R v SA, DD and ES [2011] NSWCCA 60

R v SA, DD and ES [2011] NSWCCA 60

The photographs and fingerprints were taken from respondents aged at least 14 while they were in lawful custody under the power in s133 of the Law Enforcement (Powers and Responsibilities) Act 2002. That power was not narrower than the former s353A(3) of the Crimes Act 1900 and extended to obtaining evidence identifying a suspect with the offence. Section 112 of the Crimes (Forensic Procedures) Act 2000 excluded that taking from the operation of the forensic procedures regime, so no magistrate's order was required and there was no illegality or improper conduct. Because exclusion of the evidence substantially weakened the prosecution case, the Crown appeal was competent and the District...

Jurisdiction
Australia
Judgment Date
28 March 2011
Procedural Posture
Crown Appeal Against Ruling on Admissibility of Evidence / Appeal to the Court of Criminal Appeal From a District Court Ruling Excluding Photographic Identification and Fingerprint Evidence
Outcome
Crown appeal allowed.
Legal Topics
['police Powers to Take Identification Particulars' 'photographic Identification Evidence' 'fingerprint Evidence' 'forensic Procedures for Children' 'admissibility of Evidence Obtained in Custody' 'construction of Law Enforcement (powers and Responsibilities) Act 2002 and Crimes (forensic Procedures) Act 2000']
['criminal Law' 'evidence' 'statutory Construction' 'police Powers'] ['police Powers to Take Identification Particulars' 'photographic Identification Evidence' 'fingerprint Evidence' 'forensic Procedures for Children' 'admissibility of Evidence Obtained in Custody' 'construction of Law Enforcement (powers and Responsibilities) Act 2002 and Crimes (forensic Procedures) Act 2000']

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Procedural Posture

Crown Appeal Against Ruling on Admissibility of Evidence / Appeal to the Court of Criminal Appeal From a District Court Ruling Excluding Photographic Identification and Fingerprint Evidence

Legal Issues

  1. 1 ['Whether the Court of Criminal Appeal had jurisdiction under s5F(3A) of the Criminal Appeal Act 1912 because exclusion of the evidence eliminated or substantially weakened the prosecution case.' 'Whether s133 of the Law Enforcement (Powers and Responsibilities) Act 2002 authorised police to take photographs and fingerprints from the respondents while they were in lawful custody.' "Whether the Crimes (Forensic Procedures) Act 2000 required a magistrate's order before police could take the photographs and fingerprints of the juvenile respondents." 'Whether s112 of the Crimes (Forensic Procedures) Act 2000 excluded the taking of photographs and fingerprints under s133 of the Law Enforcement (Powers and Responsibilities) Act 2002 from the operation of that Act.']

Ratio Decidendi

The photographs and fingerprints were taken from respondents aged at least 14 while they were in lawful custody under the power in s133 of the Law Enforcement (Powers and Responsibilities) Act 2002. That power was not narrower than the former s353A(3) of the Crimes Act 1900 and extended to obtaining evidence identifying a suspect with the offence. Section 112 of the Crimes (Forensic Procedures) Act 2000 excluded that taking from the operation of the forensic procedures regime, so no magistrate's order was required and there was no illegality or improper conduct. Because exclusion of the evidence substantially weakened the prosecution case, the Crown appeal was competent and the District...

Court Disposition

Crown appeal allowed.

Orders

  • ['The Crown appeal is allowed.' 'The order rejecting the evidence in the District Court is set aside.']