The Queen v Benjamin Mark Sarlija

[2006] ACTCA 22

THE QUEEN v BENJAMIN MARK SARLIJA
[2006] ACTCA 22 (29 November 2006)

APPEAL – Leave to appeal on interlocutory ruling – admissibility of fingerprint evidence – question of general importance – when “charge not proceeded with”.

Crimes Act 1958 (Vic), s 464K, s 464O

Magistrates Court Act 1989 (Vic), s 28

Crimes (Fingerprinting) Act 1988

Magistrates (Summary Proceedings) Act 1975 (Vic)

Interpretation of Legislation Act 1984 (Vic)

Rich v Australian Securities and Investments Commission  [2005] NSWCA 233

Campagnolov Attrill [1982] VR 893

Identification Tests and Procedures - Fingerprinting, Report of a 1987 Consultative Committee on Police Powers of Investigation

APPEAL AGAINST INTERLOCUTORY DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA  52-2005
No. SCC 200 of 2004

Judges:  Higgins CJ, Connolly and Ryan JJ       
Court of Appeal of the Australian Capital Territory
Date:     29 November 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA  52-2005
  )          No. SCC 200 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

APPEAL AGAINST INTERLOCUTORY DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Applicant

AND: BENJAMIN MARK SARLIJA

Respondent

ORDER

Judges:  Higgins CJ, Connolly and Ryan JJ
Date:  29 November 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for leave to appeal be granted.

2. The appeal be allowed.

3. The order that the fingerprint evidence be inadmissible be set aside.

4. The fingerprint evidence be admissible against the respondent in his trial.

IN THE SUPREME COURT OF THE       )          No. ACTCA  52-2005
  )          No. SCC 200 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

APPEAL AGAINST INTERLOCUTORY DECISION OF A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Applicant

AND: BENJAMIN MARK SARLIJA

Respondent

Judges:  Higgins CJ, Connolly and Ryan JJ
Date:  2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is an application for leave to appeal from an interlocutory judgment of Gray J of 30 November 2005 in which his Honour ruled that certain fingerprint evidence was inadmissible in the proposed trial of the respondent on the charges of entering a building as a trespasser with intent to steal, and theft of property.  The principal evidence proposed to be led against the respondent at the trial was a fingerprint that was found at the premises and was said to match that of the accused.  The fingerprint had been taken by Australian Federal Police forensic officers in the ordinary course of crime scene investigation at the scene of a break-in and theft of domestic premises.

1. The accused came to police attention because his fingerprints had earlier been taken by the Victoria Police and had then found their way onto a national database of fingerprints.  It was argued before his Honour that the retention of the fingerprints by the Victoria Police and their inclusion in the national data base was unlawful, because the statutory provisions relating to the retention of fingerprints in Victoria had not been complied with, and the Victoria Police had been under a legal requirement to destroy the fingerprints.  The Victorian legislation, in common with similar legislation in the various States and Territories, authorises police to take fingerprints in certain circumstances, but requires that those fingerprints be destroyed, essentially if the accused is not charged with any offence within a certain time, if the offence is not proceeded with, or if the person is found not guilty.  The learned trial judge accepted the argument that the offence for which the respondent was charged had not been proceeded with and, accordingly, the fingerprints should have been destroyed.

1. The application for leave to appeal was first listed before the Court on 11 May 2006.  At that hearing it became apparent that it would be necessary for us to rule on the appropriate construction of Victorian legislation and, with the consent of  the parties, the matter was adjourned in order to give the Victorian Director of Public Prosecutions an opportunity to be heard on the matter.  Written submissions were provided in due course, and at the resumed hearing leave was given for the Victorian Director of Public Prosecutions to appear.

The Victorian Legislation

1. The relevant statutory provision which authorises the taking and retention of fingerprints and which requires their destruction in certain circumstances, is s 464K of the Crimes Act 1958 (Vic). This relevantly provides:

464K.Fingerprinting of adults and children aged 15 or above

(1)A member of the police force may take, or cause to be taken by an authorised person, the fingerprints of a person of or above the age of 15 years who -

(a)is believed on reasonable grounds to have committed; or

(b)has been charged with; or

(c)has been summonsed to answer to a charge for -

an indictable offence or a summary offence referred to in Schedule 7.

(2)A member of the police force intending to fingerprint a person under this section must inform the person in language likely to be understood by him or her -

(a)of the purpose for which the fingerprints are required; and

(b)of the offence which the person is believed to have committed or with which the person has been charged or for which the person has been summonsed to answer to a charge; and

(c)that the fingerprints may be used in evidence in court; and

(d)that if the person refuses to give his or her fingerprints voluntarily, a member of the police force may use reasonable force to obtain them; and

(e)that if the person is not charged with a relevant offence within 6 months or is so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence before the end of that period, the fingerprints will be destroyed.

...

1. The statutory requirement to destroy the fingerprints is found in s 464O which, at the time, relevantly provided:

(2)  If a person has been fingerprinted in accordance with this Subdivision and -

(a)the person has not been charged with a relevant offence at the end of the period of 6 months after the taking of the fingerprints; or

(b)the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence, whether on appeal or otherwise, before the end of that period -

the Chief Commissioner of Police must, subject to sub-section (4), destroy the fingerprints and any record, copy or photograph of them, or cause them to be destroyed at the time specified in sub-section (3).

(3)  For the purposes of sub-section (2), fingerprints taken in accordance with this Subdivision and any record, copy or photograph of them must be destroyed -

(a)where the person has not been so charged or the charge is not proceeded with, immediately after that period of 6 months; or

(b)where the person is not found guilty, within 1 month after the conclusion of the proceedings and the end of any appeal period.

1. There is provision in s 464O(4) for limited extensions of time to be granted by a magistrate, but it was common ground that this was not relevant in the present matter.

The events in Victoria

1. The learned trial judge’s factual findings in relation to the taking of the respondent’s fingerprints and the subsequent events in Victoria, were not challenged in this appeal, although certain legal conclusions that his Honour drew from these facts were.  It is convenient, therefore, to repeat in these reasons the relevant findings of fact.  The respondent’s fingerprints were obtained by the Victoria police in the course of investigating offences of criminal damage which had taken place on 30 September 2000.  The offence of criminal damage is an indictable offence at Victorian law, and this was not in dispute.  On 13 October 2000, Senior Constable Dowell took the respondent’s fingerprints at the Mildura Police Station.  The respondent was at the time 17 years of age.  He was appropriately cautioned, and it is common ground that the fingerprints were properly taken.

1. His Honour found that the respondent was not immediately arrested and charged with the offences of criminal damage but was informed that he would be summonsed.  We would observe that this course of action is the desirable course, in that persons should, in general, be subject to the least restrictive procedures of the criminal law, and it is sound policy that police be encouraged to proceed by way of summons rather than immediate arrest, charge, detention and bail in appropriate cases.

1. A document entitled “Charge and Summons” was issued by the Magistrates Court at Mildura on 19 March 2001.  His Honour had regard to s 28 of the Magistrates Court Act 1989 (Vic) and held that, under Victorian law, this amounted to the respondent having been charged with a relevant offence within six months after the taking of the fingerprints.  Counsel for the respondent indicated that, if leave to appeal were granted, he would challenge this aspect of his Honour’s decision.

1. The evidence before his Honour by way of a statement by Senior Constable Dowell was that “Sarlija was unable to be served with his summons and a warrant was issued.  The warrant is still outstanding”.

1. His Honour held (at [18]) that:

... the failure to serve the summons or to execute the warrant that has presumably been issued, seems to me to indicate that the charge has not been proceeded with and that the requirement to proceed with the charge, either by service or execution, must take place within that same period of six months that is allowed for charging the person.

1. This was the ruling that the Crown sought to challenge on this appeal and which the Victorian Director of Public Prosecutions, as intervener, also sought to challenge.

1. Generally speaking, appellate courts discourage interlocutory appeals against rulings on the admissibility of evidence.  As Handley JA noted in Rich v Australian Securities and Investments Commission [2005] NSWCA 233 at [16]:

This Court will not readily grant leave to review interlocutory rulings of the trial judge even if there is power to do so, for the reasons given by Sir Frederick Jordan in the Will of Gilbert (1946) 46 SR(NSW) 318,323 and for the additional reasons articulated by Gleeson CJ in Rich v ASIC [2005] HCA Transcript 416 (17 June 2005) when he said, refusing leave to appeal from the decision of this Court in relation to the Carter report:

The fragmentation of trials of this nature by appeals against interlocutory rulings of trial juges is inappropriate other than in the most exceptional cases.

1. We certainly endorse this view and would be most reluctant to grant leave to appeal from a mere discretionary ruling on admissibility of evidence.  The submissions of the Director of Public Prosecutions for the Territory highlight the exceptional nature of this case in that they raise a significant question of law of more general application, and illustrate that the ruling is, in effect, determinative of the trial, because, if the fingerprint is inadmissible, then the Crown case against the respondent accused would disappear.  The Victorian Director supported the submission that the matter raises a case of general importance, and noted that his Honour’s decision would be called in aid in proceedings before Victorian magistrates and in the Victorian County Court.  It seems to us that the matter is one of significance, and, accordingly, leave to appeal should be granted to enable this Court to consider the question of whether the inability to serve a summons or execute a warrant makes applicable the statutory condition that the charge “is not proceeded with”.

1. It seems to us that a person charged with a serious criminal offence in circumstances that make it lawful for the police to obtain a fingerprint should not be able to avoid the consequences of that fingerprint having been taken by avoiding service of the summons.  The expression “the charge is not proceeded with” is of quite common usage, although it is not defined in the Act and, it seems to us, describes the not infrequent occurrence when prosecuting authorities inform the Court that a charge will not be proceeded with and the criminal proceedings are formally discontinued according to the appropriate statutory formula.  On a charge by way of indictment in this Court, that would normally be by way of the filing of a Nolle Prosequi.  The phrase would also encompass, it seems to us, the situation where, for whatever reason, there has been a permanent stay of proceedings.  The Victorian Director made the submission that:

The words “not proceeded with” refer to a positive act taken by the prosecution to terminate criminal proceedings already on foot.

Save that we would add that it would also encompass an order of a court staying the proceedings, we agree with that submission.

1. We were taken in the Victorian Director’s submissions to the legislative history of the relevant provisions, which were based on the report of a 1987 Consultative Committee on Police Powers of Investigation entitled Identification Tests and Procedures - Fingerprinting.  The Interpretation of Legislation Act 1984 (Vic), in common with equivalent laws in other jurisdictions, provides by s 35 that a court shall prefer a construction which would promote the purpose or object underlying an Act and may give consideration to, amongst other thing, “reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies”. This report was tabled in the Victorian Parliament and was the basis for the Crimes (Fingerprinting) Act 1988 that amended the Crimes Act by inserting the relevant sections relating to the taking and destroying of fingerprints.

1. The Committee explained in pars 6.68-6.76 their recommendations that police should automatically destroy fingerprints.  These appear under the heading of “Termination of Proceedings Otherwise than by Conviction”.  The Committee recommended that the obligation to destroy fingerprints should arise in the following circumstances:

·        Where no charge is laid within six months after the date of the provision of the fingerprints (par 6.73); or

·        Where any charge is withdrawn or dismissed or subject to the entry of a nolle prosequi or an acquittal (par 6.68).

1. This seems to us to be quite consistent with the interpretation which we favour of the phrase “not proceeded with”.

1. We would endorse his Honour’s comments that “the requirement to destroy fingerprints in the absence of a conviction for an offence is a safeguard to ensure a balance between effective law enforcement and the protection of fundamental freedoms”.  However, we take the view that the requirement to destroy the fingerprints arises either when it is clear that a person has been “not found guilty”, or it is clear that “the charge is not proceeded with”, by way of a final determination of the particular charge.  For that purpose we would regard a permanent stay as a “final determination”.  Mere evasion of service of a summons does not, it seems to us, indicate that the charge has not been proceeded with, because after a warrant has been issued as a consequence of inability to serve the summons at the address given by the respondent, it would be open, if the respondent were to come to the attention of the Victorian authorities, for the charge to proceed.  We note that it frequently happens, in less serious matters, that, where a summons is unable to be served and a warrant is issued, the matter not infrequently comes to attention only when the accused person finds himself or herself in contact with police for traffic related matters.

1. It seems to us that his Honour was correct in taking the view that the respondent had been “charged” when the Charge and Summons was taken out in the Magistrates Court at Mildura within six months of the fingerprints being taken.  The contrary argument was that a person would only be charged when they appeared in court to answer the charge and so, by avoiding the service of a Charge and Summons, a person avoids being charged.

1. The term “charged” is not defined in the Act, and as O’Bryan J noted in Campagnolov Attrill [1982] VR 893 at 900 it can have a number of meanings. In that case, and in the context of the legislation there under consideration, his Honour held that it had:

... the technical legal sense of appearing before a competent court to answer an accusation made on summons or information.

1. In that case provisions in the Magistrates (Summary Proceedings) Act 1975 (Vic) provided that if there was to be any preliminary examination in relation to a charge of rape, a preliminary examination could not be commenced after a prescribed period, which was “the period of three months after the accused person has been charged with any offence to which the preliminary examination relates”. The accused was interviewed by police in December1980, and told that he would be charged with rape. He was shown an information, which was then taken back by police, and he was released. On 26 March 1981 he was arrested and taken before a magistrate and formally charged and a preliminary examination was set down for 15 June. It was argued that this was more than three months after he had been “charged”. That case, it seems to us, was decided in an entirely different statutory context and it does not follow that, for the purposes of the fingerprinting provisions of the Crimes Act, the word “charged” should be confined to a formal appearance at court.

1. We would observe that, were this view to be taken, it would again have the undesirable consequence of encouraging police always to proceed by way of arrest rather than by way of summons.

1. For these reasons we have concluded that leave to appeal should be granted, and the appeal allowed.  We would set aside the order that the fingerprint evidence be not admitted and order that the fingerprint evidence is admissible against the respondent in his trial.

   I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:   29 November 2006

Counsel for the Appellant:  Mr R Refshauge SC
Solicitor for the Appellant:  ACT Director of Public Prosecutions
Counsel for the Respondent:  Mr S Gill
Solicitor for the Respondent:  Legal Aid Office (ACT)

Amicus Curiae for Victorian  
Director of Public Prosecutions:  Mr PA Coghlan QC with Mr M Gamble

Dates of hearing:  11 May and 3 November 2006
Date of judgment:  29 November 2006