REGINA v. KNIGHT (aka BLACK) [2001] NSWCCA 114

REGINA v. KNIGHT (aka BLACK) [2001] NSWCCA 114 - NSWCCA 2000 case summary — Zoe

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Summary of submissions 9 It is contended that his Honour, in applying s.138 of the Evidence Act 1995 and the public policy considerations examined in Bunning v. Cross (1977-78) 141 CLR 54, erred because he had failed to hold that it was necessary the accused be informed of the purpose for which the handwriting was sought to be provided and its possible use so that any co-operation or consent of his to providing it would be with that knowledge. In the absence of the provision of that information, it was submitted, the obtaining of samples of the appellant's handwriting was attended with grave impropriety so as to attract s.138 or on the basis the provision of them amounted to making admissions, s.139, as there had not been a caution. It was submitted that his Honour should have followed the course asserted to have been taken in the Australian Capital Territory Supreme Court by Miles, CJ. in Regina v. Browning (1991) 103 FLR 425, where, by a ruling during a criminal trial, his Honour rejected the tender of samples of handwriting of the accused obtained in circumstances at least superficially similar to those under which the handwriting samples were obtained in this case. 10 In the case of all those samples obtained before the commencement of the Evidence Act in 1995, the absence of the caution meant, so it was submitted, that they should be rejected as being admissions or analogous to them, on public policy grounds or because it would be unfair having regard to how the samples were obtained, to use them against the appellant at his trial and as to the remaining sample, it too should be rejected by reason of the application of s.138 or because it should be regarded as or analogous to an admission to which either s.139 or its spirit should apply. It was argued that a written requirement to provide identification particulars in handwriting was in the absence of the caution or the information I have referred to seriously deceptive in that it wrongly expressed that the requirement had lawful compulsive force. 11 Section 138(1) and (2) provide:- "(1) Evidence that was obtained:- (a) improperly or in contravention of an Australia law; or (b) in consequence of an impropriety or of a contravention of an Australia law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:- (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission." 12 Section 138(3) details particular matters the court is to take into account when applying the section. For the purpose of this case, I do not consider it necessary to resolve whether there is any substantial difference between those matters and those necessary to consider at common law on the application of the public policy principles set out in Bunning v. Cross (supra). 13 The effect of s.139 is to deem evidence of a statement made or an act done by a person during questions to have been obtained improperly, relevant in the absence of a caution to the person in custody that they need not say or do anything but that if they do it may be used in evidence. 14 In reply, the Crown submits that the requirement was lawful; consent and/or co-operation was not necessary; the provision of the handwriting was not an admission nor analogous to that concept and hence s.139 has no application; no caution was necessary; no requirement the appellant be so informed is to be implied into the words of s.353A which provides lawful power to require the giving of the handwriting as particulars of identification. Therefore, it is submitted there is no impropriety or contravention of Australian law, further, that in any event, the trial judge's application of s.138 and the principles in Bunning v. Cross (supra) on the contingency he might have been wrong and there was an impropriety, was entirely correct 15 Section 353A relevantly provides:- "(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 fingerprints and palm-prints." 16 Subsection (3D) was inserted in the section in 1995. It provides:- "(3D) The consent of the person in lawful custody is not required for the doing of any thing under this section." 17 Although no objection to this evidence was made on this basis at trial, in the light of the matters I will now set out, I would consider that the point as it is now taken warrants detailed examination. Since an objection was taken, Rule 4 does not apply.

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The Crown case 18 The following account of the nature of the Crown case, which is taken from the outline of the appellant's submissions, sets the context to the ground of appeal:- "The Crown cases in respect of 13 counts in the indictment were that the appellant knowingly made false applications to the relevant statutory authority for birth and/or death certificates in false names. These counts are offences under s.300(1) of the Crimes Act. In addition there were five counts of forgery under s.67(b) of the Crimes Act (Cth). The Crown cases in respect of those counts were that the appellant forged Medicare application forms in false names and submitted them to the Health Insurance Commission. The final two counts on the indictment related to the attempted opening, in one case, and actual operation, in the other, of bank accounts in false names, known by the appellant to be false. In the 18 make false instrument or forgery counts, evidence was led in every count, that the documents which were presented to the relevant authorities were false and in the appellant's handwriting. There was a great deal of evidence from which a jury could infer that the appellant knew that these documents were false. The appellant's fingerprints were found on a number of the documents. Other circumstantial evidence connected the appellant to some of the applications. … The Crown case relied very heavily on the evidence of a handwriting expert who compared samples of the appellant's handwriting with documents which were the subjects of the various charges. Without that evidence, the Crown cases would have been immeasurably weaker and may not have had a case at all in respect of some of the counts. The sample handwriting material of the appellant which was used by the expert (and admitted by the appellant to be his) comprised three P59B forms and a letter written by the appellant to the Supreme Court in relation to his bail. There were issues of prejudice attached to each document but they were adequately covered by the way the material was presented to the jury. A comment made by the Crown during the voir dire on the admissibility of the forms indicated that the expert's opinion was based on an examination of all four sample documents (t.12 22/5). If one or other of the documents was not available to the expert another examination would have to be conducted to conclude an opinion. Accordingly the P59B forms were critical to the Crown cases. The Crown described its case as comprising 'principally' the handwriting specialist (t.12 22/5). The P59B forms came into existence after the appellant was arrested at various times, twice in 1993 and once in 1995. The Crown set out in summary form the circumstances relating to the forms (t.4 22/5). One of the forms was completed by the appellant after he was arrested in relation to the matters before his Honour (t.4 22/5). Objection was taken to the admissibility of the forms and his Honour conducted a voir dire commencing at t.17 22/5. The forms were completed by the appellant at the time he was fingerprinted after arrest (t.18 22/5). The forms were routinely completed by suspects in offences where handwriting comparison might be part of the investigation (t.18, t.21 22/5). No other reason was offered for requiring the appellant to complete the forms. No caution was given to the appellant about the use to which might be made of the forms (t.18, t.21 22/5). There was no suggestion or evidence that he was advised of the purpose to which the forms might be put or that completion of the forms in his handwriting was not compulsory." 19 The other circumstantial evidence referred to included the following. There was evidence from surveillance videos and still photographs of the appellant's presence in the bank premises at the time of opening of the account in the false name to which one of the charges referred and at the time of the deposit of a sum of $10.00 into the account involved in one of the other counts. 20 There was evidence from a person whose name had been used in opening one of the accounts that his identity had been usurped and that he was not involved in the opening of the account; that the name in which the first of the accounts to which I have referred above was opened was in fact that of a girl who had died at the age of three. There was photographic evidence and videos showing the appellant posing as one of the persons whose name had been used on birth certificates or Medicare application forms and the apprehension of the appellant in the National Australia Bank attempting to use one of the two accounts to which I have earlier referred. 21 At the time of the appellant's arrest, he was carrying a bag which contained a passbook in the name of that witness who had denied involvement, a Medicare card, a birth certificate, bank books, a Medicare card in another person's name, as well as a number of other birth certificates for other individuals. 22 The appellant asserted he had been given this material by the witness who had denied knowledge of those matters and asserted that signatures on those documents were not his. Notwithstanding the additional evidence and whether or not on any particular charge there would have been no or no sufficient evidence without it, the handwriting evidence was so important that the convictions on all counts could not stand without it. 23 In his remarks on sentence (at 1), the learned trial judge referred to the factual crux of the case as follow:- "The facts which the jury must have found proved beyond reasonable doubt were that between April and December 1995 the accused wrote out in various ways applications for birth and death certificates of various people. In most instances those certificates were supplied by the Registry of Births, Deaths and Marriages in Sydney. The people in whose names they were sought were mostly people who had died at a very young age a number of years ago." 24 His Honour continued (at 3):- "The case for the Crown in the trial relied extensively on the handwriting evidence of a Mrs. Woodard, a Federal agent with the Australian Federal Police. Clearly, the jury accepted her analysis of the documents that they were in the handwriting of the accused. The accused did not give any evidence in the trial and it is understandable that the handwriting evidence was accepted, especially when it was augmented by the circumstantial evidence of the arrest of the accused in possession of these other documents and his relationship to the bank account of Kerakossian. There was also other evidence."

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Importance of the comparison documents 25 The comparison documents comprised three P59B forms were dated 9 June 1993, 24 August 1993, 22 December 1995 and the letter of 7 January 1996. For clarity, I set out hereunder the content of the form of 9 June 1993 as a specimen of the three forms (handwriting is denoted by bold italics):- "Filing No. Name KNIGHT F.P.C. 7195277 John Adrian C.C.I. No. THE FOLLOWING PARTICULARS ARE TO BE WRITTEN BY PERSON CHARGED ___________________________________________________________ Full name JOHN ADRIAN KNIGHT Address 6/23 Kiora (?) Rd Double Bay 2028 Date of birth: Day 5th Month April Year 1943 Birthplace: Town Perth State WA Country AUSTRALIA Where educated (country) AUSTRALIA Standard reached UNIVERSITY Height 5'11" Build SOLID Complexion FAIR Hair BROWN Eyes BROWN Weight 13 ST 9 LBS Married or single SINGLE Occupation SEMIRETIRED Last employer: Full name VEREKERS (?) PARTNERS Address (Illegible) Length of time employed Any illness or injury NONE Next-of-kin NONE Relationship ----- Address ----- Usual signature J A Knight Date 9/6/93 " 26 The bail letter to which I have referred was a notification to the Supreme Court by way of a prisoner's application or statement on Department of Corrective Services letterhead official stationery of the prisoner's wish not to proceed with a listed bail application since he was arranging for a private solicitor and was awaiting a psychiatric report. That application bore his signature in the name of David Black as did the P59B form of 22 December 1975, the other P59B forms being signed in the name "J.A. Knight". 27 As the outline of the appellant's submissions I have quoted above notes, the opinion given in respect of the authorship of the contested documents was based on the handwriting used in the comparison documents which were proved to be, indeed admitted to be, in the appellant's handwriting. The crucial opinion of the handwriting examiner as to the disputed documents was based upon a comparison between those documents and the comparison documents. 28 In each disputed document, there were writings which were not the subject of comparison because there was no appropriate specimen of writing of the relevant nature, for example, cursive writing, with which to make a comparison. A demonstration chart was admitted into evidence showing the nature of the examination and the comparisons made. One challenge made to the expert's opinion at trial was to the samples constituting a sufficient basis for a reliable opinion. 29 As well as mounting the objection to which I have referred, the appellant sought to attack, through cross-examination, the value of the evidence on the basis that the analysis related only to block capitals and printing, which it was contended would have been relatively easy for someone to fake, the suggestion being that someone had faked his writing on the disputed documents, imitating the writing on the samples. 30 In his directions to the jury, the trial judge emphasised the necessity in respect of each relevant charge for the jury to be satisfied beyond reasonable doubt that the appellant made out or wrote out the false application. 31 Having referred to the conclusions of the handwriting witness supporting the Crown case, his Honour encapsulated the issues at trial for the jury when he said the following:- "I should say something to you about the handwriting evidence. You heard Mrs. Woodard give details of her experience and expertise and it is a matter for you to evaluate her evidence. You do not have any contrary evidence as to her conclusions. Nevertheless, you do not have to accept her evidence at face value. You have her comparison chart, but it is only a sample of her conclusions. You should really look at the original documents yourselves to evaluate her evidence. Having said that, I must tell you there is no contrary evidence from any other expert to challenge her conclusions. In saying that, I do not mean the accused has any obligation to produce any contrary evidence. As I have said, he has no onus of proof and he has cross-examined Mrs. Woodard about the comparison chart and pointed out a number of matters. As I recall her evidence, she said variations in the formation of letters is natural in a person's writing, but even so, when some of these things were pointed out to her by Mr. Knight, she said she was satisfied that the writing of the accused from the specimen documents is the same as the writing on the disputed documents that she examined. In the absence of contrary evidence, you would be entitled to accept her conclusions. Whether you do or not is a matter for you. The accused has argued that there is the possibility that some dishonest policeman has extracted samples of his handwriting and falsified the documents Mrs. Woodard says are in his handwriting. The accused is in no position to prove and I do not suppose he has to, but if you think that is a reasonable possibility, it is a matter you would have to consider in evaluating the evidence of Mrs. Woodard. As against that, you have the evidence of the many police officers as to obtaining possession of the various documents and the chain of possession of them, thereafter. The Crown argues that it is simply fanciful that some policeman has forged all of these applications for birth and death certificates over the months and paid the fees and so on, simply to frame this accused and been able to successfully fabricate the documents in a way that Mrs. Woodard could not detect, with so many documents and so many addresses he would have to cover. The Crown says that is simply unbelievable. After all, Detective Baker did not come into the investigation until September 1995 when Mr. Austin contacted him. By then, a number of these false documents had been produced. How could Baker have been involved in such a subterfuge, if there was one?"

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The objection and the voir dire 32 I record at this point that the appellant, although appearing for himself at trial, showed some considerable acquaintanceship with the techniques of legal advocacy, in an appreciation of the concept of prejudicial material and in his reference to legal decisions, including a decision of the House of Lords and his references to relevant provisions of the Evidence Act 1995, viz. ss.135 and 137. Before us he is represented by experienced counsel. 33 However, in consequence of his being unrepresented at trial, considerable care seems to have been taken by the trial judge and the Crown Prosecutor to ensure his interests were protected as far as possible. In that regard, prior to the formal commencement of the trial, in describing the nature of the proceedings to the trial judge, the Crown Prosecutor advised him of the Crown's intent to lead the handwriting evidence and the nature of the issue to which it went. In particular, his Honour's attention was drawn to the bail letter being prejudicial in content as referring to extraneous illegal activity. The trial judge was also referred to the P59B forms having been obtained at the time of the appellant's arrest for other offences so that they too might have had a prejudicial effect as being, on their face, police records. The P59B in the alias was specifically referred to. The Crown Prosecutor pointed out that it was possible for the trial to proceed on the basis of the comparison made by the handwriting expert without divulging the precise nature of the documents from which the handwriting comparison had been made, so as to avoid prejudice to the appellant, although the Crown would wish to have the documents admitted into evidence as examples of "specimen handwriting" even if the documents needed to be, to some extent, edited to avoid the prejudicial effect. 34 At that time, the Crown Prosecutor drew the trial judge's attention to the decision of Miles, CJ. in Browning (supra) and informed his Honour that the forms were obtained by way of a requirement of a person, prior to being charged, to fill them out themselves and for the purpose of, perhaps, to collect handwriting specimens. 35 The appellant informed the trial judge that he was not contesting "it" (ie., the comparison document) was in his writing, but he challenged the admissibility of that material on the basis of the prejudice created by reason of the jury becoming aware of his prior arrests and in particular his having been in gaol under a different name. 36 After his Honour had explained the possibility that the handwriting expert's conclusion and comparison could go before the jury without the admitted specimen handwriting documents, the appellant is recorded in the transcript as saying:- "If that's the case, your Honour, thank you for advising me, then it would probably be best, as far as the jury is concerned if you do contest it's my writing the dispute will remain being put in front of the jury." 37 So far as I follow what the transcript shows, the appellant was referring to the necessity to show the forms to the jury to illustrate the inadequacy of their utility as handwriting samples to show the authorship of certain of the disputed writings. 38 His Honour then indicated he would have to decide whether to keep the material out because of its prejudicial effect. Later, the appellant pointed out that he would not have objected to specimens of his handwriting which did not raise his prior police record going into evidence. It was during this discussion, the Crown Prosecutor informed his Honour that the opinion of the handwriting expert was founded on all four documents so that the opinion could not stand unless all four were to be the basis of that opinion. It seems to have been accepted that unless those documents could be admitted, the evidence of the expert would not be permitted. His Honour thereafter commenced a voir dire to examine whether the documents were to be admitted in evidence. 39 On the voir dire, statements were tendered without objection from the police officers who had obtained the P59B forms from the appellant who informed his Honour that he did not contest that the forms were filled in as the witnesses said. 40 His Honour drew to the appellant's attention the decision in Browning (supra) and in particular advised him that a discretion might have to be exercised as to the admission into evidence of those documents. At that point the appellant informed his Honour that he did not think anything would be gained by cross-examination, that the relevant question was whether or not his argument that the material was prejudicial should succeed. After discussion with the Crown Prosecutor as to the purposes for which the officers taking the forms may have acted, two of the relevant police officers were called in evidence. Their evidence broadly was that no caution was administered and that at the time of fingerprinting an arrested person, a handwriting sample was obtained by use of the form in the circumstances referred to in the instruction to which I will later refer. 41 The appellant in his submission, referred to the passage in Browning (supra) at 433 relating to the use of other non-prejudicial samples. Notwithstanding, the Crown Prosecutor raised the possibility of impropriety through the absence of a caution and the applicability of s.138 of the Evidence Act but submitted that "the Act" (ie., s.353A of the Crimes Act 1900) permitted the obtaining of particulars of identification. 42 In discussing the decision in Browning (supra), where much turned on the relevant Police Instructions in the Australian Capital Territory, his Honour was informed that the Crown Prosecutor was unable to assist him as to the relevant New South Wales Police instructions which existed at the time of the taking of the particulars set out in the P59B forms.

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New South Wales police instructions 43 On the appeal we were provided with a set of relevant instructions admitted by consent valid as at 1 October 1996. Those instructions read as follows:- " Fingerprint Information - form P59B (handwriting form) It is desirable for all offenders charged with an indictable or a serious summary offence to complete a copy of the fingerprint information form P59B in their own handwriting. An offender who has been previously charged and who has completed a P59B form is required to complete another form. The larger the sampling of a person's handwriting held on file, the better. This demonstrates changing handwriting styles, connected with aging, etc. If you are aware that any of the information recorded by the offender is untrue, attach a short report to the form noting the discrepancies. These forms are also useful to ascertain the next-of-kin of unknown deceased persons who are fingerprinted and subsequently identified. Other instances have arisen where the P59B forms have been used to counter assertions by offenders that they were incapable of committing the alleged offences, because of their illiteracy. To ensure that the person charged completes the form in their normal handwriting seat them in a comfortable position. The offender must complete the section under the heading 'The following particulars are to be written by the person charged' . After witnessing completion of the form, complete the particulars in the left hand margin and write'P59B form attached' on the reverse side of the fingerprint form in the space above the box, marked 'alias or nickname'. Take an impression of the right index fingerprint on the back of the P59B form. If this finger is missing, take an impression of any other finger and describe on the form which finger was used. Pin, do not staple, the P59B form to the fingerprint form and forward it as directed. When an offender states that he/she is unable to write, or refuses to complete a copy of the P59B form, submit a short report of the facts to the Document Examination Unit, Physical Evidence Section." 44 I have emphasised that passage of the instructions which it is contended would have given rise to the appellant being deceived into believing he was bound to comply with a requirement made in accordance with the instruction if he was informed of the requirement in accordance with its terms. It is contended that passage erroneously stated the effect of s.353A. 45 Even though there were no instructions in evidence before the trial judge and he was informed the New South Wales instructions were broadly similar to those referred to in Browning (supra), we were invited by both parties to proceed with the appeal upon the basis that the instructions in force at the relevant times were in general accord with that tendered before us.

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The trial judge's decision 46 Relevant to the ground now asserted, at the conclusion of the voir dire as to the taking of the P59B forms, his Honour found the following:- "The gravamen of the issue is that on each of three occasions the accused was taken into custody and filled in a form, this P59B in his own handwriting and each such form was witnessed by a police officer, Constables Robinson and Bradley respectively. Constable Robinson, Scott Robinson, gave evidence as did Constable Bradley. The other Constable Robinson is not available because she has a young child and cannot be here at court today, but the Crown said that her evidence, it is anticipated, would not be much different from what the other officer said. Their evidence, if I can summarise it briefly, was that in accordance with the usual procedures and at the direction of either the custody manager or at the request of the arresting police via the custody manager, when the accused's fingerprints were taken in the usual process he was asked to fill in the P59B form which he then did and which the constable then witnessed by signing it in the margin. Each of those officers were asked whether, when the form was given to the accused to fill in, he was told that he had the right not to fill it in or whether he was given any caution about it, that it might be used in evidence against him, and the effect of their answers to those questions was that he was not given any such caution. Simply in situations like that the accused person is given the form and asked to fill it in. If they do not fill it in, well, that is the end of it. They just make a note of that. If they fill it in all well and good and it is then sent off to the appropriate authorities. Furthermore that their understanding was that these forms are filled in only in cases where it is likely that handwriting may be an important part of the investigation and the document can be used for comparison purposes." 47 His Honour held:- "In the present case the accused did not give evidence on the voir dire and it was not suggested to the police witnesses that there was any lack of co-operation or consent on his part." 48 His Honour stated the issue he was then examining on the voir dire as follows:- "The issue that has now been propounded is that the filling in by an accused person of documents in those circumstances is unfair, in that the accused person is not told first of all that they have the option not to fill it in, and secondly not told that if they do fill it in it may be used in evidence against them." 49 I refer to these two matters of which the accused person was not told compendiously as the caution. 50 I note at this point that s.353A(3) of the Crimes Act 1900 (NSW) had been applied to the Australian Capital Territory and is noted as so applying by Miles, CJ. in Browning (supra). It was concerning that provision that the trial judge made the observation:- "After all, there is provision for police to take fingerprints of people charged and frequently those fingerprints are used very much in the further investigation of offences. And there is statutory authority for that under the section of course. It may be that if there is this element of unfairness, there should be some amendment to the legislation to permit this to be done." 51 His Honour, after considering the judgment of Miles, CJ. in Browning (supra) said:- "I must say with great respect I cannot come to the conclusion that there is any actual unfairness in this process." 52 His Honour had previously noted that:- "The reasons for obtaining handwriting samples are clearly in cases such as the present ones followed by the investigators to obtain evidence which would possibly identify the accused as a participant in the alleged offences, or perhaps even exonerate him. The fact that they do not tell the suspected person that that is the purpose they are going to use the material does not strike me as being necessarily unfair." 53 Neither the trial judge nor Miles, CJ. referred to subsection (3D) when referred to s.353A and its effect. Unfortunately neither did the submission in this court. Miles, CJ., however, as will be seen, was particularly concerned with requirements for, inter alia, co-operation and consent by the prisoner under the Local Police Instructions not having been complied with by the police. 54 The trial judge in this case, as it appears to me, dealt with two questions. First, the lawfulness of the requirement to furnish the identification particulars in the prisoner's handwriting, and second, the fairness of doing so, both in the context of the lack of a caution, and in the absence of being provided with the New South Wales Police Instructions. 55 Notwithstanding that his Honour concluded that there was no unfairness, he went on to consider how the balancing exercise dictated by s.138 of the Evidence Act 1995 might be carried out in the event that he was wrong. He had regard to the fact that for many years these forms had been used in the manner used in this case for the comparison of handwriting of the suspect. He concluded that the evidence thus obtained was probative; important; that the alleged criminal activity was of a significant degree and that, as far as the gravity of the impropriety or contravention was concerned, the police simply followed the procedures that they said had been followed in many situations. Thus, the impropriety, if there was one, was not grave. Although the conduct was deliberate, it was not the sort of case "where there is the pejorative nature of such conduct". His Honour had regard to the appellant's submission that other handwriting evidence could be probably obtained from just about anywhere but concluded that what had followed here was simply the normal process of the obtaining of a sample of handwriting. 56 Thus, his Honour was of the view that if the balancing exercise was to be undertaken, the Crown should succeed on that aspect and the otherwise prejudicial effect of the documents, the basis of the original complaint, might have to be dealt with as best one could by giving the jury appropriate directions or editing the documents. 57 In that regard, his Honour gave special consideration to Exhibit A3, the third of the P59 documents where the name "David Black" was used and to the letter of 7 January in which the appellant sought not to proceed with a Supreme Court bail application (patently raising the appellant then being in custody for another offence), in order to see what could be done to permit the handwriting to be examined without attracting the prejudice arising from the nature of the document. He concluded that there were steps open to be taken at the instigation of the appellant which might minimise or remove such prejudice. 58 His Honour concluded, finally, that the documents were admissible, were not caught by s.138 and, insofar as they might have been "unfairly obtained", exercised his discretion to admit them.

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Case law on s.353A 59 Handwriting has traditionally been a mode of identifying the individual with the crime charged: see eg., Adami v. The Queen (1961-62) 108 CLR 605; Regina v. Hannes [2000] NSWCCA 503. The Evidence Act 1898 made special provision for evidence of handwriting by s.36. The characteristics of an individual's handwriting are as much particulars of identification as the characteristics of appearance, voice or fingerprints. These things have long been proved as a mode of identification. In my view, s.353A is applicable to handwriting having regard to the case law concerning the section. 60 In Regina v. McPhail & Tivey (1988) 36 A. Crim. R. 390 at 399, Lee, CJ. at CL., delivering the principal judgment of the Court of Criminal Appeal, when examining the ambit of s.353A, made reference to extensive records of persons taken into custody in respect of offences in regard to fingerprints, photographs and "other particulars". He referred to blood, hair and semen samples becoming a feature of identification of persons charged with offences. 61 It had already been held by Lee, J. sitting as a single judge in Fullerton v. Commissioner of Police (1984) 1 NSWLR 159, that the section is not limited to matters of fingerprints, palm prints and photographs, but applies to "all such particulars as may be deemed necessary for the identification" of the person in custody. His Honour said (at 163):- "Given the word 'taking' merely the meaning of 'recording', it could be made to include particulars of identification which were merely a matter of observation, such as colour of hair, colour of eyes, youthful appearance, etc., but I do not think it was intended to have that effect. Such particulars are the property of anyone, police officer or otherwise, who cares to use his eyes, and it is no affront to the dignity of an individual that a police officer may note them. The section, in my view, is directed to those features of identification which are peculiar to the individual and which are not discoverable or obtainable except by force or with his co-operation, so that the taking thereof is an affront to his dignity and akin to an assault upon the integrity of his person. The intention of the section is that the citizen, albeit in custody, is not required to put such particulars into the hands of the police except when a responsible officer requires that they be made available, and then only in accordance with the terms of the section." 62 As to the question of the relevance of consent, his Honour continued:- "Consistent with this purpose, the section will have application in every case where the police seek to have such particulars and irrespective of whether the person in custody consents or does not consent to giving such particulars. It is not intended to apply only in cases where the person in custody raises objection or protests or offers physical resistance to the giving of the features of identification being sought by the police. Very few people who are taken into custody for the first time have any real appreciation of what may or may not be done lawfully by the police, and if it were given an operation only in favour of those who protested or resisted, it would deprive of protection against the affront and indignity involved in personal identification the very persons most likely to need that protection. In short, the section brings about the result that the taking by the police of particulars of identification of a person in custody obtains its lawfulness from the terms of the section, not from the state of mind of the person in custody." 63 In relation to fingerprints, the High Court agreed with the Court of Criminal Appeal in Regina v. Carr [1972] 1 NSWLR 608 (special leave refused) and in Regina v. Carr (1973) 127 CLR 662 held that:- "There is nothing unlawful in asking a person, even if he be in custody, to provide fingerprints and, with his agreement, taking those fingerprints. That appears to be the position here. Furthermore, s.353A of the Crimes Act confers an authority to take the fingerprints, when a person is in lawful custody for an offence punishable on indictment." 64 Those observations, absent any interference with the person of the prisoner, would seem to apply to the taking of other particulars of identification. Further, where the section applies, s.353A(3D) makes clear that the consent of the prisoner is not required. The reasoning of Lee, J. which I have set out dealing with the section as it stood before the insertion of s.353A(3D) with which I agree, is to the same effect as that of the subsection. 65 In McPhail (supra), in the Court of Criminal Appeal, Lee, CJ. at CL. , having considered Duffield v. Police (No. 2) [1971] NZLR 710, held that in the absence of any oppressive conduct in the taking of particulars, in that case, photographs, there was nothing which could be pointed to contrary to s.353A(3). With his Honour's judgment, Hunt and Campbell, JJ. agreed. 66 His Honour examined the applicability of what was said by the Court of Criminal Appeal and the High Court in Carr (supra) concluding that those decisions were not inconsistent with the view he had taken. In his judgment in McPhail (supra) he followed the approach he had earlier taken in Fullerton (supra). Consistent with those authorities and the effect of the subsection, I see no unlawfulness or misleading effect in the application of the powers conferred by the section here. If any relevant contravention or impropriety might exist, it will have to be found outside the operation of the section as, it seems to me, it was found in Browning (supra). 67 In this appeal, no question is agitated concerning the purpose of identifying the person having any problem associated with it such as was referred to in Carr (supra); Sernack v. McTavish (1970) 15 FLR 381; Catell v. Rolfe (1993) Vol. 1, No. 5, NSW Courts Review, June 1994. Nor does any issue arise as arose in Ireland v. The Queen (1970) 126 CLR 321 and as was discussed by Barwick, CJ. at 334 of whether the particulars were obtained for a purpose other than for the purpose of identification. No complaint is made of failure to comply with the statutory prerequisites to exercise of the power provided by the section. Nor is there any suggestion in his Honour's findings of any coercion on the appellant of, for example, the kind referred to by Cross, J. in Hockley v. Power (1982-85) 6 Petty Sessions Review 2823 in which a magistrate intimated that he would direct a charged person to remain in custody until that person had had his fingerprints taken, or would grant bail conditionally upon that person submitting to being fingerprinted.

[17]

The decision in Browning 68 In Browning (supra), Miles, CJ. at 430 concluded, after examination of Sernack (supra); Carr (in the Court of Criminal Appeal and the High Court) and Duffield (supra):- "In my view, it has been established that in requesting the accused to complete the forms and in directing the constable on each occasion to obtain the particulars, Sergeant Garbutt caused to be taken all such particulars as may be deemed necessary for the identification of the accused, within the purview of s.353A(3)." 69 It appears that his Honour found against any relevant contravention of the section in the application of the power. 70 His Honour then turned to the question of whether there was an impropriety, having regard to the relevant provisions of the Instructions to Police applicable in the ACT, viz, general instructions to members of the Australian Federal Police. The instructions appear at pp.431-432 of the report. His Honour held those instructions were not complied with and particularly the accused's knowing co-operation and consent as generally required were not obtained. 71 His Honour applied the principles in Bunning v. Cross (supra) and Ireland (supra) in considering the application of the fairness discretion. In passing, I note that the overlapping of the fairness discretion and the public policy discretions at common law was elucidated by the High Court in Foster v. The Queen (1993) 67 ALJR 550. 72 His Honour concluded as a matter of fact that the accused would not have co-operated and would not have assisted the police had she been advised, as that instruction appeared to require, that the specimen was to be used to try to strengthen the case against her. His Honour's conclusion that fairness required the accused to be told that she was under no obligation to complete the forms is one that appears to turn entirely upon the local instructions. The significance of his conclusion that she would not have provided the specimen is to be considered in that light. His Honour was able to conclude that it was unfair to her to admit the handwriting, given that she would have availed herself of the option of refusing to provide it had she been properly instructed as to the nature of the local police instructions.

[20]

Conclusion 82 I find no support for the appellant's submissions in Browning (supra). Having regard to the evidence before the trial judge and his findings, I am unable to regard the decision in Browning (supra) as laying down a principle which would require exclusion of handwriting samples furnished as these have been in accordance with s.353A(3). Nor do I understand Miles, CJ. to be applying a principle of application more general than is supported by the relevant ACT instructions and the attitude of the defendant as he found it to be. I share Miles, CJ.'s view that handwriting samples provide particulars of identification as do fingerprints, photographs and those other matters referred to by Lee, J. in McPhail (supra) and Fullerton (supra) and that within the purview of the section, handwriting samples may be included in the particulars of identification which the relevant officer might cause to be taken as may be deemed necessary for identification of the accused. 83 For my part, I am unable to see any basis on which the discretion under s.138 of the Evidence Act 1995 might be said to have been wrongly exercised by the learned trial judge. His findings of fact were open to him. There is no finding of fact which would support the existence of any impropriety or contravention of an Australian law. 84 In The Queen v. Kyriakou (1987) 29 A. Crim. R. 50 and Regina v. Merritt & Rosso (1985) 19 A. Crim. R. 360, this court held that appeal does not lie to this court to call in question findings of fact found by and open to trial judges on a voir dire or as founding the exercise of discretion. Although the correctness of the breadth of the expression of the views of Hunt, J. was doubted on an unsuccessful special leave application to the High Court in Kyriakou (supra), nonetheless, his Honour's conclusion in this regard has subsequently been followed in this court. When it is sought to appeal in such a case, there needs to be shown a legal error below such as an absence of necessary evidence for a finding or an error vitiating the exercise of discretion as is described in The Queen v. House (1936) 55 CLR 499. 85 In this case, the trial judge proceeded to perform the balancing exercise on the contingent basis there might have been an impropriety. I am of the view that there was no impropriety. Strictly, I need not, therefore, deal with the correctness of his Honour's reasoning in that regard. However, I am not persuaded that his Honour erred in that exercise. I do not see any reason why, on the arguments presented to us, I should regard his Honour's decision as flawed. 86 In the upshot, I consider that although the matter was plainly deserving of argument and for that reason at least leave should be granted, nonetheless, the appeal should be dismissed for the reasons I have given. 87 I propose the following orders - leave to appeal granted; appeal dismissed. *******

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