State of New South Wales v Fahy

The High Court of Australia considered the appeal by the State of New South Wales against a decision of the Supreme Court of New South Wales in favour of Mr Fahy. The dispute concerned the validity of a notice issued by the Commissioner of Police under s 137 of the *Crimes Act 1900* (NSW) requiring Mr Fahy to provide a sample of his blood for DNA testing. Mr Fahy had been charged with a serious offence, and the Commissioner sought the sample to compare with DNA found at the crime scene. Mr Fahy resisted the demand, arguing that the notice was invalid.

The central legal issue before the High Court was whether the Commissioner of Police had the power to issue a notice under s 137 of the *Crimes Act 1900* (NSW) to obtain a blood sample for DNA testing from a person who had been charged with, but not yet convicted of, an indictable offence. This involved an interpretation of the scope and application of s 137, particularly in relation to the rights of individuals against whom criminal proceedings were pending.

The High Court, comprising Gleeson CJ and Callinan J, held that the Commissioner did not have the power to issue such a notice. Their Honours reasoned that s 137 of the *Crimes Act 1900* (NSW) was intended to apply to persons who had been convicted of certain offences, not to those merely charged. The provision required a prior conviction before a notice could be lawfully issued. The Court found that the notice issued to Mr Fahy was therefore invalid.

The appeal by the State of New South Wales was dismissed.