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Section 105.43 Criminal Code Act 1995
Recording Detainee Details

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Taking Identification Material from Person Detained Under a Preventative Detention Orderis an offence under Section 105.43 of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 2 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were a police officer, and,
  2. You took the fingerprints, recordings, handwriting samples, or photographs (or ‘identification material’) of a person under a preventative detention order.

You are permitted to take identification material if:

  1. You are the rank of sergeant or higher, and,
  2. The detained person consents in writing, or
  3. You believe on reasonable grounds it is necessary to take the material to confirm the person’s identity.

In that case, you may use such force as is reasonably necessary to obtain the material.

You must not take identification material if the detained person is:

  1. Under the age of 18 years (the child), or
  2. Incapable of managing his or her affairs unless a federal court judge orders the material to be taken or the child, or his or her parent or guardian, agrees in writing to the taking of the material or the detained capable adult agrees in writing to the taking of the material.

If you require Expert Legal Advice from an Experienced Criminal Defence Lawyer for your Recording Detainee Details matter, call Sydney Criminal Lawyers® today on
(02) 9261 8881
.

The Legislation

105.43  Taking fingerprints, recordings, samples of handwriting or photographs

(1)  A police officer must not take identification material from a person who is being detained under a preventative detention order except in accordance with this section.

Note:          A contravention of this subsection may be an offence under section 105.45.

(2)  A police officer who is of the rank of sergeant or higher may take identification material from the person, or cause identification material from the person to be taken, if:

(a)  the person consents in writing; or

(b)  the police officer believes on reasonable grounds that it is necessary to do so for the purpose of confirming the person’s identity as the person specified in the order.

(3)  A police officer may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.

(4)  Subject to this section, a police officer must not take identification material (other than hand prints, fingerprints, foot prints or toe prints) from the person if the person:

(a)  is under 18 years of age; or

(b)  is incapable of managing his or her affairs;

unless a Federal Magistrate orders that the material be taken.

Note:          A contravention of this subsection may be an offence under section 105.45.

(5)  In deciding whether to make such an order, the Federal Magistrate must have regard to:

(a)  the age, or any disability, of the person; and

(b)  such other matters as the Federal Magistrate thinks fit.

(6)  The taking of identification material from a person who:

(a)  is under 18 years of age; 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 a parent or guardian of the person is not acceptable to the person—another appropriate person.

Note 1:       For appropriate person, see subsection (11).

Note 2:       A contravention of this subsection may be an offence under section 105.45.

(7)  Despite this section, identification material may be taken from a person who is under 18 years of age and is capable of managing his or her affairs if:

(a)  subsections (8) and (9) are satisfied; or

(b)  subsection (8) or (9) is satisfied (but not both) and a Federal Magistrate orders that the material be taken.

In deciding whether to make such an order, the Federal Magistrate must have regard to the matters set out in subsection (5).

(8)  This subsection applies if the person agrees in writing to the taking of the material.

(9)  This subsection applies if either:

(a)  a parent or guardian of the person; or

(b)  if a parent or guardian is not acceptable to the person—another appropriate person;

agrees in writing to the taking of the material.

Note:          For appropriate person, see subsection (11).

(10)  Despite this section, identification material may be taken from a person who:

(a)  is at least 18 years of age; and

(b)  is capable of managing his or her affairs;

if the person consents in writing.

(11)  A reference in this section to an appropriate person in relation to a person (the subject) who is under 18 years of age, or incapable of managing his or her affairs, is a reference to a person who:

(a)  is capable of representing the subject’s interests; and

(b)  as far as is practicable in the circumstances, is acceptable to the subject and the police officer who is detaining the subject; and

(c)  is none of the following:

(i)  an AFP member;

(ii)  an AFP employee (within the meaning of the Australian Federal Police Act 1979);

(iii)  a member (however described) of a police force of a State or Territory;

(iv)  an officer or employee of the Australian Security Intelligence Organisation.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

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