(7) In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(8) The taking of identification material from a person who:
(a) is under 18; or
(b) is incapable of managing his or her affairs;
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
(9) Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is under 10 or is incapable of managing his or her affairs;
if a magistrate orders that the material be taken.
(10) Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is at least 10 but under 18; and
(c) is capable of managing his or her affairs;
if one of the following paragraphs applies:
(d) the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;
(e) if:
(i) one of those persons agrees in writing to the taking of the material but the other does not; and
(ii) a magistrate orders that the material be taken.
(11) In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).
(12) Despite this section, identification material may be taken from a person who:
(a) is at least 18; and
(b) is capable of managing his or her affairs; and
(c) is not a suspect;
if the person consents in writing.
3ZK Destruction of identification material
(1) If:
(a) identification material has been taken from a person under section 3ZJ; and
(b) a period of 12 months has elapsed since the identification material was taken; and
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(c) proceedings in respect of an offence to which the investigation material relates have not been instituted or have been discontinued;
the identification material must be destroyed as soon as practicable.
(2) If identification material has been taken from a person under section 3ZJ and:
(a) the person is found to have committed an offence to which the identification material relates but no conviction is recorded; or
(b) the person is acquitted of such an offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the identification material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence to which the identification material relates is pending.
(3) A magistrate may, on application by a constable, extend the period of 12 months referred to in subsection (1) or that period as previously extended under this subsection in relation to particular identification material if the magistrate is satisfied that there are special reasons for doing so.
3ZL Offence of refusing to allow identification material to be taken
(1) If a person is convicted of an offence, the judge or magistrate presiding at the proceedings at which the person was convicted may order:
(a) the person to attend a police station; or
(b) that a constable be permitted to attend on the person in a place of detention;
within one month after the conviction to allow impressions of the person’s fingerprints and/or or a photograph of the person to be taken in accordance with the order.
(2) A person must not refuse or fail to allow those impressions or a photograph of the person to be taken.
Penalty: Imprisonment for 12 months.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(3A) The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person’s fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.
(3B) A person commits an offence if:
(a) the person is subject to an order under subsection (3A); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: Imprisonment for 12 months.
(3C) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
(4) Nothing in this section derogates from the right to use the provisions of Part ID as authority for the taking of fingerprints from a prescribed offender or a serious offender.
(5) In subsection (4), prescribed offender and serious offender have the meanings given in subsection 23WA(1).
3ZM Identification parades
(1) This section applies to identification parades held in relation to offences.
(2) Subject to subsection (3) and to section 3ZN, an identification parade:
(a) may be held if the suspect agrees; or
(b) must be held if:
(i) the suspect has requested that an identification parade be held; and
(ii) it is reasonable in the circumstances to do so.
(2A) Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(3) An identification parade must not be held unless the suspect has been informed that:
(a) he or she is entitled to refuse to take part in the parade; and
(b) if he or she refuses to take part in the parade:
(i) evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and
(ii) evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and
(c) in addition to any requirement under section 3ZN, a legal representative or other person of the suspect’s choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4) The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.
(5) An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.
(6) Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:
(a) the parade must consist of at least 9 persons;
(b) each of the persons who is not the suspect must:
(i) resemble the suspect in age, height and general appearance; and
(ii) not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
(c) unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e) if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;
(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:
(i) a legal representative or other person of the suspect’s choice is present with the witness; or
(ii) the parade is recorded by a video recording;
(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h) if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i) the suspect may select where he or she wishes to stand in the parade;
(j) if more than one witness is to view the parade:
(i) each witness must view the parade alone; and
(ii) the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
(iii) the suspect may change places in the parade after each viewing;
(k) each witness must be told that:
(i) the suspect may not be in the parade; and
(ii) if he or she is unable to identify the suspect with reasonable certainty he or she must say so;
(l) the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m) if the parade is not recorded by a video recording:
(i) the parade must be photographed in colour; and
(ii) a print of a photograph of the parade that is at least 250mm 200mm in size must be made available to the suspect or his or her legal representative; and
(iii) the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;
(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7) Nothing in this Act affects the determination of the following questions:
(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b) if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;
(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8) If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.
3ZN Identification parades for suspects under 18 etc.
(1) An identification parade must not be held for a suspect who is under 10.
(2) An identification parade must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held.
(3) An identification parade must not be held for a suspect who:
(a) is at least 10 but under 18; and
(b) is capable of managing his or her affairs;
unless one of the following paragraphs applies:
(c) the suspect agrees to or requests in writing the holding of the parade and a parent or guardian of the suspect agrees in writing to the holding of the parade or, if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect agrees in writing to the holding of the parade;
(d) if:
(i) one of those persons agrees in writing to the holding of the parade but the other does not; and
(ii) a magistrate orders that the parade be held.
(4) In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(5) An identification parade for a suspect who is under 18 or is incapable of managing his or her affairs must be held in the presence of:
(a) a parent or guardian of the suspect; or
(b) if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect.
3ZO Identification by means of photographs
(1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a constable investigating the offence must not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless:
(a) the suspect has refused to take part in an identification parade; or
(aa) the suspect’s appearance has changed significantly since the offence was committed; or
(b) the holding of an identification parade would be:
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
(1A) Without limiting the matters that may be taken into account in determining whether it would be unreasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case—to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(2) If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the constable must show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect must be of a person who:
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;
(c) the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;
(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.
(3) If:
(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d) the photograph or picture is admitted into evidence;
the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.
(4) If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.