New South Wales Bills Explanatory Notes New South Wales Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
CRIMES (IDENTITY OF OFFENDERS) AMENDMENT
BILL 1992
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The object of this Bill is to amend the Crimes Act 1900:
· so that a court, after sentencing a person for an indictable offence or for any of
certain summary offences, may require the offender to submit to the taking of his
or her finger-prints and other particulars of identification so as to facilitate
preservation in official files of a record of the person's conviction for the
offence; and
· so that, in cases where there is doubt as to the identity of a person against whom
an offence is proved, a court may require particulars of identification of the
person to be taken before sentencing, or before proceeding to conviction, in
order to verify the identity of the person and determine whether the person has a
criminal record under another name.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a proclaimed day.
Clause 3 is a formal provision that gives effect to the Schedule of amendments.
Clause 4 provides that the new procedures do not apply in respect of offences found
proved before the commencement of the amendments made by the proposed Act.
SCHEDULE 1--AMENDMENTS
Existing powers of police
Police powers to take photographs, finger-prints and palm-prints of an adult person
are set out in section 353A (3) of the Crimes Act 1900. According to this provision,
when a person is in lawful custody for an offence, the officer in charge of the police
station where the person is detained may authorise the taking of finger-prints and other
particulars of identification.
When a child under the age of 14 is taken into custody, section 353AA (2) of the
Crimes Act 1900 prima facie prohibits the taking of finger-prints and other identifying
particulars. The police, however, may apply to the Children's Court or, in limited
circumstances, to a Justice for authorisation to allow photographing, finger-printing and
palm-printing for the purpose of identification of the child (section 353AA (3) of the
Crimes Act 1900).
It will be seen that these provisions only apply where the defendant is in custody. By
contrast, if a matter is commenced by way of summons, the police have no power to
take the person's finger-prints or other identifying particulars. This is because the
offender is not arrested and charged and thus is never in lawful custody in the manner
contemplated by section 353A (3) and 353AA (3).
Criminal records
Following the arrest of an alleged offender, the police submit a crime report. Details
of the incident are placed on a computerised system and, when finger-prints are taken,
the relevant information is placed on a system called the Criminal Histories System. To
preserve the integrity of the criminal record system, however, a criminal history record
is only created or updated where the offender's identity is verified by finger-prints. Only
those matters where arrest and subsequent conviction have been supported by positive
finger-print identification are recorded. Accordingly, convictions resulting from matters
commenced by summons, where no finger-prints are taken, are not recorded on a
criminal history.
By allowing a court to order that particulars of identification be taken from an
offender who has been prosecuted by summons, the amendment to section 353A cures
this deficiency.
Identity of offenders
The fact that convictions resulting from matters commenced by summons have
generally remained unrecorded on a criminal history may result in a situation where a
person who goes before a court is dealt with as a first offender when he or she has in
fact been convicted on previous occasions. This situation may arise where, for example,
a person has committed a number of corporate crimes which are commenced by
summons rather than by arresting the accused.
The problem is aggravated where the enacted law provides for a repeat offender to be
dealt with differently. One example is an offence of driving with the prescribed
concentration of alcohol. If a person has been dealt with by way of summons following
a blood analysis, a court could unwittingly impose a penalty, and order a disqualification
from holding a licence, otherwise than in accordance with the Traffic Act 1909 because
of an unrevealed prior conviction occurring within the previous five years. This offence,
and other offences of this type, are expressly contemplated by the amendment. The
amendment also provides for other relevant offences to be prescribed by the regulations.