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:

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

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

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.

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.

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Benjamin Mark Sarlija

Details

AGLC: R v Benjamin Mark Sarlija [2005] ACTSC 120
Case: [2005] ACTSC 120
Decision Date: 30 NOVEMBER 2005

CaseChat Overview and Summary

In the case of R v Benjamin Mark Sarlija, the respondent was charged with an offence in the ACT. His fingerprints were obtained in contravention of the Crimes (Forensic Procedures) Act 2000 (ACT). The fingerprints were recorded under section 464K of the Crimes Act 1958 (Vic) and were subsequently destroyed by the Victorian police. The respondent contended that the Victorian police were required to destroy the fingerprint records since he was not charged or the matter was not proceeded with within the statutory time period for retaining forensic records as set out in section 464O of the Crimes Act 1958 (Vic). The respondent further argued that there were no exceptional circumstances that would permit the admission of the fingerprint evidence in Victoria, as provided for in section 464Q of the Crimes Act 1958 (Vic) and section 138 of the Evidence Act 1995 (Cth).

The primary legal issues before the court were whether the Victorian police were required to destroy the fingerprint records of the respondent since he was not charged, or the matter was not proceeded with, within the statutory time period for retaining forensic records and whether there were exceptional circumstances that would permit the admission of the fingerprint evidence in Victoria. The court considered the relevant provisions of the Crimes Act 1958 (Vic) and the Evidence Act 1995 (Cth) in determining these issues.

The court held that the Victorian police were not required to destroy the fingerprint records of the respondent since the requirement to destroy such records applied only when the accused was not charged or the matter was not proceeded with within the statutory time period. The court further held that the term ‘charged’ was not limited to a formal charge but also included any instance where the accused was informed of the offence and the evidence against them. In this case, the respondent was informed of the offence and the evidence against him, which constituted a charge. Additionally, the court found that there were exceptional circumstances that permitted the admission of the fingerprint evidence in Victoria, as the evidence was relevant and necessary to establish the identity of the respondent.

The court dismissed the respondent's application to exclude the fingerprint evidence. No further orders were made.

Orders