LACKENBY -v- KIRKMAN [2006] WASC 164

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 164
Case No:	SJA:1021/2006	Heard:	12 MAY 2006
Coram:	BLAXELL J	Delivered:	9/08/06
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal allowed and conviction quashed Verdict of acquittal substituted
Category:	B
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Parties:	DANIEL PETER LACKENBY ANTHONY CHARLES KIRKMAN
Catchwords:	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
Legislation:	Police Act 1892 - 2004 (WA), s 50AA
Case References:	Bonder v Howell [1984] WAR 76 Carr v The Queen (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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LACKENBY -v- KIRKMAN [2006] WASC 164 CORAM : BLAXELL J HEARD : 12 MAY 2006 DELIVERED : 9 AUGUST 2006 FILE NO/S : SJA 1021 of 2006 BETWEEN : DANIEL PETER LACKENBY

Appellant

AND

ANTHONY CHARLES KIRKMAN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R K BLACK

File No : PE 47920 of 2005

Catchwords:

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

Legislation:

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

(Page 2)

Result:

Appeal allowed and conviction quashed

Verdict of acquittal substituted

Category: B

Representation:

Counsel:

Appellant : Ms H K Muhling

Respondent : Mr B M Hollingsworth

Solicitors:

Appellant : Beau Hanbury

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bonder v Howell [1984] WAR 76
Carr v The Queen (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

Case(s) also cited:

Sernack v McTavish (1970) 15 FLR 381
Tong v The Queen, unreported; CCA SCt of WA; Library No 970087; 12 March 1997

(Page 3)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lackenby v Kirkman

Details

AGLC: Lackenby v Kirkman [2006] WASC 164
Case: [2006] WASC 164
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the appeal by Daniel Peter Lackenby against his conviction for obstructing a public officer was heard by Blaxell J on 12 May 2006. The conviction arose from Lackenby's refusal to provide fingerprints while in lawful custody, as requested by Constable Anthony Charles Kirkman. The central issue was whether Constable Kirkman had a lawful basis under s 50AA of the Police Act 1892-2004 (WA) to request Lackenby's fingerprints, given that he already had sufficient information to identify him. The court had to determine if Constable Kirkman's request for fingerprints was justified under the statute, considering his awareness of Lackenby's identity.

Blaxell J held that Constable Kirkman's request for fingerprints was not justified under s 50AA because the officer failed to demonstrate that the fingerprints were necessary or desirable for identifying Lackenby in court. The court found that the term "identification" in the statute refers to the identification of the accused in court, not merely the identification by the arresting officer. Therefore, even if Constable Kirkman was satisfied with Lackenby's identity at the time of arrest, he still needed to consider whether fingerprints were necessary for future identification purposes in court. The reasoning was supported by authorities from New Zealand and New South Wales, which emphasized that the need for identification in court could arise in various circumstances, including the transfer or death of officers who originally identified the accused.

Consequently, the court quashed Lackenby's conviction and substituted a verdict of acquittal. The appeal was allowed on the basis that Constable Kirkman did not validly exercise his discretion under s 50AA. Additionally, Lackenby was granted his costs for the appeal and the trial in the summary court.

Orders