Criminal law - Offence of obstructing a public officer - Refusal to provide fingerprints to police officer - Whether police officer considered that fingerprints were "necessary or desirable for the identification" of the appellant

Police Act 1892 - 2004 (WA), s 50AA

Bonder v Howell [1984] WAR 76

Carr v The Queen [1973] HCA 37; (1973) 127 CLR 662

Duffield v Police (No 2) [1971] NZLR 710

McPhail & Tivey (1988) 36 A Crim R 390

R v Carr [1972] 1 NSWLR 608

Sernack v McTavish (1970) 15 FLR 381

Tong v The Queen, unreported; CCA SCt of WA; Library No 970087; 12 March 1997

1 BLAXELL J: This is an appeal from the conviction of the appellant in the Magistrate's Court on 27 February 2006 for an offence of obstructing a public officer in the performance of the officer's functions. The essential facts grounding that conviction were that the appellant, while in lawful custody, refused to provide his fingerprints when requested to do so by a police officer. In that regard, s 50AA(1) of the Police Act 1892-2004 (WA) provides that:

"(1) Where any person is in lawful custody for any offence punishable on indictment or summary conviction, other than an offence that is a serious offence within the meaning of the Criminal Investigation (Identifying People) Act 2002, any officer or constable of the Police Force may take or cause to be taken all such particulars as he may think necessary or desirable for the identification of that person, including his photograph, measurements, fingerprints, and palmprints."

2 When the matter came before me on 12 May 2006, the respondent conceded that the appeal should be allowed, that the conviction should be quashed, and that there should not be any retrial. However, this concession was made on a limited basis and not on the grounds as contended by the appellant. I was also told that the appeal raised issues of general importance, and that notwithstanding that the appeal should be allowed, it was appropriate that I give reasons for doing so. I accordingly allowed the appeal and now provide my reasons for that decision.

3 The respondent is a first class constable stationed with the Perth City Detectives Office. On 22 September 2005 at about midday he was driving west along Glendower Street, Highgate, when he observed a male person standing on a public footpath who was urinating against the front wall of a private property. The respondent stopped his vehicle and approached that male person who was the appellant, Mr Lackenby. Constable Kirkman requested from Mr Lackenby his name and address, and when given that information told him that he would be summonsed for disorderly conduct.

4 Constable Kirkman then asked Mr Lackenby for his date of birth but could not understand what the latter said. Mr Lackenby was asked to repeat the information but yelled abuse instead. As a result, Mr Lackenby was arrested by Constable Kirkman and taken to the Perth police station.

5 Upon arriving at the police station Constable Kirkman checked a computer database and ascertained Mr Lackenby's date of birth. Constable Kirkman also saw a photograph of Mr Lackenby on the computer which enabled him to confirm the latter's identity and that the particulars he was previously given were correct.

6 Constable Kirkman then requested and made a total of five attempts to obtain Mr Lackenby's fingerprints. However, Mr Lackenby did not co-operate, and on each attempt stiffened his hand and pulled it away from the paper. Constable Kirkman warned him a number of times that he would be charged with obstruction if he did not co-operate, but Mr Lackenby's only response was to state that the police "already had lots of his prints". Accordingly, Mr Lackenby was then charged with the offence the subject of the present appeal.

7 In his evidence before the Magistrate's Court, Constable Kirkman agreed that at the time of first charging Mr Lackenby with disorderly conduct, he had obtained sufficient particulars to proceed by way of summons. He only decided to arrest Mr Lackenby when the latter became abusive and started yelling loudly.

8 Constable Kirkman also agreed that at the time of requesting the fingerprints, he was aware of Mr Lackenby's name, address, and date of birth, and had identified him satisfactorily from a photograph in the computer system known as "PAI Mug-shot Imaging". He nevertheless requested the fingerprints because:

"If you put somebody through a lock-up or through the watch house it is a requirement that it's done for each and every person that's arrested."

9 In convicting Mr Lackenby of the offence of obstruction, the learned Magistrate noted that Constable Kirkman had requested the fingerprints because it was a standard police procedure. In his Honour's view:

" ... one can infer from that that as a result of it being standard police procedure he was of the view that it was necessary for that to occur, and one can understand that.

Sitting in this court on a regular basis there are often disputes as to whether or not the person charged was the actual person who committed the offence. One of the ways that can be ascertained is by the use of fingerprints and photographs. In my view, there is good reason for that standard procedure to be put in place and to take effect. As I say, in my view, it can reasonably be inferred from the evidence that Mr Kirkman when making the requirement was - - or did think that it was necessary for, in this case, in particular, fingerprints to be obtained." (T 37)

10 The appellant contends that there was no evidence that Constable Kirkman understood and applied the provisions of s 50AA(1) of the Police Act. Furthermore as the officer was aware of the identification of Mr Lackenby, fingerprinting was neither necessary or desirable, except to comply with police standard procedure. Accordingly there was no lawful request to Mr Lackenby to provide his fingerprints, nor any obstruction of Constable Kirkman in the performance of the latter's functions.

11 The respondent concedes the appeal on the basis that there was insufficient evidence to satisfy the learned Magistrate beyond reasonable doubt that Constable Kirkman acted in accordance with s 50AA. However, the respondent contends that Constable Kirkman would have been entitled to exercise his discretion under s 50AA notwithstanding his knowledge of Mr Lackenby's identity. In this regard it was "necessary or desirable" to conclusively establish that identification for the purposes of satisfying the court as to the same.

The entitlement of a police officer to obtain fingerprints

12 It is important to note that as a result of the Criminal Investigation (Identifying People) Act 2002 there is now a dual system which governs the taking of fingerprints by police officers from accused persons in custody. The new Act applies to fingerprints (or other identifying particulars) taken from persons charged with any offence carrying a statutory penalty of 12 months imprisonment or more. In such circumstances the fingerprints can only be taken by a police officer who is a "qualified person", and in accordance with specified procedures as set out in Pts 7 and 8 of that Act.

13 Accordingly, s 50AA of the Police Act now applies only to the taking of fingerprints and other particulars from persons in custody for any offence carrying a maximum penalty of less than 12 months imprisonment. In the present instance, the relevant offence was disorderly conduct which carried a statutory penalty of a $6000 fine.

14 In respect of persons in custody to which s 50AA applies, there is nothing to stop a police officer simply asking for the fingerprints and obtaining them by consent. As was said by the High Court in Carr v The Queen [1973] HCA 37; (1973) 127 CLR 662, at 663:

"There is nothing unlawful in asking a person, even if he be in custody, to provide fingerprints and, with his agreement, taking those fingerprints."

(However this is no longer the position in respect of persons charged with the more serious category of offences, because the procedures under the Criminal Investigation (Identifying People) Act 2002 must be followed even in respect of the consensual taking of fingerprints.)

15 The purpose of s 50AA of the Police Act is obviously to allow fingerprints (or other identifying particulars) to be taken in certain circumstances without consent. A police officer can only take such fingerprints or cause them to be taken if he or she thinks the same are "necessary or desirable for the identification" of the person. This involves the exercise of a discretion which is not governed by any objective criteria. So long as the officer bona fide considers that the fingerprints (or other particulars) are necessary or desirable for the purposes of identification, then the discretion will be validly exercised.

16 Nevertheless, in each particular instance when the question of taking fingerprints arises, the officer must turn his or her mind to the requirements of the section. It is not good enough to simply take a particular person's fingerprints as a matter of standard police procedure without any thought as to whether or not the same are necessary or desirable for identification. It follows that in the present instance the respondent quite properly conceded that the evidence did not prove a valid exercise of the discretion under s 50AA.

17 It might well be thought that the decision of Smith J in Bonder v Howell [1984] WAR 76 is inconsistent with the above reasoning. There the appellants had been convicted of hindering a police officer in the execution of his duty by refusing to provide fingerprints following their arrest on minor charges. However, the fingerprints were requested by an officer who had been assigned to general fingerprinting duties and was not one of the arresting officers. He requested that the appellants provide their fingerprints in accordance with standard procedures and conceded that "it had never occurred to him that he might have a discretion as to whether or not he required an accused person's fingerprints to be taken".

18 The convictions were nevertheless upheld on the basis that the Magistrate in the court below was correct in finding that the officer was acting in the execution of his duty when hindered by each of the appellants while taking their fingerprints. This was because it was the officer's "duty as a member of a disciplined police force physically to take the fingerprints of accused persons when requested by another officer so to do".

19 What may have been significant in that matter was that the arresting officers had not been questioned as to whether or not they had each considered it necessary or desirable for identification of the appellants that the fingerprints be taken. Accordingly, and as I understand the decision on appeal, the fingerprinting officer's duty to take fingerprints was not dependent upon his own state of mind in terms of s 50AA. He was simply carrying out his duty at the request of other officers, and it was the performance of that duty that was hindered by the appellants. (Nevertheless, and with all due respect, it could be argued that the prosecution bore the burden of proving a valid request, and I am not sure that I agree with the decision.)

20 In the present instance, Constable Kirkman was both the arresting officer and the officer requesting the fingerprints. At all material times he was satisfied as to Mr Lackenby's identity. The important issue that arises in these circumstances is whether it was at all possible for him to come to the view under s 50AA that fingerprints were "necessary or desirable for the identification" of the appellant.

21 This issue turns upon the proper meaning to be given to "identification" as used in the section. The appellant contends that the identification that the section contemplates is identification by the arresting officer. The respondent on the other hand submits that the section is referring to the evidence of identification that might need to be given to the court which tries the offence.

22 This same question has been considered in respect of very similar statutory provisions in other jurisdictions. In Duffield v Police (No 2) [1971] NZLR 710 the New Zealand Court of Appeal identified a number of reasons why the taking of fingerprints goes beyond merely identifying an accused person at the time of arrest:

"At that point of time police officers would be unable to forecast with certainty what particulars might ultimately be needed on the day of trial to identify the offender. In addition, this section must be considered in relation to the general function of the police force in its broader aspects. If the offender were to disappear during a remand after the granting of bail, or to escape from lawful custody, his identification, wherever he might be, would arise on the execution of a warrant issued for his apprehension, and particulars relating to his identity would be needed in that event to pursue inquiries amongst persons outside the force. Again in the instant case, the transfer, illness, or even death of one of the policemen who at the moment of his apprehension had personal knowledge of the appellant, might well have caused difficulty in proof of his participation at the scene of the trespass. There could even be cases where precision in taking particulars at the outset could serve to exonerate an innocent suspect of similar personal characteristics."

23 There are also two decisions in New South Wales to the same effect. In R v Carr [1972] 1 NSWLR 608 (which decision was upheld by the High Court in Carr v The Queen (supra)), the Court of Criminal Appeal doubted that the New South Wales equivalent of s 50AA was concerned with identification to the police, and thought that "it is identification to the court that matters". Similarly, in McPhail & Tivey (1988) 36 A Crim R 390, the New South Wales Court of Criminal Appeal held that:

"The section in defining the power of the officer to take fingerprints etc uses the expression 'all such such particulars as may be deemed necessary for the identification of such person' and it is plain that this gives an officer a very wide discretion as to when particulars of identification can be required. The power of the police officer under the section is not limited to cases where he might suspect that identification will be in dispute at the trial but is available in every case where it is considered by him to be necessary for the identification of the accused in court in whatever circumstances that may arise."

24 In my opinion these authorities reflect the correct approach to be taken when construing s 50AA. Accordingly, it does not matter that a police officer requesting fingerprints or other particulars from a person in custody might be well aware of that person's identity. So long as the officer thinks that such particulars are necessary or desirable for the identification of that person in court, then he is entitled to take or cause the same to be taken.

25 I confirm the orders made on 12 May 2006 that the appeal be allowed, the conviction be quashed, and that a verdict of acquittal be substituted.

26 Pursuant to the Official Prosecutions (Accused's Costs) Act 1973 the appellant is entitled to his costs of the appeal and of the trial in the summary court in respect of the conviction the subject of the appeal. I order that those costs are to be assessed by a Registrar for the purpose of determining the amount of that entitlement.