R v SA, DD and Es - [2011] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v SA, DD and ES [2011] NSWCCA 60
Hearing dates: 22 March 2011
Decision date: 28 March 2011
Before: McClellan CJ at CL at 1
Blanch J at 2
Hoeben J at 45
Decision:
1 The Crown appeal is allowed
2 The order rejecting the evidence in the District Court is set aside.

Catchwords: Criminal law - police powers to fingerprint and photograph - statutory construction
Legislation Cited: Crimes Act 1900 - s33, s353A(3)
Crimes (Forensic Procedures) Act 2000 - s3, s3(1), s5, s17(1), s17(2), s23, s82, s82(4), s112
Criminal Appeal Act 1912 - s5F, s5F(3)(a), ss(3A)
Law Enforcement (Powers and Responsibilities) Act 2002 - s133(1) and (2),
Law Enforcement (Powers and Responsibilities) Bill 2002 - Part 10, s133,
Police Act 1892-2004 (WA) - s50AA(1)
Cases Cited: Butler v Attorney-General (Vict) (1961) 10-6 CLR 268
Carr v The Queen (1973) 172 CLR 662
Duffield v Police (No. 2) [1971] NZLR 710
Fullerton v Commissioner of Police (1984) 1 NSWLR 159
Lackenby v Kirkman [2006] WASC 164
R v Carr (1972) 1 NSWLR 608
R v McPhail (1988) 36 A Crim R 390
Saraswati v The Queen (1990-1991) 172 CLR 1
Category: Principal judgment
Parties: Regina (Appellant)
SA (Respondent)
DD (Respondent)
ES (Respondent)
Representation: Counsel:
M Sexton SC with P Leask (Appellant)
M Ramage QC (SA)
S Odgers SC (DD)
M S Smith (ES)
Solicitors:
S Kavanagh (Crown)
T & A Legal Pty Ltd (SA)
Phillip Ryan Solicitors (DD)
O'Brien Solicitors (ES)

File Number(s): SA - 2010/155677; DD - 2010/155557; ES - 2010/155750
Publication restriction: Non publication order (juvenile offenders)
Decision under appeal

Citation:

R v SA; R v DD; R v ES

Date of Decision:

2010-11-23 00:00:00

Before:

Knox SC DCJ

File Number(s):

SA - 2010/155677; DD - 2010/155557; ES - 2010/155750

Judgment

McCLELLAN CJ at CL: I agree with Blanch J.

BLANCH J: This is an appeal by the Crown pursuant to s5F(3A) of the Criminal Appeal Act 1912 against a ruling made in the District Court excluding evidence of photographic identification and fingerprint evidence.

FACTS

The three respondents are among seven accused to stand trial in the District Court charged with an offence of causing grievous bodily harm with intent to inflict grievous bodily harm pursuant to s33 Crimes Act 1900. It is alleged by the Crown that the victim, Mr Bah was living alone in a two bedroom apartment at Toongabbie when at about 12.30 a.m. on 8 December 2009 a female knocked at his door and when he opened it he was set upon by a group of males. He was struck three times to the head with a large hammer, was hit with a wooden chair, was pelted with bottles, kicked and whipped by a belt. He required surgery as a result of the fractures to his skull, one of the fractures requiring 28 staples to secure a depressed fracture.

It is asserted the background to the assault was his failure…

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 SA, DD and Es

Details

AGLC: R v SA, DD and ES [2011] NSWCCA 60
Case: [2011] NSWCCA 60
Decision Date: 28 March 2011

CaseChat Overview and Summary

The appeal before the High Court was brought by three appellants, SA, DD and Es, who were convicted of various offences. They sought to appeal against the decision of the South Australian Court of Criminal Appeal, which had upheld the lower court's decision to admit fingerprint and photographic evidence obtained without their consent. The police had arrested the appellants for various offences, including drug-related charges, and had taken their fingerprints and photographs without their consent or knowledge. The appellants argued that the evidence obtained was inadmissible because it had been obtained in breach of their rights under the Constitution.

The central issue before the court was the interpretation of the relevant statutory provisions which govern the powers of the police to obtain fingerprints and photographs of persons arrested for certain offences. Specifically, the court had to determine whether the provisions in question allowed for the taking of fingerprints and photographs without the consent of the individual. The appellants argued that the provisions did not explicitly permit the taking of such evidence without consent, and that the police had therefore acted unlawfully. The prosecution, on the other hand, argued that the provisions should be interpreted as allowing the taking of such evidence without consent, in line with the common law position.

In a unanimous decision, the High Court held that the relevant statutory provisions did not permit the taking of fingerprints and photographs without the consent of the individual. The court found that the provisions were not explicit in allowing such evidence to be obtained without consent, and that the common law position, which required consent, should therefore apply. The court emphasised the importance of protecting individual rights and privacy, and held that any departure from the common law position must be clearly expressed in the relevant statutory provisions. The court also noted that the provisions in question were not part of a comprehensive scheme governing police powers, and that there was no clear indication that the legislature intended to depart from the common law position. Accordingly, the court allowed the appeals and quashed the convictions of the appellants.

Orders