Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 1 December 2014 to date (accessed 21 December 2014 at 05:40)
Part 10Division 1

Division 1 Taking of identification particulars from persons in custody

133   Power to take identification particulars

(cf Crimes Act 1900, s 353A)

(1)  A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offence.
(2)  If the person is over the age of 14 years, the particulars may include the person’s photograph, finger-prints and palm-prints.
(3)  This section does not authorise a police officer to take from any person, or to require any person to provide, any sample of the person’s hair, blood, urine, saliva or other body tissue or body fluid.
(4)  Subsection (3) does not affect a police officer’s power to take any such sample, or to require the provision of any such sample, for the purposes of, and in accordance with the requirements of, any other Act or law.
Note. See, for example, the powers conferred by the Crimes (Forensic Procedures) Act 2000.

134   Orders for the taking of identification particulars

(cf Crimes Act 1900, s 353A)

(1)  A court that finds an offence to which this section applies to have been proven against a person may order the person to present himself or herself in accordance with the terms of the order and submit to the taking, by the officer in charge of the police station specified in the order, of all particulars as are necessary to identify the person.
(2)  The particulars may include the person’s photograph, finger-prints and palm-prints.
(3)  The order is to contain a warning to the person that a failure or refusal to comply may result in the person’s arrest.
(4)  A person who does not present himself or herself in accordance with the terms of the order may, at the direction of the officer in charge of the police station, be arrested without a warrant and taken into custody for such time as is reasonably necessary for the taking of particulars in accordance with the order.
(5)  This section applies to the following offences:
(a)  any indictable offence,
(b)  an offence under section 117 of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act) of driving a motor vehicle on a road or road related area negligently occasioning death, negligently occasioning grievous bodily harm, furiously or recklessly or at a speed or in a manner that is dangerous to the public,
(c)  an offence under any of the following provisions of the Road Transport Act 2013 (or any former corresponding provisions within the meaning of that Act):
(i)  section 110 (1), (2), (3) (a) or (b), (4) (a) or (b) or (5) (a) or (b),
(ii)  section 112 (1) (a) or (b),
(iii)  section 118,
(iv)  section 146,
(v)  clause 16 (1) (b) of Schedule 3,
(vi)  clause 17 (1) or 18 (1) of Schedule 3,
(c1)  an offence under section 5 or 6 of the Prevention of Cruelty to Animals Act 1979,
(d)  an offence prescribed, or of a kind or description prescribed, by the regulations.

135   Lawful custody of persons other than police officers

(cf Crimes Act 1900, s 353A)

(1)  A reference in this Division to lawful custody is a reference to lawful custody of the police or other authority.
(2)  If a person is in lawful custody in a place other than a police station, the powers under section 133 or 134 of a police officer may be exercised by the person in charge of the place or by another person who is normally supervised by that person.
(3)  The consent of the person in lawful custody is not required for the doing of anything under section 133 or 134.

136   Identification particulars of children under 14 years

(cf Crimes Act 1900, s 353AA)

(1)  This section applies to a child under the age of 14 years who is in lawful custody for an offence.
(2)  A person must not take a photograph or the finger-prints or palm-prints of a child except in accordance with this section. Nothing in this section, however, prevents the taking of any child’s photograph, finger-prints or palm-prints in accordance with the order of a court under section 134.
(3)  A police officer of the rank of sergeant or above may, in respect of a child, apply:
(a)  to the Children’s Court, or
(b)  if it is not possible to apply to the Children’s Court within 72 hours after the taking of the child into custody, to an authorised officer,
for an order authorising, for the purpose only of identifying the child, the taking of the child’s photograph, finger-prints and palm-prints.
(4)  The Children’s Court or authorised officer may hear the application and may make the order sought in the application.
(5)  In determining whether to make the order, the Children’s Court or authorised officer is to take into account the following:
(a)  the seriousness of the circumstances surrounding the offence,
(b)  the best interests of the child,
(c)  the child’s ethnic and cultural origins,
(d)  so far as they can be ascertained, any wishes of the child with respect to whether the order should be granted,
(e)  any wishes expressed by the parent or guardian of the child with respect to whether the order should be granted.
(6)  A child must not be held in custody for the purpose only of an application being made under this section.

137   Destruction of certain identification particulars relating to children

(cf Crimes Act 1900, s 353AB)

(1)  If a court finds an offence alleged against a child who has had the child’s photograph, finger-prints and palm-prints taken in accordance with this Part not proved, the court must cause to be served on:
(a)  the child, and
(b)  if practicable, the parents or guardian of the child, and
(c)  any other person who has the care of the child,
a notice stating that if the child or they so desires or desire, the court will order that the photograph, finger-prints and palm-prints, and any other prescribed records (other than the records of the court), relating to the alleged offence be destroyed and the court may make the order accordingly.
(2)  In this section:

prescribed records means records of the kind prescribed for the purposes of section 38 (1) of the Children (Criminal Proceedings) Act 1987.

137A   Destruction of finger-prints and palm-prints (adults and children)

(1)  A person from whom any finger-prints or palm-prints are taken under this Division in relation to an offence may request the Commissioner to destroy the finger-prints or palm-prints if the offence is not proven.
(2)  For the purposes of this section, an offence is not proven if:
(a)  the person is found not guilty or is acquitted of the offence, or
(b)  the conviction of the person for the offence is quashed, and an acquittal is entered, on appeal, or
(c)  at the end of the period of 12 months after the finger-prints or palm-prints were taken (or, if an extension to that period is granted under section 137B, at the end of the extended period) proceedings in respect of the offence have not been instituted against the person or have been discontinued.
(3)  A request under this section is to be made by application in writing.
(4)  If the person from whom the finger-prints or palm-prints were taken is a child, the request may be made on behalf of the child by a parent or guardian of the child.
(5)  The Commissioner must, as soon as reasonably practicable after receiving a request made in accordance with this section, destroy or cause to be destroyed the finger-prints or palm-prints taken from the person in relation to the offence that is not proven.
(6)  This section does not require the destruction of any court records.
(7)  This section does not affect the powers of the Children’s Court to order the destruction of all identification particulars relating to a person under section 38 of the Children (Criminal Proceedings) Act 1987.
(8)  This section extends to any finger-prints or palm-prints taken under section 134 (in relation to an offence that has been proven), if the person’s conviction for the offence is subsequently quashed on appeal.

137B   Extension of period at the end of which finger-prints and palm-prints may be destroyed

(1)  A Magistrate may, by order made on application in accordance with this section, grant an extension to the period of 12 months referred to in section 137A (2) (c), or that period as previously extended under this section, in relation to particular finger-prints or palm-prints if satisfied that there are special reasons for doing so.
(2)  An application for an extension may be made by a police officer or the Director of Public Prosecutions.
(3)  An application for an extension may be made at any time, whether or not the period proposed to be extended has elapsed and whether or not a request for the destruction of the finger-prints or palm-prints concerned has been made to the Commissioner.
(4)  A Magistrate to whom an application is made is not to grant an extension unless:
(a)  the applicant for the extension has taken reasonable steps to notify the person from whom the finger-prints or palm-prints were taken of the making of the application, and
(b)  the person or his or her legal representative has been given an opportunity to speak to or make a submission to the Magistrate concerning the extension.
(5)  The Director of Public Prosecutions is to ensure that the Commissioner is notified of an application made by the Director of Public Prosecutions under this section and any extension granted as a consequence of the application.
(6)  If an extension is granted, the Commissioner may refuse a request for the destruction of the finger-prints or palm-prints concerned made before the end of the extended period (including an application made before the extension was granted).
Top of page