Forensic Procedures

We appear in all Forensic Procedure applications.

Why choose McKenzie McLaughlin Law?

A forensic procedure quite often involves the taking of a forensic sample (or photograph) from a person who is referred to as a ‘suspect.’ So as to protect a person’s rights, the forensic procedure legislation is intended to provide a balance between the fundamental rights of citizens who are perhaps only suspected of a crime, against the public interest in investigating & prosecuting crime.

Our lawyers have significant experience in dealing with forensic procedure applications, and they will ensure you make an informed decision when asked to consent to one. Too often, a person consents to the procedure in police custody which means that the procedure is conducted without proper advice being provided to them.

It is important to know that these applications can be defended, and as such you will need advice from an experienced criminal lawyer to maximise your chances of success. As former prosecutors, Josh and James have significant experience in what takes place before these applications are made by police. They also have experience in appearing in contested applications before a court. Let their experience work to your advantage.

Photographs, Fingerprints & Palmprints

If you over 14 years of age and are lawfully in police custody for an offence, police may take all particulars necessary to identify you, including your photograph, fingerprints & palmprints. However, they will need your consent or a court order to conduct a forensic procedure in certain cases. Examples are provided below:

• If the person in police custody is under 14 years of age, police need a court order to take photographs, fingerprints & palmprints. This application to the court can be defended.
• If you are not in police custody, police need to bring an application before a court to obtain your photograph, fingerprints & palmprints. This is known as a Forensic Procedure Application and can be defended.

Your DNA & when it can be taken

The Crimes (Forensic Procedures) Act 2000 defines the types of forensic procedures police can undertake and governs the detailed procedures for when and how any sample can be taken.

What does “forensic procedure” mean?

Firstly, a “forensic procedure” does not include:

• any intrusion into a person’s body cavities except the mouth; or
• the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.

There are two types of procedures, Intimate & Non-Intimate procedures, what do they mean?

Intimate Forensic Procedures

An “intimate forensic procedure” can only be carried out in relation to a “prescribed offence”. A “prescribed offence” means an Indictable offence or one prescribed by the regulations, although there are currently no other offences prescribed by the regulations.

An intimate forensic procedure means any of the following:

• An external examination of a person’s private parts.
• The carrying out on a person of another an administered buccal swab.
• The taking from a person of a sample of the person’s blood.
• The taking from a person of a sample of the person’s pubic hair.
• The taking from a person of a sample of any matter, by swab or washing, from the person’s private parts.
• 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.
• The taking from a person of a dental impression.
• The taking of a photograph of the person’s private parts.
• The taking from a person of an impression or cast of a wound from the person’s private parts.

Non-Intimate Forensic Procedures

A “non-intimate forensic procedure” can be carried out in relation to either an Indictable or Summary offence.

A “non-intimate forensic procedure” means any of the following:

• 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.
• The carrying out on a person of a self-administered buccal swab.
• The taking from a person of a sample of the person’s hair, other than pubic hair.
• 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.
• 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.
• 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.
• The taking from a person of the person’s hand print, finger print, foot print or toe print.
• The taking of a photograph of a part of a person’s body, other than the person’s private parts.
• 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.
• 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.

Time limits for carrying out forensic procedures

Section 6 of the Act sets out terms the time limits that apply to the carrying out of a forensic procedure on a suspect, generally that time is 2 hours from when the procedure is authorised.

Who is authorised to make an order?

A Forensic Procedure Application is usually made by a police officer to a court, or in certain circumstances for non-intimate procedures to a senior police officer. If a senior police officer makes order, then even when a person does not consent, they will have to comply.

Alternatively, an order can be made by a Court in circumstances when you do not consent or in circumstances where you can’t consent (under 18 or incapable persons as defined by the Act).

1. i) A Senior Police officer: For non-intimate forensic procedures, on suspects in lawful police custody, who are not children or incapable persons.
2. ii) An Authorised Justice: Have the power to make an ‘interim order’, usually an on-call Magistrate or Registrar of particular courts. An ‘interim order’ can only be made when it is likely the forensic evidence will be lost or destroyed if there is delay in carrying out the procedure. An ‘interim order’ only operates until a Magistrate, at a subsequent hearing either confirms or disallows the ‘interim order’.

iii) Magistrate: Can make Final Orders.

What is informed consent & what are your rights?

You can only give informed consent to a forensic procedure if the you consent after a police officer has asked you to consent to the forensic procedure under section 11, and the police officer personally or in writing, gives you:

• the information that you must be given under section 13 (1) (a), (e), (f), (g), (i), (j) and (k), and
• a description of the nature of the information that you must be given under section 13 (1) (b), (c) and (d) (but not the specific information that the suspect is to be given under these paragraphs in relation to the particular forensic procedure), and
• informs you about the forensic procedure in accordance with section 13, and
• gives you a reasonable opportunity to attempt to communicate with an Australian legal practitioner of your choice.

In addition, a police officer can’t ask you to undergo a forensic procedure unless they are satisfied of all of the following:

• the police officer suspects on reasonable grounds you have committed an offence.
• there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove you committed the offence or another offence (either prescribed offence or otherwise depending on the procedure sought).
• the request for consent is justified in all the circumstances.
• you are not a child nor an incapable person.

Further, the police officer must (personally or in writing) inform you of the following matters:

• that what the police inform you and what you say about consent, is being or will be electronically recorded, or recorded in writing, and that you have a right to watch the recording.
• the purpose the forensic procedure is required for.
• the offence the police officer wants the forensic procedure undertaken for.
• how the forensic procedure is to be carried out.
• that the forensic procedure may produce evidence against you and be used in court.
• that the forensic procedure will be performed by a qualified police officer or person.
• that you may refuse to consent to the carrying out of the forensic procedure and the consequences of not consenting.
• if you identify as an Aboriginal person or a Torres Strait Islander, that the your interview friend may be present while the forensic procedure is carried out.
• that your DNA profile may be placed on a DNA database system.
• you have certain rights to have a medical practitioner or dentist present during some types of forensic procedures.

How do I challenge an application in court?

Like any court proceeding, you may be able to challenge the application in court.

The applicant (police) have to prove that there are reasonable grounds to believe that:

• you committed the offence alleged in the application; and
• the procedure might produce evidence to confirm or disprove the above; and
• the carrying out of such a procedure is justified in all the circumstances.

The police officer who made the application can be cross-examined and with leave of the court, other witnesses may need to be cross-examined if, as the Act states, there are “substantial reasons why, in the interests of justice, the witness should be called or cross-examined.”

How might all this impact on a criminal hearing?

Forensic evidence may have a significant impact on a criminal hearing,so don’t underestimate the importance of obtaining good advice early and don’t just consent before speaking to us. If an order has been made already, please remember that an experienced criminal lawyer may be able to still challenge the evidence in a trial or hearing as being inadmissible, or, ensure a court places the appropriate amount of weight on it. There are significant evidentiary considerations when dealing with photographs, fingerprints and DNA that only an experienced criminal lawyer would likely raise, that may have s significant impact on the outcome of your case.