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

1 McCLELLAN CJ at CL: I agree with Blanch J.

2 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

3 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.

4 It is asserted the background to the assault was his failure to allow a Sudanese girl to take up residence in his apartment. It is said there was a plan to attack the victim beforehand. A group of people was recorded on closed circuit telephone at Blacktown and Toongabbie railway stations and it is alleged the respondents were part of that group.

5 SA and ES were arrested on 8 December 2009 and DD was arrested on 14 December 2009. At the time of arrest ES was 15, SA was also 15 and DD was 14.

6 While the three respondents were in police custody after arrest, police took photographs of each of them and used those photographs in a photoboard array which was shown to other witnesses for identification purposes. The police also took fingerprints of ES and DD which were subsequently used by the police to compare with fingerprints taken from the victim's apartment. It is these photographs and fingerprints to which objection was taken in the trial court and which were held not to be admissible by the trial judge and it is that ruling which is challenged.

JURISDICTION

7 The jurisdiction to hear such an appeal by the Crown is found in ss(3A) and s5F of the Criminal Appeal Act 1912:

"(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case."

8 In relation to the respondent DD his fingerprints were found on the chair used to hit the victim. A Crown witness, Akon Yool, saw DD running from the unit complex and said that DD told him he had hit the victim with a chair. The credit of Yool is subject to criticism because he has since been convicted of an offence of concealing a serious indictable offence in relation to this matter. Because the prosecution case in respect of DD otherwise relies on the evidence of the witness Yool, the exclusion of the fingerprint evidence does substantially weaken the prosecution case.

9 Similarly the photograph of DD taken after arrest was used in an array shown to a witness Amom who gave evidence he was present at a meeting which planned an assault on the victim, was close by when it occurred and met up with the respondents when they ran from the unit complex afterwards. The loss of that photographic evidence would also substantially weaken the prosecution's case against DD.

10 Insofar as the respondent ES is concerned, his fingerprints were found on a chewing gum wrapper in the victim's unit and in addition there is photo identification from photographic arrays. The positive identification of ES by means of the fingerprint evidence and the photographic identification is clearly a significant feature of the prosecution case and the exclusion of that material would substantially weaken the prosecution's case.

11 In the case of SA, the prosecution relies on the photographic identification of him by the witness Amom and the identification of him by the victim. In fact, in his case, the victim knew him and it might be said the evidence of the victim is evidence of recognition and not identification. However, the respondent and the victim were not well-acquainted beforehand and the victim would no doubt be cross-examined as to his ability to recognise SA and the photo identification of SA by the witness Amom provides significant support for SA's nomination of SA as one of his attackers. The exclusion of that evidence would also substantially weaken the prosecution's case. Accordingly, in respect of each of the three respondents there is jurisdiction in this Court to review the ruling on the admissibility of the evidence and that jurisdiction is not challenged by the respondents.

THE SUBMISSION

12 Section 82 of the Crimes (Forensic Procedures) Act 2000 ( CFPA ) deals with the inadmissibility of evidence from improper forensic procedures. In that Act s17(1) authorises the carrying out of a non-intimate forensic procedure on "a suspect". The term "suspect" is defined by s3(1) to mean the following:

(a) a person whom a police officer suspects on reasonable grounds has committed an offence,

(b) a person charged with an offence,

(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person."

13 Section 17(2) says:

"(2) This Part does not authorise the carrying out of a forensic procedure on a suspect who is:

(a) a child, or

(b) an incapable person."

14 A child is defined in s3 as:

"... a person who is at least 10 years of age but not 18 years of age."

15 Section 5 of the CFPA gives authority for forensic procedures to be carried out in relation to a child "by order of a magistrate or an authorised officer under Part 5." Section 23 of the Act allows a magistrate to make an order for the carrying out of a forensic procedure on a suspect if the suspect is a child.

16 Section 82 of the CFPA in ss4 states:

"(4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:

(a) the person does not object to the admission of the evidence, or

(b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this act, or..."

and the section goes on to set out matters which may be considered in exercising a discretion to reject or admit the evidence.

17 " Forensic procedure " is defined in s3 of the CFPA as including intimate and non-intimate forensic procedures

"but does not include:

(e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken."

Note: Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person."

18 In the District Court and in these proceedings it is asserted the provisions of the CFPA have the effect of modifying the LEPRA provisions and requiring the consent of a magistrate to be obtained before taking photographs or fingerprints for the purpose of identification.

SECTION 133 of LEPRA

19 Section 133 of the Law Enforcement (Powers and Responsibilities) Act 2002 ( LEPRA ) is entitled "Power to take identification particulars" and provides:

"(1) A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offence.

(2) If a person is over the age of 14 years, the particulars may include the person's photograph, finger-prints and palm-prints."

20 This section replaces s353A(3) of the Crimes Act 1900 and in fact invites a comparison with s353A(3) of the Crimes Act . Indeed the Explanatory Notes to the Law Enforcement (Powers and Responsibilities) Bill 2002 refers to Part 10 where s133 appears and says:

"The provisions of the proposed Division re-enact existing New South Wales legislation."

21 In the Second Reading Speech by the Attorney General, it was said:

"Unless otherwise stated, the effect of the provisions is intended to reflect the current meaning already provided in the statute books."

22 The wording of s353A(3) was:

"(3) When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where the person is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such person, including, where the person is of or above the age of 14 years, the person's photograph and finger-prints and palm-prints."

23 It is argued the provisions are not identical and that the provisions of the LEPRA should be interpreted more restrictively than the provisions of s353A(3) have been. It is first submitted that the Crimes Act test related to what the officer in charge deemed necessary whereas the LEPRA test allows the Court to determine if the particulars are necessary. That same restriction could have been read into the Crimes Act test but was not.

24 Secondly it is submitted the Crimes Act test is "may be necessary" whereas the LEPRA test is "are necessary" thus indicating the test of necessity relates only to the time the particulars are taken. Again this restriction could have been interpreted into the Crimes Act provision but was not.

25 Thirdly it is pointed out that the Crimes Act test refers to "the identification" whereas the LEPRA test refers to "identify". This again is an attempt to add concepts into the language used in circumstances where it is clear it was never intended there be any change in the powers given to police. The asserted changes are to my mind a distinction without any difference. Effect should be given to the plain terms of the section of the Act and it should be given the same meaning as was given to s353A(3) of the Crimes Act.

SECTION 353A(3) CRIMES ACT 1900

26 The settled law in this State relating to s353A(3) of the Crimes Act 1900 was restated in R v McPhail (1988) 36 A Crim R 390 where Lee CJ at CL (Hunt and Campbell JJ agreeing) said at 398 and 399:

"The section [ie s353A(3)] in defining the power of the officer to take finger prints etc, uses the expression 'all such particulars as may be deemed necessary for the identification of such person' and it is plain that this gives an officer a very wide discretion as to when particulars of identification can be required. The power of the police officer under the section is not limited to cases where he might suspect that identification will be in dispute at the trial but is available in every case where it is considered by him to be necessary for the identification of the accused in court in whatever circumstances that may arise."

27 In Carr v The Queen (1973) 172 CLR 662 the High Court said in refusing an application for special leave at page 663:

"The second limitation that is sought depends upon the same notion, namely, that the identification is for the purpose of identifying the person fingerprinted as a person who has been convicted and not for the purpose of identifying him with the offence. The Court of Criminal Appeal correctly rejected these contentions."

28 In Duffield v Police (No. 2 ) [1971] NZLR 710 the Court of Appeal in New Zealand was dealing with a statute which said:

"... a member of the police may ... take or cause to be taken all such particulars as may be deemed necessary for the identification of that person including his photograph, fingerprints and footprints ..."

29 The Court at 712 said:

"At that point of time police officers would be unable to forecast with certainty what particularly might ultimately be needed on the day of trial to identify the offender. In addition, this section must be considered in relation to the general function of the police force in its broader aspects."

30 The equivalent Western Australian provision in s50AA(1) of the Police Act 1892-2004 (WA) was that:

"... any officer or constable of the Police Force may take or cause to be taken all such particulars as he may think necessary or desirable for the identification of that person, including his photograph, measurements, fingerprints, and palmprints."

31 Justice Blaxell in Lackenby v Kirkman [2006] WASC 164 in interpreting that section said the purpose was:

"... obviously to allow fingerprints (or other identifying particulars) to be taken in certain circumstances without consent. A police officer can only take such fingerprints or cause them to be taken if he or she thinks the same are "necessary or desirable for the identification" of the person. This involves the exercise of a discretion which is not governed by any objective criteria. So long as the officer bona fide considers that the fingerprints (or other particulars) are necessary or desirable for the purposes of identification, then the discretion will be validly exercised."

32 The decisions of Duffield v Police and R v Carr (1972) 1 NSWLR 608 were quoted with approval by Lee J in Fullerton v Commissioner of Police (1984) 1 NSWLR 159.

33 It is quite clear from these authorities that a broad interpretation was accepted in New South Wales of police powers under s353A(3) of the Crimes Act 1900. It allowed the police to take fingerprints and photographs not only to establish the identity of a suspect but to use that evidence to prove the suspect had committed the crime.

34 The CFPA in s112 states:

"This Act does not apply to the taking of photographs, hand prints, finger prints, foot prints or toe prints:

(a) from a suspect who is under 14 years of age if the suspect is in lawful custody as mentioned in section 136 of the Law Enforcement (Powers and Responsibilities) Act 2002, or

(b) from a suspect who is at least 14 years of age, if the suspect is in lawful custody as mentioned in section 133 of the Law Enforcement (Powers and Responsibilities) Act 2002, or..."

35 The respondents to the appeal argue this provision does not, in fact, exclude the application of the Act to the facts in this case because the LEPRA has given a more restricted power to the police as compared to the power they had under s353A(3) of the Crimes Act 1900. It is submitted that power is limited to establishing the identity of a suspect.

36 In my view, that proposition cannot be made good. In the first place, it is clear from the statement of the Attorney General in the Second Reading Speech and from the Explanatory Note that the LEPRA was not intended to change the powers of the police under s353A(3). Moreover, when the CFPA was first enacted s112 relevantly read:

"This Act does not apply to the taking of photographs, hand prints, finger prints, foot prints or toe prints:

(b) from a suspect who is at least 14 years of age, if the suspect is in lawful custody as mentioned in section 353A(3) of the Crimes Act 1900..."

37 It is clear then that the CFPA when enacted contemplated the same broad interpretation of police powers given by the courts to the police under s353A(3) of the Crimes Act 1900 and it was intended that those powers not be restricted by the CFPA. When the LEPRA was enacted, the section referred to in s112 of the CFPA was simply changed to refer to s133 of LEPRA instead of s353A(3) of the Crimes Act 1900. There is no suggestion at all of any change to the police powers and none should be read into the Act from the terms of s133 or any other section of either Act.

38 The submission of the respondents is that the CFPA makes provisions for the protection of all suspects in police custody in respect of any forensic investigations the police wish to investigate. The problem with this submission is that when the CFPA was enacted in 2000 it specifically exempted from its provisions the powers of the police to take photographs and fingerprints given to them by s353A(3) of the Crimes Act in 1951. One respondent submitted the definition of " forensic procedure " in s3 of the Act evinced an intention to restrict police powers in all circumstances to simply identifying the suspect. Such an interpretation is not open when what is suggested is the removal of a longstanding power of investigation.

39 The respondents then must rely on the enactment of the LEPRA in 2002 to suggest a modification of the police powers of investigation and for the reasons I have given that interpretation is not open.

40 In the course of argument in this case the question of reconciling the CFPA and LEPRA has been raised. I do not believe a problem exists. The power of the police to take photographs and fingerprints of persons in lawful custody to identify the suspect and to provide evidence of the commission of the offence had been in existence since 1951 at the time the CFPA was enacted. That Act clearly indicated in s112 that this power should continue and there is nothing in the LEPRA to suggest any change to that policy. Indeed it is clear from that Act the power remains unchanged.

41 In Saraswati v The Queen (1990-1991) 172 CLR 1 Gaudron J at page 17 said:

"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict) (1961) 106 CLR 268 at p276, per Fullagar J, and per Windeyer J (at p290)."

42 It is clear in my view that s112 of the CFPA excludes in terms from the operation of the Act the taking of photographs and fingerprints from a suspect in lawful custody as mentioned in s133 of the LEPRA.

43 In this case the taking of the photographs and fingerprints of each of the respondents was done in accordance with the powers conferred on the police by s133 of the LEPRA and those powers are excluded from the provisions of the CFPA by s112 of the LEPRA . There was no illegality or improper conduct by the police.

44 Accordingly, the Crown appeal should be allowed and the order rejecting the evidence made in the District Court should be set aside.

45 HOEBEN J: I agree.

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Decision last updated: 30 March 2011