The Law Handbook 2024

186 SECTION 3: Fines, infringements and criminal law Young people aged from 10 to 14 A child aged from 10 to 14 years can be fingerprinted if they are reasonably suspected of having committed an indictable or specified summary offence and either: • the child and their parent or guardian consent to the prints being taken; or • a Children’s Court orders that the prints be taken. Before ordering the taking of prints, the court will need to be satisfied on the balance of probabilities (i.e. that it is more likely than not) that: – there are reasonable grounds to believe that the child has committed the offence in question; and – in all the circumstances, the making of the order is justified; this involves taking into account the seriousness of the circumstances surrounding the offence, the degree to which the child is said to have been involved, and the child’s age. At the hearing by a Children’s Court of an application by police for an order to take the fingerprints of a young person, the young person can be represented by a lawyer or, if the court agrees, by a parent or guardian. However, there is no right to call witnesses to give evidence or to cross-examine any police witnesses. The young person or their representative may ‘address the court’, but only about whether or not the requirements for the making of an order have been met. Commonwealth offences Fingerprints can be taken from an adult by a police officer of sergeant rank or above, either with the suspect’s written consent, or if it is reasonably believed that the prints are required to: • establish who the suspect is; • identify the suspect as the person who has committed the offence in question or some other offence; or • provide evidence in relation to the offence in question or some other offence. Prints can also be taken without consent if the offence in question is punishable by 12 months imprisonment or more. Under the Crimes Act (Cth), the requirements in relation to fingerprints apply to ‘identification material’ as defined. This term includes recordings of a person’s voice or handwriting and photographs of the person (s 3ZJ). When taking such fingerprints and other identification material, police can use such force as is necessary and reasonable. Where the suspect is aged from 10 to 18, or is not able to manage their own affairs, fingerprints can only be taken if police obtain a court order, or with the consent of the suspect’s parent or guardian. In deciding whether to make such an order, the court will take into account the seriousness of the offence, the age or any disability of the accused and such other matters as it thinks fit. If fingerprints are to be taken from such a suspect following the making of a court order, this must be done in the presence of the suspect’s parent or guardian or an independent person (see ‘Role of the independent person’, below). Destruction of identification material Fingerprint, including fingerscan, records and related identification material have to be destroyed if, after six months, the person has not been charged with the offence for which the material was taken or with any other offence for which the material has some value as evidence. Identification material must also be destroyed if the person was charged with a relevant offence but then was found not guilty. A special rule applies to fingerprints and fingerscans taken from a person while they are still a child and who are found not guilty of any further offences before they turn 26 years old. Except in the case of certain serious offences, such fingerprints have to be destroyed. Police can apply, without telling the fingerprinted person, to a Magistrates’ or Children’s Court for an order extending by up to six months the time before which the fingerprints must be destroyed. Police can only seek one such extension in any case. If a court makes such an order, a copy of the order must be given to the person whose prints have been taken. Where the offence is one under Commonwealth law, the period can be extended by 12 months at a time and can be extended more than once. The police must give notice within 14 days to the person whose fingerprints have been destroyed. A fine of up to 10 penalty units can be imposed on any person who uses or makes any record, copy or photograph of fingerprints that should have been destroyed.