Sydney Office

Level 35
201 Elizabeth Street
Sydney NSW 2000

Melbourne Office

Level 13
575 Bourke Street
Melbourne VIC 3000

Brisbane Office

Level 5
231 North Quay
Brisbane QLD 4000

Canberra Office

Level 5
1 Farrell Place
Canberra ACT 2601

Perth Office

Level 10
111 St Georges Terrace
Perth WA 6000

Armstrong Legal Canberra

Privacy Policy  |  Terms & Conditions

Copyright © 2019 Armstrong Legal Canberra. All rights reserved.

Browsing

Phone 1300 168 676

menu

Toggle Menu Menu

Forensic material and procedures


Andrew Fraser

In this section you will find information about the taking of forensic material (fingerprints and photographs) for the purpose of identifying a person to a court.

The section also outlines other forensic procedures that may be carried out for the purpose of obtaining evidence against a person who is already identified as a suspect, including the taking of DNA samples.

Forensic material is taken off or from a person's body and includes a sample; a handprint, a fingerprint, a footprint or a toeprint; a photograph or video recording; and a cast or impression. "Sample" includes a sample that consists of matter from someone else's body.

A forensic procedure can be either intimate or non-intimate but does not include any intrusion into a person's body cavities (other than the mouth); or the taking of anything of or from a person's body for the sole purpose of establishing the identity of the person.

Intimate procedures

Intimate forensic procedure includes an external examination of the genital or anal area, the buttocks, or breasts; the taking of samples of blood and pubic hair; the taking of a sample by swab or washing from the external genital or anal area, the buttocks, or breasts; the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks, or breasts; the taking of a dental impression; the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks, or breasts.

(References to breasts apply to a female or a transgender or intersex person who identifies as female.)

Non-intimate procedures

A non-intimate forensic procedure includes an examination of a part of the body (other than the genital or anal area, buttocks, or breasts) that requires touching of the body or removal of clothing; the taking of a sample of hair (other than pubic hair); the taking of a sample from a nail or under a nail; the taking of a sample of saliva or a sample by buccal swab; the taking of a sample by swab or washing from any external part of the body (other than the genital or anal area, the buttocks, or the breasts; the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body (other than the genital or anal area, the buttocks, or breasts; the taking of a handprint, fingerprint, footprint or toeprint; the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body (other than the genital or anal area, the buttocks, or breasts).

(References to breasts apply to a female or a transgender or intersex person who identifies as female.)

Who is a suspect?

A suspect is defined in the Crimes (Forensic Procedures) Act 2000 (ACT) as any of the following:

  • a person suspected by a police officer, on reasonable grounds, to have committed an offence;
  • a person charged with an offence;
  • a person who has been summonsed to appear before a court for an offence;
  • a person who has entered into a voluntary agreement to attend court (VATAC) for an offence.

While that definition, talking of a person being "suspected", is given at Section 8 of the ACT, Section 107 says, "In any proceeding, the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds about a matter mentioned in this Act".

Your rights and forensic procedures

The powers police have to conduct forensic procedures are wide, but vary markedly according to the particular circumstances of each case.

If asked to consent to a forensic procedure, you should consult a lawyer who practices only in criminal law.

In a range of circumstances, police are still allowed to conduct forensic procedures despite the suspected person not having consented to them doing so.

The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions of the Crimes (Forensic Procedures) Act that authorise the carrying out of the procedure.

Authorisations for forensic procedures

What is Informed Consent?

A suspect gives informed consent to a forensic procedure if the suspect consents after a police officer:

  • requests the suspect to consent to the forensic procedure; and
  • informs the suspect about the forensic procedure in accordance with the Act; and
  • gives the suspect the opportunity to communicate, or attempt to communicate, with a lawyer of the suspect's choice.

The police officer must allow the suspect to communicate, or attempt to communicate, with the lawyer in private unless the police officer suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.

Again, in any proceeding, the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds.

What the police must do

Before requesting consent to a forensic procedure, the police officer must be satisfied on the balance of probabilities that you are a suspect (as defined in the Act).

If the forensic procedure is other than the taking of a handprint, fingerprint, footprint or toeprint, the alleged offence must be a serious offence (one punishable by a sentence of more an one year in prison).

Further, the police officer must be satisfied that there are reasonable grounds to believe that the procedure is likely to produce evidence tending to confirm or disprove that the suspect committed the alleged offence or another serious offence arising out of the same circumstances, or another serious offence for which the evidence likely to be obtained by the procedure would have probative value.

If the procedure is the taking of a handprint, fingerprint, footprint or toeprint, police must be satisfied that the alleged offence could not be dealt with by way of infringement notice.

The Act declares, "In deciding whether a request is justified in all the circumstances, the police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect".

In striking that balance, the police officer must consider:

  • the gravity of the alleged offence and the seriousness of the circumstances surrounding it;
  • the degree of the suspect's alleged participation;
  • the age, physical and mental health and cultural background of the suspect, "to the extent that they are known to the police officer";
  • whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the alleged offence;
  • if the suspect gives any reasons for refusing to consent–the reasons;
  • any other matter considered relevant to balancing those interests.

What you must be told

The police officer must inform a suspect:

  • that giving consent (if any) will be recorded and the suspect has a right to a copy;
  • the purpose for which the procedure is required;
  • the fact that the person is a suspect in the alleged offence;
  • the way in which the procedure is to be carried out;
  • that the procedure may produce evidence to be used against the person in court;
  • that the procedure will be carried out by an appropriately qualified person;
  • that the suspect may refuse to consent;
  • the consequences of not consenting;
  • that information obtained may be placed on the ACT DNA database and compared with information from the DNA databases of other participating jurisdictions;
  • that the suspect may apply to a court for an order that the forensic material obtained be destroyed, and the circumstances when the court may order destruction. (See Destruction of Forensic Material below)

The police officer must inform the suspect that the suspect may request that a doctor of the suspect's choice be present for an intimate forensic procedure and that a dentist of the suspect's choice may be present for taking of a dental impression or sample of saliva or sample by buccal swab.

If the suspect is in custody and the forensic procedure is a non-intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent, a police officer may order the carrying out of the procedure anyway and use reasonable force to do it.

If the suspect is in custody and the forensic procedure is an intimate forensic procedure, the police officer must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the procedure and reasonable force may be used to enable the procedure, if that order is made.

If the suspect is not in custody, the police officer must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure and reasonable force may be used to enable the procedure, if that order is made.

When can a Magistrate make an Order?

A magistrate may order the carrying out of a forensic procedure on a suspect if:

  • the suspect is not in custody and has not consented to the forensic procedure; or
  • the suspect is in custody, has been requested to consent and has not consented to the forensic procedure; or
  • the suspect is in custody and the investigation period when the suspect may lawfully be held has not yet expired; or
  • the suspect is a child or incapable person.

What a Magistrate must consider

The considerations for a magistrate mirror those for the police officer (listed above), namely that he or she must be satisfied on the balance of probabilities that you are a suspect (as defined in the Act).

If the forensic procedure is other than the taking of a handprint, fingerprint, footprint or toeprint, the alleged offence must be a serious offence (punishable by more than a year's imprisonment).

Further, the magistrate must be satisfied that there are reasonable grounds to believe that the procedure is likely to produce evidence tending to confirm or disprove that the suspect committed the alleged offence or another serious offence arising out of the same circumstances, or another serious offence for which the evidence likely to be obtained by the procedure would have probative value.

If the procedure is the taking of a handprint, fingerprint, footprint or toeprint, police must be satisfied that the alleged offence could not be dealt with by way of infringement notice.

The magistrate must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.

In striking that balance, the magistrate must consider:

  • the gravity of the alleged offence and the seriousness of the circumstances surrounding it;
  • the degree of the suspect's alleged participation;
  • the age, physical and mental health and cultural background of the suspect, "to the extent that they are known to the police officer";
  • if the suspect is a child or incapable person–the best interests of the suspect;
  • whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the alleged offence;
  • if the suspect gives any reasons for refusing to consent–the reasons;
  • any other matter considered relevant to balancing those interests.
  • if the suspect is in custody and the investigation period when the suspect may lawfully be held has not expired–
    • the period for which the suspect has already been detained; and
    • he reasons for any delay in proposing the carrying out of the forensic procedure;
  • any other matter considered relevant to balancing those interests.

What happens at court?

The suspect must be present at the hearing of the application unless:

  • the suspect is remanded or otherwise detained in lawful custody elsewhere in Australia and it is not practicable for the suspect to be present by audio link or audiovisual link.
  • the application (and summons, if any) has been served on the suspect and the suspect is not present.

If the suspect is a child or incapable person, the suspect must be represented by an interview friend and may also be represented by a lawyer. Any other suspect may be represented by a lawyer.

The suspect or his or her representative may cross-examine the police officer applying for the order and may, with the leave of the magistrate, call or cross-examine any other witnesses, and may address the magistrate. A magistrate may give leave only if satisfied there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined.

If the magistrate makes an order and the suspect is in custody, the suspect may be detained in custody for as long as reasonably necessary to carry out the procedure.

If the suspect is not in custody, the magistrate may, on the application of an authorised applicant, also make an order for the arrest of the suspect for the purpose of carrying out the procedure; and the magistrate can also order the removal of the suspect to the place where the procedure is to be carried out.

The magistrate may make an arrest and removal order only if satisfied on reasonable grounds that it is necessary to ensure that the procedure will be carried out, or satisfied that the suspect might destroy evidence that might be obtained by the procedure.

Having made an arrest and removal order, the magistrate may also issue a warrant for police to enter premises to arrest the suspect. The magistrate may issue a warrant only if satisfied on reasonable grounds that the warrant is necessary.

The warrant must state the hours when the premises may be entered and the date (within 7 days after the day the warrant is issued) that the warrant ends.

Immediate interim orders

A magistrate may make an interim order authorising the immediate carrying out of a forensic procedure on a suspect if satisfied that the probative value of evidence obtained because of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure.

The magistrate must also be satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the relevant matters mentioned in the Act when the application is finally decided.

An interim order operates until a magistrate, at a hearing, confirms the interim order or disallows it.

An application for an interim order may be made by telephone, radio, telex, fax or other means of communication.

The suspect must be in the presence of the authorised applicant when the application is made unless the suspect is remanded or otherwise detained in lawful custody elsewhere in Australia and it is not practicable for the suspect to be present by audio link or audiovisual link.

If the suspect is a child or incapable person, the suspect's interview friend or lawyer must also be in the presence of the authorised applicant. However, the suspect's interview friend (other than a lawyer) may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.

The suspect, or his or her lawyer or interview friend, must be given an opportunity to speak or make written submissions at the hearing of the application for the interim order.

Any police officer may, while waiting for the application seeking an interim order to be decided, use reasonable force to prevent the suspect destroying any evidence that might be obtained by carrying out the procedure if the order is made.

Rules for carrying out procedures

  • Reasonable privacy must be provided.
  • Not in the presence or view of anyone of the opposite sex.
  • Not in the presence or view of a person whose presence is not necessary.
  • Must not involve the removal of more clothing than is necessary.
  • Must not involve more visual inspection than is necessary.

A suspect is able to receive a part of any material taken for analysis, and a copy of a photograph or a video recording taken of a part of the person's body, and a copy of the results of the analysis of any samples taken.

Preventing a procedure - penalty

A person must not intentionally obstruct, hinder or resist a police officer or any other person authorised under this Act to exercise functions relating to the carrying out of a forensic procedure.

The maximum penalty is a fine of up to 200 penalty units and/or imprisonment for 2 years.

Serious offenders – post-conviction procedures

People convicted of serious offences can be ordered to undergo forensic procedures after they have been convicted. These procedures include the taking of samples of blood and of hair other than pubic hair, the taking of a buccal swab and the taking of fingerprints.

These procedures can be carried out without consent if the police (in the case of non-intimate procedures) or the court (for intimate procedures) have considered the relevant criteria in the Act.

If the serious offender's conviction is quashed, the forensic material obtained by the procedures must be destroyed as soon as practicable.

Admissibility of evidence of procedures

Evidence of a procedure can be admitted at court even if the procedure was carried out by breaching or failing to comply with the Crimes (Forensic Procedures) Act.

The evidence can be admitted if the person upon whom the procedure was carried out does not object or the court is satisfied on the balance of probabilities that the evidence should be admitted despite the breach of, or failure to comply with, the Act.

In doing this, the court may take into consideration:

  • the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
  • the reasons given for the breach of, or failure to comply with, the Act;
  • the gravity of the breach of, or failure to comply with, the Act;
  • whether the breach or failure to comply was intentional or reckless;
  • the nature of the provision of the Act that was breached or not complied with;
  • the nature of the offence concerned and the subject matter of the proceeding;
  • any other matters the court considers relevant.

The probative value of the evidence does not by itself justify the admission of the evidence.

Applying to have forensic material destroyed

A suspect can make an application to a court for an order that the forensic material taken from him or her be destroyed, as long as they satisfy lengthy criteria.

The suspect can only make such application if a proceeding was not brought against against the suspect for an offence to which the forensic material related, or such proceeding ended in an acquittal, and a year has passed since the material was taken.

On application, the court must order that the forensic material be destroyed unless satisfied that there are reasonable grounds to believe that the forensic material is likely to be of probative value in relation to the investigation of an offence not relating to the suspect or it believes the destruction is not justified in all the circumstances.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Brisbane: (07) 3229 4448
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777