R v Breton - [2019] NZHC 3016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000114

[2019] NZHC 3016

BETWEEN
THE QUEEN

Appellant

AND

ANTON PAUL LE BRETON

Respondent

Hearing: 7 November 2019

Appearances:

R E Harcourt for Appellant

P H B Hall QC for Respondent

Judgment:

19 November 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The respondent, Anton Le Breton, is charged with the aggravated robbery of a bank in Christchurch in November 2016. He applied in the District Court to have the charge dismissed under s 147 Criminal Procedure Act 2011, on the grounds that his right to a fair trial had been breached because the original demand note which was presented during the robbery had been lost.

[2] On 26 July 2019, Judge Kellar declined the application for dismissal, but ruled that evidence of the defendant’s fingerprints on the demand note was inadmissible.1

1 R v Le Breton [2019] NZDC 14546.

R v LE BRETON [2019] NZHC 3016 [19 November 2019]

[3]The Crown appeals the exclusion of that evidence.

Background facts

[4] It is alleged that the respondent entered the Upper Riccarton branch of Kiwibank shortly before 5 pm on 17 November 2016 and put a note on the counter that read “GIVE ME $100 notes $50 notes, I HAVE A GUN!” He pushed his right hand forward in his jacket pocket so that the bank tellers could see the outline of what appeared to be a pistol. One of the bank tellers opened the cash drawer and put $200 in $50 notes onto the counter. The respondent is then alleged to have picked up the money and left the bank. The demand note was left behind.

[5] CCTV footage shows the offender placing the demand note on the counter, but the respondent cannot be identified from the footage. A fingerprint taken from the counter where the offender can be seen placing his hand was identified as the respondent’s. A fingerprint was able to be developed on the demand note and was identified as belonging to the respondent.

[6] The respondent denied the offending and had no explanation for how his prints came to be on the note and the counter. He accepted that he has accounts with Kiwibank but claimed not to have used the Upper Riccarton branch for several years.

[7] The demand note was initially held as an exhibit by police. It was treated with ninhydrin, a chemical that reacts with amino acids and proteins that are left from skin contact with an item and allows visible fingerprints to be developed. The only identifiable fingerprint developed at the time of the examination belong to the respondent and no further suitable fingerprints were discovered. However, as Mr Roberts, the fingerprint officer giving evidence for the police accepts, it is not unheard of for fingerprints to develop many days after treatment with ninhydrin, mostly on thicker, coarser surfaces.

[8] However, the note was subsequently either lost or erroneously destroyed due to an administrative error.…

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 Breton

Details

AGLC: R v Breton [2019] NZHC 3016
Case: [2019] NZHC 3016
Decision Date: 19 November 2019

CaseChat Overview and Summary

Anton Paul Le Breton has been charged with the aggravated robbery of a bank in Christchurch in November 2016. The respondent applied in the District Court to have the charge dismissed on the grounds that his right to a fair trial had been breached because the original demand note which was presented during the robbery had been lost. The Crown appeals the exclusion of evidence of the respondent's fingerprint on the demand note.

The court considered whether the loss of the original demand note compromised the respondent's right to offer an effective defence and thus his fair trial rights, making exclusion of the fingerprint evidence a proportionate response. The court agreed with the Crown that access to the note would not materially advance the defence case. Even if another fingerprint was found to have developed that did not belong to the respondent, that would not explain why the respondent's fingerprint was present. It would be relevant only as a way of putting forward an alternative theory of the case which is that he may have touched the paper before it was used for an unlawful purpose. However, this theory can be advanced without proof of other fingerprints being present. The court also found that the respondent is not prejudiced by an inability to conduct handwriting analysis because the examination using a copy of the note was inconclusive.

The appeal is allowed. The District Court Judge's decision to exclude evidence of Mr Le Breton's fingerprint on the demand note is quashed and the evidence is ruled admissible.

Orders