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 stated by the High Court in Bunning v Cross (1978) 141 CLR 54 and Cleland v R (1982) 151 CLR 1, namely, that stated in the former case by Stephen and Aickin JJ at 74 - 75:

" … to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."

In this case, had the impugned evidence comprised opinion based on a match of the recovered print and the undestroyed records, the evidence would be excluded, notwithstanding that the Court is satisfied that the failure to destroy the records was due to inadvertence rather than because of a flagrant or deliberate failure to comply with statutory requirements.  This, unlike the nature of the crime which required Underwood J in R v Sparkes (1996) 88 A Crim R 194 to consider the admission of evidence, was not a serious crime which required exercise of discretion in favour of the prosecution. As Murphy J said in Cleland (supra) at 17:

"Evidence obtained by unlawful or improper conduct should be almost automatically excluded on trials of minor offences, but otherwise in trials for the most serious crimes."

Further, in Sparkes, the challenged evidence was simply a portion of the material tendered by the prosecution in support of its case.  Here, a direct match of the recovered fingerprints and the record are central to the prosecution case.

In this case, the evidence sought to be tendered comprises opinion based on a comparison between the recovered print and the record obtained following the arrest of the accused for the present crime.  Following a burglary, forensic officers attended the scene and recovered a print which they believed was relevant to the investigation.  A computer program, which included details of the undestroyed record, provided a limited number of matches, one of which, upon close examination, proved to be that of the accused.  On the premise that the comparison warranted interview, the investigating detective brought the accused to the police station on 9 July 1998 and questioned him in relation to the burglary.  The accused denied involvement.  At the same time, the accused was questioned in relation to two other unrelated crimes, the theft of a handbag and the burglary of a hospital.  Following the three interviews, the accused was charged with the three crimes and further fingerprint and photographic records taken.  In September 1998, the accused pleaded guilty to the other two crimes.  It is the evidence of the comparison between the retrieved print and the record taken on 9 July which the prosecution seeks to lead on the trial

Counsel for the accused contends that since the original match afforded the basis for the interview and arrest of the suspect, its unlawfulness taints the evidence obtained as a consequence of that arrest.  The question is, how tainted is the fruit of a poisoned tree?

Evidence was given by the officer in charge of the Tasmania Police Information Bureau that protocol requires the destruction of records within seven days of an acquittal or dismissal of the relevant charges.  The "fact and antecedent" form is located and the material destroyed.  Steps are taken to remove the electronic data from the national computer base.  Upon destruction, the fact is noted, dated and signed by an officer of the forensic staff.  Notice is then given to the person who is the subject of the record.  The officer was unable to explain why the protocol had not been followed and the records taken in 1997 not destroyed.  The Court is satisfied that the omission was neither deliberate nor a flagrant disregard for a statutory requirement.  The evidence of a special constable of the Fingerprint Bureau was to the effect that he was first asked on 10 July 1998 to give an opinion on the match between the retrieved print and the records taken on the previous day.

Counsel for the prosecution contends that since the evidence sought to be led had not itself been obtained unlawfully, there was no basis for the activation of discretion.  The contention is rejected.  Evidence tainted by illegality is ordinarily admissible and the test of exclusion is discretionary, either by reason of unfairness (R v Ireland (1971 - 1972) 126 CLR 321) or public policy (R v Cleland (supra)).  The range of factors giving rise to that discretion is extensive and not dependent upon an immediate nexus with the impugned conduct.  Illegal detention in relation to one matter which coincidentally results in the obtaining of otherwise unobjectionable evidence might nevertheless taint such evidence.  In the circumstances of this case, had the records been consciously retained as a matter of course in order to provide a match so as to justify arrest and thus obtain a fresh record for the purpose of comparison, then the Court would be remiss in determining that there existed no discretion in rejecting the resulting evidence.

However, good reason exists to exercise discretion in favour of the reception of the evidence.  The decision of Underwood J in Sparkes (supra) to admit evidence directly dependent on tainted records was affirmed by the Court of Criminal Appeal in Sparkes v R 18/1998 on the basis that there had not been a flagrant or deliberate failure to comply with statutory requirements.  In this case, at the time of the original match, the investigating officers acted in good faith and were entitled to make enquiry of the accused.  His denial that he had not been to the relevant premises entitled them to make an arrest.  The evidence sought to be led flows from that arrest and does not disclose previous involvement with authority.  Unlike the circumstances considered in R v Swaffield (1998) 151 ALR 98, the evidence sought to be led did not derive directly from the impugned conduct. But of greater significance is the fact that the accused was questioned and charged with two unrelated offences. Those arrests entitled the investigators to make fingerprint records of the accused, and, when taken, those records would have been converted into electronic data. Upon completion of that process, and assuming the officers had no knowledge of any involvement by the accused in the crime for which he is presently charged, an untainted match would have been made by the computer search. Thus, on 10 July, a forensic officer would have conducted the same procedure and analysis, as he has done, and the same opinion would be proffered to the jury. Evidence which is otherwise discoverable might be admitted, even if its existence became known in privileged or tainted circumstances (Williamson v Schmidt [1998] 2 Qd R 317).

The evidence of the retrieved fingerprint, the making of a record of the prints of the accused on 9 July 1998 and the opinion evidence of the forensic officer, based on his analysis made on 10 July, will be admitted into evidence.