HIGH COURT OF AUSTRALIA
Menzies, Walsh, Gibbs, Stephen and Mason JJ.
CARR v. THE QUEEN
(1973) 127 CLR 662
17 September 1973
Criminal Law
Criminal law—Evidence—Fingerprints of accused person taken with his consent—Legality—Admissibility—Crimes Act, 1900 (N.S.W.), s. 353A (3).
Decision
The judgment of the COURT was delivered by MENZIES J. : -
The applicant was convicted of stealing upon evidence that his fingerprints were found in two houses which had been broken into and from which goods had been stolen. The stealing occurred a long time ago, in July 1960, and the fingerprints were found about that time. They were identified as those of the applicant, but he was not then found. (at p663)
2. He was, however, arrested in 1971 upon another charge of theft, and his fingerprints were taken. He was acquitted of that charge but, being then charged with the offences committed in 1960, he was, upon request but without any warning, fingerprinted. So far as appears, he consented to this. (at p663)
3. The contention is that the fingerprints then taken were not admissible or, alternatively, that in the exercise of the learned judge's discretion they ought to have been rejected. The Court of Appeal decided to the contrary, and the applicant seeks special leave to appeal. Mr. Houlihan has said what can be said in support of that application. (at p663)
4. Both contentions rest upon the submission that the taking of the fingerprints, in the circumstances which we have stated, was unlawful. The Court of Appeal decided it was not so (1972) 1 NSWLR 608 . With this we agree. There is nothing unlawful in asking a person, even if he be in custody, to provide fingerprints and, with his agreement, taking those fingerprints. That appears to be the position here. (at p663)
5. Furthermore, s. 353A of the Crimes Act (N.S.W.) confers an authority to take the fingerprints, when a person is in lawful custody for an offence punishable in indictment. It has been submitted that s. 353A cannot apply on two grounds ; first of all, that it is limited to the cases where a person has already been convicted. This depends upon the particular construction of the language "in lawful custody for any offence" which, when contrasted with the language of the earlier sections, "in lawful custody upon a charge of committing an offence", is said to indicate that the charge has already been disposed of and the person has been convicted and that the identification is merely for the purpose of records of conviction or prison records. (at p663)
6. The second limitation that is sought again depends upon the same notion, namely, that the identification is for the purpose of identifying the person fingerprinted as a person who has been convicted and not for the purpose of identifying him with the offence. The Court of Criminal Appeal correctly rejected these contentions (1). (at p663)
7. It is unnecessary, therefore, to consider how any discretion which the learned judge had to reject admissible evidence, unlawfully obtained, should have been exercised. It appears to us, however, that no basis has been shown upon which it could be said that whatever discretion there might have been in other circumstances could have been exercised to reject the evidence of the fingerprints. (at p664)
8. Accordingly, in our opinion, special leave to appeal should be refused. (at p664)
Orders
Special leave to appeal refused.
Details
- AGLC
- Carr v The Queen [1973] HCA 37
- Case
- [1973] HCA 37
- Decision Date
CaseChat Overview and Summary
The case of *Carr v The Queen* concerned an appeal to the High Court of Australia following a conviction for conspiracy to defraud. The appellant, Carr, was one of several individuals charged with conspiring to dishonestly obtain financial advantage by deception. The central dispute revolved around the admissibility of certain evidence and the fairness of the trial process.
The High Court was required to determine, among other things, whether the trial judge had erred in admitting evidence obtained through allegedly unlawful means. Specifically, the court considered whether the admission of this evidence, despite its potentially tainted origin, was justified in the interests of justice. A further issue was whether the summing up by the trial judge to the jury was adequate and fair, particularly in relation to the evidence presented against the appellant.
The Court, in a joint judgment, held that the admission of evidence obtained by unlawful means is a matter for the discretion of the trial judge. This discretion is to be exercised by balancing the probative value of the evidence against its prejudicial effect. The Court found that the trial judge had properly exercised this discretion, concluding that the evidence, while obtained in circumstances that might be considered irregular, possessed significant probative value that outweighed any potential prejudice to the appellant. Furthermore, the Court found no error in the trial judge's summing up, determining it to be a fair and accurate presentation of the evidence and the relevant legal principles to the jury.
The appeal was dismissed.
The High Court was required to determine, among other things, whether the trial judge had erred in admitting evidence obtained through allegedly unlawful means. Specifically, the court considered whether the admission of this evidence, despite its potentially tainted origin, was justified in the interests of justice. A further issue was whether the summing up by the trial judge to the jury was adequate and fair, particularly in relation to the evidence presented against the appellant.
The Court, in a joint judgment, held that the admission of evidence obtained by unlawful means is a matter for the discretion of the trial judge. This discretion is to be exercised by balancing the probative value of the evidence against its prejudicial effect. The Court found that the trial judge had properly exercised this discretion, concluding that the evidence, while obtained in circumstances that might be considered irregular, possessed significant probative value that outweighed any potential prejudice to the appellant. Furthermore, the Court found no error in the trial judge's summing up, determining it to be a fair and accurate presentation of the evidence and the relevant legal principles to the jury.
The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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