should be dismissed. I add a few words.

46. A Full Court of five members was convened to deal with the suggested conflict between two decisions. One is the decision of this Court in R v Franklin (1980) 22 SASR 101. The other is the decision of the Court of Appeal in Fernando v Commissioner of Police (1995) 36 NSWLR 567.

47. I do not think that there is any conflict between these decisions. Each Court considered the meaning of the word "examination" in legislation enacted by the Parliament of "its" State. The enactments are similar each to the other. But not the same. The enactment of the South Australian Parliament empowers the medical practitioner to use such force as is necessary for the purpose of the examination. No such power is given by the legislation in New South Wales. I think this difference is enough to distinguish the reasoning in the two cases, the one from the other. We should follow Franklin.

48. If that be wrong, and in any event, I think that the reasoning of Wells J (with whom King CJ and Legoe J agreed) in Franklin is unassailable. If necessary, or desirable, I think this Court should hold that R v Franklin was correctly decided and that, offering due respect, Fernando was not correct.

49. I would dismiss the appeal.

PERRY J

50. I have had the benefit of perusing in draft the reasons for judgment of Doyle CJ.

51. In my opinion, on a proper construction of s81 of the Summary OffencesAct 1953 (SA), provided that the other requirements of the subsection are met, a medical practitioner may lawfully take a sample of blood, fingernail scrapings, samples of hair and the like from a person in custody.

52. I do not think it is a matter of the appellant having failed to persuade me that the decision of this Court in Franklin is plainly wrong. My own construction of s81, even bearing in mind the decision of the Court of Appeal of New South Wales in Fernando, leads me to the view which I have just expressed.

53. I agree that it is unfortunate that there are conflicting decisions between two States on sections expressed in similar terms. But we must construe the South Australian provisions for ourselves with such assistance as is afforded by the earlier decision of this Court in Franklin, and by the New South Wales decision in Fernando.

54. It seems to me that protection against abuse and unduly intrusive procedures flows from the requirement that "there must be reasonable grounds" for believing that the examination "will afford evidence as to the commission of the offence", and from the fact that the medical practitioner's right to conduct the examination is circumscribed by the requirement that it must be "such an examination of the person so in custody as is reasonable in order to ascertain the facts which may afford such evidence ...".

55. The right of the person in custody to require that the examination be conducted by another medical practitioner whom he or she names, operates as a further protection against abuse.

56. If it was necessary to do so, I would hold that in any event, even if it was to be regarded as having been obtained unlawfully, the evidence in question was properly admitted, and there are no grounds disclosed upon which any discretion to exclude it could properly have been be exercised in favour of the appellant.

57. But in my opinion, the evidence was obtained lawfully. I would, for that reason, dismiss the appeal.

DUGGAN J

58. In my view this appeal should be dismissed for the reasons given by the Chief Justice.

59. The description of the type of examination authorised by s81(2) of the Summary Offences Act, 1953, the conditions under which it is to take place and the purpose of such an examination are all matters which provide some assistance as to its permissible limits. The section speaks of an "examination of the person". There is no limit placed upon the areas of the body which might be searched other than the requirement that the examination must be reasonable. Mr Barrett QC, for the appellant, sought to draw a distinction between "invasive" and "non-invasive" examinations or "intimate" and "non-intimate" examinations. However, although this terminology is used in more recent legislation (see Crimes Act, 1958 (Vic) s464(2) and the Police and Criminal Evidence Act, 1984 (UK) s65), there is no warrant for reading such distinctions into s81(2). In my view their relevance to the legislation under consideration is restricted to the aspect of reasonableness.

60. The fact that the examination is to be conducted by a legally qualified medical practitioner provides some assistance in determining the type of examination authorised by the section. The taking of specimens is a common incident of professional examinations performed by medical practitioners. And finally, there is the purpose of the examination, namely, "to ascertain the facts which may afford ... evidence". In my view these two considerations, the medical nature of the examination and its purpose, would seem to weigh against the conclusion which Priestly JA reached in Fernando v Commissioner of Police
(1995) 36 NSWLR 567 that the examination should be restricted to what might be discovered by sight and touch.

61. I am not satisfied that the decision in R v Franklin (1979) 22 SASR 101 is plainly wrong.

DEBELLE J

62. I agree that this appeal should be dismissed.

63. Section 81 authorises two kinds of examination of a person who has been taken into lawful custody. Section 81(1) authorises a member of the police force to search the person in custody and take anything found upon that person. Section 81(2) authorises an examination of that person. It is obviously intended to be a more thorough examination in that it involves the examination of the body of the person in custody. Both provisions are intended to provide a means by which police officers may seek to gather evidence. That is apparent from the terms of each sub-section. Both provisions represent an interference with fundamental rights. They make lawful assaults which might otherwise be unlawful. It is apparent that it was the deliberate intention of the Parliament to interfere with the fundamental freedoms of the individual for the purpose of assisting the investigation of criminal offences: c.f. Coco v The Queen (1994) 179 CLR 427.

64. I respectfully agree with the reasons of Wells J, with whom King CJ and Legoe J agreed, in R v Franklin (1979) 22 SASR 101. The kind of examination contemplated by s.81(2) goes beyond a search authorised by s.81(1) and the taking of finger prints and other examinations authorised by s.81(4). As Wells J noted at 105-106, the Act insists upon the performance of the examination by a medical practitioner because the examination of the person carries with it the need, in some - perhaps many - cases, to observe the sort of precautions that, in the view of the legislature, only a medical practitioner is capable of observing adequately. The next step in the reasoning of Wells J was to hold that the section impliedly authorised a medical examination. He said: "Because a medical practitioner is the chosen agency by which the statutory examination is to be carried out, it is implied, in my opinion, that the scope and compass of the examination is such that a medical practitioner may properly carry it out, having regard to the ordinary course of medical practice."

65. That conclusion is, I think, reinforced by the fact that s.81(2) is intended to authorise a more extensive procedure than a search pursuant to s.81(1). An examination is an inspection, an investigation: see Shorter Oxford English Dictionary and Macquarie Dictionary. The Shorter Oxford English Dictionary includes as one meaning "minute inspection". In this context, the words "examination" and "investigation" are synonymous. Thus, s.81(2) authorises a detailed or minute inspection and requires that it be conducted by a medical practitioner. It is apparent that the intention of the Parliament was to authorise an examination as extensive as a medical examination in the sense that there will be an examination or investigation of the body of the person in lawful custody to ascertain if there are facts which may afford evidence.

66. Section 81(2) therefore authorises taking blood or other liquids, taking hair, cutting loose skin from the body, and taking swabs and the like. An examination limited to that which could be ascertained by sight or perhaps touch, for which the appellant contended, could only be described as superficial. An examination so limited is not likely to yield much by way of evidence. That proposition is illustrated by the appellant's contention that it was not lawful to take material from beneath his finger nails for examination. To take a slightly different set of facts from those in this case, assume that a police officer sees what appears to be a scraping of blue paint beneath the finger nails of the person in custody. He has been informed that the offender had scraped a blue painted object with his finger nails whilst committing the offence. He asks the medical practitioner to examine the finger nails. The medical practitioner can, according to the appellant, look at the finger nails and see if he can see what appears to be blue paint. But he cannot remove samples for testing to determine whether it is blue paint and blue paint of the kind which had been scraped. His examination will not in any sense be an advance on what the police officer had seen. That represents an unwarranted limitation on the express purpose of s.81(2) which is intended to authorise an examination in order to ascertain facts which might afford evidence of the commission of an offence. The basic purpose of s.81(2) is to allow the ascertainment of facts, and this by examination of the suspect's body: R v Franklin supra at 106; and R v Harrison [1975] Tas. SR 140, 141, a decision which is to the same effect as R v Franklin.

67. The appellant contended that s.81(2) did not even authorise the lifting of, say, a forelock of hair to inspect the scalp. That too is an unwarranted limitation on the power to examine. The appellant went so far as to submit that taking a sample of dried blood from the skin of the suspect or from blood flowing from a wound was not authorised. The contentions serve to highlight the difficulty, if not the futility, in endeavouring to identify the physical limits of the examination by reference to nominated kinds of procedures, a difficulty which is also emphasised by the appellant's contention that it was not lawful to remove material for examination from beneath his finger nails. That difficulty is also illustrated by the possible use of X-rays. I do not decide whether the use of X-rays is authorised by s.81(2) but merely note that they are less intrusive than other forms of examination. Because of the infinite variety of circumstances which might arise and which might justify examination under s.81(2), Parliament has not limited the nature or extent of the examination by reference to stated procedures. Instead, it has imposed a safeguard that the examination be reasonable. There is a further safeguard in that there must be reasonable grounds for believing that the examination will afford evidence as to the commission of the offence. I respectfully agree with the comments of Wells J in The Queen v Franklin at 106 - 107 on the effect of the requirement that the examination must be reasonable: "Whether a proposed examination is reasonable is, in my opinion, a question of fact and degree which depends on all the circumstances of the particular case. It would be unwise, I think, to attempt to lay down, in a form of a code, a series of tests by which the reasonableness of a proposed examination should be determined. The limits of reasonableness may vary markedly and depend, inter alia, upon such matters as the extent to which the examination will invade the integrity of the body, the state of health of the prisoner, the seriousness of the charge, the cogency of the evidence that there are reasonable grounds for believing that the examination will afford."

68. The concerns expressed by Mr Barrett QC, who appeared for the appellant, as to the potential for an examination to be unnecessarily invasive or intrusive are mitigated by the requirement as to reasonableness.

69. Mr Barrett also submitted that the nature and scope of a medical examination in 1928, when the provision was enacted, was not as extensive as modern technology permits. Thus, he said, it was appropriate to limit the scope of the examination. Such a submission is at odds with the principle that, generally speaking, words in legislation should have their ordinary and current meaning: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509, 514; Campbell College, Belfast (Governors) & Commissioner of Valuation (Northern Ireland) [1964] 1 WLR 912, per Lord Upjohn at 941. See also Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR
77 per Kirby P at 78-79. The exceptions to this principle are noted in Pearce & Geddes Statutory Interpretation in Australia (4th ed) paras 4.6-4.9. The word "examination" in s.81(2) is an example of a word whose connotation may be fixed but whose denotation will change with advances in medical technology: see Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327, per Barwick CJ at 331.

70. As the Chief Justice notes, it is regrettable that there is a difference between the approach of this court and that of the Supreme Court of New South Wales to this important provision. However, for the reasons expressed above, I believe that the decision in The Queen v Franklin is plainly correct and, with respect, I am not persuaded by the reasoning in Fernando v Commissioner of Police (1995) 36 NSWLR 567.

71. For these reasons, the evidence was admissible. If that conclusion is wrong and the evidence was obtained unlawfully, I do not think that it called for the exercise of the discretion to exclude it.