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The Admissibility in Seychelles of Improperly Obtained Fingerprint Evidence: A Comment on Jean François Adrienne & Another v. R (Criminal Appeal SCA25 & 26/2015) [2017] SCCA 25 (11 AUGUST 2017)

Document Cited in Related
Vincent
Published date01 August 2020
Date01 August 2020
DOI10.3366/ajicl.2020.0325
Pages506-525
INTRODUCTION

In Seychelles, the taking of fingerprints is governed by sections 30A, 30B and 30C of the Criminal Procedure Code.1 Section 30B provides, inter alia, that a police officer may take a sample from a person in custody, inter alia, after seeking his consent and informing him of the right to refuse to give the sample (fingerprint).2 The Criminal Procedure Code does not deal with the question of the admissibility of fingerprint evidence obtained in violation of sections 30A, 30B, 30C and 30E. In Jean François Adrienne & Another v. R3 the Seychellois Court of Appeal, the highest court in Seychelles,4 for the first time dealt with the question of the admissibility of fingerprint evidence obtained in violation of the Criminal Procedure Code. The Court laid down the factors which have to be considered by judicial officers in determining whether or not to admit fingerprint evidence obtained in violation of the Criminal Procedure Code. The purpose of this article is to assess this judgment. I will start by highlighting the general principles governing the admissibility of fingerprint evidence in Seychelles.

 GENERAL PRINCIPLES GOVERNING THE ADMISSIBILITY OF FINGERPRINT EVIDENCE IN SEYCHELLES

Before discussing the law that governs the procedure which has to be followed in taking fingerprints in Seychelles, it is imperative to discuss the general principles governing fingerprint evidence generally. The mere fact that the accused's fingerprints were taken does not mean that the prosecution will adduce them in evidence5 or that they will link the accused to the commission of an offence.6 Sometimes the accused's fingerprints may not be found on the object he is alleged to have touched.7 This could be explained by the fact that, for example, he wore gloves when he touched on the object in question8 or, as the Court of Appeal explained in Cinan & Anor v. R,9 ‘[t]hose knowledgeable in this practical science know that finger prints cannot be taken from all items found on the crime scene, especially when it is a place which is frequented by people. Nor can it be taken from all types of surfaces such as wet and uneven.’10 Fingerprint evidence is one of the types of evidence that the prosecution may adduce to prove that the accused committed an offence. As the Court of Appeal explained in Cinan & Anor v. R, ‘[f]inger print of [sic] items are just one of the leads to the resolution of a crime.’11 Where the prosecution has other types of evidence, for example eyewitnesses to testify that the accused committed the offence, fingerprint evidence is not necessary.12 As the Supreme Court held in R v. Rose13 ‘[w]hen an accused is arrested and identified in committing a crime there is no necessity to prove the case on finger print evidence as eyewitness testimony would suffice.’14 The police have the discretion, depending on the circumstances of the case, to decide whether or not to take fingerprints from the accused15 or to lift fingerprints from the objects seized.16 However, an accused may make an application to court to order the prosecution to adduce fingerprint evidence if the accused is of the view that the adduction of fingerprint evidence will prove his innocence. For example, in Republic v. Esparon17 the accused was prosecuted for drug trafficking and his lawyer asked the Supreme Court to make an order to the effect that the drugs and foil in which they were being kept ‘which formed the basis of the charge of trafficking in controlled drugs, be subject to a finger print test by an expert in order to establish the fact that the fingerprints of the accused person were not present and therefore the accused had not handled the said substance or foil.’18 The accused's application was based on Article 19(2)(c) of the Constitution which provides that an accused ‘shall be given adequate time and facilities to prepare a defence to the charge.’ Counsel for the accused sought the ‘facility’ of taking the fingerprints to ‘be provided in order that [the accused] could prepare his defence’.19 The prosecution opposed the application and argued that it was not going to rely on fingerprint evidence because such evidence could be affected by factors such humidity and temperature and that it was ‘purposeless’ for the court to allow the accused's application.20 In dismissing the accused's application, the Court held that:

The prosecution has categorically stated that it will not be relying on fingerprint evidence to establish their case. Therefore the only reasonable conclusions would be that the prosecution is not relying on such evidence as no fingerprints exist on the intended exhibits or even if existing it cannot be proved that the fingerprints are that of the accused person. Both conclusions would be held in favour of the accused. However the defence should make note of the fact, that the fingerprints of the accused not being on the intended exhibit, need not necessarily mean nor could it be conclusively held, that the accused had not handled the said items. It is common knowledge that even though a person might handle an object, due to factors such as time, temperature, humidity, nature and type of object handled and manner in which the object was handled, an individual's fingerprints may not be detected …21

The Court concluded that it decided to decline the accused's application ‘in order to ensure that the purposes of justice are not compromised. In any event no purpose will be served, as the fingerprints of the accused are deemed not to be on the intended exhibit unless the prosecution proves otherwise.’22 Fingerprint evidence has to be adduced by an expert witness before court. In Republic v. Anna,23 the Supreme Court explained who an expert witness is. The Court held that:

[A] person, who has acquired expertise in a specialised field either by learning and studying or by experience (or both), is entitled to state his opinion to the Court because he has the necessary knowledge and understanding of the specialised matters in question, which the trial Judge cannot possibly hope to have. Therefore, the Court will allow him to give an “informed opinion” on the question involved … [C]ounsel, who simply represents his client in any legal proceeding cannot be allowed to give his opinion from the bar in order to controvert the opinion evidence given by an expert in the specialised field, unless the concerned counsel through admissible evidence, satisfies the Court that he himself is an expert having necessary knowledge and understanding of the specialised matters in this respect.24

 Likewise, in Labrosse v. R25 the Court of Appeal held that the prosecution witnesses were fingerprint experts because they had ‘considerable years of both theoretical and practical experience’ and ‘during those years they also attended training and refresher courses’ both locally and abroad.26 Fingerprint evidence is circumstantial evidence27 which is adduced to identify the accused28 and link him or her to the offence.29 The accused's guilt may be inferred from fingerprint evidence.30 In R v. Gilbert31 the Supreme Court explained the reason why fingerprint evidence is reliable. The Court observed that:

In the administration of justice, courts of law do often rely on the expertise of witnesses to assist them. When an expert witness informs the Court, often with the aid of photographs, that he took the fingerprints of the accused and found them to be identical with those on an object connected with the case, this is very strong circumstantial evidence. Courts take judicial notice of the fact that finger marks remain unaltered throughout life, and that no two persons have identical fingerprints. In other words, no proof is required of these facts. The Courts are entitled to found a conviction solely on the correctness of fingerprint identification provided that they satisfy themselves beyond reasonable doubt that the impressions lifted on objects found at the scene of crime are identical with the fingerprints of the accused.32

 In Labrosse v. R33 the Court of Appeal emphasised the relevancy of fingerprint evidence in linking the accused to the commission of an offence. The Court held that

It is in evidence that all the documents were identified by the victim as what he had in his possession on that day prior to being attacked and robbed. Among the documents was exhibit P2(a) on which the fingerprint of the Appellant was identified. If so, the Appellant cannot deny the fact that his fingerprint impressions were on the documents recovered by the police. If he was not at the scene nor the perpetrator of the crime the question that would bear on anyone's mind would be this: How then did his fingerprints get there? There seems to be no other explanation other than that he was at the scene and he committed the crime on the date in question.34

 The Court added that:

It is trite that the value of fingerprint as evidential material to connect an accused person to a crime is well-known. If the evidence of a fingerprint expert is clear and convincing, a conviction could even be based solely on the fingerprint evidence without additional evidence connecting the accused person to the crime.35

 The practice is for the police to identify ten points of similarities between the fingerprints lifted from the object on which the accused touched and those taken from the accused.36 However, as the South African High Court held, ‘[i]t is well-known that seven points of similarity are needed in our criminal law to make any finding beyond reasonable doubt.’37 After illustrating the principles that govern the acquisition and admissibility of fingerprint evidence, I will now discuss the procedure laid down in sections 30B of the Criminal Procedure Code TAKING FINGERPRINTS OF PERSONS IN CUSTODY

As mentioned above, the taking of fingerprints is governed by sections 30A, 30B and 30C of the Criminal Procedure Code. Section 30A deals with the interpretation of the different...

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