THIS ISSUE: Power to obtain identification particulars- R v SA, DD and ES [2011] NSWCCA 60
The respondents were arrested and charged with an offence against s 33 of the Crimes Act 1900. The offenders were 14 and 15 years of age at the time. Whilst in custody the Police took their photographs and fingerprints in order to assist in proving whether the offenders actually committed the offence.
Section 133 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) states that Police may take all particulars necessary to identify a lawful person in custody. If that person is over 14 years of age, those particulars include the person’s photographs and fingerprints.
At trial it was submitted by the respondents that the Crimes (Forensic Procedures) Act 2000 (CFPA) (s112) modified LEPRA to require the consent of a Magistrate before photographs or fingerprints of a minor can be taken. The trial Judge agreed with this argument and ruled the fingerprints and photographs to be inadmissible. The Crown appealed against the trial Judge’s ruling.
The appeal was allowed. Blanch J; McClellan CJ at CL and Hoeben J agreeing, set aside the order rejecting the evidence.
It was found that s113 of LEPRA should be interpreted broadly. The power of the Police to take particulars including photographs and fingerprints for identification purposes and to provide evidence of the commission of an offence has been in existence since the CFPA was enacted. The act clearly indicates in s112, that this power should continue and nothing in LEPRA suggests any change to that policy.
In this case the photographs and fingerprints were taken in accordance with the powers conferred on Police by s113. There was no illegality or improper conduct by the Police in gathering the particulars.
THIS NEWSLETTER IS NOT INTENDED TO BE A DEFINITIVE ANALYSIS OF THE LAW. PROFESSIONAL ADVICE SHOULD BE SOUGHT BEFORE ANY COURSE OF ACTION IS PURSUED.
