This page deals with the power of police to take fingerprints, forensic procedure applications and destruction of fingerprints.
Power to take fingerprints
When you are taken into custody for an offence, a police officer may take all particulars that are necessary to identify you. If you are over 14 years of age, the particulars may include fingerprints, photographs and palmprints.
The police will take prints as soon as possible after taking you to the station for charging. Your consent is not required.
Forensic procedure application
If you are not in police custody the police do not have the power to obtain fingerprints without an order. Normally the police will apply for an order from the court seeking that your fingerprints be taken. We have successfully defended a number of forensic procedure applications in the Local Court and a magistrate’s decision was overturned in the Supreme Court preventing the carrying out of forensic procedures. Please contact us if you need any assistance.
Destruction of fingerprints
If you are found not guilty, have your conviction overturned on appeal or if proceedings in respect of the offence have not been instituted within 12 months of taking the fingerprints or palm-prints, you may apply in writing to the Commissioner of Police to destroy your fingerprints or palmprints.
Section 137A of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) requires the Commissioner of Police to ensure that your fingerprints or palmprints are destroyed as soon as reasonably practicable after receiving your request.
Persons under 14 years of age
The police do not have the power to take fingerprints, photographs and/or palmprints to identify persons under the age of 14. However, a court may order the police to take the fingerprints of a child under the age of 14.
If a court does not make such an order, a police officer may apply to the Children’s Court or, if not possible to apply to the Children’s Court within 72 hours of taking the child into custody, to an authorised officer, for an order authorising them to do so.
The Children’s Court or authorised officer will consider the seriousness of the circumstances surrounding the offence, the best interests and wishes of the child, and any wishes expressed by the parent or guardian of the child.
A child cannot be held in custody purely for the purpose of such an application being made to the Children’s Court or authorised officer.