State of New South Wales v Amery & Ors

The High Court of Australia considered an appeal by the State of New South Wales against a decision of the Supreme Court of New South Wales. The dispute concerned the validity of certain provisions of the *Crimes (Forensic Procedures) Act 1998* (NSW) and their application to the respondents, who were charged with serious criminal offences. The core of the dispute revolved around the admissibility of DNA evidence obtained through forensic procedures conducted under the Act.

The High Court was required to determine whether the provisions of the *Crimes (Forensic Procedures) Act 1998* (NSW) that permitted the taking of forensic samples from persons who had not been convicted of an offence, and the subsequent use of that evidence, were constitutionally valid. Specifically, the Court had to consider whether these provisions infringed upon the implied constitutional prohibition against the executive government exercising judicial power, or whether they otherwise contravened fundamental common law rights.

The Court's reasoning focused on the nature of the power exercised by police officers in authorising and conducting forensic procedures. It was held that the power to compel a person to submit to a forensic procedure, and to use the resulting evidence, was not an exercise of judicial power. Rather, it was characterised as an administrative or executive power, exercised for the purposes of law enforcement and the investigation of crime. The Court applied principles relating to the separation of powers, distinguishing between the judicial function of determining guilt and the executive function of investigating and prosecuting offences. The Court also considered the common law right to bodily integrity, but found that the statutory provisions were a valid and proportionate means of achieving legitimate law enforcement objectives, and did not unduly infringe upon this right.

The High Court allowed the appeal, finding the relevant provisions of the *Crimes (Forensic Procedures) Act 1998* (NSW) to be constitutionally valid. Consequently, the DNA evidence obtained under those provisions was admissible in the criminal proceedings against the respondents.