PATRICK JOHN O'BRIEN v JOHN ANTHONY GILLIES & ANOR
Supreme Court of the Northern Territory of Australia Angel J.
25 June, 31 July 1990, at Darwin

STATUTORY INTERPRETATION - "material from the body" - meaning of - s.31(1) Juvenile Justice Act (NT) 1983

STATUTORY INTERPRETATION - Juvenile Justice Act (NT) 1983 -
whether a Code

STATUTORY INTERPRETATION - Police Administration Act (NT) 1978 - Juvenile Justice Act (NT) 1983 - whether Acts coexist in relation to juveniles - expressum facit cessare taciturn - expressio unius est exclusio alterius

STATUTORY INTERPRETATION - expressio unius est exclusio alterius - reference to sections of Police Administration Act in Juvenile Justice Act - whether
express reference to some sections excludes those on which Act is silent - no reference to a number of police powers - expressio unius not to exclude "legal assumptions" - s.31 Juvenile Justice Act - s.145 Police Administration Act

WORDS AND PHRASES - "material from the body" s.31(1) Juvenile Justice Act

Statutes referred to:
Juvenile Justice Act (NT) 1983 ss.25,31 Police Administration Act (NT) 1978 s.145

Cases referred to:
Seears v Oldfield (1985) 36 NTR 65

Counsel for plaintiff Solicitor for plaintiff:

Counsel for First Defendant: Solicitor for First Defendant:

Counsel for Second Defendant: Solicitor for Second Defendant:

D. Wallace
Solicitor for the NT

D.S. Farquhar Cridlands

D.Ross QC with S. Cox North Australian Aboriginal Legal Aid Service

ang90060

IN THE SUPREME COURT
OF THE NORTHE TERRITORY OF AUSTRALIA

No. 262 of 199:J BETWEEN:

PATRICK JOHN O'BRIEN
Plaintiff

AND:

JOHN ANTHONY GILLIES
First Defendant

AND:

F.N., a juvenile
Second Defendant

CORAM:	ANGEL J.

REASONS FOR JUDGMENT
(Delivered the 31st day of July 1990)

The plaintiff seeks remedies in the nature of certiorari and mandamus against the first defendant, a stipendiary magistrate, who, on 18 April 1990 refused an application by a member of the police force for approval to obtain a blood specimen from the second defendant pursuant to s.31(3)(b) of the Juvenile Justice Act (NT) 1983 ("the Juvenile Justice Act").	The second defendant at the time was a juvenile aged 16 years and was in lawful custody in

respect of certain offences.	The first defendant refused the applicatioJ on the basis that the Juvenile Justice Act exclusively applied to the circumstances and that that Act did not authorise him to approve the taking of a blood specimen from the second defendant.	The learned stipendiary magistrate was of the view that as a matter of law "identifying material" as defined in s.31(1) of the Juvenile Justice Act did not include blood.

Section 31 of the Juvenile Justice Act provides as follows:

"IDENTIFYING MATERIAL
In this section, "identifying material", in relation to a juvenile, means prints of the hands, fingers, feet or toes, recordings of the voice, photographs, samples of the handwriting, or material from the body, of the juvenile.
Subject to section 25 and subsection 2A, an authorized officer or a member of the Police Force for the time being in charge of a police station may take, or cause to be taken, identifying material of or from a juvenile if -
the juvenile is in lawful custody in respect of the offence; and
a magistrate has, under sub-section (4), approved the taking of the identifying material.

(2A)	Notwithstanding subsection (2), an authorized officer or a member of the Police Force for the time being in charge of a police station may take, or cause to be taken -
prints of the hands, fingers, feet or toes; or
photographs,

of a juvenile if the juvenile appears to the authorised officer or member to have attained the age of 14 years and is in lawful custody in respect of an offence; and

An authorized officer or a member of the Police Force referred to in sub-section (2) may -

make application to a magistrate in person; or

if it is not practicable for him to do so, make application to a magistrate by telephone,

for approval to take identifying material of or from a juvenile who is in lawful custody in respect of an offence or of or from a juvenile against whom proceedings have been instituted by summons in respect of an offence.

A magistrate to whom an application under sub-section (3) is made may, if he thinks fit, after hearing the authorized officer or member of the police
force who made the application and the juvenile to whom the application relates, give his approval, in writing, for the taking of such identifying material as he specifies in the approval and shall cause the written approval to be sent to the applicant.
The magistrate may inform the applicant by telephone of approval under sub-section (4) and in that case the applicant may proceed under the approval notwithstanding that he has not yet received it in writing."

The words in issue are "material from the body of the juvenile", and whether those words include a blood specimen.	The plaintiff contended the words as a matter of commonsense include blood, that the matters mentioned in
s.31 were all methods of proving the identity of persons, and that of materials used for the purpose of establishing identity, blood was an obvious example.	The words "from

the body" contemplated material from both within and without the body.

The defendants contended that the ejusdem generis rule applied to exclude blood from the definition of "material from the body".	The genus, it was said, was that all the matters preceding the expression	"material from the body" in s.31(1) were matters external to the body; there was no invasion of the body involved, nor could there be thereafter.	Had the intention been otherwise, it was said, the legislation would have used the words "material of the body".	However, the words "material from the body" would appear to have an unduly restricted meaning if they do not extend to material from within the body.		The words, it may be, include clothing, rings or necklaces, that is, material affixed, to a greater or lesser degree, to the body.	The words were conceded to extend to such matters as nail scrapings and soil or coagulated blood adhering to the skin, and the removal of such material would involve, in the absence of statutory authorisation, the same problem of assault as the taking of a blood specimen.		Blood is "material".	There is no reason to suppose the words "the body" mean anything other than the whole of the body, both internal and external.	There is no reason to suppose the section enables the taking of a specimen of blood oozing from an open wound but not from a vein.	As a matter of grammar I think the words "material from the body" include a blood specimen taken from within the body.
4

Even if the words in 31(1), as a matter of grammar, cover the taking of blood specimens, there remain, so say the defendants, a number of difficulties.	First, the taking of a blood specimen is prima facie an assault.	At common law there is no right to take a blood specimen: Cross On Evidence 3rd Aust Ed, Butterworths 1986, at para
This being so, it is necessary for the legislature to set out clearly the intention to allow what would otherwise be an offence.	This, for example, has been done in s.145 of the Police Administration Act (NT) 1978 as amended ("the Police Administration Act") which provides:

"MEDICAL EXAMINATIONS
A member of the Police Force may arrange for a registered medical practitioner or a registered dentist to examine the body of the person in lawful custody on a charge of an offence if he has reasonable grounds for believing that the examination may provide evidence relating to the offence or to any other offence punishable by imprisonment and -
the person has given his consent in writing; or
a magistrate has approved the examination under sub-section (6).
An examination conducted pursuant to
sub-section (1) may include the taking of X-rays and other photographs, salivary and other tests and dental impressions or bitemarks of the person examined.
A member of the Police Force may arrange for a registered medical practitioner or a registered dentist to take a specimen from a person in lawful custody on a charge of an offence for the purpose of having the specimen analysed or otherwise examined if the member has reasonable grounds for believing that an analysis or other examination of the specimen may provide evidence relating to the offence or to any other offence punishable by imprisonment, and -

the person has given his consent in writing; or

the magistrate has authorized the taking of the specimen under sub-section (6).
A registered medical practitioner or a registered dentist may examine the person of a person and take a specimen from a person in the circumstances described in sub-section (1) or (3), as the case may be, and for this purpose may call upon the assistance of a member of the Police Force, who may use such reasonable force as may be necessary for the purpose of conducting the examination or taking the specimen.

A member of the Police Force who has reasonable grounds for the belief referred to in sub-section (1) or (3), whichever is applicable, in relation to a person who is in lawful custody in respect of an offence may -
make application to a magistrate in person; or
if it is impracticable for him to make application to a magistrate in person - make application to a magistrate by telephone,

for approval for a registered  medical practitioner or a registered dentist to examine the person of the person, or take a specimen from the person, as the case may be.
A magistrate to whom application is made under sub-section (5) may, after hearing the member and the person who is in lawful custody, if he is satisfied that the member has reasonable grounds for the belief referred to in sub-section (1) or (3), whichever is applicable, approve in writing, the examination of the person of the person, or the taking of a specimen from the person, as the case may be.
Where a magistrate gives his approval in relation to an application made to him under
sub-section (5) by telephone, the magistrate shall cause the instrument giving approval to be forwarded to the applicant before the examination.

Before arranging for a registered medical practitioner or a registered dentist to examine a person in lawful custody or to take a specimen from such a person, a member of the Police Force shall inquire whether the person wishes to have a registered medical practitioner or a registered dentist of his own

choice present during the examination or the taking of the specimen and, if he states that he does so wish, shall -

provide reasonable facilities to enable the person to arrange for a registered medical practitioner or a registered dentist of his choice to be so present; and

unless it would be impracticable to do so - arrange for the examination to be made, or the specimen to be taken, at a time when the registered medical practitioner or the registered dentist chosen by the person can be present.
Where a person in lawful custody is examined by a registered medical practitioner or a registered dentist in accordance with sub-section (1), or a specimen is taken from such a person in accordance with sub-section (3), a member of the Police Force shall, upon application by the person, provide the person with a copy of the report of the registered medical practitioner or the registered dentist furnished in respect of the examination or of the report of the analysis or other examination of the specimen.
Where a registered medical practitioner or a registered dentist -
makes an examination of the person of a person; or
takes a specimen from a person,

in pursuaLce of arrangements duly made by a member of the Police Force under this section, proceedings do not lie against the registered medical practitioner or the registered dentist in respect of anything reasonably done by him for the purpose of the examination, or for the purpose of taking the specimen.
Nothing in this section shall be taken -
a)	to prevent a registered medical practitioner or a registered dentist from examining a person in lawful custody at the request of that person or for the purpose of treating him for an illness or injury; or
(b)	to affect the power of a court to exclude evidence obtained through force or inhumane treatment.

.-

In this section "specimen", in relation to a person, includes any sample of, or taken from, the body of the person and any substance found on the body of the person.

The powers given by this section are in addition to and shall not derogate from any other powers of members of the Police Force pursuant to any other law in force in the Territory."

The provision for the taking of a blood specimen by a medical practitioner does not appear in the Juvenile Justice Act.		The defendants argued Parliament would never have intended that blood specimens be taken from juveniles by police constables.	If adults have the protection of a medical practitioner, said the defendants, it is unthinkable that juveniles would not have the same protection.	This being so, said the defendants, s.31(1) of the Act should be 'read down' to exclude the taking of blood specimens.

The heart of the problem, it seems to me, is whether

s.145 of the Police Administration Act is to be read with
s.31 of the Juvenile Justice Act so as in combination to provide a procedure for the taking of a blood specimen from juveniles.

The defendants contended that s.145 of the Police Administration Act does not apply to juveniles as the Juvenile Justice Act provides a code for dealing with

juveniles.	They sought support for this proposition by reference to the long title of the Act which reads as follows:

"Relating to the investigation of offences alleged to have been committed by juveniles, the establishment of the Juvenile Court, the procedures to be adopted in and in relation to proceedings against juvenile offenders, the punishment of juvenile offenders, the transfer of juvenile offenders between the Territory and the States, and for other purposes, with the intention that juveniles be dealt with in the criminal law system in a manner consistent with their age and level of maturity (including their being dealt with, where appropriate, by means of admonition and counselling) and to extend to juveniles the same rights and protections before the law as apply to adults in similar circumstances."

The defendants also relied  upon the remark of Muirhead ACJ, in Seears v Oldfield (1985) 36 NTR 65 at 70:

"The Juvenile Justice Act purports to provide a modern code relating to young offenders."

The plaintiff countered this argument by saying that His Honour was merely using the word "Code" as a synonym for "Act" and not in the sense that he believed the Juvenile Justice Act was a codifying statute.	The plaintiff submitted that true it may be, the Juvenile Justice Act was a codifying statute in relation to sentencing and the establishment and jurisdiction of the juvenile court, but there were nevertheless a number of

sections in the Juvenile Justice Act which referred to other statutes, notably s.25(3) which refers to s.134 of the Police Administration Act, s.25(4) which refers to sections 20 to 29 of the Traffic Act, s.26 which refers to
s.75 of the Police Administration Act.	This was sufficient indication, the plaintiff said, that the Juvenile
Justice Act, at least in some regards, was not a codifying statute.

What is a codifying statute?	For present purposes it is sufficient to employ the following statement from Maxwell: Interpretation of Statutes, 12th Ed, Sweet and Maxwell (1969) p.25:

"A codifying statute is one which purports to state exhaustively the whole of the law upon a particular subject, the draftsman attempting to subsume in his code both the pre-existing statutory provisions (as in a consolidation Act) and also the common law rules relating to the matter."

In my opinion the long title to the Juvenile Justice Act makes it plain that the Juvenile Justices Act does not purport to codify the whole of the law relating to young offenders.	The long title says, inter alia:

"	and to extend to juveniles the same rights and protections before the law as apply to adults in similar circumstances."

It is sigr-ificant that the Juvenile Justice Act is silent on such obvious matters of relevance as arrest and release on bail.	In my opinion the Juvenile Justice Act is not a code encapsulating the law with respect to juveniles to the exclusion of all other law, both judge-made and statutory.

The question, however, remains, does s.145 of the Police Administration Act, notwithstanding the enactment of the Juvenile Justice Act, continue to apply to juveniles?
In deciding this question a number of principles of statutory interpretation need consideration.	A number of them were resorted to by the defendants.	It was contended the principle of expressurn facit cessare taciturn applied, that is that where a particular procedure is designated to achieve something, other procedures are thereby excluded, and reliance was placed upon Pearce & Geddes
Statutory Interpretation In Australia 3rd Ed, Butterworths 1988, at 82.	This principle is a derivative of the principle expressio unius est exclusio alterius, that is, that an express reference to one matter indicates that other matters are excluded (Pearce & Geddes, supra, p.79). The defendants argued that the Police Administration Act procedure for the taking of blood specimens necessarily precluded application of s.31(1) of the Juvenile Justice
Act to such activities.

I do not accept this submission.	It seems to me the statutory provisions can be read together as relating to the same subject matter.	It seems to me the provisions may be and are to be read as complementary, and that the requirements of the Juvenile Justice Act are superimposed upon the Police Administration Act procedure when blood specimens are to be taken from juveniles.	Prior to the Juvenile Justice Act, s.145 of the Police Administration Act, being a general provision relating to police powers, applied to juveniles.	In my view, the Juvenile Justice Act does not render that provision inapplicable either  expressly or by necessary implication.

The principle of expressio unius arises in another way.	The defendants pointed out that various sections of the Juvenile Justice Act expressly refer to and embrace
particular provisions of the Police Administration Act, see eg s.25(3) Juvenile Justice Act.	Here, said the defendants, had s.145 of the Police Administration Act been intended to apply to juveniles, the Juvenile Justice Act would have expressly said so.

It seems to me this argument is met in two ways.
First, the Juvenile Justice Act does not refer to a number of important police powers which, as one would expect, clearly do continue to apply to juveniles.	Notable among

these are powers of arrest and bail, of which very little is said in the Juvenile Justice Act.	Enforcement of bonds is also not elaborated upon in the Juvenile Justice Act.

Another answer to the defendants' argument is by reference to a recognised qualification to the principle of expressio unius, namely that the principle will not be used to exclude certain "legal assumptions" (Pearce, supra, at 81).	One such legal assumption, relevant here, is that the court will uphold fundamental legal rights, whether they be common law rights or statutory rights (Pearce, supra, at 102-107, particularly at 107).	If s.31 (construed to include blood sampling) were to stand alone by operation of expressio unius, then it would take away the right of freedom from assault and the right against
self-incrimination.	Such an intention will not be attributed to Parliament in the absence of clear words. Section 31 of the Juvenile Justice Act should not be read so as to exclude application of the Police Administration Act; the two should be read together.

The defendants argued that if s.145 of the Police Administration Act applies to the taking of a blood specimen from a juvenile, then it leaves s.31 of the Juvenile Justice Act with no work to do.	It was said that section 31 of the Juvenile Qustice Act covered the field in relation to the collection of identifying evidence and if

there was a gap in the legislation, that is, a failure to provide proper procedures then that must be remedied by amendment to the statute.	The plaintiff argued, and I agree, that s.31 necessitates extra requirements when such procedures are being carried out in relation to juveniles. First it is necessary to comply with s.25 of the Juvenile Justice Act, which lays down certain requirements in respect of the interview or investigation of juveniles, particularly that someone should be present with the juvenile during interviews and investigation.	Secondly, a magistrate may approve the taking of identifying material only after hearing from the authorised officer or member of the police force, and the juvenile in custody (s.31(4)).

The procedures for taking a blood specimen from a juvenile appear to me to be as follows.	Under s.31 of the Juvenile Justice Act, it is necessary for the identifying material to fall in the categories outlined in s.31(1).
Blood falls into the category of "material from the body". To obtain material from the body of a juvenile, the juvenile must be in lawful custody !s.31(2)-, and a magistrate must have approved the taking of identifying material under s.31(4).	Section 31(2) is subject to s.25 which provides that a juvenile shall not be interviewed or investigated unless a person specified in s.25(1)(c) is present.	Having fulfilled the requirements of s.25 and s.31(1)(2) and (4) of the Juvenile Justice Act, it is then

necessary to comply with s.145 of the Police Administration Act which lays down the procedures for the taking of a blood sample by a medical practitioner.

My conclusion, then, is that the words "material from the body" include blood.	A magistrate may authorise the taking of a blood specimen from a juvenile by virtue of the joint operation of s.31 of the Juvenile Justice Act and
s.145 of the Police Administration Act.	Such a blood specimen can only be taken from a juvenile if the requirements of both s.145 of the Police Administration Act and s.31 of the Juvenile Justice Act are adhered to.

For these reasons the plaintiff is entitled to orders, first, quashing the first defendant's determination to refuse approval for the taking of a blood specimen from the second defendant and, secondly, directing the first defendant to hear and determine the application according to law.

I order accordingly. There will be a stay of these orders until further order with liberty to any party to apply on 48 hours' written notice to the other.