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:

The application for leave to appeal be granted.
The appeal be allowed.
The order that the fingerprint evidence be inadmissible be set aside.
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:

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.

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…

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 The Queen v Benjamin Mark Sarlija

Details

AGLC: The Queen v Benjamin Mark Sarlija [2006] ACTCA 22
Case: [2006] ACTCA 22
Decision Date: 29 November 2006

CaseChat Overview and Summary

The Queen, represented by the Crown, sought leave to appeal an interlocutory ruling made by a lower court concerning the admissibility of fingerprint evidence against the respondent, Benjamin Mark Sarlija. The dispute centred on whether certain fingerprint evidence could be used in Mr. Sarlija's trial, with the lower court having ruled it inadmissible. The matter came before the Full Court of the Supreme Court of Queensland.

The central legal issue before the Full Court was whether the interlocutory ruling that excluded the fingerprint evidence was correct. This required the court to consider the circumstances under which such evidence could be admitted, particularly in light of the phrase "charge not proceeded with" as it related to the admissibility of evidence obtained in connection with a matter where proceedings were not ultimately pursued. The court also had to determine if the question raised was of general importance, justifying the grant of leave to appeal.

The Full Court reasoned that the lower court had erred in its interpretation of the relevant provisions governing the admissibility of evidence. The court found that the conditions for the exclusion of the fingerprint evidence were not met in this instance. Consequently, the Full Court concluded that the fingerprint evidence was admissible against the respondent in his trial. The application for leave to appeal was granted, the appeal was allowed, and the previous order rendering the fingerprint evidence inadmissible was set aside.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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