HAWES v THE GOVERNOR OF THE GOULBOURN CORRECTIONAL CENTRE and ANOR [1997] NSWCA 140

HAWES v THE GOVERNOR OF THE GOULBOURN CORRECTIONAL CENTRE and ANOR [1997] NSWCA 140

Section 353A of the Crimes Act 1900 authorises the compulsory taking of bodily samples from persons in lawful custody 'upon a charge,' and this applies to persons remanded in custody pending trial in correctional centres; the statutory language, particularly after the 1995 amendments, extends the section’s operation beyond police custody before initial court appearance to include ongoing custody until trial, under any authority such as the governor of a correctional centre.

Parties
Appellant: Hawes; First Respondent: The Governor of the Goulbourn Correctional Centre; Second Respondent: Anor
Jurisdiction
Australia
Judgment Date
18 December 1997
Procedural Posture
Appeal / Appeal From Single Judge Decision
Outcome
Appeal dismissed
Legal Topics
Lawful Custody, Collection of Bodily Samples, Interpretation of Crimes Act S353 a, Privilege Against Self Incrimination
Criminal Law Evidence Lawful Custody Collection of Bodily Samples Interpretation of Crimes Act S353 a Privilege Against Self Incrimination

Case Brief

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Parties

Hawes

Appellant

The Governor of the Goulbourn Correctional Centre

First Respondent

Anor

Second Respondent

Procedural Posture

Appeal / Appeal From Single Judge Decision

Legal Issues

  1. 1 Whether a person committed for trial and remanded in custody is still 'in lawful custody upon a charge of committing any crime or offence' within s353A(2) of the Crimes Act 1900
  2. 2 Whether s353A(2) authorises compulsory medical examination and taking of blood samples after a person's first court appearance or committal for trial

Ratio Decidendi

Section 353A of the Crimes Act 1900 authorises the compulsory taking of bodily samples from persons in lawful custody 'upon a charge,' and this applies to persons remanded in custody pending trial in correctional centres; the statutory language, particularly after the 1995 amendments, extends the section’s operation beyond police custody before initial court appearance to include ongoing custody until trial, under any authority such as the governor of a correctional centre.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Injunction pending determination of appeal dissolved