R v Benjamin Mark Sarlija

[2005] ACTSC 120

R v BENJAMIN MARK SARLIJA [2005] ACTSC 120 (30 NOVEMBER 2005)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – investigation of offence – forensic procedures – fingerprints of the accused obtained in contravention of Crimes (Forensic Procedures) Act 2000 (ACT) – record of fingerprints obtained under Crimes Act 1958 (Vic), s 464K - destruction of fingerprints – whether the Victorian police were required to destroy fingerprint records of the accused – Crimes Act 1958 (Vic), s 464O – whether accused not charged, or matter not proceeded with, within statutory time period for retaining forensic records – whether exceptional circumstances would permit admitting the fingerprint evidence in Victoria – Crimes Act 1958 (Vic), s 464Q, Evidence Act 1995 (Cth), s 138 considered.

WORDS AND PHRASES – ‘charged’, ‘charge not proceeded with’

Supreme Court Rules 1937 (ACT), O 80 r 27

Crimes (Forensic Procedures) Act 2000 (ACT)

Crimes Act 1958 (Vic), s 464

Magistrates’ Court Act 1989 (Vic), s 26, s 28

Evidence Act 1995 (Cth), s 138

Second Reading Speech, Minister for Police and Emergency Services, Victorian Parliamentary Hansard, 28 October 1993, 1456
Second Reading Speech, Attorney-General, Hansard, 14 April 1988, 1472

No. SCC 200 of 2004

Judge:             Gray J
Supreme Court of the ACT

Date:              30 November 2005

IN THE SUPREME COURT OF THE     )
  )          No. SCC 200 of 2005
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:THE QUEEN

Plaintiff

AND:BENJAMIN MARK SARLIJA

Defendant

RULING

Judge:  Gray J
Date:  30 November 2005
Place:  Canberra

THE COURT RULES THAT:

1. The evidence proposed to be led as to the fingerprint at the scene being that of the accused is not to be admitted.

1. The accused, Benjamin Mark Sarlija, makes a pre-trial application pursuant to O 80 r 27 of the Supreme Court Rules 1937 (ACT) seeking that the evidence of fingerprints held on file by the police authorities as being the accused’s fingerprints, not be admitted as having been obtained improperly or in consequence of an impropriety.

The circumstances giving rise to the application

1. On 1 March 2005, the accused was arraigned upon an indictment that on 12 July 2002 at Canberra he entered a building in the suburb of Banks as a trespasser with intent to steal and that he stole property valued at approximately $17,700.00 belonging to the occupant of that property.

1. The principal evidence against the accused was a fingerprint that was found in the premises which is subsequently said to be that of the accused.  It was taken from a glass door of a buffet cabinet in the lounge room of the premises.  There is no apparent reason why the accused’s fingerprint should have been on that cabinet and items from that cabinet were part of the property alleged to have been stolen.

1. At the committal hearing, it appears to have been suggested on behalf of the accused that the fingerprint may have been left on the property on an earlier occasion when the accused had been at the premises at the invitation of the occupant’s son.  Nevertheless, an issue has arisen as to whether the evidence relating the accused to that fingerprint should be admitted in evidence. 

1. Fingerprints were taken from the accused by implementing the procedures under the Crimes (Forensic Procedures) Act 2000 (ACT). It is common ground that the police, in exercising their powers under that Act, failed to comply with the procedures required by that Act to ensure that an informed consent to the procedure was given by the accused. It then emerged that a more fundamental difficulty potentially arose in that the request to implement the procedures under the Crimes (Forensic Procedures) Act 2000 (ACT) depended upon information concerning the identity of a fingerprint that had been obtained in Victoria under the Crimes Act 1958 (Vic).

1. Mr Gill, who appeared as counsel for the accused, submitted that the provisions of the Crimes Act 1958 (Vic) required that fingerprints that had been obtained from the accused under that Act, were fingerprints that s 464O of that Act required the Chief Commissioner of Police to destroy and that the failure to destroy them as required made the use of them a summary offence. For purposes of evidence in Victoria, s 464Q of that Act makes such evidence inadmissible unless the prosecution satisfies the court of exceptional circumstances to justify the reception of the evidence.

1. Mr Morters, who appeared for the Director of Public Prosecutions, took the view that he could rely upon the material obtained under the Crimes Act 1958 (Vic) and adduce it in evidence at trial but that if I was to rule it inadmissible, the prosecution could not make out its case. The admissibility of this particular material then became the focus of this voire dire hearing.

The fingerprinting of the accused in Victoria

1. The accused’s fingerprints were obtained by Victorian Police in the course of investigating offences of criminal damage which had taken place on 30 September 2000.  The offence of criminal damage is an indictable offence.  On 13 October 2000 Senior Constable Dowell interviewed the accused and took his fingerprints.  The accused was informed that he was going to be summonsed for the offences in respect of which he had been interviewed.  At the time the accused was 17 years of age but the special provisions concerning the fingerprinting of children applied only to children aged 14 or under.

1. The authority under which Senior Constable Dowell took the fingerprints is that provided in s 464K of the Crimes Act 1958 (Vic). The relevant provisions are contained in ss (1) and (2):

(1)A member of the police force may take, or cause to be taken by an authorised person, the fingerprints of a person of or above the age of 15 years who –

(a)is believed on reasonable grounds to have committed;  or

(b)has been charged with;  or

(c)has been summonsed to answer to a charge for –

an indictable offence or a summary offence referred to in Schedule 7.

(2)A member of the police force intending to fingerprint a person under this section musts inform the person in language likely to be understood by him or her –

(a)of the purpose for which the fingerprints are required;  and

(b)of the offence which the person is believed to have committed or with which the person has been charged or for which the person has been summonsed to answer to a charge;  and

(c)that the fingerprints may be used in evidence in court;  and

(d)that if the person refuses to give his or her fingerprints voluntarily, a member of the police force may use reasonable force to obtain them;  and

(e)that if the person is not charged with a relevant offence within 6 months or is so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence before the end of that period, the fingerprints will be destroyed.

Senior Constable Dowell’s belief on reasonable grounds that the accused had committed an indictable offence is not challenged. The provisions of s 464K(4) of the Act were complied with. Senior Constable Dowell determined not to charge the accused at that stage but informed him that he would be summonsed.

The requirement to destroy fingerprint records

1. Accepting that the taking of the fingerprints in this case was lawful, s 464O of the Crimes Act 1958 (Vic), as in force at the relevant time, provided for the destruction of records of them in the circumstances specified in that section. It is the accused’s principal submission that the circumstances set out in that section required their destruction. Section 464O provided:

(1)In this section “relevant offence” means –

(a)the offence in respect of which the fingerprints were taken;  or

(b)any other offence arising out of the same circumstances;  or

(c)any other offence in respect of which the fingerprints have probative value.

(2)If a person has been fingerprinted in accordance with this Subdivision and –

(a)the person has not been charged with a relevant offence at the end of the period of 6 months after the taking of the fingerprints;  or

(b)the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence, whether on appeal or otherwise, before the end of that period –

the Chief commissioner of Police must, subject to sub-section (4), destroy the fingerprints and any record, copy or photograph of them, or cause them to be destroyed at the time specified in sub-section (3).

(3)For the purposes of sub-section (2), fingerprints taken in accordance with this Subdivision and any record, copy or photograph of them must be destroyed –

(a)where the person has not been so charged or the charge is not proceeded with, immediately after that period of 6 months;  or

(b)where the person is not found guilty, within 1 month after the conclusion of the proceedings and the end of any appeal period.

(4)A member of the police force may, within the period referred to in sub-section (3)(a) or (b) and on one occasion only, apply without notice to any other person to the Magistrates’ Court or the Children’s Court (as the case requires) for an order extending the period by not more than 6 months within which the fingerprints and any record, copy or photograph of them must be destroyed.

(5)If a court makes an order under sub-section (4), it must cause a copy of the order to be served on the person from whom the fingerprints were taken.

(6)If fingerprints or any record, copy or photograph of them are destroyed in accordance with this section, the Chief commissioner of Police must give notice within 14 days of the destruction to the person from whom the fingerprints were taken.

(7)A person who –

(a)fails to destroy;  or

(b)uses or makes, or causes or permits to be used or made –

any record, copy or photograph of fingerprints required by this section to be destroyed is guilty of a summary offence punishable on conviction by a level 10 fine (10 penalty units maximum).

1. The section has been subsequently amended but only to accommodate the procedure of finger scanning for identification purposes.  In all other respects the section operates as it did at the time of the taking of the accused’s fingerprints.

Whether the accused was charged

1. I have before me, by consent, the statement of Senior Constable Dowell.  That statement states that the accused “was charged with 16 counts of criminal damage on 15 March 2001 less than 6 months after his fingerprints were taken”.

1. That, of course, is the very point that the accused wishes to contest.  It is maintained on his behalf that there has been no such charge.  Attached to Senior Constable Dowell’s statement is a portion of a document under Form 7 of the Magistrates Court General Regulations 170/1990 headed “Charge and Summons (to be Filed at Court after Service)”.  The document sets out details of the charge and a charge of criminal damage is specified (although the document that I have does have the “Continuation of Charges” that are supposed to be attached and presumably contains the other 15 criminal damages charges).  The document also specifies that case “will be heard at the Magistrates Court of Victoria at Mildura at 10.00 am on 23 April 2001”.  Under a heading “Details about this summons”, the summons is said to be issued at Mildura on 19 March 2001 by the Registrar.  It also says the “charge filed at Mildura date 19 Mar 2001”.

1. Section 26 of the Magistrates’ Court Act 1989 (Vic) provides:

(1)A criminal proceeding must be commenced by filing a charge –

(a)with a registrar;  or

(b)if the defendant is arrested without a warrant and is released on bail, with a bail justice.

(1A)If a proceeding is commenced under sub-section (1)(a) by filing a charge with a registrar other than the appropriate registrar, the informant must file a copy of the charge with the appropriate registrar within 7 days after the commencement of the proceeding.

(2)A charge must be on a charge-sheet signed by the informant.

(3)A charge need not be on oath, except where otherwise provided by this or any other Act.

(4)A proceeding for a summary offence must be commenced not later than 12 months after the date on which the offence is alleged to have been committed, except where otherwise provided by or under any other Act.

1. Because of the qualification to the title of the proceeding “(to be Filed at Court after Service)”, I would have thought that there was some ambiguity as to the charge having effect as a proceeding until it had been served and then filed. I am satisfied, however, that the provisions of s 28 of the Magistrates Court Act 1989 (Vic) permits the combination of charge and summons to be filed. Section 28 provides:

(1)On the filing of a charge under section 26 an application may be made to the appropriate registrar, or to the registrar at the venue of the Court at which the charge is filed if a copy of the charge has not yet been filed with the appropriate registrar, for the issue of –

(a)a summons to answer to the charge;  or

(b)a warrant to arrest –

in order to compel the attendance of the defendant.

(2)An application under sub-section (1)(b) must be made by the informant but an application under sub-section (1)(a) may be made by the informant or a person on behalf of the informant.

(3)An application under sub-section (1) may be made by the applicant in person or by post.

(4)On an application under sub-section (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue –

(a)a summons to answer to the charge;  or

(b)subject to sub-section (5), a warrant to arrest.

(5)A registrar must not issue in the first instance a warrant to arrest unless satisfied by evidence on oath or by affidavit that –

(a)it is probable that the defendant will not answer a summons;  or

(b)the defendant has absconded, is likely to abscond or is avoiding service of a summons that has been issued;  or

(c)a warrant is required or authorised by any other Act or for other good cause.

1. In the present case, Senior Constable Dowell says that a first instance warrant has also issued although he provides no grounds upon which it is said that the warrant issued.

1. It follows that I am satisfied that the accused was charged with a relevant offence within six months after the taking of his fingerprints and that circumstance does not require the destruction of the accused’s fingerprints (see s 464O(2) of the Crimes Act 1958 (Vic)).

Whether the charge was proceeded with

1. However, the failure to serve the summons or to execute the warrant that has presumably been issued, seems to me to indicate that charge has not been proceeded with and that the requirement to proceed with the charge, either by service or execution, must take place within that same period of six months that is allowed for charging the person.

1. I say that because the time specified after which the Chief Commissioner of Police must destroy the fingerprints is that provided for in s 464O(3) of the Crimes Act 1958 (Vic), set out in [10] above. In s 464O(3)(a), the period of six months relates to both the requirement to charge and the requirement to proceed with the charge. The circumstance in s 464O(3)(b) calling for destruction of fingerprints where the person is not found guilty, is a period within one month after the conclusion of the proceedings – a distinctly different concept.

1. There is, to my mind, no reason to doubt that at least in the two instances contained in s 464O(3)(a), the legislation is giving effect to the Minister’s Second Reading Speech to which Mr Morters referred. In that speech, the Minister said:

Under new section 464O, the Chief Commissioner of Police is obliged to destroy fingerprint records if, within six months of being fingerprinted:

that person has not been charged;  or

that person has been charged but the matter not proceeded with;  or the person has been charged and acquitted.

The time frame of six months applies to each of the circumstances specified.  It seems clear that such a time frame was considered impracticable for occasions where a person was acquitted and hence the different provision of time for that circumstance.  However, as enacted, the limitation of six months applies to both a person not being charged and the matter not being proceeded with.  In my view, it is not open on any reasonable reading of the provision to suggest, as Mr Morters does in his written submissions, that the six month limitation is to run from the time the proceedings are discontinued.

1. The requirement to destroy fingerprints in the absence of a conviction for an offence is a safeguard to ensure a balance between effective law enforcement and the protection of fundamental freedoms (see the Second Reading Speech of the Attorney-General introducing the Crimes (Fingerprinting) Bill, the predecessor to the provisions under consideration here, Hansard, 14 April 1988 at 1472).  It is perfectly reasonable to ensure that balance by imposing a restriction on the time that a charge may be both brought and proceeded with before fingerprints are retained.  If the legislature clearly specifies that the period be limited to six months, then effect should be given to that intention.  Moreover, I regard the service of proceedings for the purpose of giving notice of the charge and bringing that person before the court as an essential requirement to say that the charge is being proceeded with.  In the event that proceedings are served within the six month period, but are subsequently discontinued, then in that circumstance, they would appear to fall within the concept of a person “not found guilty” at the conclusion of the proceedings.  In that situation, the time for destruction is the one month period specified after the conclusion of the proceedings and the end of any appeal period.

1. This view seems to be reinforced by s 464O(4) of the Crimes Act 1958 (Vic). That subsection permits an application to the Magistrates Court or Children’s Court for an order extending the period, by not more than six months, within which the fingerprints must be destroyed. In any event, there was no such application apparently made in this case. Such an application might have shown circumstances special to this case.

Whether exceptional circumstances

1. Looked at in that way, there is also no real room for it to be said that there are exceptional circumstances which would justify the admission of this evidence in a Victorian Court. This is also a matter that I consider that I should take into account in the exercise of my discretion under s 138 of the Evidence Act 1995 (Cth). Section 464Q of the Crimes Act 1958 (Vic) provides:

(1)Evidence in respect of fingerprints taken from a person is inadmissible as part of the prosecution case in proceedings against that person for an offence if –

(a)the requirements of sections 464K to 464N have not been complied with;  or

(b)the fingerprints or any record, copy or photograph of them should have been but have not been destroyed as required by section 464O or 464P.

(2)A court may admit evidence in respect of fingerprints otherwise inadmissible by reason of sub-section (1)(a) if –

(a)the prosecution satisfies the court on the balance of probabilities that the circumstances are exceptional and justify the reception of the evidence;  or

(b)the accused consents to the reception of the evidence.

(3)For the purposes of sub-section (2)(a), the probative value of the fingerprints is not to be regarded as an exceptional circumstance.

1. I have no material before me other than the fact that the charge and summons was not served on the accused. No reason is given for the warrant not being executed. No other circumstance is relied upon. I do not consider that a court could be satisfied on the balance of probabilities within the terms of s 464Q of the Crimes Act 1958 (Vic), that the circumstances were exceptional to justify the reception of the evidence in the event that an application be made under that section.

1. I took Mr Morters to concede that if the Victorian fingerprint records should have been destroyed, the accused would not have been a suspect there would have been no occasion for the Crimes (Forensic Procedures) Act 2000 (ACT) to have been invoked. In those circumstances, he did not feel able to put an argument in terms of s 138 of the Evidence Act that:

… the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Conclusion

1. In the circumstances, I consider that to be an appropriate concession. I have taken into account the matters referred to in s 138(3) of the Evidence Act.  I am aware of the probative value and importance of the evidence in the circumstances of this case.  However, particularly having regard to the scheme of the Victorian legislation under which the evidence was obtained and the strictures on the use of such material as evidence when it should have been destroyed, I rule that the evidence proposed to be led as to the fingerprint at the scene being that of the accused is inadmissible.

   I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

   Associate:

   Date:    30 November  2005

Counsel for the plaintiff:  Mr S Gill
Solicitor for the plaintiff:  South East Aboriginal Legal Service
Counsel for the defendant:  Mr D Morters
Solicitor for the defendant:  Director of Public Prosecutions (ACT)
Date of hearing:  25, 27 July and 7 September 2005
Date of judgment:  30 November 2005