R v Bryan, Shane Michael - [1998] TASSC 155

155/1998

PARTIES:  R
  v
  BRYAN, Shane Michael

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M330/1998
DELIVERED:  9 December 1998
HEARING DATE/S:  26 November 1998
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Evidence unfair to admit or properly obtained - Generally - Fingerprints - Breach of statute - Failure to dispose of fingerprint records under Criminal Process (Identification and Search Procedures) Act 1976 - Exercise of discretion.
Criminal Process (Identification and Search Procedures) Act 1976 (Tas), s3(4).
Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1, applied.
Sparkes v R 18/1998, followed.
Aust Dig Criminal Law [423]

REPRESENTATION:

Counsel:
           Prosecution:  J N Perks
           Respondent:  J E Green
Solicitors:
           Prosecution:  Director of Public Prosecutions
           Respondent:  John Green

Judgment category classification:
Court Computer Code:
Judgment ID Number:  155/1998
Number of pages:  3

Serial No 155/1998
File No M330/1998

THE QUEEN v SHANE MICHAEL BRYAN

REASONS FOR JUDGMENT SLICER J

9 December 1998

The accused seeks the exclusion of evidence of a fingerprint match made between a print recovered from the scene of a burglary and a record obtained at the time of his arrest, on the basis that a previous match which led to his arrest was made by use of a record improperly retained by Tasmania Police.
In June 1997, the accused was charged with offences contrary to the Police Offences Act 1935, and a record of his fingerprints taken at the time of processing. On 23 July 1997, Mr Bryan appeared in the Court of Petty Sessions, at which time the charges were dismissed. The dismissal of those charges required the destruction of that record by virtue of the Criminal Process (Identification and Search Procedures) Act 1976 ("the Act"), s3(4), the relevant provisions of which state:
"(4)     Where —
(a)      records have been made under this section in respect of a person
while he was in such custody as is referred to in subsection (1)(a); and
(b)      the proceedings in respect of which he came so to be in custody have
been terminated …

those records and any copies that have been made of them shall be destroyed within seven days of such termination and the Commissioner of Police, when he is satisfied that such destruction has occurred, shall cause written notice of the fact to be given to that person."

The records were not destroyed, nor was notice given to the accused. The Act, Pt 3, Div 2, renders inadmissible a record of fingerprints taken from a young person (one who has not attained the age of 17) where that record "… should have but has not been destroyed …". No equivalent provision is made with respect to fingerprint records taken, but not destroyed, from an adult. No sanction is provided for non-compliance with the Act, s3(4). That sanction ought be applied, by the courts, in a discretionary manner, in accordance with the principles…

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 Bryan, Shane Michael

Details

AGLC: R v Bryan, Shane Michael [1998] TASSC 155
Case: [1998] TASSC 155
Decision Date: 9 December 1998

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of R v Bryan, Shane Michael, dealt with a dispute concerning the admissibility of evidence based on a fingerprint match between a print recovered from the scene of a burglary and a fingerprint record obtained at the time of the accused's arrest. The accused argued for the exclusion of this evidence, asserting that a previous match which led to his arrest was made using a fingerprint record that should have been destroyed but was not, in breach of the Criminal Process (Identification and Search Procedures) Act 1976.

The central legal issue was whether the fingerprint evidence, derived from a record that should have been destroyed but was not, should be admitted or excluded. This issue required the court to exercise discretion in line with principles articulated in High Court cases such as Bunning v Cross and Cleland v R, which balance the goal of convicting wrongdoers against the undesirable effect of endorsing unlawful conduct by law enforcement. The court had to consider whether the failure to destroy the fingerprint record was inadvertent or deliberate, and the impact of this failure on the fairness and admissibility of the evidence obtained.

The court concluded that while the failure to destroy the fingerprint record was not due to deliberate or flagrant non-compliance, it still warranted the exclusion of the evidence. The court reasoned that the evidence was central to the prosecution's case, and the failure to destroy the record tainted the subsequent investigation. However, the court found that the evidence could be admitted because the accused was subsequently charged with unrelated offences, leading to the creation of untainted records that would have yielded the same result. The court's decision was based on the principle that tainted evidence may still be admissible if it would have been inevitably obtained through lawful means.

The court ordered that the evidence of the retrieved fingerprint, the making of a record of the accused's prints on 9 July 1998, and the opinion evidence of the forensic officer, based on his analysis made on 10 July, be admitted into evidence. This decision reflects the court's careful consideration of the statutory obligations, the principles of fairness and legality, and the specific circumstances of the case.

Orders