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Court of Criminal Appeal 30 March 2001

REGINA v. KNIGHT (aka BLACK)

[2001] NSWCCA 114

Fraud & dishonesty
CRIMINAL LAW APPEAL ADMISSIBILITY OF HANDWRITING SAMPLES PARTICULARS OF IDENTIFICATION NSW POLICE INSTRUCTIONS NOT IMPROPER.

Citation: Regina v Knight (aka Black) [2001] NSWCCA 114
Court: New South Wales Court of Criminal Appeal
Date: 30 March 2001
Judge(s): Heydon JA, Studdert J, Greg James J (Greg James J delivered the principal judgment)

Background

The appellant was convicted in the District Court at Sydney after a jury trial on approximately 20 charges, including making false instruments under NSW law, forging documents under Commonwealth law, and offences relating to operating and attempting to open bank accounts in a false name. The trial judge imposed a total sentence of four years imprisonment with a non-parole period of 18 months.

The appellant sought leave to appeal against conviction on a single ground. He challenged the trial judge's decision to admit handwriting samples obtained from him while in police custody using standard police forms (known as P59B forms). Expert handwriting evidence based on those samples had been led at trial.

The central dispute was whether the handwriting samples had been obtained improperly, such that they should have been excluded from evidence. The appellant argued the police were required to inform him of the purpose for which the samples were sought and their potential use before he provided them.

  • Whether obtaining handwriting samples from the appellant in custody, without informing him of the purpose or possible use of those samples, constituted an impropriety or contravention of Australian law under s 138 of the Evidence Act 1995 (NSW).
  • Whether the provision of a handwriting sample constituted an "admission" for the purposes of s 139 of the Evidence Act 1995, or was analogous to one, such that a caution was required before the sample was taken.
  • Whether s 353A of the Crimes Act 1900 (NSW) provided lawful authority for police to require a person in custody to provide handwriting samples as particulars of identification.
  • Whether the Police Instructions governing the taking of P59B forms were improper or unlawful in their terms or their application.
  • Whether the trial judge's discretionary balancing under s 138 and the public policy principles from Bunning v Cross (1977-78) 141 CLR 54 miscarried.

Decision

The Court of Criminal Appeal, by unanimous decision, dismissed the appeal. Greg James J, with whom Heydon JA and Studdert J agreed, found no error in the trial judge's approach to admissibility.

The Court held that s 353A of the Crimes Act 1900 (NSW) provided lawful statutory authority for a police officer to require a person in custody to provide particulars of identification, and that handwriting samples fell within the scope of what could be required as such particulars. This brought the taking of the P59B forms within a lawful framework, and there was therefore no impropriety or contravention of Australian law in obtaining them.

The Court rejected the argument that providing a handwriting sample constituted an admission, or that it was sufficiently analogous to an admission to attract the caution requirements under s 139. Because the provision of handwriting is not a statement of fact or an acknowledgment of guilt, the regime protecting against self-incrimination through questioning did not apply. Consequently, the absence of a caution did not render the taking of the samples improper.

On the question of discretion, Greg James J noted that the trial judge had conducted the relevant balancing exercise on a contingent basis, assuming for the sake of argument that some impropriety may have existed. The Court found the trial judge's exercise of discretion was not flawed. Even if the Court had been wrong that no impropriety occurred, the trial judge's weighing of the relevant considerations under s 138 was entirely correct. The appeal was dismissed, though leave was granted given the matter raised legitimate questions worthy of argument.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 353A of the Crimes Act 1900 (NSW), a police officer in charge at a station may require a person in lawful custody to provide particulars of identification, and handwriting samples fall within the scope of that power.
  • Providing a handwriting sample does not constitute an "admission" for the purposes of s 139 of the Evidence Act 1995 (NSW), and the absence of a caution before a handwriting sample is taken does not, of itself, render the evidence improperly obtained.
  • No obligation arises for police to inform a person in custody of the purpose or potential evidentiary use of their handwriting before requiring a sample under the identification particulars regime.
  • The Court of Criminal Appeal confirmed that it will not interfere with a trial judge's findings of fact on a voir dire or the exercise of discretion unless a legal error is established, such as an absence of evidence supporting the finding or a vitiating error of the kind described in House v The King (1936) 55 CLR 499.
  • In dismissing the appeal, the Court declined to follow the approach taken in the ACT decision of Regina v Browning (1991) 103 FLR 425, treating that decision as applying a principle broader than the relevant instructions and circumstances could support.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 300(1), s 353A
- Crimes Act 1914 (Cth), s 67(b)
- Financial Transaction Reports Act 1988 (Cth), s 24(1), s 24(2)
- Evidence Act 1995 (NSW), s 138, s 139
- Evidence Act 1898 (NSW)

Cases
- Bunning v Cross (1977-78) 141 CLR 54
- Regina v Browning (1991) 103 FLR 425
- Adami (1961-62) 108 CLR 605
- Hannes [2000] NSWCCA 503
- McPhail & Tivey (1988) 36 A Crim R 390
- Fullerton v Commissioner of Police (1984) 1 NSWLR 159
- Carr [1972] 1 NSWLR 608; (1973) 127 CLR 662
- Sorby v The Commonwealth (1983) 152 CLR 281
- Environment Protection Authority v Caltex Refining Co Pty Limited (1992-93) 178 CLR 477
- Bulejcik (1995-96) 185 CLR 375
- The Queen v Kyriakou (1987) 29 A Crim R 50
- Regina v Merritt & Rosso (1985) 19 A Crim R 360
- The Queen v House (1936) 55 CLR 499
- Ireland (1970) 126 CLR 321
- Foster (1993) 67 ALJR 550