top of page
Search
  • Writer's pictureGeoff Harrison

Police obtaining DNA or Forensic Evidence From Suspects

Updated: Nov 3, 2023



Best Barrister, Best Lawyer, Best Solicitor, Best Criminal Barrister, Forensic Procedure, Forensic Procedure Act, Criminal Barrister, Criminal Lawyer, Criminal Solicitor, Children DNA, Suspects DNA

Published by Geoff Harrison | 19 October 2023

The Crimes (Forensic Procedures) Act 2000 ('the Act') allows police to obtain forensic evidence from suspects whether under arrest or not under arrest. Where the suspect is an adult in custody, a non-intimate forensic procedure can be ordered by a senior police officer: s17(1) of the Act.


Where the suspect is an incapable person, a child, or a person not consenting to an intimate forensic procedure, an order to carry out a forensic procedure can only be made by a magistrate.


The time limits for carrying out forensic procedures are set out in s6 of the Act.


Other Sources:

Cases:

________________________________________________________________________________________

Extracted Legislation:



CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 17

Non-intimate forensic procedure may be carried out by order of senior police officer


(1) A person is authorised to carry out a non-intimate forensic procedure on a suspect by order of a senior police officer under section 18. The person is authorised to carry out the procedure in accordance with Part 6 and not otherwise.


(2) This Part does not authorise the carrying out of a forensic procedure on a suspect who is--

(a) a child, or

(b) an incapable person.


(3) This Part does not authorise keeping a suspect under arrest, in order to carry out a forensic procedure, for more than 2 hours after the expiration of the investigation period provided for by section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002 .


(4) In working out any period of time for the purposes of subsection (3), any time out is to be disregarded.


(5) Nothing in this Act or Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 prevents the carrying out of a forensic procedure, in accordance with a senior police officer's order under section 18, during the investigation period provided for by section 115 of that Act. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operate to extend the investigation period provided for by Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 .


CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 44

General rules for carrying out forensic procedures


A forensic procedure--


(a) must be carried out in circumstances affording reasonable privacy to the suspect and except as permitted (expressly or impliedly) by any other provision of this Act, must not be carried out in the presence or view of a person who is of the opposite sex to the suspect, and

(b) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure or required or permitted by another provision of this Act, and

(c) must not involve the removal of more clothing than is necessary for the carrying out of the procedure, and

(d) must not involve more visual inspection than is necessary for the carrying out of the procedure.


CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 57

Recording of forensic procedure


(1) The carrying out of a forensic procedure must be recorded by electronic means unless--

(a) the suspect objects to the recording, or

(b) the recording is not practicable.


(1A) Subsection (1) does not apply to--

(a) the taking of a hand print, finger print, foot print or toe print, or

(b) the taking of a photograph, but only if the taking of such a photograph constitutes a non-intimate forensic procedure.


(2) Before the forensic procedure is carried out, the suspect must be informed--

(a) of the reasons for recording the carrying out of the forensic procedure, including the protection that the recording provides for the suspect, and

(b) that the suspect may object to the recording.


(3) Despite section 99, an interview friend of a person who identifies as an Aboriginal person or Torres Strait Islander, and is not a child or an incapable person, has no right to object to the recording of the forensic procedure.

Note : Section 99 gives interview friends and legal representatives general powers to act on behalf of suspects. Section 54 applies to children and incapable persons, including children or incapable persons who are Aboriginal persons or Torres Strait Islanders, but does not apply to other Aboriginal persons or Torres Strait Islanders.


(4) If the carrying out of the forensic procedure is not to be recorded by electronic means, the forensic procedure must be carried out in the presence of an independent person who is not a police officer.


(5) Subsection (4) does not apply if the suspect expressly and voluntarily waives his or her right to have an independent person present, but such a person may nevertheless be present if the investigating police officer so directs.


(6) Nothing in this section prevents any recording of a forensic procedure being made for the purpose of maintaining good order, discipline and security in a correctional centre or other place of detention.


CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 59

Photographs


Where a forensic procedure involves the taking of a photograph of a part of a suspect's body, the investigating police officer concerned must ensure that a copy of the photograph is made available to the suspect.


Note : Part 13 contains provisions about making copies of material available to the suspect.


CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 82

Inadmissibility of evidence from improper forensic procedures


(1) This section applies where--

(a) a forensic procedure has been carried out on a person, and

(b) there has been any breach of, or failure to comply with--

(i) any provision of this Act in relation to a forensic procedure carried out on a person (including, but not limited to, any breach of or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out), or

(ii) any provision of Part 11 with respect to recording or use of information on the DNA database system.


(2) This section does not apply if--

(a) a provision of this Act required forensic material to be destroyed, and

(b) the forensic material has not been destroyed.

Note : Section 83 applies where this Act requires forensic material to have been destroyed.


(3) This section applies--

(a) to evidence of forensic material, or evidence consisting of forensic material, taken from a person by a forensic procedure, and

(b) to evidence of any results of the analysis of the forensic material, and

(c) to any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.


(4) If this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless--

(a) the person does not object to the admission of the evidence, or

(b) in the opinion of the court the desirability of admitting the evidence outweighs the undesirability of admitting evidence that was not obtained in compliance with the provisions of this Act, or

(c) in the opinion of the court, the breach of, or failure to comply with, the provisions of this Act arose out of mistaken but reasonable belief as to the age of a child.


(5) The matters that may be considered by the court for the purposes of subsection (4) (b) are the following--

(a) the probative value of the evidence,

(b) the reasons given for the failure to comply with the provision of this Act,

(c) the gravity of the failure to comply with the provisions of this Act, and whether the failure deprived the person of a significant protection under this Act,

(d) whether the failure to comply with the provision of this Act was intentional or reckless,

(e) the nature of the provision of this Act that was not complied with,

(f) the nature of the offence concerned and the subject matter of the proceedings,

(g) whether admitting the evidence would seriously undermine the protection given to suspects by this Act,

(h) whether the breach of or failure to comply with the provision of this Act was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,

(i) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the breach or failure to comply,

(j) the difficulty (if any) of obtaining the evidence without contravention of an Australian law,

(k) any other matters the court considers to be relevant.


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


(7) If a judge permits evidence to be given before a jury under subsection (4), the judge must--

(a) inform the jury of the breach of, or failure to comply with, a provision of this Act, and

(b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.


CRIMES (FORENSIC PROCEDURES) ACT 2000 - SECT 103

Proof of belief or suspicion


In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that a police officer had a belief on reasonable grounds, or suspected on reasonable grounds, as to a matter referred to in this Act.


3 INTERPRETATION

"forensic procedure" means--

(a) an intimate forensic procedure, or

(b) a non-intimate forensic procedure,

but does not include--

(d) any intrusion into a person's body cavities except the mouth, or

(e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

Note : Paragraph (e) makes it clear that the Act only applies to samples taken for forensic purposes and not to samples taken purely to establish the identity of a person.


...

"incapable person" means an adult who--

(a) is incapable of understanding the general nature and effect of a forensic procedure, or

(b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.


"informed consent" in relation to--

(a) a suspect--is defined in section 9, and

(b) a serious indictable offender--is defined in section 67, and

(b1) an untested former offender--is defined in section 75F, and

(b2) an untested registrable person--is defined in section 75V, and

(c) a volunteer or parent or guardian of a volunteer--is defined in section 77.


"investigating police officer" means any police officer involved in the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.


"intimate forensic procedure" means any of the following--

(a) an external examination of a person's private parts,

(b) the carrying out on a person of an other-administered buccal swab,

(c) the taking from a person of a sample of the person's blood,

(d) the taking from a person of a sample of the person's pubic hair,

(e) the taking from a person of a sample of any matter, by swab or washing, from the person's private parts,

(f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from the person's private parts,

(g) the taking from a person of a dental impression,

(h) the taking of a photograph of the person's private parts,

(i) the taking from a person of an impression or cast of a wound from the person's private parts.


"non-intimate forensic procedure" means any of the following--

(a) an external examination of a part of a person's body, other than the person's private parts, that requires touching of the body or removal of clothing,

(b) the carrying out on a person of a self-administered buccal swab,

(c) the taking from a person of a sample of the person's hair, other than pubic hair,

(d) the taking from a person of a sample (such as a nail clipping) of the person's nails or of matter from under the person's nails,

(e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person's body, other than the person's private parts,

(f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person's body, other than the person's private parts,

(g) the taking from a person of the person's hand print, finger print, foot print or toe print,

(h) the taking of a photograph of a part of a person's body, other than the person's private parts,

(i) the taking from a person of an impression or cast of a wound from a part of the person's body, other than the person's private parts,

(j) the taking of measurement of a person's body or any part of a person's body (other than the person's private parts) whether or not involving the marking of the person's body.


"senior police officer" means a police officer of or above the rank of sergeant.


"suspect" means the following--

(a) a person whom a police officer suspects on reasonable grounds has committed an offence,

(b) a person charged with an offence,

(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person.



1 view0 comments

Recent Posts

See All

Bias

bottom of page