If Police take my Fingerprints, can I have them destroyed?

Posted by janelle.tarabay on 21 February 2019

If a person is taken into custody and charged with an offence, police have the power to take all particulars necessary to identify that person. This includes taking the person’s photograph, finger-prints and palm-prints.

Generally, this information will remain on the police record, even after the criminal proceedings against that person have concluded. But is there a way to have these records removed? The short answer is yes, but only in certain circumstances and only by direct request to the Commissioner of police.

Not Guilty

If you have been found not guilty of an offence, or the offence is not proven, you can make a request to the Commissioner to destroy your finger-prints or palm-prints.

An offence is taken to be not proven if:

  • A person is found not guilty or acquitted of an offence, or
  • A person is convicted of an offence, but on appeal that conviction is quashed and an acquittal is entered, or
  • 12 months have passed since the taking of a person’s finger-prints or palm-prints, and during that period (provided an extension has not been granted) proceedings in respect of the offence have not been instituted, or have been discontinued

After receiving request that fits into one of these categories, the Commissioner must, as soon as reasonably practicable, destroy the persons finger-prints and palm-prints.

The statutory test for destroying photographs is slightly different. Regardless of whether an offence is not proven, the Commission has the power to destroy a person’s photograph if the Commissioner “considers it to be appropriate” to do so. Again, this must be made by request and the fact that offence has been not proven is likely to assist in ensuring your photograph is destroyed.

Guilty

If you have been found guilty of an offence, there is no automatic statutory basis to ensure your finger-prints and palm-prints are removed from police records. This includes if you have been found guilty, but no conviction has been recorded against you.

However, the legislation still allows a Commissioner to destroy all particulars if it is considered appropriate. Accordingly, a request can still be made to the Commissioner, but the request should outline the reasons why it is appropriate that this information be destroyed.

We have written to the police Commissioner on a number of occasions to have our clients fingerprints and identification particulars removed. If you are concerned about this, or would like to apply to have them removed, please contact us on (02) 9025 9888 or info@streetonlawyers.com.au

“Would this be a problem in Jervis Bay?” – Offences committed on passenger planes

Posted by Justin Wong on 14 February 2019

Normally when there is a criminal allegation, the particular state laws that apply are clear. It’s normally where the incident occurred, for example in NSW or Qld. If it’s a federal offence, regardless of where it happened, the Commonwealth DPP might prosecute the case, but the charges will be brought in the state or territory the incident occurred.

However, when someone is flying across states, or flying internationally in and out of Australia, the legal position can be slightly more complicated.

Federal Offences and the Jervis Bay Connection

Because aviation is a federal matter, offences committed on passenger planes are federal offences.

The Crimes (Aviation) Act 1991 (Cth) governs what happens. As well as providing for specific offences such as hijacking, taking control of an aircraft, or assaulting members of the plane crew, it also makes most things that would be illegal on the ground illegal in the air.

It does this by picking up offences as they would apply in the Jervis Bay Territory, which is a territory of the Commonwealth of Australia. So, if a person is 1) on-board an aircraft flying for example between 2 parts of Australia or within a state or territory; and 2) they do something that, if it had taken place in Jervis Bay, would be an offence; then they’re taken to committed the same offence with the same penalty. Most commonly known offences like assault, murder, intimidation or sexual offences are offences in Jervis Bay.

Normally, the Commonwealth DPP will prosecute these allegations where the accused was arrested.  This is normally where the flight ends or where the person was questioned or arrested.

If you’ve been charged with an aviation related offence, contact us to speak with one of our experienced lawyers on (02) 90259888.

Case Study – Mid-Range Drink Driver Avoids Conviction and Disqualification

Posted by Justin Wong on 12 February 2019

Last week, one of our client’s represented by Maxine Malaney avoided a conviction with a Conditional Release Order for a mid-range drink-driving offence.

Ordinarily, this offence carries a mandatory disqualification from driving for 3 – 6 months and a mandatory interlock period of 12 months, in addition to a criminal conviction and penalty.

Maxine’s client was stopped by a random breath test the morning after a night out. There were several aggravating features of the offence, including that he was driving a very long distance and had a young passenger in the car. The client also had a prior conviction for high-range drink driving.

Maxine tendered extensive subjective material relating to her client’s need for a licence to support his family and do his job. She argued that in the circumstances, the Court should take the unusual step of not convicting her client. Ultimately, the Magistrate agreed and Maxine’s client left the court without a criminal conviction or a disqualification from driving.

For more information on drink-driving offences, see our drink driving page. If you have been charged with a drink-driving offence, contact one of our criminal law specialists on (02) 9025 9888.

 

What Criminal Charges is the Royal Commission suggesting for our banks?

Posted by janelle.tarabay on 05 February 2019

Almost everyone in Australia would have heard about the scathing report Justice Hayne produced in relation to the conduct of our financial institutions yesterday, which came after the conclusion of the Royal Commission into Misconduct in the Banking, Superannuating and Financial Services Industry.

Specifically, Justice Hayne heavily criticised banks for taking payment for financial services they never intended to or knew they could not supply.

The media is reporting about the criminal charges that Justice Hayne recommended ASIC investigate, but what are they and what are the potential consequences for our banks?

The offence of Dishonest Conduct

The main offence Justice Hayne speaks of is section 1041G Corporations Act 2001, specifically:Under Section 769B of the Corporations Act 2001, a person can include a ‘Body Corporate’ i.e. a bank, if the conduct engaged in was on behalf of a body corporate.

In criminal legislation, dishonesty is most commonly seen in offences of fraud, for example in the Crimes Act 1900 ‘Dishonestly obtaining a financial advantage’. The offence of Dishonest Conduct relies on similar concepts of dishonesty.

Criminal offences have a very high burden of proof, specifically the elements need to be proven “beyond reasonable doubt”. For a person or body corporate to be found guilty of ‘Dishonest Conduct’ there needs to be evidence to establish beyond reasonable doubt that the person or body corporate physically engaged in the dishonest conduct, and evidence that establishes beyond reasonable doubt the mental element. This is that they intended to engage in the conduct in circumstances of dishonesty, or were reckless as to the commission of the dishonest conduct.

A ‘dishonesty offence’ in the Corporations Act 2001 therefore has criminal penalties. The maximum penalties for a person being imprisonment for 10 years and or a fine of up to $495,000. As you cannot sentence a body corporate to imprisonment, the maximum penalty is a fine of up to $4,950,000 or three times the total value of the benefit obtained.

Individuals have been charged with this offence before and usually tried before the District Court of NSW. It will be interesting to see where and how the banks will be charged and tried.

Offence of Failure to Report

This is an offence that covers banks who do not report to ASIC breaches of their financial services ‘general obligations‘ within 10 days after becoming aware of the breach: section 912D Corporations Act 2001.

A breach can include, not doing all things necessary to ensure that the financial services are provided efficiently, honestly and fairly. (section

The Royal Commission determined that banks had numerous breaches that were delayed in being reported to ASIC or not reported to ASIC.

Like section 1041G, if a ‘financial services licensee’ does not report a breach in time, it is an offence under the Corporations Act 2001 and faces criminal responsibility.

The maximum penalty for a person is 1-year imprisonment and or a fine of $5,500. For a body corporate, the maximum penalty is a fine of $27,500.

Offence of Accepting Payment without intending or being able to supply as ordered

This is an offence under the Australian Securities and Investments Commission Act 2001 (The ASIC Act).

The elements of this offence are that if a person (or body corporate):

  1. Accepts payment or other consideration for financial services; and
  2. At the time of acceptance, the person intends or there are reasonable grounds for believing that the person will not be able to supply the financial services or to supply financial services materially different from the financial services in respect of which the payment or other consideration is accepted.

Unlike the Corporations Act offences however the maximum penalty for both person or body corporate is a fine only. For a person, the maximum penalty is $220,000 and for a body corporate $1,100,000.

A person or body corporate must be charged within 3 years of the commission of the offence, which may limit the number of people able to be charged who were investigated in the Royal Commission.

We now await the results of ASIC’s investigation to learn whether any individuals or banks will be charged, for the alleged wrongdoing the Royal Commission has reported.