Hawes v The Governor of the Goulburn Correctional Centre and ANOR S140/1997 [1998] HCATrans 140 (1 May 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S140 of 1997

B e t w e e n -

PETER CHARLES HAWES

Applicant

and

THE GOVERNOR OF THE GOULBURN CORRECTIONAL CENTRE

First Respondent

THE COMMISSIONER FOR POLICE

Second Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 2.18 PM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: If the Court pleases, I appear for the applicant. (instructed by Jeffreys & Associates)

MS M. LATHAM: If the Court pleases, I appear for the second respondent. (instructed by I.V. Knight, Crown Solicitor's Office (New South Wales))

GUMMOW J: The Deputy Registrar indicates he has been informed that the first respondent does not wish to be represented at the hearing of this application and will submit to any order of the Court save as to costs. Yes, Mr Papayanni.

MR PAPAYANNI: This matter, your Honour, is concerned, really, with the situation whether section 353A(2) allows a sample of blood to be taken from a person who is in lawful custody - if I use that expression - for an offence punishable - upon a charge of committing any crime or offence.

GUMMOW J: It really turns on the phrase "lawful custody", does it not?

MR PAPAYANNI: It turns on "lawful custody upon a charge of committing any crime or offence".

GUMMOW J: Yes.

MR PAPAYANNI: It is a simple and short argument, really, in relation to the matter, is that if one looks at Part 10 one sees that is divided into different sections: "Apprehension of offenders", "Powers of search", "Powers of entry", et cetera. "Apprehension of offenders" is section 352 to 357; "Powers of search, section - - -

GUMMOW J: Just a minute: 352 - - -?

MR PAPAYANNI: Sections 353 to 357, and then after that there are headings in relation to the other, "Powers of search", "Powers of entry" et cetera, and they are from 357A onwards. And then if one looks at section 352, and the heading of course is "Apprehension of offenders" there and all those sections, 352 to 357, are in relation to apprehension of offenders. If one looks at section 352, one gets the temporal situation, the time frame, that after arrest the person is then brought:

before an authorised justice to be dealt with according to law.

So, you get that time frame and that is the time frame during which we say that the investigative process takes place and in which this sample of blood should be taken.

Now, if one goes to section 353A and looks at the sections there, they have been enacted since 1924 and there have been a number of decisions in relation to them in different States where similar sort of provisions are entailed. There is no dispute in relation to subsection (1) which deals with search that that takes place before the person comes before the court in the first place to be dealt with according to law. There is no dispute about subsection (3) in relation to that. In relation to subsection (2), the indication was until Fernando's Case was that you could not take a blood sample. So, "medical examination" did not extend that far under subsection (2).

GUMMOW J: Well, the section was amended then, was it not?

MR PAPAYANNI: That is right, but it was amended because of the fact that you could not take a blood sample. Now, subsections (3A), (3B), (3C) and (3D) were also enacted at the same time. I will come to those in a moment. Subsection (3C) was given more weight by the Court of Appeal than was warranted by reason of - well, I will come to it in a moment. But before I come to that, the question is what is this "person in lawful custody upon a charge of committing any crime or offence" - what does it mean and how far does it extend temporally? If one looks at the rest of the enactments and, in particular, section 353B, and the heading there is, "Person apprehended carrying razor, etc", one sees there that that section says:

Where a person is in lawful custody upon a charge of committing any crime or offence -

the same words -

and is found -

and, of course, as we know, it has to be found at the time -

to have been carrying at the time or immediately before he was apprehended any razor -

et cetera. Now - - -

CALLINAN J: I am sorry, Mr Papayanni, which section is that?

MR PAPAYANNI: Section 353B, at the top of 9236 on the papers that I have given to your Honours. So, you get a situation there - it is the same section, and -

a person.....is found to have been carrying at the time or immediately before he was apprehended any razor -

et cetera. So, the question is could that apply in a gaol where a person is found there, in relation to a gaol, and it could not, of course, because when one looks at the form of the charge, which is right underneath that, in [9236.P1], that the form of the charge - - -

GUMMOW J: Section 353A confers a power. Section 353B creates an offence.

MR PAPAYANNI: I beg your pardon?

GUMMOW J: Section 353A confers a power.

MR PAPAYANNI: Yes, but I am not dealing with that at the moment.

GUMMOW J: I know you are not. Section 353B creates a criminal offence.

MR PAPAYANNI: That is correct.

GUMMOW J: They are different types of sections. I know they are in the same part.

MR PAPAYANNI: I understand that but it is the wording. See, it is used in this section in relation to what does it mean, and if it is used in the same way there, in relation to that section, one sees from that section you are not going to have a number of different meanings. If one looks at the form of the charge one sees that the charge is:

being lawfully in police custody, did have immediately before coming into police custody -

have "a razor", et cetera, in his possession.

GUMMOW J: Now, I think we would be assisted if you took us to the judgment of Justice Mason in the Court of Appeal and tell us which passage it is that contains the faulty reasoning of which you complain.

MR PAPAYANNI: Page 27, at line 4, first of (3C), but before that it says:

was confined in its operation to subsection (3) and that, in consequence, it did not extend the scope of subsection (2). This submission was based upon the reference to "a constable or an officer of police" in subsection (3C), and the contrast with the words "officer of police of or above the rank of sergeant" in subsection (2). There is nothing in this point. It attributes to Parliament in 1995 the intention of doing everything but reversing Fernando. The contrary was clearly the case.

And then he goes on to say, in relation to that section there - subsection (3C), of course, in the words of subsection (3C), if one looks at it, the Court of Appeal was saying that that changed this particular section only because it was passed at the same time. But if we look at 353A(3C), one sees there:

A reference in this section to lawful custody is a reference to lawful custody of the police or any other authority. If a person is in lawful custody in a place other than a police station -

and this section, of course, is designed to show that it can be done in gaol -

the powers under this section of a constable or an officer of police may be exercised by the person in charge of the place or by another person who is normally supervised by that person.

Now, that subsection (3C) does not only apply to subsection (2) which is the provision in relation to medical examinations. It applies to 353A(1).

Now, in relation to 353A(1), that means there that - it refers to "any constable" and that is caught up by the first part of the section in (3C) where it applies to any "constable or an officer of police". "Constable" occurs a number of times in subsection (1). So, the extension in relation to any other "place other than a police station" is also to subsection (1). So, the reference in relation to the fact that the Court of Appeal said that (3C) was only in relation to subsection (2) and changed subsection (2), but it changed subsection (1). It also changed subsection (3) which is in relation to fingerprints. So, where you see in subsection (3):

When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station -

so you go back to (3C) and you see that:

officer of police may be exercised by the person in charge of the place or by another person who is normally supervised by that person.

So, you get three - subsection (3) also has been extended by (3C). But it would be nonsense to say that subsection (1), you could perform a search in a gaol by reason of subsection (1). But it would also be nonsense to say that you could perform or have fingerprints taken in gaol under subsection (3). So, the situation in relation to subsection (2) is that it extends it in relation to what was said in the Justices Act 1900 . The Justices Act, under section 33 and section 34 - and your Honours have copies of that and I will not deal with it all, but section 34 refers to the fact that when a person comes before the court and an adjournment is granted that he is remanded in "prison, watch-house, or lock-up during such adjournment". So you get a situation there that there are other places beside a prison, there are other places beside a police station where a person can be in custody.

Under section 34 there are warrants which are in accordance with section 34, and those warrants - your Honours have those, have copies of those.

CALLINAN J: Mr Papayanni, it is a very unattractive submission, really, is it not, because if you had a person in respect of whom the risk was such that he could not get bail and the investigation was proceeding - indeed, that it was not even safe to keep him in a police station - on your submission, because he happened to be in a prison, you could not take the sample?

MR PAPAYANNI: The point is they would have plenty of opportunity of taking it before he came before the court.

CALLINAN J: Well, they may not have. He may be a particular dangerous person, actually arrested in the course of a very violent crime and immediately taken to prison.

MR PAPAYANNI: Yes, but the whole point about this is why should it apply only to persons in custody? If you accept the reasoning that we put that it only applies from the time of arrest up to the time before the court, it applies to people who get bail also. Why should they be treated differently to a person who is kept in custody? The whole idea of the investigative process is before the person comes before the court to be dealt with according to law.

If a person on bail is not to be subject to this - see, what they want to do or what they can do is, even while the trial is on, you can take the person out - if, being in lawful custody on a charge applies up until the time of conviction, you can take him out in the middle of the trial.

CALLINAN J: What is wrong with that, so long as the prosecution case is not finished?

MR PAPAYANNI: It is a great invasion of liberty and also it means that the person is not going to get a fair trial because the Crown is going to have that information for the trial because of something that has arisen in the trial. The defence is not going to have any prior notice in relation to it and you have got an unfair trial on your hands. So, the situation here is the - it has always been the situation that the investigative process and then the judicial process. You have got the investigative process after the person is arrested up until he appears before the court. That would apply to everybody, even persons who get bail.

CALLINAN J: But, say, in another case, say that the investigating authorities during the course of the prosecution case find a critical piece of evidence, on your submission, they could not use it because you seem to be saying that no more investigations can be done once the trial process begins.

MR PAPAYANNI: You mean in court? You see, I do not understand what your Honour is saying in relation to this.

CALLINAN J: You seem to be making a submission that no further investigations of any kind are permissible on the part of the prosecuting authority once what you describe as the "judicial process" commences.

MR PAPAYANNI: No, I am not saying that, your Honour.

CALLINAN J: You are not?

MR PAPAYANNI: Because that goes on all the time.

CALLINAN J: Exactly.

MR PAPAYANNI: And other evidence is brought forward, and it is brought forward really before the committal and the defence is given notice of it.

GUMMOW J: But I thought you were saying 353A could not apply once the judicial process had been triggered.

MR PAPAYANNI: That is what I am saying because of this - - -

GUMMOW J: That is what my colleague is putting to you.

MR PAPAYANNI: We are talking about the invasion of liberty of the person. We are not talking about obtaining further evidence in relation to other matters. But if you are going to try to involve an accused person in relation to - if you want to interview him, for argument sake, I mean, no court would admit that evidence if he had a solicitor and the solicitor was not given notice of it. In fact, in a lot of cases the solicitors writes straight away when you have been arrested and say, "Well then, he's not to be interviewed without us being there." So, you get a situation that there is a discriminatory situation here in relation to bail.

Now, the whole idea of the section was not to discriminate between persons who get bail and those who are kept in custody. Why should a person, kept in custody, be in a worse position? A person is arrested on a serious charge and then by the time that he comes up before the court he either gets bail or he is kept in custody. Now, even on a murder case - now, if one looks at - one sees, in relation to these matters, the absurdity of it because if a person is arrested on a malicious wounding charge and he is questioned in relation to that and a blood sample is taken in relation to that and then later the person dies, it cannot be used against - in relation to the murder matter. So, I mean, you have a situation, really, here that shows by reason of the Act itself that what is meant by that section and that all the warrants in relation to these matters say that a person is not in custody upon a charge of committing an offence when he goes to gaol. He is either remanded in custody or he is committed to prison. The warrant says - you would not say that a person is in prison because he is on a charge. You would say he has been committed - legally, I am talking about. A lay person might say that.

Now, under section 358 there are some forms drawn up in relation to that which were not in accordance with section 358. Section 358, in relation to when a no bill is given by the Attorney-General or no further proceedings by the DPP, well then, it says it, there, in that section:

is remanded to prison, and in which he may in his discretion think fit not further to proceed, transmit at any time a certificate to the Judges of the Supreme Court , any one of whom may thereupon by warrant direct the gaoler in whose custody the prisoner, or person under remand -

it does not say "person upon a charge", yet the form has been badly drawn up by somebody to say that he is "upon a charge":

may be to discharge him from custody -

and so on. So you have got very strong evidence from the section itself that says what - it makes it very clear what the situation is. You have the part in which it is which makes it very clear. It only refers to "apprehension of offenders" and so on. If they wanted to make it, they would have put special evidence there in relation to it. Subsection (2) also, in relation to the section, section 353A(3A) refers to the fact that, "A person authorised by subsection (2)". Now, subsection (2) does not take in (3C). If they want to say that "a person authorised by subsection (2) and (3C), one would have thought that they would have put it in.

Now, Coco v The Queen says that if there is any ambiguity in relation to these matters, that there should be a stringent interpretation of the Act and, in this case, of course, we say that it is so uncertain, that there is no express or unambiguous language which says that a person can have a sample of blood taken after he has been before the court. You would need express words there - the authorisation under (3A) in relation to the section does not apply to (3C), the person there. You have got a person in custody where a superintendent of the gaol may delegate to a warder or somebody. In this present case the police who went there was only a detective constable and not a person above the rank of sergeant.

Franklin's Case, which is a case in South Australia, is directly on the point. The language of the section 81 in South Australia is to that effect - is to similar effect and the court there said that it does not apply after he has been before the court. So, you get a situation there that - and also Carr's Case and so on, they all refer to this situation. There is no - in our submission it is quite clear - - -

GUMMOW J: Now, Franklin was dealing with the South Australia Police Offences Act, was it not?

MR PAPAYANNI: That is right, section 81. There, the only difference between our section and their section is that "any member of the police in charge of a police station of or above the rank of sergeant". We have got "above the rank of sergeant" but we have not got "in charge of a police station".

GUMMOW J: Yes, thank you, Mr Papayanni. Yes, we will not need to call on you this time, Ms Latham.

The Court is of the view that the construction of section 353A of the Crimes Act (NSW) given by the decision of the Court of Appeal, New South Wales, was correct, so that there are no prospects of success in this Court. Accordingly, the application for special leave will be refused.

I see from page 43 of the application book no order as to costs are sought, is that right, Ms Latham?

MS LATHAM: No, there are no orders sought.

GUMMOW J: This has the effect of bringing to an end, does it not, the undertaking by the Director - - -

MS LATHAM: Yes, it does, your Honour.

GUMMOW J: - - - in President Mason's reasons of 19 December 1997?

MS LATHAM: Yes, it does, your Honour.

GUMMOW J: And that is understood to be so?

MR PAPAYANNI: There is only one matter. There was an order for costs before the Court of Appeal. I would ask that the Court strike that out, as it is a criminal matter.

GUMMOW J: I do not see why that should be so. What do you say about that, Ms Latham?

MS LATHAM: I do not think it should be struck out, your Honour.

GUMMOW J: No, it is an application for an injunction.

MS LATHAM: Yes, your Honour.

GUMMOW J: Yes. No, we will not disturb anything done in the Court of Appeal.

AT 2.40 PM THE MATTER WAS CONCLUDED