R v Parry - [2017] SASCFC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PARRY
[2017] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Parker)
9 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - ADJOURNMENT - GENERALLY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - FINGERPRINTS
Appeal against conviction of aggravated robbery.
In October 2012 two men robbed Mr Crosby (who was in company with Mr Carmena-Wilson) of $7,500 after arranging to meet Mr Crosby to sell to him 15 iPhones for $7,500. The robbers fled the scene with the cash, leaving behind a cardboard box ostensibly containing the iPhones but containing make weight items. The prosecution case was that the appellant was one of the robbers. The only issue at trial was identity.
The police found several sets of fingerprints on the box and its contents. In December 2012 the fingerprints were compared to a sample of the appellant’s fingerprints taken in 2007. Three fingerprint experts concluded that there was a match between some of the fingerprints found on the box and its contents and the appellant’s 2007 fingerprint impressions.
In June 2013 Mr Carmena-Wilson identified the appellant as one of the robbers in a photo identification procedure.
In November 2013 the appellant was arrested and fingerprint impressions were taken. The impressions were of extremely poor quality.
In January 2014, a fourth fingerprint expert, Mr Neilson, compared the fingerprint impressions taken from the box and its contents with the appellant’s 2013 fingerprint impressions but could not make a positive identification.
On the first day of the trial, a fifth fingerprint expert Mr Noack prepared a witness statement in which he concluded that impressions taken from the box and its contents matched the appellant’s 2007 fingerprint impressions.
The appellant was convicted by the jury. The grounds of appeal are that:
1.       the Judge erred in failing to exclude the evidence of Mr Noack or failing to adjourn the trial to enable Mr Neilson to be called or the trial miscarried as a result of the admission of Mr Noack’s evidence or because the Judge refused to allow cross-examination of Mr Noack in relation to his contact with Mr Neilson;
2.       the Judge erred in failing to direct the jury in relation to forensic disadvantage caused by delay;
3.       the Judge erred in declining to abridge time for the issue of subpoenas to two potential defence witnesses;
4.       the Judge erred in directions to the jury about the identification evidence;
5.       the trial miscarried as a result…

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 Parry

Details

AGLC: R v Parry [2017] SASCFC 66
Case: [2017] SASCFC 66
Decision Date: 9 June 2017

CaseChat Overview and Summary

The appeal concerned a criminal matter where the appellant, R, sought to challenge his conviction. The dispute revolved around the admissibility and use of fingerprint evidence during the trial. The case was heard by Peek, Blue, and Parker JJ.

The primary legal issues before the court were whether the trial judge had erred in admitting certain fingerprint evidence, specifically concerning the handling and analysis of the evidence, and whether there had been any misdirection or non-direction by the judge in relation to this evidence. The court also considered whether the judge had improperly controlled the proceedings, particularly in relation to any potential adjournment, and whether the admission of the fingerprint evidence was unfair or improperly obtained.

The court's reasoning focused on the cumulative effect of the grounds of appeal. It was determined that the grounds relating to the alleged misdirection and non-direction, as well as the control of proceedings, did not establish a real risk of a miscarriage of justice. The court specifically rescinded and refused permission to appeal on certain grounds, while granting permission on others.

Ultimately, the court rejected each of the grounds of appeal presented by the appellant and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At about 6:00pm that evening, officers De Zilwa and Godwin attended at Flinders Medical Centre and obtained statements from the victim and his step-son. Gathering of the fingerprint evidence On 9 October 2012, Senior Constable Pill took possession of the sealed box. Its contents turned out to be the following items: three long life milk containers, aftershave packaging bearing the branding “Mesmerize” and a “B & H” catalogue (“the contents items”). He entered the box and contents into the internal system as one police exhibit, to be referred to as “police exhibit 520233362”. On the following day, 10 October 2012, Senior Constable Pill delivered police exhibit 520233362 to the Fingerprint Bureau. The box and each of the content items were chemically treated and examined for latent fingerprints. A number of fingerprints, or sets of fingerprints, were discovered. They were photographed, assigned individual barcodes, and placed on SAPOL’s “forensic register” on 24 November 2012. The important set of fingerprints directly concerning the appellant was a set of four impressions found on the side of the box and assigned the barcode number “900475344” (“the “344” impressions”).[2] On 4 December 2012, fingerprint investigator Godden assessed the fingerprint material and concluded that two of the four “344” impressions” were identical to the right index fingerprint of the appellant and one was identical to the right ring fingerprint of the appellant. She did so by entering the above data into the National Automated Fingerprint Identification System and searching the National Fingerprint Register. That search also revealed a number of fingerprint matches to one Mr KH (“KH”), both on the outside of the box and on items inside the box. These findings will be referred to as “the Godden 2012 assessment”.[2] For completeness, a second set of two fingerprint impressions on the side of the box were assigned the barcode number “900475355” (the “355 impressions”) but as events transpired these impressions had no part to play in the case. The appellant’s fingerprints were on the National Fingerprint Register after having been taken by SAPOL officers on 24 February 2007 in unrelated circumstances (“the 2007 fingerprint sample”). KH’s fingerprints were also on the National Fingerprint Register, having previously been taken by police officers in unrelated circumstances. On the same day, 4 December 2012, the Godden 2012 assessment was “peer reviewed” by Mr Andrews, another fingerprint investigator, who agreed with it. The following day, Ms Godden’s assessment was again checked by another fingerprint investigator, Mr Lewis, who performed a “technical or final review”, and also agreed with it. Each of these assessments was recorded in a document titled “South Australian Fingerprint Bureau Case File”, which was admitted as exhibit VD1 on the voir dire and exhibit D10 at trial. The silver Nissan Patrol 4WD vehicle

Decision

Reasons for decision

The cumulative effect of grounds 1 to 5.4 of appeal does not establish a real risk of miscarriage of justice. We reject ground 6 of appeal.CONCLUSION AND DISPOSITION We rescind permission to appeal on ground 3.1 and refuse permission to appeal on that ground. We refuse permission to appeal on proposed ground 5.4. We grant permission to appeal on proposed grounds 4 and 6. We reject each of the grounds of appeal and dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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