According to the Supreme Court of NSW, a magistrate’s order to determine the height of a suspected ATM thief doesn’t measure up against s 24(1) of the Crimes (Forensic Procedures) Act 2000 (NSW).
In Coffen v Goodhart [2013] NSWSC 1018, the Court considered just how high the hurdle was to order a non-intimate forensic examination of Marco Coffen.
A non-intimate forensic examination is defined in s 3(1) of the Act as:
(a) an external examination of a part of a person’s body, other than the person’s private parts, that requires touching of the body or removal of clothing,
(b) the carrying out on a person of a self-administered buccal swab,
(c) the taking from a person of a sample of the person’s hair, other than pubic hair,
(d) the taking from a person of a sample (such as a nail clipping) of the person’s nails or of matter from under the person’s nails,
(e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person’s body, other than the person’s private parts,
(f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person’s body, other than the person’s private parts,
(g) the taking from a person of the person’s hand print, finger print, foot print or toe print,
(h) the taking of a photograph of a part of a person’s body, other than the person’s private parts,
(i) the taking from a person of an impression or cast of a wound from a part of the person’s body, other than the person’s private parts,
(j) the taking of a person’s physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person’s body, other than the person’s private parts.
The parties agreed that paragraph (a) was the only relevant part of the definition.
The Court held that assessing Mr Coffen’s height wasn’t examination of part of his body, and that measuring wasn’t an examination but a calculation or assessment against a metric standard. Mr Coffen’s appeal was allowed.
Presumably the decision left the prosecution feeling a bit down, but it seems it’s not appealing to a higher authority.
There's an alternative power available in NSW in s138 of the Law Enforcement (Powers and Responsibilities) Act, which empowers a medical practitioner to 'examine a person'. That avoids the 'part of the body' analysis relied on by Fullerton J. It may also avoid her (more dubious) claim that an examination doesn't include a measurement, as that was partly based by the contrast between paras (a) and (j) of s24 of the C(FP)A.(I'm not sure why the cops tried to use s24 instead. Most likely, it's because the suspect wasn't in custody (or perhaps not charged), as s138 requires. If the suspect was under arrest, then the cops could have bypassed the need for a magistrate, using s18 of the C(FP)A instead.)In Victoria, our definition of 'forensic procedure' includes 'conduct of any procedure on or physical examination of the body'. So, we don't have the 'part of the body' problem and 'any procedure' surely includes a measurement. So, no problem here?
There's an alternative power available in NSW in s138 of the Law Enforcement (Powers and Responsibilities) Act, which empowers a medical practitioner to 'examine a person'. That avoids the 'part of the body' analysis relied on by Fullerton J. It may also avoid her (more dubious) claim that an examination doesn't include a measurement, as that was partly based by the contrast between paras (a) and (j) of s24 of the C(FP)A.(I'm not sure why the cops tried to use s24 instead. Most likely, it's because the suspect wasn't in custody (or perhaps not charged), as s138 requires. If the suspect was under arrest, then the cops could have bypassed the need for a magistrate, using s18 of the C(FP)A instead.)In Victoria, our definition of 'forensic procedure' includes 'conduct of any procedure on or physical examination of the body'. So, we don't have the 'part of the body' problem and 'any procedure' surely includes a measurement. So, no problem here?