Carr v The Queen [1973] HCA 37

High Court of Australia Menzies, Walsh, Gibbs, Stephen and Mason JJ. Carr v The Queen [1973] HCA 37

ORDER Special leave to appeal refused. Menzies J.

The applicant was convicted of stealing upon evidence that his fingerprints were found in two houses which had been broken into and from which goods had been stolen. The stealing occurred a long time ago, in July 1960, and the fingerprints were found about that time. They were identified as those of the applicant, but he was not then found.

He was, however, arrested in 1971 upon another charge of theft, and his fingerprints were taken. He was acquitted of that charge but, being then charged with the offences committed in 1960, he was, upon request but without any warning, fingerprinted. So far as appears, he consented to this.

The contention is that the fingerprints then taken were not admissible or, alternatively, that in the exercise of the learned judge's discretion they ought to have been rejected. The Court of Appeal decided to the contrary, and the applicant seeks special leave to appeal. Mr. Houlihan has said what can be said in support of that application.

Both contentions rest upon the submission that the taking of the fingerprints, in the circumstances which we have stated, was unlawful. The Court of Appeal decided it was not so [1] . With this we agree. There is nothing unlawful in asking a person, even if he be in custody, to provide fingerprints and, with his agreement, taking those fingerprints. That appears to be the position here.

1. [1972] 1 N.S.W.L.R. 608.

Furthermore, s. 353A of the Crimes Act N.S.W. confers an authority to take the fingerprints, when a person is in lawful custody for an offence punishable on indictment. It has been submitted that s. 353A cannot apply on two grounds; first of all, that it is limited to the cases where a person has already been convicted. This depends upon the particular construction of the language "in lawful custody for any offence" which, when contrasted with the language of the earlier sections, "in lawful custody upon a charge of committing an offence", is said to indicate that the charge has already been disposed of and the person has been convicted and that the identification is merely for the purpose of records of conviction or prison records.