Criminal Process (Identification and Search Procedures) Act 1976

Criminal Process (Identification and Search Procedures) Act 1976

An Act to amend the law in respect of criminal process and to amend the Prison Act 1868 and the Criminal Code

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - [Part 1 Heading inserted by No. 42 of 1995, s. 4 ]Preliminary

1.   Short title

This Act may be cited as the Criminal Process (Identification and Search Procedures) Act 1976 .

2.   Interpretation

(1)  [Section 2 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ]In this Act –

medical practitioner means a legally-qualified medical practitioner;

officer of police means such an officer appointed pursuant to section 10 of the Police Regulation Act 1898 ;

police officer has the meaning assigned to that expression in the Police Regulation Act 1898 .

(2)  [Section 2 Subsection (2) added by No. 42 of 1995, s. 5 ]For the purposes of this Act, proceedings for an offence are taken to have been terminated by the conviction of a person if –

(a) the person has been charged with and found guilty and convicted of the offence; or

(b) [Section 2 Subsection (2) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] the person has been charged with and found guilty of the offence but the court hearing the charge has not proceeded to conviction; or

(c) [Section 2 Subsection (2) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

(d) the offence has been taken into account by the court hearing the charge in sentencing the person for another offence.

PART 2 - [Part 2 Heading inserted by No. 42 of 1995, s. 6 ]Identification, Search and Examination

3.   Photographing and finger-printing of persons in lawful custody

(1)  Subject to subsection (2) , where a person is in lawful custody –

(a) being 17 years of age or older and who, having been arrested, is charged with an offence referred to in Schedule 1 ;

(b) under a sentence of imprisonment; or

(c) pursuant to an order under section 4 –

records may be made for his present or future identification.

(2)  Notwithstanding paragraph (a) of subsection (1) , records of a person referred to in that paragraph shall not be made except as directed by an officer of police (which direction officers of police are hereby authorized to give) or, where the person is in custody at a police station, by an officer of police or the police officer who is, in the normal course of his duties, in charge of that station, whether by virtue of a permanent or temporary transfer or appointment, (which direction such a police officer is hereby authorized to give).

(3)  For the purposes of subsection (1) –

(a) records may be made by photography and finger-printing;

(b) the person of whom the records are to be made shall submit himself to such photography and finger-printing as may reasonably be required of him; and

(c) if the person of whom the records are to be made refuses or fails to submit himself to photography and finger-printing, or wilfully obstructs the conduct thereof, a police officer may use such force as is reasonably necessary for the purpose of enabling the photography or finger-printing, or both the photography and finger-printing, to be effected.

(4)  [Section 3 Subsection (4) amended by No. 66 of 1985, s. 4 ]Where –

(a) records have been made under this section in respect of a person while he was in such custody as is referred to in subsection (1) (a) ; and

(b) the proceedings in respect of which he came so to be in custody have been terminated otherwise than by –

(i) his conviction of an offence referred to in Schedule 1 ; or

(ii) the making in relation to him of an order under section 382 (1) of the Criminal Code –

those records and any copies that have been made of them shall be destroyed within seven days of such termination and the Commissioner of Police, when he is satisfied that such destruction has occurred, shall cause written notice of the fact to be given to that person.

4.   Person convicted of offence punishable by imprisonment may be detained in custody for purpose of photography and finger-printing

(1)  Where a person is convicted of an offence punishable by imprisonment, the court before which he is convicted may order him to be detained in custody for a period not exceeding 24 hours for the purpose of enabling such records to be made as are referred to in section 3 (3) .

(2)  Where proceedings against a person charged with an offence punishable by imprisonment terminate with an order made under section 7 (1) of the Probation of Offenders Act 1973 he shall, for the purpose of subsection (1) , be deemed to have been convicted of that offence.

5.   Search of accused persons in custody

(1)  Where a person is in lawful custody having been arrested and charged with an offence, a police officer may search that person in any case where he believes on reasonable grounds that it is necessary to do so –

(a) for the purpose of ascertaining whether there is concealed on his person or in his clothing a weapon or other article capable of being used to inflict injury or to assist him to escape from custody; or

(b) for the purpose of preventing the loss or destruction of evidence relating to the offence.

(2)  Subsection (1) (b) does not authorize a police officer to require a person to remove any of the clothing that he is wearing unless the offence with which he has been charged is of such a nature or alleged to have been committed under such circumstances that there are reasonable grounds for believing that the removal and examination or detention of any such clothing may afford evidence of the commission of the offence.

(3)  A police officer may take and retain –

(a) any weapon or other article referred to in subsection (1) (a) ; and

(b) any article of clothing or other thing which may afford evidence of the commission of the offence –

found as a result of a search made in accordance with subsection (1) .

(4)  A police officer may use such force as is reasonably necessary for the purpose of exercising his powers under this section.

(5)  Subsection (1) shall not be construed as preventing a search of a person in lawful custody in any circumstances where, apart from the subsection, it is lawful to search such a person.

6.   Examination of accused persons in custody for evidence of offence charged

(1)  Where a person is in lawful custody having been arrested and charged with an offence referred to in Schedule 1 , and the offence is of such a nature or alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his body may afford evidence of the commission of the offence, it is lawful for a medical practitioner acting at the request and in the presence of a police officer, and any member of the police force or any person working in the medical or nursing professions acting in good faith in aid of and under the direction of the medical practitioner, to make such an examination of the clothing and of the body of the person so in custody as is reasonably necessary to discover any facts which may afford such evidence, and to take possession of and retain any matter or thing that may afford such evidence and a police officer may take prints of any part of the body of the person who is so examined.

(2)  If a person in lawful custody referred to in subsection (1) requests that the examination in that subsection referred to be not carried out unless another medical practitioner, of the same sex as the person in custody, is present, the examination shall not be conducted unless another medical practitioner of the same sex as the person in custody is present unless the circumstances are such that it is not reasonably practicable to arrange for the presence of such another medical practitioner at the examination.

(3)  Notwithstanding subsection (1) , such an examination as is in that subsection referred to shall not be conducted until the person to be examined has been informed of the request he may make in accordance with subsection (2) .

(4)  No liability whatsoever shall devolve on a medical practitioner who, at the request of a police officer, examines the body of an accused person in custody, or on any person acting in good faith in aid of and under the direction of the medical practitioner, by reason of such custody not being lawful, or because the person was not informed in accordance with subsection (3) , or by reason of the unreasonable denial of a request by the person in custody for the presence of another medical practitioner of the same sex as the person in custody.

(5)  For the purpose of subsection (1) , it is lawful for a medical practitioner or other person making an examination therein referred to to take samples of the blood, saliva, and hair of the person being examined, and to take nail clippings of that person.

(6)  If the person of whom an examination is to be made as provided by this section refuses or fails to submit himself to such examination, or wilfully obstructs the conduct thereof, a police officer or a medical practitioner may use such force as is reasonably necessary for the purpose of enabling the examination to be conducted.

7.   Examination of accused person in custody for evidence of offence other than offence charged

(1)  Where a person is in lawful custody, having been arrested and charged with an offence, a magistrate, upon application being made to him in that behalf by a police officer, may make an order authorizing the search and examination of the person charged in accordance with subsection (3) .

(2)  A magistrate shall not make an order under this section unless he is satisfied that the police officer has reasonable grounds for believing that such an examination may afford evidence of the commission of some offence punishable by imprisonment being an offence other than that with which the person the subject of the application is charged.

(3)  Where a magistrate has made an order under subsection (1) it is lawful for amedical practitioner acting at the request and in the presence of a police officer, and any person acting in good faith in aid of and under the direction of the medical practitioner, to make such an examination of the clothing and the body of the person so in custody as is reasonably necessary to discover any facts which may afford evidence of an offence, and to take possession of and retain any matter or thing that may afford such evidence and a police officer may take prints of any part of the body of a person who is so examined.

(4)  The provisions of section 6 (2) and (3) apply in respect of an examination conducted under this section as they apply to an examination conducted under that section.

PART 3 - Fingerprinting of Young Persons

Division 1 - Powers and procedures

7A.   Interpretation of Part 3

[Section 7A Inserted by No. 42 of 1995, s. 7 ]In this Part –

independent witness, in relation to a young person, means a person who has attained the age of 18 years who is not a parent of the young person or a police officer;

parent includes a guardian, a foster parent and a person acting in loco parentis;

young person means a person who has attained the age of 10 years but not the age of 17 years.

7B.   Young persons may be fingerprinted

[Section 7B Inserted by No. 42 of 1995, s. 7 ]A police officer may fingerprint a young person in accordance with this Part if the young person is in lawful custody having been arrested and charged with an offence referred to in Schedule 2 and –

(a) the young person and a parent of the young person have consented to the fingerprinting; or

(b) where such consent has not been obtained – the fingerprinting has been authorized by a magistrate.

7C.   Young persons to be told certain matters before being fingerprinted

[Section 7C Inserted by No. 42 of 1995, s. 7 ]Before a young person is fingerprinted, a police officer must inform the young person and, if located, a parent of the young person, in language that they are likely to understand, of the following:

(a) the offence with which the young person has been charged;

(b) that the young person may be fingerprinted –

(i) with the consent of the young person and a parent of the young person; or

(ii) if such consent is not obtained – on the authorization of a magistrate;

(c) that the record of the young person's fingerprints may be used in evidence;

(d) that the record of the young person's fingerprints will be destroyed if –

(i) proceedings in respect of the offence with which the young person has been charged are terminated other than by the conviction of the young person; or

(ii) the destruction of the record is ordered by a court under section 7I (1) (b) .

7D.   Evidence of consent

[Section 7D Inserted by No. 42 of 1995, s. 7 ]A young person and a parent of that young person are taken not to have consented to the fingerprinting of that young person unless the consent is recorded in writing and signed by the young person and the parent before the fingerprinting takes place.

7E.   Fingerprinting of young persons must be witnessed

[Section 7E Inserted by No. 42 of 1995, s. 7 ]A police officer must not fingerprint a young person except in the presence of –

(a) a parent of the young person; or

(b) if a parent of the young person cannot be located after a reasonable attempt has been made to do so or no parent of the young person who has been located agrees to be present at the fingerprinting – an independent witness.

7F.   Procedure for seeking magistrate's authority

[Section 7F Inserted by No. 42 of 1995, s. 7 ]

(1)  A police officer may apply to a magistrate for authorization to fingerprint a young person.

(2)  An application under subsection (1) may be made in person or, if that is not practicable, by telephone.

(3)  A magistrate to whom an application under subsection (1) is made may issue an order authorizing the fingerprinting of the young person if the magistrate is satisfied that –

(a) there are reasonable grounds to believe that the young person has committed the offence with which he or she has been charged; and

(b) in all the circumstances the order is justified.

(4)  In determining whether to issue an order authorizing the fingerprinting of a young person a magistrate must take the following matters into account:

(a) the seriousness of the circumstances surrounding the commission of the offence with which the young person has been charged;

(b) the alleged degree of participation by the young person in the commission of the offence;

(c) the age of the young person.

(5)  A magistrate must not issue an order authorizing the fingerprinting of a young person unless the applicant and the young person have been given an opportunity to be heard.

(6)  A magistrate who issues an order authorizing the fingerprinting of a young person must, if the order is applied for in person –

(a) make the order in writing; and

(b) give a copy of the order to the applicant.

7G.   Telephone authorizations

[Section 7G Inserted by No. 42 of 1995, s. 7 ]

(1)  A magistrate must not issue an order by telephone authorizing the fingerprinting of a young person if, in the magistrate's opinion, it would be practicable in the circumstances for a police officer to apply to a magistrate for such an order in person.

(2)  A magistrate who issues an order by telephone authorizing the fingerprinting of a young person must cause a record to be made in writing of –

(a) the name of the police officer who applied for the order; and

(b) the location of that police officer when the application was made; and

(c) the reasons given by the applicant as to why it was not practicable in the circumstances for the application to be made in person; and

(d) the terms of the order as stated to the applicant; and

(e) the date and time the order was issued.

(3)  A police officer who obtains an order by telephone authorizing the fingerprinting of a young person must forthwith –

(a) cause a record to be made in writing setting out the terms of the order; and

(b) endorse the record with the name of the magistrate who issued the order and the date and time the order was issued.

Division 2 - Use in evidence and destruction

7H.   Young person's fingerprint evidence inadmissible in certain cases

[Section 7H Inserted by No. 42 of 1995, s. 7 ]

(1)  In this section –

serious crime means murder, attempted murder, manslaughter, rape or aggravated sexual assault.

(2)  A record of fingerprints taken from a young person is inadmissible as evidence in proceedings other than –

(a) proceedings in respect of an offence referred to in Schedule 2 committed after the commencement of the Criminal Process (Identification and Search Procedures) Amendment Act 1995 ; or

(b) proceedings in respect of a serious crime committed before or after the commencement of the Criminal Process (Identification and Search Procedures) Amendment Act 1995 .

(3)  A record of fingerprints taken from a young person is inadmissible as evidence in proceedings if –

(a) the court hearing the proceedings is satisfied that the record of fingerprints has not been obtained in accordance with this Part; or

(b) the record of fingerprints should have but has not been destroyed pursuant to section 7I .

(4)  Notwithstanding subsection (3) (a) , a court may allow a record of fingerprints taken from a young person to be admitted as evidence in proceedings contrary to that subsection if it is satisfied that exceptional circumstances justify the admission of that evidence.

(5)  For the purposes of subsection (4) , the matching of fingerprint evidence taken in connection with an offence referred to in Schedule 2 with a record of fingerprints taken from a young person does not constitute exceptional circumstances.

7I.   Destruction of young person's fingerprint evidence

[Section 7I Inserted by No. 42 of 1995, s. 7 ]

(1)  The Commissioner of Police must destroy the record of fingerprints taken from a young person if –

(a) the proceedings in respect of the offence with which the young person has been charged are terminated other than by the conviction of the young person; or

(b) a court that convicts the young person of the offence with which he or she has been charged orders that the record of fingerprints be destroyed.

(2)  The power of the court under subsection (1) (b) is exercisable on the court's own motion or on an application on behalf of the young person.

(3)  For the purposes of subsection (1) , the record of fingerprints must be destroyed within the period of 7 days immediately following the day on which the proceedings are terminated or the order for destruction is made.

PART 4 - [Part 4 Heading inserted by No. 42 of 1995, s. 8 ]Miscellaneous

8.   Person in custody not to be left with inadequate clothing

Nothing in sections 5 , 6 , or 7 shall authorize any police officer to require the removal or to remove any clothing worn by any person so as to deprive him of adequate clothing, unless that person is immediately provided with other adequate clothing or covering.

11.   Application of amendment to section 3

The amendment of section 3 made by the Criminal Process (Identification and Search Procedures) Amendment Act 1985 has effect in relation to a record made under that section before the date of commencement of that Act and to a copy of such a record as if that record or copy had been made under that section as so amended, and no action lies against any person in relation to the failure, before that date, of that person to cause the destruction, in accordance with that section, of a record or copy the destruction of which ceases, on that date and by virtue of that amendment, to be required by that section.

SCHEDULE 1

Section 3

1.   Every offence being a crime within the meaning of the Criminal Code .

2.   The offence of driving a motor vehicle on a public street recklessly or at a speed or in a manner dangerous to the public, contrary to section 32 (1) of the Traffic Act 1925 .

3.   Offences against the following provisions of the Police Offences Act 1935 , namely:

Section 7 (Loiterers, &c.)

Section 8 (1A) (b) (Living off the earnings of prostitution)

Section 8 (1B) (Imposing upon a person by any false or fraudulent representation with a view to obtaining money or any other benefit or advantage)

Section 34B (1) (a) (Assault, resist, or wilfully obstruct a police officer in the execution of his duty, &c.)

Section 35 (Common assault and aggravated assault on females and children)

Section 36 (Injury by driving, &c.)

Section 37 (Offences relating to property)

Section 37B (Motor vehicle stealing)

Section 37C (Procuring the hire or use of a motor vehicle by fraud, &c.)

Section 38 (Unlawful pawning)

Section 39 (Possession of stolen property)

Section 39A (Offences in relation to sheep, cattle, and other stock)

Section 40 (Possession and sale of shipwrecked property)

Section 41 (Advertising reward for return of stolen property, &c.)

Section 42 (Taking or using animal, vehicle, or vessel, without owner's consent)

Section 43 (Failing to convey and deliver found property to a police station)

4.   Offences against the following provisions of the Poisons Act 1971 , namely:

Section 45 (Restriction of importation of raw narcotic or narcotic substance)

Section 46 (Manufacture of narcotic substances)

Section 47 (Sale and supply of narcotic substances, prohibited plants, and prohibited substances)

Section 48 (Possession of narcotic substances, &c.)

Section 49 (Prohibition of possession of prohibited plants except under licence)

Section 51 (Forgery, &c., of prescriptions and making of false representations in relation to narcotic substances)

Section 54 (Prohibition of smoking, &c., of opium)

Section 55 (Prohibition of manufacture, &c., of prohibited substances)

SCHEDULE 2

Sections 7B and 7H

1.   An offence that is punishable on indictment, whether or not in certain circumstances the offence may be dealt with as a simple offence.

2.   An offence against section 34B (1) (a) , 35 , 36 , 37 (1) , 37B , 39 or 42 (2) of the Police Offences Act 1935 .

3.   An offence against section 45 , 46 , 48 , 49 , 51 , 54 or 55 of the Poisons Act 1971 .